The principle of equality is among the general principles of EU law,21 and the pre-vention of discrimination has a prominent place in EU actions. Initially, EU law in the area of discrimination concentrated on sex discrimination and discrimination against nationals of a member state,22 and the adoption of the Treaty of Amsterdam extended the Community’s competence to cover the grounds of racial or ethnic ori-gin, religion or belief, disability, age and sexual orientation.23 The implementation of non-discrimination provisions has taken place essentially through the adoption of directives:24 the secondary legislation includes a number of directives supporting sex equality25 and in 2000, two directives, the Racial Equality Directive and the
Em-17. Bell (2002), p. 143.
18. See also the remarks infra in chapter 3.2.
19. This occurs e.g. when education, training and youth programmes aim to promote intercul-tural learning and tolerance by bringing together young people from different backgrounds.
Pentikäinen (2004b), p. 46.
20. EUMC Annual Report 2000, pp. 98–99. Instruments such as the Commission Communi-cation on Immigration, Integration and Employment, adopted in June 2003, also emphasise the need to prevent racism and discrimination. See also the remarks on this Communica-tion infra in chapter 3.3.
21. Ellis (2005), pp. 315–344.
22. Fredman (2002), p. 90, and Bell (2002), pp. 32–53.
The promotion of equality between men and women as one of the tasks of the Commu-nity was taken up already in the Treaty of Rome (TEC), and the principle of equal pay for equal work irrespective of sex was the first question addressed. The provisions concerning the measures to be taken by the EU institutions in the area of sex equality have subse-quently been broadened. The Amsterdam Treaty elevated equality between men and women one of the central tasks of the Community. See arts 2 and 3 of the Treaty. See also Fredman (2002), pp. 31–32 and 90.
23. Pursuant to art. 13 of the Amsterdam Treaty, the Council “may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”.
24. Ellis (2005), p. 18.
25. These include e.g. the Equal Pay Directive and the Equal Treatment Directive.
ployment Equality Directive, were adopted to implement article 13 of the Treaty of Amsterdam. The former implements the principle of equal treatment irrespective of racial or ethnic origin and prohibits racial and ethnic discrimination in the fields of employment, education, social security and healthcare, access to goods and services, and housing.The latter implements the principle of equal treatment in the areas of employment and training irrespective of religion or belief, disability, age and sexual orientation.26 The legislative framework of the EU has been supported and supple-mented by anti-discrimination programmes adopted within the Union to encour-age measures to prevent and combat discrimination.27 The Community Action Pro-gramme to Combat Discrimination is also noted as playing a role in preventing and combating racism, xenophobia and anti-Semitism.28
Currently there is only a limited list of grounds for discrimination that EU law prohibits outright. These include the above-mentioned EU nationality, sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation.29 The more noticeable differences compared to the lists of grounds laid down in the internation-al human rights instruments of generinternation-al application adopted by the CoE and the UN are that the list of grounds in EU law contains grounds not explicitly mentioned in human rights norms and that the EU list is not open-ended.30 Although EU law has been expanded by the addition of new grounds of discrimination, the cover-age of the law remains far from complete. It has been observed that since EU law only prohibits discrimination based on specified grounds, differences (in treatment) between persons in otherwise comparable circumstances that are not based on the specified grounds are lawful.31 Furthermore, as discussed in the preceding chapter, the need to establish sufficiently distinct boundaries vis-à-vis other groups, as well
26. The directives do not provide the definitions of the grounds they address, which has con-tributed to some uncertainties as to their scope. Consequently, much discretion has been left to the ECJ as regards the definitions. The omission of “colour” in the Racial Equality Directive has been criticised due to the fact that much racial discrimination is in reality based upon the of colour of the victim’s skin. See Ellis (2005), p. 31.
27. The programmes adopted have addressed various forms of discrimination prohibited under EU law. See e.g. the Programme relating to the Community Framework Strategy on Gen-der Equality (2001–2005) and the Community Action Programme to Combat Discrimina-tion (2001–2006).
28. EU Annual Report on Human Rights (2003), p. 19.
29. Part-time and temporary employment has also been listed among the prohibited grounds.
Ellis (2005), p. 20. For different grounds, see pp. 20–36.
30. See the remarks on the open-endedness of the lists of prohibited grounds of discrimination in human rights norms supra in chapter 2.3.1.1. Art. 13 of the Amsterdam Treaty and the relevant directives provide closed lists of grounds. It is worthy of note that the EU Charter of Fundamental Rights includes a number of grounds not expressly covered by the pro-visions of the Amsterdam Treaty and the EC anti-discrimination directives and that the Charter’s list of grounds is also open-ended. See the remarks on the art. 21.1 of the Charter supra (n. 4).
31. Ellis (2005), p. 108.
as bright line distinctions, is problematic in respect of multiple or cumulative (or
“intersecting”) discrimination.32
Unlike the international human rights norms, EU anti-discrimination law does not contain non-discrimination provisions of general application, but is clearly lim-ited to certain areas, employment being the most prominent. Additionally, EU anti-discrimination law creates somewhat different scopes of application for the different grounds it covers, producing a hierarchy of equality in which different groups enjoy a different standard of legal protection. At present, racial or ethnic discrimination is at the top and age discrimination at the bottom of this hierarchy.33 In general, the Community competences set limits whereby the application of EC directives can-not extend to the areas that are outside the Community’s regulatory competence.
For example, although the material scope of the Racial Equality Directive extends to the area of education, the Community has no competence over matters of edu-cational curriculum and organisation; yet, these are important areas in which racial discrimination may occur, for instance through the inclusion in the curriculum of material with a racial bias, or through the refusal to admit children of a particular (ethnic) origin (e.g. Roma) to a school.34
Within EU law, the scope of the law prohibiting discrimination on the ground of nationality is also somewhat different from the law dealing with other categories of discrimination. It is rooted in the importance of the free movement of persons in a single economic market, and the whole area of discrimination based on nationality is being subsumed into the wider notion of citizenship of the Union.35 A number provisions in EU law prohibit discrimination against persons on the ground of their possessing the nationality of an EU member state. EU law characteristically affords different rights to different groups of individuals depending on their nationality and status. The rights of citizens of EU member states residing in other EU states have been liberalised to a considerable extent such that EU citizens enjoy a strong legal
32. See the remarks supra in chapter 2.3.1.1. See also Fredman (2002), pp. 68–70 and 74–75.
For the problematic of multiple discrimination in the light of EC directives, see also Bell (2002), pp. 112–115.
33. The Racial Equality Directive has the broadest scope of application extending beyond em-ployment to include education, housing, and other social protection. The EC directives on sex equality cover employment and social security. The Employment Equality Directive is limited to discrimination in the areas of employment, vocational training, and membership in workers’ or employers’ organisations; social security is specifically excluded. The Em-ployment Equality Directive also contains some very wide-ranging exceptions, especially in relation to age. For the remarks on the hierarchy of these provisions, see Ellis (2005), p.
214, Fredman (2002), p. 70, and Bell (2002), pp. 32 and 52. For the wide material scope of the Racial Equality Directive, including prohibiting discrimination in both the public and private sectors in relation to the activities it refers to, see Chalmers (2001), p. 214.
34. For this reason the ECJ’s decisions acquire particular importance. Ellis (2005), p. 256. For the limits set by the Community’s competence, see also Bell (2002), pp. 76 and 134.
35. Union citizenship was created by the TEU. See Part II, arts 17–21.
status in other EU states, including extensive rights to move and reside within the territory of the member states. The strongest status has been granted to workers and those exercising the right of establishment or freedom to provide services, but economically inactive (retired persons, persons with independent means and stu-dents) and the family members of all the above-mentioned EU citizens have also been granted certain rights.36 Union citizenship also confers political rights on EU citizens residing in other EU states, most prominently the right to vote in local elections and in the elections of the EU Parliament.37 In general, EU citizens enjoy stronger protection in other EU states on the basis of EU law than under general international law.38
Third-country nationals lawfully in the EU area are divided into a number of categories, each of which has a somewhat differing legal status and the regulation of which differs in accordance with the temporary or permanent purpose of a person’s presence in the EU member state. The EU has created a system of graded rights in which a rather stable status has been granted to recognised refugees39 as well as to long-term residents from third countries, with the latter potentially enjoying almost the same rights as EU citizens.40 The status of the other groups already covered by the EC directives is either limited by the purpose of residence (temporary or sub-sidiary protection, students) or is related to their status as joining family members.41 The nationals of a number of third countries, including the association countries,
36. In addition to treaty provisions, there is also a substantial body of secondary law to support the rights of the EU citizens. There exist provisions prohibiting discrimination on the basis of nationality in general terms and providing for the freedom of movement of EU nation-als and their family members. The right to move and reside within the territory of the EU member states is subject to some limitations and conditions laid down in EU legislation.
Gross (2005), pp. 146–148. For a comprehensive consideration of the various rights con-ferred on the EU citizens of various statuses, see Rogers and Scannell (2005).
37. See the TEU, art. 19. The rights of EU citizens have also been incorporated in Chapter V of the EU Charter of Fundamental Rights.
38. Rogers and Scannell (2005), pp. 233–244.
39. For the right of free movement and social security benefits of recognised refugees and state-less persons, see ibid., pp. 76 and 224.
40. Bell (2002), pp. 194–195. Residency is viewed to be long-term after five years of legal resi-dence and economic indepenresi-dence. See the Directive on Long-term Third-country Resi-dents, arts 4 and 5. The same mechanism is laid down in the Directive on Family Reunifica-tion. Most of the restrictions in the directives regulating the legal status of third-country nationals are optional, with EU regulation setting the minimum standard and the member states free in most areas to grant equal treatment. Gross (2005), pp. 160–161. For a wide margin of discretion of states with respect to the Directive on Long-term Third-country Residents, see Halleskov (2005), pp. 181–201.
41. For the various legal statuses created in EU law and their contents, see Gross (2005), pp.
152–160.
are given rights with respect to the EU and vice versa on the basis of agreements between the EU and the relevant countries.42
The distinction upheld between EU citizens and third-country nationals in the EU resulted in the insertion of a separate provision on nationality both in the Ra-cial Equality Directive and the Employment Equality Directive.43 These insertions were due to the ever-sensitive matter of immigration and the need to signal that it did not fall within the terms of the directives. The member states wanted to pre-serve the right to deal with asylum and migration policies and, especially, the scope of their social security systems.44 Incorporation of the nationality provision in the directives signifies that the core problem of legal discrimination in the area of im-migration is not covered by EC law.45 The insertion of references to nationality in EU legislation has also resulted in a considerable number of uncertainties, reflected in debates on the reach of the directives with respect to third-country nationals.46 Among other things, it has been pointed out that the most serious forms of racial violence are excluded from the remit of the Racial Equality Directive, as it does not include policing or questions of criminal justice.47 The legal distinction between citizens of the Union and third-country nationals has been criticised from a human rights perspective, since it has not been considered compatible with the EU mis-sion to combat racism;48 it has been stated that the nationality exception in the EC directives may even foster rather than diminish xenophobia.49 It is also worthy of note that the areas of freedom, security and justice developed by common actions
42. The EU has concluded these kinds of agreements with numerous countries in Europe and outside Europe. See Rogers and Scannell (2005), pp. 247–265.
43. According to art. 3.2 of the Racial Equality Directive, “This Directive does not cover dif-ference of treatment based on nationality and is without prejudice to provisions and condi-tions relating to the entry into and residence of third-country nationals and stateless persons on the territory of member stats, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.” Art. 3.2 of the Employment Equality Directive incorporates the similar kind of provision.
44. See also the remarks on the development of Community competences in the area of immi-gration and asylum infra in chapter 3.3.
45. Gross (2005), p. 158. See also Ellis (2005), p. 290. The formulation of art. 21.2 of the EU Charter of Fundamental Rights also reflects the distinction between the rights of EU citi-zens and those of third-country nationals. See the remarks supra in chapter 3.1 (n. 4). See also Ellis (2005), p. 330.
46. Bell (2002), pp. 37–38 and 195. Evelyn Ellis has stated that in situations other than those specified, the Racial Equality Directive and its partner Employment Equality Directive are intended to apply to all persons within the EU, irrespective of their nationality. Ellis (2005) pp. 289–290.
47. Chalmers (2001), pp. 214–215.
48. Groenendijk and Guild (2001), p. 44.
49. Brown (2002), p. 212.
of the EU member states are also specifically mentioned as being provided for EU citizens.50
Although the unique characteristics of the supremacy and direct effect of EC law and the now highly sophisticated case law of the European Court of Justice (ECJ) are noted as being of the utmost potential significance for individuals claim-ing equality, the numerous sources of equality and non-discrimination law make this area an extremely complex one within the EU.51 Adding to the complexity of EC law in the area of anti-discrimination are a number of ambiguities as regards the scope of application of the relevant provisions.52 Furthermore, the fact that anti-discrimination law advances a perception that “some are more equal than others”
may undermine the potential of anti-discrimination law to create an enhanced com-mitment to the Union on the part of individuals.53 The anti-discrimination action of the EU has strong links to the labour market and consequently also to economic and market interests; the treatment and status of third-country nationals is plainly associated with economic imperatives. Although the adoption of the Racial Equal-ity Directive in particular signifies a departure from the traditional labour market focus in going outside the sphere of employment, economic concerns remain the recurrent orientation within the EU, as can be clearly seen in the directives.54 The symbiotic relationship between equality and economic concerns has also resulted in seeing sex/gender equality through an “economic prism”: i.e. the disadvantaged position of women in the labour market has been characterised as a source of eco-nomic inefficiency, and sex equality is seen as a strategy to achieve ecoeco-nomic com-petitiveness. It has been pointed out that recognition of the fact that equality could not remain indefinitely subservient to market-based aims also led the ECJ to ac-knowledge that the sex equality provisions also have their basis in the fundamental human right to equality.55
EU social policy is closely linked to the economic dimensions of the Union, and the “European social model” has been created to balance economic interests
50. TEU, art. 29.
51. Ellis (2005), pp. 85–86.
52. At the heart of the difficulty is, among other things, the ambiguities of such central terms as “treatment” and “employment”. Ibid., pp. 214, 218–219 and 254–255. See also the re-marks on the vagueness linked to the prohibited grounds of discrimination supra (n. 26).
53. Bell (2002), p. 213.
54. See Recital 9 to the Racial Equality Directive, and Recital 11 to the Employment Equality Directive. The breadth of the provision on justification on grounds of age in art. 6 of the Employment Equality Directive has been pointed out as being an indication of how the principle of non-discrimination is sacrificed to commercial interests. Ellis (2005), p. 296.
For the remarks on the economic and political forces prompting EU anti-discrimination legislation and on the economic basis of the Racial Equality Directive and the Employment Equality Directive, see pp. 29 and 296.
55. Fredman (2002), pp. 24–26 and 90.
(“market-making”) with social protection (“market-correcting”).56 Social policy in the EU is not rights-based but characterised by a comparative absence of the lan-guage of rights.57 Although the initial market-making focus of the EU was strong, the adoption of article 13 of the Amsterdam Treaty and the directives pursuant to it have reconfigured European social policy such that more attention is now paid to fundamental social rights. However, despite this shift, the market-making focus of earlier periods is still visible in EU policies.58 In general, the economic and so-cial objectives (including soso-cial protection and equality) of the EU are constantly in tension, even conflict,59 and there are pressures to prioritise economic liberalisation over economic justice and cohesion.60 The EU has justified its agenda on equality and non-discrimination both with reference to economic rationality – thus view-ing equality as a productive factor in a market-driven economy – and to securview-ing human rights, but it has been pointed out that it is sometimes difficult to identify which one of these two rationales has the upper hand in the EU policy.61 It has also been observed that advancing economic rationality with respect to equality within the EU has also had its positive outcomes, especially in the context of disability, a
(“market-making”) with social protection (“market-correcting”).56 Social policy in the EU is not rights-based but characterised by a comparative absence of the lan-guage of rights.57 Although the initial market-making focus of the EU was strong, the adoption of article 13 of the Amsterdam Treaty and the directives pursuant to it have reconfigured European social policy such that more attention is now paid to fundamental social rights. However, despite this shift, the market-making focus of earlier periods is still visible in EU policies.58 In general, the economic and so-cial objectives (including soso-cial protection and equality) of the EU are constantly in tension, even conflict,59 and there are pressures to prioritise economic liberalisation over economic justice and cohesion.60 The EU has justified its agenda on equality and non-discrimination both with reference to economic rationality – thus view-ing equality as a productive factor in a market-driven economy – and to securview-ing human rights, but it has been pointed out that it is sometimes difficult to identify which one of these two rationales has the upper hand in the EU policy.61 It has also been observed that advancing economic rationality with respect to equality within the EU has also had its positive outcomes, especially in the context of disability, a