Refl ections on the Principle of Equal Treatment in EU Law and the Jurisprudence of the Court of Justice of the European Union and the European Convention on Human Rights (original) (raw)
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The Concepts of Equality and Non-Discrimination in Europe: A Practical Approach
Equality and non-discrimination are complex concepts, with considerable debate on their meanings and justification. The discussion of equality and discrimination is, in general, characterised by considerable conceptual and methodological confusion. This is no different in relation to the discussion of equality and discrimination in the European legal context, including in the context of EC law. Although there is agreement on the most elementary principles, in practice a wide range of approaches is often adopted by, for example, the European Court of Justice and the European Court of Human Rights. Similarly, despite there being many common definitions of the central concepts of gender equality law in the EU Member States and EEA countries, there is a fair chance that the concepts are understood and applied differently and that confusion also exists here. This Report provides, in the first place, an analysis of the concept of equality and related notions in EC law, in particular in th...
The article provides an illustration of the EU antidiscrimination law through analysis of the concept of equality in the EU legal system. The analysis concentrates on the notion of equality and non-discrimination with respect to six protected characteristics (sex/gender, age, disability, racial and ethnic origin, religion/belief and sexual orientation) in the EU primary and secondary law as well as in the doctrine. It pays specific attention to the relevant case law of the Court of Justice of the European Union. The equality principle has longstanding roots, plays different roles in the EU legal system and has undergone the evolutionary change from market-oriented rule to the general principle of EU law. The article seeks to draw out the fact that thanks to the excessive interpretation of the concept of equality by the CJEU the Union antidiscrimination law has evolved into an independent set of legal norms. The result is the extension of the protection against discrimination beyond the concept of the EU citizenship; though, it still requires further development to be fully effective.
European Law Journal, 2009
EU non-discrimination and equality law is a burgeoning area of scholarship and practice, which already means that this edited collection will be timely and requited. It proceeds on the-correct-premise that the problematic of multidimensionality is essential to any contemporary exploration of equality and non-discrimination law. This includes, most obviously, the problem of multiple and multiplying grounds of discrimination, against which action on an EU level is being increasingly pursued. The book's coverage further includes doctrinal, as well as theoretical, underpinnings of multidimensional equality, comparative perspectives and a case study on issues related to Islamic headscarves. This edited collection comprises 16 contributions from a range of British, Scandinavian, Western and Central European researchers, who address multidimensional equality from legal, sociological and political science perspectives. The book's most notable trait is its encyclopaedically wide coverage. Yet, some of its chapters also contain some unexpected insights, which will give some food for thought to researchers interested in various aspects of European equality law. An interesting contribution to note is the chapter by Oddný Mjöll Arnardóttir, which deals with 'Themes from the European Convention on Human Rights' (ECHR). The underdeveloped and inconsistent nature of the ECHR non-discrimination provision-Article 14-has been much decried. In what is a refreshing contrast to this fairly conventional position, the author argues that it is precisely the lack of a regimental approach, firmly compartmentalising different grounds of discrimination, that has the potential to deal with intersectionality more imaginatively. Furthermore, it offers some lessons 'from the unique situation under the Convention [for] the new multidimensional future of EU equality law' (p 54). The author identifies 'the interest at stake' (p 57) as the less developed factor influencing the approach of the European Court of Human Rights (ECtHR) to discrimination cases under Article 14, as opposed to the type of discrimination and discrimination ground, which are more widely acknowledged. Also, she cites Thlimmenos v Greece 1 as evidence of the ECtHR's awareness of 'the complexity of the social construction of identities' (p 61). In this case, the applicant's rather particular identity as a 'male Jehovah's Witness. .. whose religion involved compelling reasons for refusing to serve in the armed forces' 2 was good enough to make his discrimination claim reviewable under Article 14. This avoided many of the conventional traps associated with multidimensional discrimination, such as the need for a symmetrical comparator in terms of both sex and religion. The author also points out that this was the first case in which the ECtHR recognised 'reasonable 1 (2000) 9 BHRC 12. 2 ibid, para 34.
ERA Forum, 2012
European Union anti-discrimination law does not contain any explicit binding provision concerning multi-dimensional discrimination. Instead, it prohibits several grounds of discrimination. A single-ground approach may not do justice to the full breadth of discrimination that persons may experience in reality. It is clear that the European Union legislator has this in mind-as the references to multiple discrimination in directive recitals indicate. An examination of the legal framework for the equal treatment of persons reveals several shortcomings that may however rob European Union equality law of its ability to bite in the face of multi-dimensional discrimination. This article intends to investigate the practical implications thereof and possible ways forward.
European Law Journal, 2002
In June and November 2000, the European Parliament and the Council adopted two Directives referring to 'the principle of equal treatment irrespective of in their title, one relating to racial and ethnic origin, the other to disability, age, religion and belief or sexual orientation. A thorough reform of Directive 76/207/EEC on the principle of equal treatment for women and men in employment matters is pending between the European Parliament's second reading and adoption while this is written. Community secondary legislation on equal treatment of persons has thus expanded in scope and number of reasons which must not serve as starting points for differentiation. Does this signify progress in legal protection against personal discrimination? While not providing a ready answer, this article proposes an analytical framework to answer this question, concentrating on conceptions of equality in general and in particular on the problems multi-dimensional discrimination might pose for the law.
The Handbook on European Non-Discrimination Law
2011
The Handbook on European Non-Discrimination Law, published jointly by the European Union Agency for Fundamental Rights (FRA) and the European Court of Human Rights, is the first comprehensive guide to European non-discrimination law. It is based on the case law of the European Court of Human Rights and the European Court of Justice. It covers: the context and background to European non-discrimination law (including the UN human rights treaties), discrimination categories and defences, the scope of the law (including who is protected) and the grounds protected, such as sex, disability, age, race and nationality. European non-discrimination law, as constituted by the European Union non-discrimination directives, and Article 14 of and Protocol 12 to the European Convention on Human Rights, prohibits discrimination across a range of contexts and a range of grounds. This Handbook examines European non-discrimination law stemming from these two sources as complementary systems, drawing on them interchangeably to the extent that they overlap, while highlighting differences where these exist. The Handbook is aimed at legal and allied practitioners at national and European level, including judges, prosecutors, lawyers, law-enforcement officials, and others involved in giving legal advice, such as national human rights institutions, equality bodies and legal advice centres, to whom it will be distributed. It can be consulted on-line or downloaded on the Handbook launch page and there is an accompanying CD-Rom dealing with the relevant legislation, specialist literature, case studies and case-law summaries. It is available in in almost all EU languages, as well as Croatian. Launching the new Handbook at a seminar for judges and legal practitioners at the European Court of Human Rights on 21 March 2011, the Court’s President Jean-Paul Costa said: “The handbook will improve access to justice for victims of discrimination across Europe. It sets out a complicated system of rules in a simple and comprehensive manner. It is fitting that this successful joint venture should be launched as we prepare for the accession of the European Union to the European Convention on Human Rights.”
Handbook on European non-discrimination law
Human Rights Documents Online
European non-discrimination law, as constituted by the EU non-discrimination directives, and Article 14 of and Protocol 12 to the European Convention on Human Rights, prohibits discrimination across a range of contexts and a range of grounds. This Handbook examines European non-discrimination law stemming from these two sources as complementary systems, drawing on them interchangeably to the extent that they overlap, while highlighting differences where these exist. With the impressive body of case-law developed by the European Court of Human Rights and the Court of Justice of the European Union in the field of non-discrimination, it seemed useful to present, in an accessible way, a handbook with a CD-Rom intended for legal practitioners in the EU and Council of Europe Member States and beyond, such as judges, prosecutors and lawyers, as well as law-enforcement officers.
International Journal of Discrimination and the Law, 2018
This article analyses the protection which two European Union (EU) Directives, adopted in 2000, provide against discrimination on the grounds of racial and ethnic origin, religion or belief, disability, age and sexual orientation. This protection is not the same for all these grounds, and this has led to what is often referred to in the literature as a hierarchy of discrimination grounds. The article examines these differences in protection against discrimination and the reasons for them and includes an analysis of the influence of the case law of the Court of Justice of the European Union (CJEU) on the development of this area of law. The argument in this article is that the CJEU has generally given a purposive and expansive interpretation to the provisions and has expanded the protection against discrimination in many cases, but three recent cases seem to form an exception to this. Possible reasons for this recent reticence are given.
The Discrimination Grounds of Article 14 of the European Convention on Human Rights
Human Rights Law Review, 2013
The Court's case law on the applicability of the prohibition of discrimination of Article 14 of the European Convention on Human Rights has always been ambivalent. From the 1970s onwards, there are two parallel lines of case law, one allowing complaints about almost all differences in treatment, regardless of their grounds, and another allowing only complaints about discrimination based on personal status or personal characteristics. Although the Court tried to bring its case law together in the cases of Carson and Clift, an analysis of subsequent cases makes clear that its approach is still confused. It is argued here that the inconsistencies in the definition of grounds of discrimination reflect a fundamental ambivalence as to the theoretical principles underlying Article 14. The article sets out two different rationales for non-discrimination law that may provide a sound basis for a certain approach towards the definition of grounds of discrimination. Both rationales have important but radically opposed consequences for the way Article 14 is applied as well as for the position of the Court. Although the Court may not want to do so, and although both conceptions are defensible, it will need to make a choice in order to guarantee a transparent and predictable non-discrimination case law.