Personal and material scope

• Author: Karin de Vries
• Pages: 36-46

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3 PERSONAL AND MATERIAL SCOPE

3.1 Personal scope

3.1.1 EU and non-EU nationals (Recital 13 and Article 3(2) Di rective 200 0/43

and Recital 12 and Article 3(2) Directive 2000/78)

In the Netherlands, there are no residence or citizenship/nationality requirements for

protection under the relevant national laws transposing the directives. The principle in

Dutch law is that ‘all persons in the Netherlands shall be treated equally in equal

circumstances’, as provided for in Article 1 of the Constitution. Thus, the protection against

discrimination p rovided by criminal law, civil law, equal treatment legislat ion and

administrative law covers any person on the territory of the Netherlands. This wide

personal scope means t hat, in principle, migran ts, regardless of their i mmigration status,

are protected by the broad range of non-discrimination law if they encounter discrimination

on grounds of, for instance, their race or ethnic origin, or their religion. An example can be

found in a case brought to the NIHR, the national equality body, in which several people

alleged they had been singled out by the local aut horities because of their E gyptian and

Somali origin for a fraud investigation regarding the social benefits they received. The NIHR

accepted this could amount to discrimination on grounds of race. 156

However, whereas irregularised migrants are not expressly excluded f rom the scope of

Dutch anti-discrimination law, th ey are excluded from legal employment157 and are not

entitled to use public services such as housing, healthcare or social protection.158 It follows

that they do not have legal access to many of the fields in respect of which the anti -

discrimination legislation applies. Limitations also exist with regard to the rights of migrants

with temporary residence permits: their access to employment and public services depends

on the purpose for which they have been admitted. These legislative restrictions on the

rights of (irregularised) migrants are not themselves subject to the equal treatment

legislation as the GE TA covers nationality discrimination only in horizontal relationships

(see further Section 4.4).

3.1.2 Natural and legal persons (Recital 16 Directive 2000/43)

a) Protection against discrimination

In the Netherlands, the personal scope of anti-discrimination law does not cov er (certain)

legal persons for the purpose of protection against discrimination. For the purposes of

protection against discrimination only natural persons are protected. This follows from the

Memorandum of Reply to the GETA, whe re the G overnment explained that the definition

of ‘distinction’ in Article 1 GETA refers to making a distinction between persons.159

However, where a group of n atural persons is collectively subject to discrimination ( e.g.

when an asso ciation of professionals, a political association / party or a religious

organisation is refused a contract for hiring a meeting room in a hotel), their organisation

may be seen as the rights holder, according to the then ETC in a number of its Opinions.160

These cases all c oncerned access to an d supply of goods and services . In one case, the

156 NIHR 2016-83. Another similar example concerned a complaint from a man from Sudan who claimed he was

refused a job because of his Sudanese origin, see NIHR 2016-60.

157 Article 2(1) Aliens Employment Act (Wet arbeid vreemdelingen), Staatsblad 1994, 959, entered into force 1

September 1995.

158 Article 10(1) Aliens Act 2000 (Vreemdelingenwet 2000), Staatsblad 2000, 495, entered into force 1 April

2001. The second paragraph contains some exceptions concerning, inter alia, emergency healthcare and

legal assistance.

159 Tweede Kamer, 1991-1992, 22 014, no. 5, p. 87-88. In addition, the new definition of a distinction in the

GETA refers to ‘where one person is treated less… etc.’

160 See e.g. ETC 1996-110, 1998-31 and 1998-45. In addition, there is a possibility for associations to act on

behalf of victims of discrimination when this is a (statutory) goal of their organisation.