A Comparative Case study on the notion of Non-Discrimination from an EU law Perspective

Details

Supervisors

Martin, Denis

Faculty

Faculté de droit et de criminologie

Degree label

Master de spécialisation en droit européen

Abstract

The European Union (EU) has a long history of combatting discrimination. However, with the adoption of the Amsterdam Treaty in 1997, the EU obtained new, far-reaching powers in order to tackle discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Soon after the entry into force of the Amsterdam Treaty, the EU adopted Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. In other words, a framework tackling discrimination on the grounds of religion or belief, disability, age or sexual orientation in relation to employment and occupation. In the same year, the EU adopted Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. This directive provides for a framework combatting discrimination based on race or ethnic origin in relation to employment, education, social security, healthcare, etc. The 2015 Eurobarometer survey on discrimination revealed that although the social circles of European citizens become gradually more diverse, discrimination is still a major problem. Discrimination based on race or ethnic origin is considered to be the most widespread form of discrimination in Europe (64%), in subsidiary order, discrimination based on sexual orientation (58%), gender identity (56%), religion or belief (50%), disability (50%), age (42%) and gender (37%). It is therefore of the utmost importance that discrimination is combatted at the European and National level. Article 10 of the Treaty on the Functioning of the European Union (TFEU) states that ‘in defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.’ This provision therefore provides for a legal basis for improving non-discrimination at the EU. A similar approach can be found in relation to gender mainstreaming. Notably, the European Commission stated that gender main streaming is ‘mobilising all policies and measures specifically for the purpose of achieving equality by actively and openly taking into account at the planning stage their possible effects on the respective situations of men and women.’ Additionally, it is also important to stress upon the difference between non-discrimination, equality of treatment and the concept of equality. These concepts are often confused, however, they each have their own distinct features. The concept of non-discrimination, notably direct and indirect discrimination, will be discussed in the next paragraphs. Discrimination can either be direct or indirect. Direct discrimination deals with situations where people are treated differently in similar situations. Indirect discrimination deals with situations where people are the subject of the same treatment while being in a different situation. A detailed explanation on the content and differences between these two concepts will be provided in the following paragraphs. These differences do not only exist between both concepts but also depends on the Court. Notably the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR). For example, according to ECtHR a general defence is possible for both direct as indirect discrimination. The ECJ, at the other hand, only provided for the possibility of a general defence in cases of indirect discrimination.