Cases, Materials and Text on National, Supranational and International Non-Discrimination Law

Ius Commune Casebooks for the Common Law of Europe

Dagmar Schiek, Lisa Waddington, Mark Bell

• Publisher: Hart Publishing
• Year: 2007
• ISBN:
  9781847316974
• Edition: 1
• Topic: Law
• Subtopic: Discrimination Law
• Index: Law

This casebook, the result of the collaborative efforts of a panel of experts from various EU Member States, is the latest in the Ius Commune Casebook series developed at the Universities of Maastricht and Leuven. The book provides a comprehensive and skilfully designed resource for students, practitioners, researchers, public officials, NGOs, consumer organisations and the judiciary. In common with earlier books in the series, this casebook presents cases and other materials (legislative materials, international and European materials, excerpts from books or articles). As non-discrimination law is a comparatively new subject, the chapters search for and develop the concepts of discrimination law on the basis of a wide variety of young and often still emerging case law and legislation. The result is a comprehensive textbook with materials from a wide variety of EU Member States. The book is entirely in English (i.e. materials are translated where not available in English). At the end of each chapter a comparative overview ties the material together, with emphasis, where appropriate, on existing or emerging general principles in the legal systems within Europe.
The book illustrates the distinct relationship between international, European and national legislation in the field of non-discrimination law. It covers the grounds of discrimination addressed in the Racial Equality and Employment Equality Directives, as well as non-discrimination law relating to gender. In so doing, it covers the law of a large number of EU Member States, alongside some international comparisons.
The Ius Commune Casebook on Non-Discrimination Law
- provides practitioners with ready access to primary and secondary legal material needed to assist them in crafting test case strategies.
- provides the judiciary with the tools needed to respond sensitively to such cases.
- provides material for teaching non-discrimination law to law and other students.
- provides a basis for ongoing research on non-discrimination law.
- provides an up-to-date overview of the implementation of the Directives and of the state of the law.
This Casebook is the result of a project which has been supported by a grant from the European Commission's Anti-Discrimination Programme. See the detailed website for this book:
www.casebooks.eu/nonDiscrimination/.

CHAPTER ONE
DISCRIMINATION GROUNDS

Prof. Janneke Gerards

1.1. INTRODUCTION

Non-discrimination legislation in many Member States of the EU contains a long list of prohibited grounds. As a result of the implementation of the relevant Gender Equality and Article 13 Directives, they should at least include gender/sex, race/ethnicity, religion/belief, sexual orientation, disability and age, but in many national texts much longer lists can be found, also mentioning, for example, marital status, birth/descent, nationality, political conviction and income. As a result, the personal scope of such legislation would seem to be quite broad, offering extensive protection against discrimination. In practice, however, it is not as simple as that. The actual scope of non-discrimination law is determined by at least two variables. First, the definition of a certain ground is of importance in determining the scope of non-discrimination legislation. If “race” is also taken to mean “skin colour”, “ethnic origin” and “belonging to a national minority”, a prohibition of racial discrimination is obviously much more inclusive than if only a narrow definition is given to the notion. Secondly, even if a legislative act enumerates a large number of grounds, and even if these grounds are broadly defined, this does not yet mean that all grounds are protected to the same degree. The degree of protection also depends on the justifications and exceptions the legislation allows for and on their interpretation and application by the courts.¹ To some extent, however, there appears to be a connection between the possibilities for justification and the grounds of discrimination. This is particularly true for legal systems with an open system of justification, as contrasted to closed systems, in which a limited number of carefully drafted exception clauses are provided.² In open systems, as are visible in the European Convention of Human Rights and in a number of Member States, the ground of discrimination may to a large extent determine the strictness with which the courts analyse cases of unequal treatment and the arguments advanced in justification. According to well-established case-law of the European Court of Human Rights (ECtHR), for example, “very weighty reasons” must be adduced by the Member States to justify a difference in treatment based on sex, birth, nationality and sexual orientation. By contrast, the intensity of the Court’s assessment will be much weaker if an instance of discrimination is based on another ground. The same is true for non-discrimination law in a number of states. It appears from national legislation and case-law that discrimination based on specific grounds is regarded as less acceptable than discrimination based on other grounds. Accordingly, the protection offered by non-discrimination law in open systems of justification is dependent not only on the definition and scope of the various grounds of discrimination, but also on the perception of such grounds as unacceptable or “suspect” reasons for distinction.

Because of the importance of the concept of “suspectness” of certain grounds of discrimination, we will start this chapter with a general discussion of this concept and its relevance for the intensity of judicial review (section 1.2).

Subsequently, we will give an overview of the various grounds of discrimination that are protected in the legal systems under study. Section 1.3 will focus on a number of discrimination grounds that are prohibited in almost all legal systems under study. We will discuss the grounds of race, ethnic and national origin, nationality, gender, marital status, sexual orientation, birth, religion and political conviction, disability, age, working time and fixed-term work. This chapter will thus consider a number of grounds which are not covered by the Article 13 and Gender Equality Directives, but which are included in openly formulated legislative or constitutional non-discrimination provisions; in international human rights instruments such as the European Convention of Human Rights (ECHR) or the International Covenant on Civil and Political Rights (ICCRP); or in specific EC legislation. We will therefore devote greater attention in this chapter to the case-law of the ECtHR and international monitoring bodies that provides for explanations and definitions of the various grounds. This is particularly valuable even with regard to the grounds that are covered by the various equal treatment Directives; presently there is little clarity as to the definition of the various grounds contained therein. Indeed, many national legislators and courts appear to rely on the international case-law as an important source of inspiration and it is highly probable that the European Court of Justice (ECJ) will do so as well if asked to provide a definition. This is particularly true for grounds which are closely related to fundamental freedoms, such as the ground of religion, which will probably be interpreted in line with the case-law on Article 9 of the ECHR that is concerned with the definition of the freedom of religion. Furthermore, we will refer to a wide range of national non-discrimination legislation in which the grounds are defined. Because of the relatively recent implementation of the Directive by most states, only limited case-law is available to elucidate the scope and meaning of the various grounds. Such case-law primarily exists in the Netherlands, Ireland, Germany and the UK, where non-discrimination legislation has been in existence for a longer period of time. For that reason, most case-law excerpts will come from these legal systems.

In addition to discussing the definition and interpretation of the various grounds mentioned, we will also address the issue of “suspectness” of each of these grounds, given that some of the grounds are mainly protected in open systems of non-discrimination law.

In section 1.4, the separate issue of discrimination based on assumed characteristics and discrimination by association will be considered: the question is whether and to what extent states only prohibit discrimination that is based on actual, existing personal characteristics or whether they also prohibit discrimination that is based on characteristics that are (rightly or wrongly) attributed to a certain individual.

Section 1.5 will be devoted to a description of the concept of multiple discrimination, i.e. discrimination based on (a close combination of ) two or more protected grounds, such as gender and ethnic origin. In this section we will also provide some insight as to the ways in which this concept is dealt with in Europe.

Finally, we will present some concluding thoughts on the convergence of the European legal systems with respect to the definition of the grounds of discrimination and their suspectness in section 1.6.

1.2. “SUSPECT” GROUNDS OF DISCRIMINATION

The notions of discrimination and unequal treatment easily evoke the image of serious cases of discrimination which are based on prejudice and stigma, and which severely harm individual rights and interests. The general principle of equal treatment has a wide reach, however, and also covers such issues as unequal treatment of farmers based on the amount of milk they produce, or distinctions between income groups in the context of income taxation. Especially open-formulated non-discrimination provisions will cover all such forms of unequal treatment, mostly in combination with an undefined, general possibility for justification. In such systems it will be up to the courts to decide if and under what circumstances a case of unequal treatment is acceptable. As has been stressed in the introductory chapter to this casebook, such open systems may be found primarily in broadly defined constitutional prohibitions of discrimination and international human rights treaties, such as the ECHR (Article 14 and Article 1 Twelfth Protocol) and the ICCRP (Article 26). In the EC Treaty, open possibilities for justification are visible as well. Examples may be found in provisions relating to unequal treatment in the field of agriculture (Article 34(2) EC); nationality discrimination (Article 12 EC); (indirect) discrimination relating to the four freedoms; and indirect discrimination in a variety of non-discrimination Directives.³ In all of these cases, the courts will necessarily have to address the question if a certain difference in treatment is supported by a convincing, objective and reasonable justification in order to decide on its legal acceptability. Although the issue of justification in open systems will not generally be dealt with in this chapter, it may be noted that the justifiability of a difference in treatment may be influenced by the ground on which it is based.⁴ Grounds such as race, ethnic origin or gender are rarely considered to constitute reasonable bases for unequal treatment and, accordingly, it will be very difficult to justify a distinction based on such a ground. Indeed, the fact that certain personal characteristics are generally regarded as unreasonable and unacceptable grounds for unequal treatment may have formed an important reason for the introduction of specific non-discrimination legislation with a closed list of exceptions.⁵ Such generally unacceptable grounds of discrimination are commonly termed “suspect” grounds, as they immediately raise a suspicion of unreasonableness and prejudice.⁶ They may be contrasted with “non-suspect” grounds, which do not immediately evoke such images of unfairness and are usually considered relatively tolerable criteria for distinction—one may think of examples such as intelligence, merit and talent.

The “suspectness” of a ground may have important consequences for the strictness with which a court will review the reasonableness of the discrimination at hand. As stated above, this is especially true in open systems, in which a wide variety of grounds and justifications for discrimination will have to be considered by the courts. The ECtHR in particular, which decides cases under the “open” non-discrimination provision of Article 14 of the ECHR, has used the suspectness of certain grounds of discrimination to determine the proper “level” of review. In general, the ECtHR applies a “very weighty reasons” test if it finds that a ground is commonly held to be suspect by the various Member States or if the ground may be considered suspect for other reasons.⁷ In those cases it is very strict and a justification will hardly ever be accepted. This is different for cases in which no suspect ground is present. The ECtHR then generally leaves a certain “margin of appreciation” to the state to determine the necessity of a certain classification or distinction, which means that it will only marginally review the state’s justification. In fact, the ECtHR then seems to apply a test which comes close to a general test of arbitrariness. Two examples may serve to illustrate the Court’s approach:

ECtHR, 13 December 2005⁸ 1.CoE.1.

Timishev v. Russia

FREEDOM OF MOVEMENT OF CHECHENS

Timishev

Facts: Timishev, a Chechen lawyer, lives as a forced migrant in Nalchik, in the Kabardino-Balkaria Republic of the Russian Federation. In 1999, the applicant and his driver travelled by car from the Ingushetia Republic to Nalchik. Their car was stopped at the checkpoint and officers of the Inspectorate for Road Safety refused him entry. The refusal appeared to be based on an oral instruction from the Ministry of the Interior of Kabardino-Balkaria not to admit persons of Chechen ethnic origin. Timishev had to turn round and make a detour of 300 kilometres to reach Nalchik through a different checkpoint.

Held: The Court decided that the refusal of entry amounted to a violation of the prohibition of discrimination (Article 14 ECHR), taken in conjunction with the right to liberty of movement (Article 2 of Protocol No. 4).

Judgment: “56… . Discrimination on account of one’s actual or perceived ethnicity is a form of racial discrimination … Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and ...