Equality: A Fundamental Right in the European Union?

DOI10.1177/135822910901000103
AuthorErica Howard
Published date01 March 2009
Date01 March 2009
International Journal
of
Discrimination and the Law,
2009,
Vol.
10,
pp.
19-38
1358-2291/2009
$10
©
2009
A B Academic Publishers. Printed
in
Great Britain
EQUALITY:
A
FUNDAMENTAL
RIGHT
IN
THE
EUROPEAN
UNION?
ERICA HOWARD
Law Department, Middlesex University, London, UK
ABSTRACT
This article analyses the development
of
a fundamental right to equal treatment or
to non-discrimination within the
EU
legal order through a study
of
the general
principles
of
Community law, the Charter
of
Fundamental Rights
of
the European
Union and the Article
13
EC Equality Directives.
It
examines European Union
legislation and case law
of
the European Court
of
Justice, including the opinions
of
the Advocates General and the Court
of
First Instance, in relation to the
principle
of
equality or equal treatment to determine whether they support the
existence
of
a fundamental right to equality before the law and to non-
discrimination. The equality clauses
of
international instruments are reviewed as
aid in this analysis. Despite the fact that the sources discussed appear to establish
a right to equality before the law or to non-discrimination, the limitations to the
material and personal scope
of
these sources means that this right is, as yet, not
a fundamental, universal right within the EU legal order.
INTRODUCTION
The
EU
has
adopted
four
Directives
on
the
basis
of
Article
13
EC:
Directive 2000/43/EC
(Race
Directive)
prohibiting
racial
or
ethnic
origin discrimination; Directive 2000/78/EC
(Framework
Directive)
prohibiting
discrimination
on
the
grounds
of
religion
or
belief,
disability, age
and
sexual
orientation;
Directive
2002/73/EC
(Equal
Treatment
Amendment
Directive),
prohibiting
sex discrimination
and
amending
Directive
76/207/EEC
(Equal
Treatment
Directive);1
and,
Directive 2004/113/EC
(Goods
and
Services Directive)
extending
the
protection
against
sex discrimination
to
cover
access
to
and
supply
of
goods
and
services.
All
four
Directives (hereafter referred
to
as
the
Article
13
Direc-
tives) place
the
right
to
equal
treatment
and
non-discrimination
clearly
on
a
human
rights basis.
In
their
Preambles,2
they
mention
Article 6(2)
TEU
which determines
that
the
Union
shall respect
fundamental
rights as
guaranteed
by
the
European
Convention
for
the
Protection
of
Human
Rights
and
Fundamental
Freedoms
20
(ECHR)
and
as they result
from
the
constitutional
traditions
common
to
the
Member
States, as general principles
of
Community
law.
They
all follow this with a Recital which declares:
The right to equality before the law and protection against discrimina-
tion for all persons constitutes a universal right recognized by the Uni-
versal Declaration
of
Human Rights, the United Nations Convention
on the Elimination
of
all Forms
of
Discrimination against Women,
the International Convention on the Elimination
of
all Forms
of
Racial Discrimination and the United Nations Covenants on Civil
and Political Rights and on Economic, Social and Cultural Rights
and by the European Convention for the Protection
of
Human
Rights and Fundamental Freedoms, to which all Member States are
signatories.
This suggests
that
the
EU
legislator sees
the
right
to
equality before
the law
and
to
protection
against
discrimination as a universal
human
right
and
that
this right
underpins
the
Article
13
Directives.
This
paper
analyses
whether
these Directives
are
indeed backed
up
by
a
fundamental
human
right
not
to
be discriminated against
or
by
a
right
to
equal
treatment.
The
development
of
the
fundamental
principles
of
Community
law,
the
proclamation
of
the
Charter
of
Fundamental
Rights
of
the
European
Union
and
the
adoption
of
the
Article
13
Directives themselves are used
as
arguments
for
the
existence
or
gradual
development
of
such a
right
within the
EU
legal order.
Counter
arguments
can
be
found
in
the
limitations
to
the
applicability
of
the
fundamental
principles
and
of
the
Charter
as well as
in
the restrictions
on
both
the material
and
personal
scope
of
the
Directives.
Two
points
should
be clarified. Firstly,
in
this
paper,
the right
to
non-discrimination
will be considered
to
have the same
meaning
as
the
right
to
equality before
the
law
or
to
equal
treatment.
The
latter
should
be
distinguished
from
a right
to
equality which encom-
passes a
broader
concept
of
equality
and
could
include a right
to
substantive equality
or
equality
of
opportunity
or
of
results.
3
The
analysis only takes
account
of
the right
to
non-discrimination/
equal
treatment
because this
can
be seen as the
most
basic
concept
of
equality:
the
right
not
to
be
treated
differently
from
another
person
in
the same situation.
The
Article
13
Directives all have
'implementing the principle
of
equal
treatment'
in
their title
and
aim, according
to
their Article
1,
to
put
this principle
into
effect
in
the
Member
States. Therefore, this article examines
whether
a funda-
mental
human
right
to
non-discrimination/formal equality
can
be
said
to
underpin
these Directives.
Secondly,
the
term
'fundamental
right' is used here
in
the sense
of
a universal
and
inalienable
human
right, a
right
attached
to
every
person
simply because they
are
human.
This is the sense
in
which

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