A Bird’s Eye View on EU Anti-Discrimination Law: The Impact of the 2000 Equality Directives

Abstract

The year 2000 marked the birth of EU anti-discrimination law as a field in its own right, with the adoption of two major Equality Directives. They extended the prohibition of discrimination with five additional grounds and expanded the material scope of equality regulation. Having reached its eighteenth birthday in the year 2018, EU anti-discrimination law can now celebrate its adulthood and deserves a bird’s eye exploration of its achievements, failures, and prospects. The present Article provides this exploration by zooming in on these twin Directives, as well as on the “new” grounds of discrimination planted therein, namely race and ethnicity—the grounds introduced by the Race Equality Directive—religion, sexual orientation, age, and disability—the grounds introduced by Framework Equality Directive—and the related jurisprudence of European courts. It first outlines the genesis and main stages in the development of EU anti-discrimination law, followed by a discussion of major normative and practical themes emerging in EU anti-discrimination law after 2000, such as the personal and material scope of the Directives, new forms of discrimination, mechanisms to counteract discrimination, and the proceduralization of EU anti-discrimination law.

The transformative forces of international law? Questioning equality regimes from a multi-level perspective

“…The first refers to the EU's common institutional ills (of enforcement); member states have been delaying necessary implementation of the Directives. 43 This may have called for complementary standards to be drafted: the Racial Equality Directive was in fact complemented by Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law, which eventually found its way into domestic law. 44 Relatedly, new member states have been demonstrating difficulties in adhering to such norms, manifesting in lengthy transposition phases.…”

“…109 Similarly, the EUCJ has come to assess the applicability of positive measures in the context of a controversial balancing act subjecting positive measures to the test of proportionality. 110 The aforementioned Equal Treatment Directives have proven more progressive than the rulings in that regard. Accordingly, the principle of equal treatment was not supposed to prevent the member states from adopting measures directed at 'prevent(ing) or compensate(ing) for disadvantages linked to the grounds covered by the Directives'.…”

“…Accordingly, the principle of equal treatment was not supposed to prevent the member states from adopting measures directed at 'prevent(ing) or compensate(ing) for disadvantages linked to the grounds covered by the Directives'. 111 Existing case-law also reveals a restrictive, exception-based approach to equal treatment, which is defined by limiting criteria of applicationthat is, proportionality and other strict parameters. 112 The variety of distinct grounds of discrimination has been considered differently by the courts, with gender representing the only ground enjoying thorough protection by requiring positive measures to be adopted.…”

Choose your target wisely: how the EU shapes nationalism in contemporary Europe

“…At a basic level, the EU's institutional rules encourage inter-state cooperation, with the Commission, Council, and Parliament all requiring cooperation between Member States (Hix and Høyland 2011), which will hamper the ability of countries to pursue policies that harm other Member States and their citizens. For immigration, the free movement of people and the EU's extensive legislation preventing discrimination against EU citizens (Belavusau and Henrard 2019) means that the EU actively constrains the ability of countries to prevent migration from other EU Member States.…”

Embedding digital economy: Fictitious triple movement in the European Union's Artificial Intelligence Act

“…It served as a tool for ensuring that states would not be able to use gender differences in pay as a competitive advantage (Crovitz, 1992: 478). With time, the EU expanded its ambitions in relation to non-discrimination, both in terms of the grounds on which discrimination is prohibited (e.g., ethnic or social origin, sexual orientation), and in terms of the scope of areas that are covered by the EU's anti-discrimination regulation, such as access to goods and services, or employment and occupation (Belavusau and Henrard, 2019; Ellis and Watson, 2013; Schiek, 2002). The adoption of the Charter of Fundamental Rights of the European Union (2012) confirmed the status of non-discrimination as well as other fundamental rights as principles and rights applicable to the whole body of EU law and not merely a tool that is supposed to support market integration.…”