The European Court of Justice and the march towards substantive equality in European Union anti-discrimination law
| DOI | 10.1177/1358229120927947 |
| Published date | 01 March 2020 |
| Author | Marc De Vos |
| Date | 01 March 2020 |
| Subject Matter | Articles |
Article
The European Court of
Justice and the march
towards substantive
equality in European
Union anti-
discrimination law
Marc De Vos
Abstract
European Union (EU) anti-discrimination law has developed under a mostly formal,
procedural Aristotelian approach to equality, driven by seminal European case law and
incorporated into a body of EU non-discrimination directives. The academic literature
has criticized this approach as formalistic and static (Formal equality, non-discrimination
and European Union (EU) law section). Against this backdrop, this article explores how
the Court of Justice of the EU (CJEU) embraces substantive equality dimensions of non-
discrimination. It documents standout cases supporting substantive equality in direct and
indirect discrimination (Direct discrimination is less formal than meets the eye and
Indirect discrimination is substantive at heart sections). It explores how the CJEU has
promoted substantive equality in cases of non-discriminatory differential treatment
(Compulsory differential treatment makes formal equality substantive section) and
through positive action or discrimination (Positive action can become substantive pos-
itive discrimination section). It unearths a wider scope for substantive positive dis-
crimination when constructed as a limitation of, rather than an exception to, formal
equality (Substantive positive discrimination can limit formal equality section). It frames
the evolution towards substantive equality in the broader fundamental rights context
that has become the EU law context, as applied in seminal CJEU cases (Formal anti-
Macquarie University Law School, Macquarie Park, New South Wales, Australia
Corresponding author:
Marc De Vos, Professor and Dean, Macquarie University Law School, Macquarie Park, New South
Wales 2109, Australia.
Email: marc.devos@mq.edu.au
International Journalof
Discrimination and theLaw
2020, Vol. 20(1) 62–87
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/1358229120927947
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discrimination supports and reflects overal l substantive equ ality section). I t shows
how formal EU equality law has always supported substantive equality and has
gradually been mobilized to further substantive equality aims, redefining piecemeal
the overarching purpose of EU equality law in the process while increasing concerns
of transparency and legitimacy (C onclusion: pragmatism, discretion and legitimacy
section).
Keywords
Non-discrimination law, EU law, substantive and formal equality, Court of Justice,
positive action, gender, age, disability, religion
Formal equality, non-discrimination and
European Union (EU) law
Equality and non-discrimination are complex notions rooted in philosophical, political
and constitutional traditions. In modern times, European countries have pursued equality
and non-discrimination beyond rule of law principles of citizenship and ‘equality before
the law’. The welfare state can be seen as a societal model to promote effective socio-
economic equality of opportunity through entitlements that reduce chance and increase
merit. Non-discrimination law is used to extend the vertical principle of equality, rooted
in rule of law and constitutional neutrality principles, either beyond the state per se or in
horizontal relationships between private parties.
In its horizontal dimension, non-discrimination restricts the scope of freedom for
private actors. In its vertical dimension, it limits or directs the course of political or
collective action. Against this sensitive backdrop arises the fundamental question what
‘equality’ or ‘non-discrimination’ actually means. With a large degree of simplification,
two models of equality and its legal protection can be discerned. The ‘formal’, ‘liberal’
or ‘symmetrical’ approach is based on ‘individual justice’ and ‘the merit principle’. This
model focuses on equality for individuals, formal neutrality and procedural justice. The
‘substantive’, ‘asymmetrical’ or ‘group justice’ approach focuses on group characteris-
tics and (dis)advantages, gro up impact, actual results, mater ial equality and desired
outcomes. Somewhere in between those two poles lies the middle ground of ‘equality
of opportunities’, which combines elements of both and which itself can be stretched
towards either the formal or the substantive end (see De Vos, 2007, and the references
there; Roemer, 1998).
Formal equality essentially means that likes should be treated alike, period. It empha-
sizes neutrality expressed through equal treatment of comparable situations or differen-
tial treatment of incomparable situations. It requires comparison with a comparator to
establish discrimination, it is essentially passive and static vis-`a-vis the context of the
comparison, it does not assure any particular outcome and it disregards the collective
dimensions of individual inequality such as group membership, structural inequality or
societal realities. In short, formal equality does not address the critical question of ‘equal
to whom?’ This is where substantive equality comes in.
De Vos 63
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