EU Equality Law: Three Recent Developments

• Author: Erica Howard
• DOI: http://doi.org/10.1111/j.1468-0386.2011.00578.x
• Date: 01 November 2011
• Published date: 01 November 2011

eulj_578785..803

EU Equality Law:

Three Recent Developments

Erica Howard*

Abstract: This article analyses three recent developments within the EU that have an

impact on EU equality legislation: the coming into force of the Treaty of Lisbon, the

Proposal to extend the material scope of the provisions against discrimination on the

ground of religion and belief, disability, age and sexual orientation beyond the area of

employment, and the case law of the European Court of Justice regarding the EU Equality

Directives of 2000. It will assess whether these three developments have led to improved

protection against discrimination for people in the EU.

I Introduction

This article examines three recent developments in EU equality/non-discrimination

law: f‌irst, the coming into force of the Treaty of Lisbon that confers legal status on the

EU Charter of Fundamental Rights of the EU and determines that the EU shall accede

to the European Convention for the Protection of Human Rights and Fundamental

Freedoms (ECHR);1second, the proposed new Directive extending the material scope

of the provisions against discrimination on the ground of religion and belief, disability,

age and sexual orientation beyond the area of employment that the EU Commission

brought out in July 2008;2and, third, the case law of the European Court of Justice

(Court of Justice) on the prohibition of discrimination laid down in the 2000 Equality

Directives3and, more specif‌ically, on equality as a fundamental principle of Commu-

nity law. The last part is devoted to a discussion of the question whether these three

developments mean improved protection against discrimination for people in the EU.

It is submitted that any extension of protection against discrimination is a positive

development, as it improves the situation of victims of discrimination, and this might,

ultimately, lead to more equality for all people in the EU.

* Senior Lecturer in Law, Middlesex University.

1For the Consolidated Versions of the Treaty on EU (TEU) and the Treaty on the Functioning of the EU

(TFEU), see [2008] OJ C 115/13 (TEU) and 115/47 (TFEU).

2COM (2008) 426 Proposal for a Council Directive Implementing the Principle of Equal Treatment between

Persons Irrespective of Religion or Belief, Disability, Age or Sexual Orientation.

3Council Directive 2000/43/EC of 29 June 2000 Implementing the Principle of Equal Treatment between

Persons Irrespective of Racial or Ethnic Origin [2000] OJ L 180/22 (hereafter the Race Directive)

and Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal

Treatment in Employment and Occupation [2000] OJ L 303/16 (Employment Equality Directive).

European Law Journal, Vol. 17, No. 6, November 2011, pp. 785–803.

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II Treaty of Lisbon

The Treaty of Lisbon contains a number of articles that are important for equality and

non-discrimination within the EU.4First, in Article 2 TEU, equality is mentioned as

one of the values on which the Union is founded. This is followed by Article 3(3) that

determines that the Union ‘shall combat social exclusion and discrimination, and shall

promote social justice and protection and equality between women and men.’ It shall

also ‘respect its rich cultural and linguistic diversity.’ Although these articles do not

create any legal rights, their prominent position at the beginning of the TEU shows

clearly that the Union values equality and diversity and that equality is one of the basic

fundamental values underpinning the EU.

Second, apart from renumbering old Articles 12 and 13 European Community

Treaty (EC) into Articles 18 and 19 TFEU, respectively, Article 19 TFEU enlarges the

role of the European Parliament, whose consent is now required before the Council can

adopt a Directive based on this Article. This is important because the Parliament has

often played a role in furthering the protection against discrimination within the EU.5

Third, the TFEU also imposes a mainstreaming duty in relation to all the grounds of

discrimination prohibited under EU law. Article 8 TFEU echoes the old Article 3(2)

EC in determining that ‘in all its activities, the Union shall aim to eliminate inequalities,

and to promote equality between women and men.’ Article 10 TFEU then extends the

mainstreaming duty to all the grounds of discrimination mentioned in Article 19

TFEU. It states that ‘in def‌ining and implementing its policies and activities, the Union

shall aim to combat discrimination based on sex, racial or ethnic origin, religion or

belief, disability, age or sexual orientation.’ A mainstreaming duty means, according to

Bell, that the Union should ensure that any measures taken do not discriminate and

that law and policy instruments are actively used to promote equality for all persons.6

Although it must be kept in mind that these articles impose a mainstreaming duty on

the EU itself, not on the individual Member States, it is important because it puts all the

EU institutions under a duty to consider equality/non-discrimination in all they do.

Fourth, the Treaty of Lisbon brings some developments in the area of human rights,

which include a right to equality and non-discrimination. The Treaty confers legally

binding status on the Charter of Fundamental Rights of the EU and determines that

the EU shall accede to the ECHR (Article 6(1) and 6(2) TEU, respectively). Both

developments could be inf‌luential on EU equality law. The Charter contains a number

4For a discussion on the implications of the Treaty of Lisbon specif‌ically for anti-racism, see R. Zahn, The

EU Lisbon Treaty: What Implications for Anti-racism? (Brussels, European Network Against Racism,

2009). For discussions on the implications of the Treaty especially for gender equality, see S. Koukouris-

Spiliotopoulos, ‘The Lisbon Treaty and the Charter of Fundamental Rights: Maintaining and Developing

the Acquis in Gender Equality’, (2008) 1 European Gender Equality Law Review 15–24; and E. Ellis, ‘The

Impact of the Lisbon Treaty on Gender Equality’, (2010) 1 European Gender Equality Law Review 7–13.

5See, for example, the section on COM (2008) 426 and the amendments proposed by the European

Parliament later on in this article; and, for the role the Parliament has played in advancing the f‌ight against

racial discrimination, see E. Howard, The EU Race Directive Developing the Protection against Racial

Discrimination within the EU (London/New York, Routledge, 2010), at 7–36.

6M. Bell, Racism and Equality in the European Union (Oxford, Oxford University Press, 2008), at 2.

Although Bell specif‌ically writes about mainstreaming to combat racism and to promote equality between

persons irrespective of racial or ethnic origin, there is no reason why this cannot be extended to all the

grounds of discrimination mentioned in Article 19 TFEU. See on mainstreaming also: J. Shaw, Main-

streaming Equality in European Union Law and Policy Making (Brussels, European Network Against

Racism, 2004).

European Law Journal Volume 17

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