EU anti-discrimination law
| Author | Erica Howard |
| Published date | 01 June 2018 |
| Date | 01 June 2018 |
| DOI | http://doi.org/10.1177/1358229118788454 |
| Subject Matter | Articles |
Article
EU anti-discrimination law:
Has the CJEU stopped
moving forward?
Erica Howard
Abstract
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 pro-
tection against discrimination in many cases, but three recent cases seem to form an
exception to this. Possible reasons for this recent reticence are given.
Keywords
European anti-discrimination law, CJEU case law, Directive 2000/43/EC, Directive 2000/
78/EC
Introduction
In 2000, the European Union (EU) adopted two Directives against discrimination:
1
prohibiting racial and ethnic origin discrimination, and Directive
2
prohibiting discrimination on the grounds of religion or belief, disability,
age and sexual orientation. This was the first time the EU legislated against these
School of Law, Middlesex University, The Burroughs, London, UK
Corresponding author:
Erica Howard, Middlesex University, The Burroughs, London NW4 4BT, UK.
Email: e.howard@mdx.ac.uk
International Journalof
Discrimination and theLaw
2018, Vol. 18(2-3) 60–81
ªThe Author(s) 2018
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DOI: 10.1177/1358229118788454
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grounds of discrimination, in contrast to the EU provisions for equal pay between men
and women and measures against sex discrimination which have been in place much
longer.
3
This article will not discuss the protection provided against sex discrimination
because its focus is on the novel grounds of discrimination introduced in EU law in 2000.
It was held that the EU did not have the competence to act against discrimination on the
wider grounds beyond sex discrimination, but this was remedied by the Treaty of
Amsterdam which created this competence, resulting in the adoption of the above
Directives in 2000. However, the protection is not the same for all these grounds, and
this has led to what is often referred to as a hierarchy of discrimination grounds. This
hierarchy and the possible reasons behind it are analysed. The Court of Justice of the
European Union (CJEU) case law has been very influential on the development of this
area of EU law and this forms part of the analysis. The argument is that the CJEU has
generally given a purposive interpretation to the provisions and has expanded the pro-
tection against discrimination in many cases, but three recent cases – Parris,
4
Achbita
5
and Bougnaoui
6
–seem to form an exception to this as the CJEU has given a rather more
restricted interpretation of the Directives. The following addresses possible reasons for
this as well as what this means for the hierarchy of discrimination grounds and, more
generally, for the protection against discrimination provided by EU law, including the
risks of not applying EU anti-discrimination law in a uniform way.
It must be noted that this article does not intend to give a complete overview of all
case law of the CJEU under the two Directives. Rather, it focuses on analysing a number
of cases in which the CJEU has clarified and extended the protection against discrim-
ination and, in this way, has made the Directives more effective tools to combat
discrimination.
The article starts, in part I, with an analysis of the hierarchy of discrimination grounds
created by the two Directives. This is followed in partII by an examinationof a number of
cases of the CJEUin which the Court has clarifiedconcepts or in other ways hasmoved the
protectionprovided forward. Then, in partIII, an analysis of the three recent casesin which
the CJEU appears to have stopped going forward by giving a restrictive interpretation is
undertaken, including the possible reasons for this change in the Court’s approach.
Hierarchy of discrimination grounds
The 1997 Treaty of Amsterdam, in force in 1999, introduced Article 13 (now Article 19
Treaty on the Functioning of the European Union (TFEU)) into the EC treaty. This
Article created the competence for the EU to adopt measures against discrimination
on the grounds of racial and ethnic origin, religion or belief, disability, age and sexual
orientation. In 2000, two Directives against discrimination based on this Article were
adopted: Directives 2000/43/EC and 2000/78/EC. Both Directives prohibit direct dis-
crimination,
7
indirect discrimination,
8
harassment,
9
victimization
10
and instruction to
discriminate
11
and define these concepts in the same way.
But, the protection provided by these two Directives against discrimination is not the
same for all grounds covered and this has led to a so-called hierarchy of discrimination
grounds.
12
This hierarchy is said to exist because Directive 2000/43/EC provides stron-
ger protection against racial or ethnic origin discrimination than Directive 2000/78/EC
Howard 61
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