Introduction to EU Anti-discrimination Law

Good afternoon Ladies and Gentleman. The topic of today’s lecture is discrimination due to other grounds that are guaranteed under the Directives of the European Union and specifically, discrimination due to racial or ethnic origin, discrimination due to religion or belief and discrimination due to sexual orientation.

I would like to underline to start with that Article 19 of the Treaty on Functioning of the European Union provides for a competence of the European Union to legislate in selected areas to counteract discrimination. Specifically, in Article 19 of the Treaty some specific grounds are enumerated where the European Union may legislate. The Union cannot go outside of those grounds and racial or ethnic discrimination, religion or belief, or sexual orientation are regarded as those grounds under which the European Union may legislate. As a result of this the European Union institutions have adopted a certain set of legislative acts regulating the prohibition of discrimination, namely Directive 2000/43/EC as well as the Directive 2000/78/EC. Those Directives and it is the nature of directives, have to be implemented by the member states and member states in general implemented them, otherwise they would face some financial consequences. So basically when we look into the framework for protecting against discrimination, we should remember that there are not only directives but also some legislative provisions binding in different member states.

Moreover, in some states the scope of protection offered against discrimination might be broader than the scope of the Directive as such and it is a quite natural process because sometimes the domestic constitutional regulations may go further than the EU law even requires. But in some other countries there provisions protecting against discrimination have basically the same value and the same scope as the Directives require and such countries do not even go further by one stage than the Directive requires. Such an example is Poland, my country, in which the Directives were just implemented and the legislator didn’t adopt any additional regulations.

When we talk about the protection against discrimination we should also remember that some protection is offered by the European Convention on Human Rights, specifically Article 14 of the European Convention on Human Rights. However, this provision has a limited applicability. Why? Because article 14 may be used only in connection with some other provision under the Convention, only in a situation when some other right guaranteed under the Convention is violated. So as an example, when in the case of Paraskeva Todorova v Bulgaria (ECHR 25-3-2009), the European Court of Human Rights found that Article 6 was violated; Article 6 which states about right to court . Why? Because the Court made a general statement concerning the person of Roma origin. Basically, the Court refused to suspend the sentence for the Roma woman claiming that she belonged to a minority group which in general does not regard suspended sentence as an ordinary sentence. So this general motivation of the Court, this reference to some general categorisation of the Roma people in individual case was regarded as a violation of Article 6 of the Convention and Article 14, which is the prohibition of discrimination in enjoyment of any rights guaranteed by the Convention.

The system of the European Convention includes also Protocol No. 12 to the Convention. Protocol No. 12 guarantees the protection against discrimination, and differentiated unjustified treatment, in any spheres of applicability of law. So if a certain state would adopt Protocol 12 then theoretically the ECHR, the Strasbourg Court could even consider the different retirement age for men and women, or any other situation when there is a differentiated treatment between men and women, or between different societal groups. That’s why countries are pretty much afraid of ratifying the Protocol No. 12. They claim that may interfere too much with their domestic legislation and only a few countries such as Finland, or such as Spain has ratified the Protocol No. 12 and in practice it does not have a substantive and extensive use in shaping the current anti-discrimination law.

When we look into the general field of application of the EU Anti-Discrimination Directive we can see two, I would say specific observations. One is such that under the Directive 2000/43/EC, which prohibits discrimination due to racial or ethnic origin, such discrimination is prohibited almost in all social field of activities. If you want to be a volunteer for example in UEFA, European Championship and you are discriminated because of your ethnic origin, it would be a violation of the Racial and Ethnic Discrimination Directive. If you are dismissed from your work place because you have a Congolese fiancée and your boss does not like people with black skin, your rights are also violated under the Directive. If Roma children are refused to attend an ordinary school and are sent to a school for mentally retarded persons then it is also a violation of the Racial Discrimination Directive. If the real estate agent is not providing the possibility to rent a house in a certain residential district, to people with Asian faces then it will also be a violation of the Racial Discrimination Directive. And finally, if you have people who are refused access to discos, restaurants, theatre, cinema because of their racial ethnic origin it will also be regarded as a violation of the Racial Discrimination Directive.

On the other hand, when we look into such grounds of discrimination like sexual orientation, disability, age, religion or belief their applicability is very limited. So, for example, those grounds are protected only in such fields like employment, volunteering, vocational training, member states trade union, professional organisations. Basically the whole world of our employment, of our personal development as employees or self-employed persons is covered by the scope of those Directives. But there are some situations where people cannot be protected under the Directives. So, for example, if you have a Sikh who is wearing a turban and who is not admitted to enter into the theatre because of some security reasons or because someone wants for him to take off his turban, he cannot claim under the Directive that he is discriminated due to his religion in access to goods or services publicly offered. Why? Because the Directive does not cover this situation. Maybe the national legislation covers this situation but the Directive does not offer protection here. There are some ideas to adopt so called horizontal directives so that the directive would cover all different grounds of discrimination and would be applicable to all those different situations of social life but until now such directive has not been adopted. There were some proposal but they didn’t end up with their final text and with their legislative texts which would be then implemented by the states.

When we look into the first ground of discrimination, racial or ethical origin, we can see that there is no specific definition of racial or ethnic origin in the Directive 2000/43/EC. So in order to define what is racial or ethnic origin we should look into some other documents, such as the United Nations Committee on the Elimination of Racial Discrimination, recommendations or comments, or we should look into said documents of such organisations like the European Commission against Racism and Intolerance (ECRI).

If we look into the definition of racial or ethnic origin we should look into additional documents which are adopted in the work of international organisation, which are specialised in protection against different forms of discrimination and such bodies like those created by the Council of Europe or the United Nations are especially relevant here. Basically I claim that we shouldn’t stick strongly to some established concept of racial or ethnic origin. If a certain minority is not commonly regarded as a national minority in a given state, it does not mean that an individual person discriminated in the work place will not be a victim of discrimination under this Directive. So I would suggest there is a need for a flexible approach here and we should always remember that the corner stone behind the prohibition of discrimination due to racial or ethnic origin is human dignity. So when we can show that there is some reason of discrimination that is just pushing strongly the person’s human dignity then we can most probably easily claim that the Directive in this situation is applicable.

I would like to say that there are not many cases concerning discrimination due to racial or ethnic origin decided by the European Court of Justice in Luxembourg. There are plenty of cases decided by domestic courts. There are cases concerning refusal to access the discotheque in Budapest, there are cases concerning exclusion of Roma people from a restaurant in Poznan in Poland. So such cases basically appear on a daily bases in the life of ordinary courts in different member states of the European Union. With respect to the Luxembourg Court the leading case is a judgment decided on the 10 July 2008, in case Feryn (C-54/07). This case was brought to court by the Belgium Centre for Equal Opportunities and Combating Racism. It was a case brought as a follow up to a public statement made by one of the managers of the Feryn company. The manger claimed that his clients do not wish that doors to garages are installed by some immigrants. And basically because of that he stated that the firm will not employ immigrants at all. The case is interesting because the Belgian Centre for Equal Opportunities decided to bring the case to the court without having an individual victim. There was no immigrant that would apply to this Feryn company and would be refused the possibility to be employed in this company. Quite otherwise the Belgian Centre for Equal Opportunity brought a case on the basis of this general situation that such a policy, such treatment of potential employees is in itself discriminatory. The CJEU agreed with this. The CJEU stated that such public statements made by the employer could dissuade certain candidate from submitting their CVs and applications and thus, such statements hinder the access to the labour market. Furthermore, the CJEU stated that such public statement may lead to the presumption that the employer has a recruitment policy which is directly discriminatory. So this case is an interesting warning to any employer that an employer cannot make public statements in such a general fashion and claim that he is applying a certain policy that could be discriminatory. When we compare this situation to a quite regular advertisement in a newspaper. When the employer is making the advertisement that he is looking for a shop assistant who is a woman and second, younger than 25 years old, then such an advert is directly discriminatory. There is no general occupational reason behind employing women younger than 25 years old to become shop assistants in a shoe shop.

I would like to underline that cases concerning racial discrimination do not happen often because employers are quite aware that basically you shouldn’t discriminate people because of their racial and ethnic origin. But cases of discrimination, for example in access to goods and services are quite often and usually when you read some handbook devoted to case law appearing under the racial equality directive then those cases are usually of that kind; that someone was not allowed to enter into the club, restaurant, theatre, was refused to rent a room or, for example he was not served by a waiter in a restaurant.

The most interesting example I have ever heard concerning the applicability of the Directive on Racial Discrimination is an example given to me by my students from Italy. They told me one day that in their local restaurant there was such a slogan that customers are provided with metal spoon fork and knife except for Roma people who are provided with plastic fork, knife and spoon. Such treatment of potential customers by a local restaurant is an example of direct discrimination and of course it should be combatted.

Of course always when we talk about discrimination, we start to consider whether there are some situation when we can justify the differentiated treatment. To put it clearly when we can ask for somebody who is of certain ethnic origin or racial origin and we are not interested just in anybody but just interested specifically in the person having such racial or ethnic origin. Such situations in the modern world are really rare. You can be a lawyer, banker, insurance agent, shop assistant, you can be a lecturer at the university, you can be a sailor, shipman and your colour of skin does not count. But if you are going to play in a movie and this movie concerns, for example, the Warsaw uprising of 1944 then it is quite expected that people who play in this movie would have white colour of skin because except for one man there was no black men fighting in the Warsaw uprising in 1944. Such situations, when for example the movie maker is recruiting people who assist or are in the background. In a movie then these are such specific situations when colour of skin may count and should be taken into account in the process of recruiting.