1

Combating discrimination from two fronts: the ECHR and

the EU, two European Courts at a crucial stage for equality

Submitted by

Katerina Charitou

to the University of Exeter as a dissertation towards the Degree of Masters of Law

by advanced study in European Law, September 2006

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Submitted to the University of Exeter towards the degree of Master of Laws in European Law by
examination and dissertation in September 2006 in the School of Law, University of Exeter. I have
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Name: Katerina Charitou

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Date: 29 September 2006
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Abstract

Racism, traditional gender, religious, sexual orientation stereotypes and various

forms of discrimination are a general threat towards the people of Europe today. Equality
and protection against inappropriate discriminatory treatment cannot be uncared for by
the two main European establishments, the Council of Europe and the European Union.
In this dissertation I present, examine and assess the ongoing application of the
principles of equality and non-discrimination within the European Convention on Human
Rights and within Community law. I further focus on the new instruments of the two
regimes, Protocol No.12 ECHR, and the 2000 Directives of the Union. I argue that
significant shortcomings, albeit of a different nature, simmer in both establishments.
Amongst them are the limited material scope resulting out of the non-autonomous Article
14 ECHR or the common market-orientated Community law, areas of ambiguity and
inconsistency in case-law. Additionally, the Courts’ ‘carefulness’ in broadly interpreting
anti-discrimination provisions and signalling the imposition of the necessary positive
obligations or merely omissions to define or provide for particular types of discrimination,
negate the sterlingness of equality laws and constantly call for further law-making. The
recently introduced laws consist of an encouraging leap towards minimising the effect of
such flaws and filling the long-time criticised gaps. Yet, there is still a long way to go.
Each regime took its own path and approached this area with different mechanisms.
Both, however, are capable of functioning as ‘sources of rights’. The Council of Europe, on
the one hand, combats discrimination via the ECHR, a human rights’ treaty, which is
assumingly right- and individual-centred. On the other hand, European Community law is
still in the process of building up a purely ‘social policy’ and arguably remains market-
centred. Thus, one would predictably assume that it is the ECHR which captains people’s
right to equality and non-discrimination in Europe followed by the EU. As a final point, I
examine to which extent this very last fact is reflected in the protection each institution
affords against discrimination.

Word Count: 18094 words

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TABLE OF CONTENTS

A. INTRODUCTION .................................................................................................................................. 5
B. CHAPTER ONE: ASSESSMENT OF ARTICLE 14 ECHR .............................................................. 7
1. 1. INTRODUCING THE CONCEPTUAL ISSUES UNDER ARTICLE 14 ........................................................... 7
1.2. THE SCOPE AND PROCEDURAL PARTICULARITY OF ARTICLE 14 – A QUESTION FOR THE COURT .... 10
i. ‘Within the ambit of the ECHR’ ..................................................................................................... 10
ii. A second-route access theory? ....................................................................................................... 11
iii. Article 14 as a subsidiary provision ............................................................................................... 13
1.3. ‘DIFFERENTIAL TREATMENT’ AND ‘ANALOGOUS SITUATIONS’–A QUESTION FOR THE APPLICANT 16
i. Differential Treatment .................................................................................................................... 16
ii. ‘Analogous Situations’ ................................................................................................................... 17
1.4. JUSTIFICATION FOR DIFFERENTIAL TREATMENT –A QUESTION FOR THE STATE ............................. 20
i. Passing over the Comparability Test ............................................................................................. 21
ii. Rational and Evidential Basis of the Justification ......................................................................... 23
1.5. INDIRECT DISCRIMINATION............................................................................................................. 24
1.6. POSITIVE OBLIGATIONS .................................................................................................................. 26
1.7. CONCLUSION .................................................................................................................................. 28
C. CHAPTER TWO: PROTOCOL 12 ECHR: FILLING THE GAP? ................................................. 29
2. 2. PROTOCOL NO.12: FILLING THE GAP? ............................................................................................ 31
i. The Scope of Protocol No. 12......................................................................................................... 31
ii. Conceptual Issues. ......................................................................................................................... 33
iii. Positive Obligations ....................................................................................................................... 34
2.3. CONCLUSION: PROTOCOL 12 AND THE FUTURE OF THE ECHR ANTI-DISCRIMINATION POLICY ............... 38
D. CHAPTER THREE: EU ANTI-DISCRIMINATION POLICY ...................................................... 41
3.1. THE EMERGING OF AN ANTI-DISCRIMINATION POLICY IN THE EU ................................................... 41
3.2. THE SCOPE OF EU ANTI-DISCRIMINATION LAW ............................................................................. 42
i. Discrimination in Employment....................................................................................................... 42
ii. ‘Beyond Employment Discrimination’ ........................................................................................... 50
3.3. JUSTIFICATIONS UNDER THE 2000 DIRECTIVES ............................................................................... 53
3.4. ASSESSMENT OF THE CURRENT ANTI-DISCRIMINATION POLICY IN THE EU .................................... 55
3.4. INDIRECT DISCRIMINATION............................................................................................................. 58
3.5. POSITIVE ACTION............................................................................................................................ 60
3.6. CONCLUSION .................................................................................................................................. 62
E. CHAPTER FOUR: COMBATING DISCRIMINATION FROM TWO FRONTS. ........................ 63
4.1 MATERIAL SCOPE ........................................................................................................................... 63
4.2 CONCEPTUAL CLARITY ................................................................................................................... 64
4.3 JUSTIFICATIONS .............................................................................................................................. 65
4.4 THE CHARTER OF FUNDAMENTAL RIGHTS ...................................................................................... 66
4.5 ‘PROHIBITION OF DISCRIMINATION V EQUALITY’: POSITIVE ACTION ............................................. 67
4.6 REMEDIES AND ENFORCEMENT ....................................................................................................... 67
F. CONCLUSIONS .................................................................................................................................... 69
BIBLIOGRAPHY ........................................................................................................................................... 72
APPENDIX ...................................................................................................................................................... 79
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A. INTRODUCTION

Equality has been a constant theme for social justice partly because of its defining
role to human beings’ identity and individualism, rights, legal, social and political status
within the society. Today, a plethora of international provisions proclaim the importance of
equality. Amongst them are Articles 1 and 2, at the very beginning of the Universal
Declaration of Human Rights 1948, Articles 7 and 26 of the International Covenant of Civil
and Political Rights 1966, the UN Charter1 and the International Covenant for all forms of
racial discrimination 1966. Yet, at the same time, the jurisprudence behind such provisions
betrays the complexity and multidimensionality of equality and non-discrimination as legal
ideas.
The ‘European environment’ is traditionally seen as one of the most progressive in
the world, and the European Union increasingly sets more demanding objectives, moving
from economic integration towards social and political integration. It is the expectations
generated by this reality as opposed to the current anti-discrimination policy in both
regimes that urged me into choosing this topic for my dissertation.
This dissertation predominantly examines equality via its facet of ‘non-
discrimination’ as a right and as a principle necessitating protection at European level.
On the one hand, Article 14 of the main human rights document in Europe, the
ECHR, has for many years constituted the main provision under which individuals sought
protection against any type of discrimination. The weak, ancillary and imprecise character
of the proviso, however, gradually became more and more visible and rendered article 14
unsatisfactory as a representative of the whole anti-discrimination policy of the Council of
Europe. In Chapter 1 I criticise the construction of the Article 14 jurisprudence in terms of
interpretational and procedural clarity, consistency, justice even proportionality. I also
evaluate the degree to which the conceptual dimensions of ‘discrimination’ and ‘equality’
together with the positive dimension of the right embodied in the proviso thereby have been
adequately explored by the European Court of Human Rights.

1
Article 1(3)
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In Chapter 2, I examine the extent to which Protocol No. 12 provides stronger

guarantees of equality and non-discrimination than Article 14. The question of
improvement is examined in terms of conceptual clarity, autonomous application of the
principles within a wider scope bringing an end to the subservient character of Article 14
and the recognition of the necessity to impose positive obligations on states.
On the other hand, the EU has derived its own anti-discrimination policy based on
the principle of equality. Chapter 3 explores the different sources and development of such
policy which, as a result of its initially market-orientated motive, provides a strong
protection in the area of employment-related rights. The material scope of the Union policy
is thus limited not only with respect to the areas in which it applies but also in relation to
the grounds on which it protects discrimination. Yet, I examine the quality of the protection
provided by the Union policy and at various instances compare it to the unclarity and
inconsistency experienced in the ECHR jurisprudence. Furthermore, I assess the ongoing
expansion of the scope of EU anti-discrimination into areas beyond employment with
respect to racial or ethnic discrimination and into new grounds.
Finally, in part of Chapter 3 and mainly in Chapter 4, I attempt to use the common
denominators between the two regimes and make a comparison in relation to the breadth of
their scope, conceptual clarity, provision for positive action and effectiveness. Concluding
on the characteristics of each policy-source I answer to one more question, namely whether
the degree of protection against discrimination by the ECHR as opposed to the EU is the
one that is reasonably expected.
I overall argue that anti-discrimination and equality policies are currently at a
crucial stage, into forming a ‘new generation’ of equality as a challengeable right. The new
laws, Protocol 12, the 2000 directives, even the 2006 EC Directive are all facing the right
direction towards a stronger legal framework against discrimination.
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B. CHAPTER ONE: ASSESSMENT OF ARTICLE 14 ECHR

1. 1. Introducing the Conceptual Issues under Article 14

The ECHR was intended to represent ‘the first steps for the collective enforcement
of certain of the rights stated in the Universal Declaration of Human Rights 1948’.2 Bearing
this in mind, the first thing that strikes the reader of article 14 is the fact that, contrary to
article 7 UDHR,3 it is neither a free-standing provision nor a ‘general’ prohibition of
discrimination. It can only be invoked and applied in relation to the substantive guarantees
of the ECHR.4 Which, contrary to the massive amount of ‘rights’ provided for under other
international provisions, covers only a limited number of civil and political rights.
The concept of discrimination is not defined or explicated in the Convention.
Evidently, article 14 prohibits certain forms of differential treatment5 on specific grounds
‘or other status’. The latter implies that the list of grounds or ‘badges’ is open-ended, non-
exhaustive and, given the ‘living instrument’ the Convention is intended to represent as a
general principle, it is expected to reflect contemporary realities of the European society in
the non-listed grounds. The relevant literature has unanimously recognised that the
prohibition is not absolute and that ‘discrimination’ should not be equated to
‘differentiation’. Therefore, the French text ‘sans distinction aucune’ is an inaccurate
articulation of the standard applied under article 14. The absoluteness and breadth it
attributes to the prohibition leads to the absurd result where everyone is granted complete
equality. Such complete equality fails to recognise that there are different situations calling
national authorities to find different legal solutions or to proceed with inequalities to
address actual inequalities. In effect, complete equality causes in itself inequality. An
example is where the state provides for additional educational facilities for children of poor

2
Preamble to the European Convention on Human Rights, 5 th recital
3
And many other international provisions the paper has referred to above
4
‘Convention’ refers to both articles and Protocols in force
5
Or ‘non-differential treatment’ in the case of ‘indirect discrimination’
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families. To characterise this as ‘discrimination’6 seems unfair and incompatible with the
objectives of the Convention and its principles7 including democracy, proportionality,
effectiveness, subsidiarity, universality let alone the principle of equality itself. Therefore,
the definition of discrimination must be flexible depending on the particular factual
circumstances of the case in question.
The most important asset in analysing article 14, its case-law, suggests that the
responses to three main questions imposed by the Court are integral to a coherent definition
of ‘discrimination’. The questions are whether: a) the facts of the case fall within the ambit
of the Convention, b) differential treatment has taken place via a legal measure applied on
‘analogous situations’ or differential treatment has not taken place where necessary given
that situations are ‘significantly different’ from each other and c) the State does not
reasonably and objectively justify a discriminatory measure by a legitimate aim and the
tests of proportionality or margin of appreciation are not satisfied.8
An illustration of the Court’s ‘full’ approach is Rasmussen. 9 A father complained
about the time-limits imposed on him in obtaining the paternity of his child contrary to the
mother’s ability to institute paternity proceedings at any time. The Court examined whether
the allegation of violation fell within the ambit of articles 6 and 8, established differential
treatment between husband and wife irrespectively of its basis and assumed that the two
were in ‘analogous situations’. Subsequently, for the Court in this case, ‘discrimination’
would have taken place had there not been a reasonable and objective justification for
differential treatment. Since, however, prioritisation of the child’s rights over the parent’s
qualified as a justification and a ‘legitimate aim’ to which the law in question was
proportionate and the law fell within the permissible margin of appreciation of the state, no
violation of article 14 had been found.
However, no constant enquiry-system exists, consistently and stably applicable to
all cases and the tests themselves are not applied in the same manner. The facts of each

6
The Belgian Linguistic case, Judgment of 23 July 1968, Series A, No.6; (1979-80) 1 EHRR 252, Section I B,
para 9
7
Ibid.
8
Ibid Belgian Linguistic case, para 10
9
Rasmussen v Denmark Series A 87 (1984)
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case seem to influence the approach and the conclusions of the Court. Perhaps the rationale
lies in the individual opinion in Grandrath10 which supports that ‘justification’ is found
where, without regard to the purpose of the measures in question, the facts of the case
require or permit differential treatment. 11
In other words, ‘justification’ depends on
considerations of the right and circumstances in question rather than of the measure itself.

Each of the stages comprising of the Court’s approach will be examined in turn.

10
Individual opinion of Mr Balta, Grandrath v Federal Republic of Germany, App 2299/64 Report of
Commission, 12 December 1966, Decision of Committee of Ministers, 29 June 1967, (1967) 10 Yearbook
626
11
C. Ovey, R.C.A. White, “European Convention on Human Rights”, 4th ed. (Oxford, OUP, 2006) p. 417
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1.2. The Scope and Procedural Particularity of Article 14 – A question for the Court

i. ‘Within the ambit of the ECHR’

Besides the general restrictions imposed on the proviso under Articles 16 and
17,12as already stated, Article 14 combats discrimination only in relation to the provisions
of the Convention. Consequently its ambit excludes, inter alia, rights relating to
employment, working conditions or housing.13 Thus, article 14 has been repetitively
criticised for its weakness, and for creating a gap in its protection against discrimination.14
The ‘gap’ is also owed to the fact that only some of the grounds are expressly provided for
whereas those grounds falling under ‘other statuses’ obtain weaker protection in that
discrimination with respect to them is likely to be easily justified. Ironically enough, such
grounds, e.g. age and disability, include situations where inherent personal characteristics
rather than characteristics or opportunities chosen by an individual15 are necessitate the
greatest protection against discrimination.16
Under article 14, a claim fell ‘within the ambit’ of the Convention where it had
‘some connection with one of the rights and freedoms guaranteed’, 17 its ‘subject matter fell
within the scope of the Convention’18 or it had been ‘covered’ by a Convention provision. 19
Yet, the present prevailing test is that ‘the facts at issue [must] fall within the ambit of one
or more of the articles of the Convention’. 20

12
Providing for prohibition to restrictions on political activity of aliens and prohibition of abuse of rights
respectively
13
As a great contrast to, for example, article 26 International Covenant of Civil and Political Rights (ICCPR)
14
E.g. R.Wintermute, “Within the ambit: How Big is the “Gap” in article 14 European Convention on
Human Rights? Part I”E.H.R.L.R. 2004, 4, 366-382
15
Known as the ‘non-choice grounds’ and also include sex and race
16
R.Wintermute, “Within the ambit: How Big is the “Gap” in article 14 European Convention on Human
Rights? Part I”E.H.R.L.R. 2004, 4, 366
17
ibid.
18
Appl.4045/69 X v Federal Republic of Germany, Yearbook XIII (1970) p.276 (288)
19
X v The Netherlands Appl. 6573/74, D& R 1 (1975) p.87 (89)
20
Abdulaziz, Cabales and Balkandali v UK Series A 94, (1985) p.35
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In practice, the question whether the complaint falls within the ambit of the
Convention often leaves scope for arguments. In Inze21 for example, the Austrian
government argued that the claim concerned discrimination against acquiring possessions
whereas the applicant maintained that he had been discriminated against in relation to
obtaining an exclusive right to part of his co-owned property. Only the latter fell within the
ambit of the Convention22 thus the test was satisfied because the Court agreed with the
applicant.
An encouraging fact is that a broad interpretation of the ‘main provision’ will lead
to an expansion of the applicability of article 14. Therefore, where article 1 Protocol 1 has
been extended to include pecuniary rights such as social security benefits, article 14 also
covered distinctions made in the social security system. 23 And where article 8 was broadly
interpreted so as to infer a positive obligation of the state to support family reunification of
aliens, the Court upheld that discriminatory access to such right fell within the ambit of
article 14.24 In this respect, article 14 penetrates each Convention article and becomes
integral part of them attributing a certain additional quality.

ii. A second-route access theory?

Wintermute25 suggests a second way to satisfy the ‘within the ambit’ test, a ‘second-
route-access theory’ which broadens the application of article 14 and to a certain extent
detaches it from the substantive provisions. It concerns cases where the Court holds that if
the opportunity denied or the ground on which an opportunity is denied to the complainant

21
Inze v Austria, Series A 126 (1987)
22
In particular, Article 1 of Protocol 1 ECHR
23
Gaygusuz v Austria, Judgment of 16 September 1996, Reports 1996-IV, Vol 14, para 41, and Van Raalte,
Reports 1997-I, Vol 29
24
Abdulaziz, Cabales and Balkandali v UK Series A 94, (1985) paras 65, 71-72 and Judge Fitzmaurice,
dissenting, Marckx v Belgium, Series A 31 (1979) paras 23-26. However this is to be distinguished from cases
where the real intention of alien is the right to nationality, a scenario falling out of the Convention’s ambit
and article 14 will not apply, Family K and W v Netherlands, Appli. No 11278/84, 43 DR 216 (1985)
25
R.Wintermute, “Within the ambit: How Big is the “Gap” in article 14 European Convention on Human
Rights? Part I”E.H.R.L.R. 2004, 4, 366-382
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falls within the ambit of the Convention, the test is satisfied, even though the facts or
subject-matter of the case do not directly relate to the Convention’s provisions. This theory
benefits claims relating to sensitive grounds which are inextricably linked to Convention
rights such as articles 8-11. In Thlimmenos v Greece26, an individual was convicted of
felonies after Greece failed to provide different treatment towards the applicant’s religious
beliefs about serving in the armed forces. As a result, the applicant was denied access to the
profession of chartered accountant and since such denial was unjustifiable, the Court found
a violation of article 9 in conjunction with article 14. Neither the opportunity denied to him
(employment), nor the conviction for felonies fell ‘within the ambit’ of the Convention
articles. However, astonishingly enough, the Court was willing to find that, since the
ground which indirectly caused differential treatment to the applicant, was his religious
beliefs, the ‘within the ambit’ test had been justified. The remote relationship established
between the facts of the case and article 9 seems rather promising.
Unfortunately, Thlimmenos is perhaps the only case where clearly, the ground on
which differential treatment took place satisfied the ‘within the ambit’ test. In Fretté,27 the
applicant had been denied the opportunity to adopt a child and live in his intended family
on the ground of his sexual orientation.28 The majority found a violation of article 14 due to
the wide interpretation of article 8 and ‘private life’ and to the consideration that French
law, in allowing adoptions by single persons, had gone beyond the positive obligation
under article 8 thus, such allowance should not be discriminatory.29 The conclusion was
reached despite the fact that the Convention provides neither a right to adopt nor for the
desire to found a family30 and the fact that the second-route-access theory was applied led
to a decision which is ‘a victory for everyone in Europe facing discrimination in relation to
adoption of children’.31

26
(2000) 31 E.H.R.R. 15
27
Fretté v France, (2002) 38 E.H.R.R. 21, paras 27-33
28
Wintermute E.H.R.L.R. 2004, 4, op cit supra, contends that both ‘opportunity’ and ‘ground’ fell within the
ambit of article 8 notwithstanding the lack of a clear indication of whether the right to family or private life
were at issue.
29
Ibid. Judges Bratza, Fuhrmann and Tulkensm, para 33
30
These, inter alia, were the considerations of the dissenting judgments.
31
R.Wintermute, op cit supra, E.H.R.L.R. 2004, 4, 368
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These two decisions are indications of how the Court can expand the scope of
article 14 and consequently strengthen the Convention’s protection against discrimination.
Progress remains to be seen in the future.
Still, the second-route-access theory does not fill the gap with respect to ‘non-
choice’ grounds which are not reflected in any Convention article save case-law referring to
transsexualism. Thus individuals are forced to choose between an opportunity and their sex,
race, disability or age something which has no realistic escape route save where the facts of
the case involve an opportunity which does fall within the ambit of the Convention.

iii. Article 14 as a subsidiary provision

The question of autonomy of article 14 also depends on whether its application

and/or finding of its violation are dependent on the finding of a violation of the ‘substantive
provision’ invoked. In early case-law, the general position was that article 14 cannot be
successfully invoked unless there is prima facie evidence that one of the rights or freedoms
of the Convention has been violated.32 In such case, the restriction grounds provided in
relation to the ‘main’ provision were traditionally used to also justify the interference with
article 14.33 In this respect, article 14 is not an autonomous provision but a complementary
and subsidiary one. Gradually, however, the Court and Commission attributed article 14 a
relatively more autonomous character albeit being inconsistently appreciated in case-law.
Firstly, the Court accepted that even where no violation is found of the main provision, let
us say, an interference with the right to freedom of expression is justified by the legitimate
aim of the protection of public interest necessary in a democratic society, such
restriction/interference must not be applied on a discriminatory basis, for example in
relation to Jewish people only. In this respect, prohibition of discrimination acts as an extra

32
e.g. Application 808/60, ISOP v Austria, Yearbook V (1962), p.108 (124) in relation to article 6(1)
33
Appl.4045/69 X v Federal Republic of Germany, Yearbook XIII (1970) p.228 (229)
 14

limiting force on state action.34 The rationale is that article 14 must not be deprived of its
practical value which involves more than negative obligations of the state but extends to the
means and extent of the enjoyment of rights and freedoms stated in the Convention.35
Hence, in the sense that article 14 can be violated where no violation of another article is
simultaneously found, or in conjunction with another violation, it is an autonomous
provision. Therefore, as Inze36 reaffirmed, the issue when applying article 14, is not
whether or not there has been a violation of the other article but whether, according to the
test examined above, ‘the facts at issue fall within the ambit of the Convention’.37 Given
that this approach still relates article 14 very closely to the ‘substantive provision’ engaged
by a complaint, one could say that Thlimmenos and Fretté are the two cases which so far
have demonstrated the maximum extent of independency article 14 may have.
However, where the ECtHR does find a violation of the ‘substantive provision’, it
often refrains from considering article 14. Amongst the reasons given, the Court asserted
that ‘the same guarantees’ were ‘already embodied’ in the main provision therefore it was
‘unnecessary’ or ‘superfluous’ to make an inquiry into the possible violation of article 14,
independently or in conjunction with the substantive provision. Thus ‘article 14 has no
independent existence and its examination is futile unless there is a clear inequality of
38
treatment in the enjoyment of a right as a fundamental aspect of the case. Yet, such a
vague criterion which is subject to various possible interpretations is troublesomely met.39
This approach is further unsatisfactory in that it suggests that article 14 should have a
different character depending on the finding of a violation of the ‘main provision’. This
thesis agrees with the dissenting opinions pointing at the importance of the word
‘enjoyment’ requiring an independent examination of article 14 irrespective of whether a

34
Christians against Racism and Fascism v UK, No 8440/78, 21 DR 138 (1980), under article 11(2) ECHR
35
Report of 24 June 1965, B.3 (1967), pp 305-306
36
Inze v Austria, Series A 126 (1987)
37
The aforementioned test established in Abdulaziz, Cabales and Balkandali v UK Series A 94, (1985) p.35
38
Airey v Ireland, Judgment of 9 October 1979, Series A 32, p. 16 and Dudgeon, judgment of 22 October
1981 Series A 45, p. 26
39
E.g. Castells v Spain, Judgment of 23 April, 1992 Series A 236, p.25
 15

violation of the main provision has taken place.40 The ECtHR further argued that
consideration of Article 14 where another right is violated serves ‘no useful legal
purpose’.41 ‘Useful legal purpose’, however, has not been elaborated on and, from a
procedural point of view, this approach fails to take into account the fact that the Court is
the highest organ to interpret the Convention and set paradigms for future case-law and
must therefore avoid the responsibility to employ formulas which excessively limit the
scope of article 14.42 The ‘useful legal purpose’ test failed in a number of cases including
cases where differential treatment had taken place with respect to a distinction between
legitimate and illegitimate children,43 and the right to access the court.44

40
Judge Evrigenis contended that ‘discrimination in the enjoyment of a right protected by the Convention
contravenes Article 14 irrespective of whether such discrimination lies within or outside the area of violation
of that right. The word ‘enjoyment’, within the meaning of article 14 must cover all situations that may arise
between, at the one extreme, plain refusal of a rights protected by the Convention and , at the other, full
embodiment of that right in the domestic system’. A similar stance was taken by Evrigenis and Garcia De
Entecre in the Dudgeon dissenting judgments, ibid, supra.
41
Dudgeon v The United Kingdom 7525/76 [1981] ECHR 5, Judgment of 22 October 1981, Series A 45, p.26
42
Dissenting Judge Matscher
43
Johnston v Ireland, Judgment of 18 December 1986, Series A 112, p.31
44
Philis v Greece, Judgment of 27 August 1991, Series A 209, p.24
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1.3. ‘Differential Treatment’ and ‘Analogous Situations’–A question for the Applicant

Under this test, the burden of proof is on the applicant to establish that he had been
differentially treated as compared to people who are in ‘analogous situations’45 that is, they
belong to the same group whose members share certain characteristics, personal or not.
Where the characteristics in question are among the ‘listed’ ones under article 14, the
applicant has a prima facie case. However sharing a certain quality does not necessarily
mean belonging to the same group46and the Court must carefully scrutinise facts,
circumstances, grounds engaged and comparators to conclude on ‘analogous situations’.

i. Differential Treatment

Differential treatment is traditionally based on a particular ‘ground’. The

aforementioned ‘gap’ in article 14 is partly due to the limited ‘list’ of grounds provided for
within its text. So far sexual orientation, illegitimacy, marital status, military status,
professional status and imprisonment have qualified as other statuses under Article 14. The
protection afforded to each ground depends on its ‘rank’ within a ‘hierarchy of grounds’
and on how strictly the justification supported by the state will be assessed by the Court.
The latter varies from requiring very good reasons to justify differential treatment to a
cursory acceptance that the treatment is justified. 47
The existence of differential treatment and analogous situations are two
interconnected yet different questions which cause complexity when being distinguished.
Traditionally the question of differential treatment is not troublesome. The individual must
show that he has been treated less favourably than another. Nonetheless difficulties occur
where the applicant and the state dispute where in the facts differential treatment has

45
Van der Mussele v Belgium Series A 70 (1983) para 46
46
Marckx v Belgium Judgment of 13 June 1979, Series A 31
47
What Harris, O’Boyle, Warbrick call ‘suspect categories’ , DJ Harris, O’Boyle, C. Warbrick, “Law of the
European Convention on Human Rights” (London, Butterworths, London-Dublin-Edinburgh 1995), pp 481-2
 17

occurred. Let us consider an obligation imposed on men of a particular region to pay a levy
in lieu of serving in their local fire brigade due to the lack of volunteers for the fire
service.48 Clearly, differential treatment had occurred. Whether, however, it related to the
fact that such an obligation was imposed on men and not women resulting to unequal
taxation, or to the fact that it was imposed on those who were ‘fit to serve’ as opposed to
those who were ‘not fit to serve’ was doubtful. The Court held that article 4(3)(d) and
normal civic obligations rather than Article 1 of Protocol 1 were engaged in conjunction
with article 14. Furthermore, the state negated a juvenile prisoner’s claim for differential
treatment in relation to the privilege of remission for good behaviour granted to adult
prisoners by comparing it to the advantages49 he had gained by his categorisation as a
‘juvenile prisoner’.50 Fortunately, not all cases involve such complexity and unusual facts
as these ones. Typical example-scenarios include differential interference with the
enjoyment of one’s possessions, criminalisation of homosexual activities or differential
denial of opportunities afforded to others such as the right to freedom of expression.51

ii. ‘Analogous Situations’

The applicant must justify a comparability test, where differential treatment takes
place between the applicant and an ‘appropriate comparator’ who is in ‘similar’ or
‘relevantly similar’ situations with him or, as the current test goes, in ‘analogous situations’
where ‘analogous’ is to be distinguished from ‘equal.’ The criteria for the comparison are
not always easy to trace. They depend on the ‘badge’ at issue, must be adequately relevant

48
Schmidt v Germany Series A 291-B 1994
49
Such as ‘escaping’ a severer sentence
50
Nelson v UK, No 11077/84, 49 DR 170, 174 (1986)
51
DJ Harris, O’Boyle, C. Warbrick, “Law of the European Convention on Human Rights” (London,
Butterworths, London-Dublin-Edinburgh 1995), p.470
 18

to the facts of the case and comply with the objectives of the substantive provision invoked
in conjunction with article 14. 52
Hence, analogous situations were established on the particular facts and
circumstances in Pine Valley53 where remedial legislation introduced to correct a
misapplication of the planning law excluded the applicants but not other holders of
permissions in the same categories from their right under Article 1, Protocol 1. State or
regional territory is not a decisive factor for ‘analogous situations’. Criminalisation of
homosexual acts in Northern Ireland contrary to the law in England and Wales,54 for
example, was not considered to be differential treatment between analogous situations;
nevertheless, this conclusion had been inadequately explained. Perhaps the rationale behind
such decisions lies in the recognition of diversity as a characteristic in a federal state which
‘can never in itself constitute discrimination’55 or in that different standards in different
regions of the same state are ‘necessary in a democratic society’.56 Still, this paper is not
fully convinced that such approach is correct in prioritising diversity over the guarantees
granted by rights, especially where the decisions are not always explained in terms of
‘democratic necessity’.57
At times, the Strasbourg organs seem too ready to rule out the existence of
‘analogous situations’. The latter were not found in the case of an apprentice barrister who
was obliged to provide free legal services contrary to other professions, legal or not,
because of the ‘fundamental differences’ traced in terms of the legal status, conditions of
entry and nature and exercise of functions between such professions. 58 The test also failed
where prisoners “were not ‘as ill’ as HIV patients”, consequently, claims for differential

52
Van Dijk,Van Hoff, “Theory and Practice of the European Convention on Human Rights”, 2nd ed. (1990)
p.720
53
Pine Valley Developments Ltd v Ireland, Series A 222 (1991)
54
Dudgeon v UK, Series A 45 (1981)
55
Judge Matcher, dissenting opinion in Dudgeon v UK, ibid. Also in Nelson v UK No 11077/84, 49 DR 170,
174 in relation to different regimes in Scotland and England
56
As the Court conceded in Handyside v UK Series A 24 (1976) para 57 and Muller v Switzerland Series A
133 (1988) para 36
57
Such as the case of Dudgeon itself
58
Van der Mussele v Belgium Series A 70 (1983) para 45, the Court rejected the claim for ‘analogous
situations’
 19

treatment taking place against them in respect of mitigation of sentence59 or compassionate

release from jail60 have been rejected. The criteria determining ‘analogous situations’ are
not only factual but also evidential. In Fredin v Sweden61 the applicant’s claim was
accompanied by insufficient evidence. Fredin claimed that the government’s decision to
revoke his licence to extract gravel consisted of differential treatment between analogous
situations because other holders of the same licence were allowed to continue operating as
licensees. He further argued that his position differed from those whose licence had been
removed on environmental grounds. The Court’s decision for ‘insufficient evidence’ was
based on the fact that Fredin argued more for the difference between his position and that of
those whose licence had been revoked rather than the similarity of his position with the
position of those whose licence had not been removed.62 Clearly, these cases indicate a
complex reasoning and the keenness of the Court to ‘block’ the claim at the ‘analogous
situations’ stage of the test is disquieting.
Finally, it seems that the comparability test has been inconsistently appreciated.
Contrary to Hoffmann63 where the Court clearly considered it necessary to establish the
difference in treatment on the ground of religion before examining a violation under article
14, there have been cases where the comparability test was considered hastily or completely
glossed over such as in the Van der Mussele64 and Spadeo and Scalabrino65 cases. This
flaw will be traced next under the heading of ‘justification for differential treatment’.

59
R M v UK No 22761/93, 77-A DR 98 (1994)
60
Grice v UK No 22564/93 , 77-A DR 90 (1994)
61
Series A 192 (1991) para 60
62
Ibid para 61
63
Hoffmann v Austria Series A 225-C (1993) paras 33,36
64
Van der Mussele v Belgium Series A 70 (1983)
65
Spadeo and Scalabrino v Italy, Judgment of 28 September 1995, Series A 315-B
 20

1.4. Justification for Differential Treatment –A Question for the State

In Lithgow66 the Court stated that a state may justify differential treatment by
showing that it pursues a legitimate aim which, as supported by evidence, is linked to the
treatment challenged by the applicant.67 Furthermore, the state must satisfy a reasonable
relationship of proportionality between the aim and the means utilised in pursuing the aim68
whilst the presence or absence of a common European opinion on the matter and
circumstances in question will be considered.69
The burden of proof is on the state to give a ‘good enough reason’ for differential
treatment applied between individuals therefore it must be overt or direct.70 A difficulty
occurs, however, where the Court cannot or is not willing to trace the real reason behind
the state’s action and argument for a justification. In Hoffmann the Austrian government
argued that the decision to grant the father custody of his child rather than the mother was
justified by considerations of the child’s best interests.71 The ECtHR however, after
examining the content of national judgments, concluded that the real reason of the
distinction made between the parents was the religious beliefs of the mother. In contrast, in
Abdulaziz the Court accepted the government’s argument without a blow. 72 Specifically the
Court admitted to the rationale behind applying different laws to women not born but
residing in the UK for years, was the protection of the labour market and public order. The
real reason behind the decision was racial discrimination and the ‘birth’ badge was not
convincing since realistically, the duration of one’s stay in a country is usually a more
suitable criterion in determining his ties to the state. 73

66
Lithgow and others v United Kingdom, Judgement of 8 July 1986, Series A, No 102 (1986) 8 E.H.R.R. para
177
67
Larkos v Cyprus App. 29515/95, Judgment of 18 February 1999 (2000) 30 E.H.R.R. 597, para 31
68
Lithgow and others v United Kingdom, op. cit supra fn. no 68, para 177
69
Inze v Austria, ibid. at 394
70
DJ Harris, O’Boyle, C. Warbrick, “Law of the European Convention on Human Rights” (London,
Butterworths, London-Dublin-Edinburgh 1995), p.476
71
Hoffmann v Austria Series A 225-C (1993) paras 33,36
72
Abdulaziz, Cabales and Balkandali v UK, Series A 92 (1985) para 84
73
Ibid. p.41
 21

i. Passing over the Comparability Test

Whereas the comparability test was essentially skipped and not explicated in
Abdulaziz with the Court focusing on the justification test,74 in Rasmussen it was passed
over because the issues examined under the latter case ‘were also of relevance in
determining whether the difference of treatment was justified’.75 The absence of a
European consensus on the issue of time-limits for gaining access to paternity rights meant
that a wide margin of appreciation was afforded to the state and the proportionality
principle was easily satisfied. Yet, as argued,76 this approach waters down the significance
of article 14 to a bare minimum.
The comparability test may also be considered as integral to the justification test
where the ‘legitimate aim’ argued by the government is the protection of public interest. In
Holy Monasteries77 for instance, a cursory explanation was given to ‘analogous situations’
between the monasteries owned and monasteries not owned by the Greek Church. The
latter were attached a different legal status and different treatment applied in relation to
expropriation laws. Concentrating on public interest as a ‘superior’ factor, however, usually
means that the Strasbourg organs afford national authorities a wide margin of appreciation
and limit the cases where article 14 successfully applies to cases whose inequalities cannot
be objectively and reasonably justified. Therefore ‘discrimination’ is defined very closely
to the justification factor an element which detracts article 14 of its meaning and
importance. No other provision in the Convention is so closely defined in relation to its
exceptions and limitations.
Fortunately in more recent case-law the Court has been less willing to assist states
in successfully justifying differential treatment. In Pine Valleys78 a violation of article 14
was found because the Court did not accept the justification raised by the state. Clearly the

74
It is worth noting that a violation of article 14 was eventually found based on the principle of equality of
sexes as a major goal in the member states of the Council of Europe.
75
Rasmussen v Denmark Series A 87 (1984)
76
Van Dijk,Van Hoff, “Theory and Practice of the European Convention on Human Rights”, 2nd ed. (1990),
p.727
77
Holy Monasteries v Greece, Judgment of 9, December Series A 301-A, (1994) p. 39
78
Pine Valley Developments Ltd v Ireland, Series A 222 (1991)
 22

Court has created a ‘hierarchy of grounds’ whereby certain ‘suspect categories’ seem to
attract the maximum protection against discrimination in that they demand a stronger
justification for a claim under article 14 to fail. ‘Suspect categories’ include the grounds of
sex, illegitimacy, nationality and religion. The Court deals with these cases by scrutinising
the states’ arguments more rigidly, consistently applying the legitimate aim, proportionality
and margin of appreciation tests by reason of the consensus established in their content.
Hence, for the pursuance of the objective of equality of sexes79 and non-
discrimination on the ground of nationality,80 the Court has asserted that ‘very weighty
reasons have to be advanced’ before a difference of treatment based exclusively on these
grounds could be regarded as compatible with the Convention. In relation to religion, the
Court stated: ‘a distinction based essentially on a difference in religion is not acceptable’81
and with regard to distinctions between legitimate and illegitimate children82 the Court also
considers them to be ‘contrary to the Convention’. Yet, clearly the Court is cautious in
expanding the suspect categories.83 The approach applied to suspect categories more
effectively attributes article 14 an appropriate role and partly ‘cures’ the aforesaid gap
whilst it affords protection not only against unreasonable but also against reasonable public
authorities which may, by benefiting the public interest harm individual interest
discriminatorily.

79
Abdulaziz, Cabales and Balkandali v UK Series A 94, (1985) p.37. Also the cases of: Schuler-Zgraggen
Judgment of 24 June 1993, Series A 263, p.22, Burghartz Judgment of 22 February 1994, Series A 280-B,
Karlheinz Schmidt Judgment of 18 July 1994, Series A 291-B pp.32-33and Van Raalte Judgment of 21
February 1997, Reports 1997-I, Vol 29, para 39.
80
Gaysusuz Judgment of 16 September 1996, Reports 1996-IV, Vol 14, para 42
81
Hoffmann v Austria (1994) 17 EHRR 293
82
Marckx v Belgium Judgment of 13 June 1979, Series A 31
83
McMichael v The United Kingdom, Judgment of 24 February 1995, Series A 307-B ,The Court here refused
to apply the same approach on distinctions between married and natural fathers
 23

ii. Rational and Evidential Basis of the Justification

As far as the other ‘badges’ are concerned, article 14 is interpreted more

restrictively. The current approach looks at the ‘legitimate aim’ the government allegedly
pursues. If, as suggested in Lithgow84, this term is synonymous to ‘objective justification’
the overlap between the two terms complicates the picture. Nonetheless a legitimate aim is
usually established where both a rational and an evidential basis are established. The former
is usually easy to prove. Examples of successful justifications include the protection of
labour market and public order or the support and encouragement of traditional family. The
rational basis has become more knotty with the additional requirement that differential
treatment ‘strikes a fair balance between the protection of the interests of the community
and respect for the rights and freedoms safeguarded by the Convention’ or forms part of ‘a
coherent and balanced staff policy’, yet, there had been examples where these tests have
been satisfied. The evidential requirement puts more pressure on states not to find a way
out to manipulatively present a discriminatory act as acceptable. Hence, violation of article
14 in Abdulaziz was partly based on the lack of evidential support. However, in X v FRG85
and Johnson86 the ECtHR rather easily accepted the evidence on which the governments
based their claims, understandably in the first one given the lack of counter-evidence by the
applicant, but in the second one the justification was accepted notwithstanding the
unsoundness of the data relied on.

84
Lithgow and others v United Kingdom, Judgement of 8 July 1986, Series A, No 102 (1986) 8 E.H.R.R. para
177
85
No 5935/72, 3 DR 46 (1975) ,56
86
Johnson v UK No 10389/83, 47 DR 72 (1986), 77-78
 24

1.5. Indirect Discrimination

Albeit not been expressly provided for, article 14 seems to grant protection against
indirect discrimination, that is a protection against a rule or practice which does not in itself
involve impermissible discrimination but disproportionately and adversely affects members
of a particular group. The burden, again, is on the applicant and such discrimination will be
rebutted by a justification based on public safety or other recognised grounds whereas focus
is attached on the impact on individuals rather than the content and purpose of the measure
and it is a more subjective realisation. However, traditionally in the context of indirect
discrimination, states enjoy a considerable margin of appreciation in assessing whether and
to what extent differences in otherwise similar situations justify a difference in treatment. In
Abdulaziz the rule allowing a woman to be joined by her husband or fiancé but not a man to
be joined by his wife or fiancée would not normally be troublesome. Given, however, the
family institution culture of arranged marriages in India, such a rule could seriously affect
future partners who possibly had never met before. Therefore, as the dissenting judgment
pointed out, the rule was indirectly discriminatory. Unfortunately the Court rejected this
position, squeezed the discrimination aspect to the purpose of the immigration rules to
avoid evasion by false marriages, considered the measure as within the state’s margin of
appreciation and even avoided applying the proportionality test. Nevertheless, where the
suspect categories are involved, the proportionality principle is a precious tool and although
the margin of appreciation is hardly ever wide in such cases, it tends to protect the state’s
stance as a derivative of the subsidiarity principle which provides that the Court’s role is
87
not to substitute but to supervise the national decision-maker. In Johnston88 the
applicant claimed that he was discriminated against on the ground of financial status
because he could not afford taking the only option available to him as a non-Irish
domiciliary, namely, to travel abroad in order to obtain a divorce. Again the facts of the
case involved indirect discrimination but the Court chose to avoid the question of prejudice

87
Belgian Linguistic op cit. supra, p. 35
88
Johnston v Ireland, Judgment of 18 December 1986, Series A 112
 25

on the ground of poverty. Perhaps this was for the same reason given in Airey89 namely that
it is incompatible with the model of the capitalist society.
The case which clearly opened the doors for protection against indirect
discrimination is Thlimmenos.90 The Court had gone deeply into the facts of the case to
trace back the future impact a common measure had had on the applicant and found a
violation of article 14. In Chapman, notwithstanding the Court’s recognition that ‘some
special consideration should be given to [gypsies’] needs and their different lifestyle
[…]’no violation of article 14 in conjunction with article 8 was found. The dissenting
opinion, on the contrary, considered Thlimmenos and emphasised the states’ obligation to
treat differently persons whose situations are significantly different.91
Regrettably the picture of Thlimmenos was modified in Podkolzina v Latvia92 which
concerned the language proficiency requirements the applicant had to meet for the purpose
of eligibility for election. The Court found a violation of article 3, Protocol 193 but
proceeded neither to examine the possible indirect discriminatory effects of the harsh
language requirements in Latvian electoral legislation on individuals like Podkolzina nor to
address the question of proportionality. Conclusively indirect discrimination has been
afforded limited protection either because the Court omits to consider it or because a wide
margin of appreciation is granted to the state.94

89
Airey v Ireland, Series A 32 (1980) paras 29-30
90
Thlimmenos v Greece (2001) 31 EHRR 411
91
Section 8 of the dissenting opinion
92
Affaire Podkolzina c. Lettonie, Requête no. 46726/99, Arrêt 9 April 2002
93
By reason of the requirement’s incompatibility with the principles of fairness and legal certainty
94
Sommerfield v Germany (App 31871/96) Judgment of the Grand Chamber of 8 July 2003; (2004) 38
E.H.R.R. 756, para 92
 26

1.6. Positive Obligations

The importance of positive obligations lies in their contribution to the principle of

effectiveness. On the one hand, the ‘within the ambit’ test implies a limited scope for
finding separate positive duties under article 14 than the already established ones under
other substantive provisions. Furthermore, the general tendency of the Court to avoid the
question of article 14 is detrimental to deciding for positive obligations in its content. In
Airey the applicant’s argument that she was entitled to positive discrimination enabling her
to enjoy an effectively equal right of access to the courts was considered to be covered by
the positive obligation article 6(1). Consequently, it was unnecessary to pursue a claim
under article 14. Furthermore, notwithstanding the argument that ‘non-discrimination’
expresses the same idea as ‘equality’, it clearly has the connotation that it protects against
discrimination –a negative duty rather than promoting equality –a positive duty. This not
only rejects the application of an independent standard to positive obligations under article
14 but also contradicts the wording of article 14 providing that ‘the enjoyment of the rights
and freedoms [of the Convention] shall be secured without discrimination.95
Implied positive obligations deriving from non-discrimination are normally
expected to ensure effective enjoyment of anti-discrimination protection. Positive
differentiation was held to be compatible with article 14 in Belgian Linguistic, still, no
obligation to take positive steps was clearly articulated by the same case.
Examples where positive duties include the obligation of the state to ensure that its
official acts are non-discriminatory, to protect against private acts of discrimination
affecting the enjoyment of Convention rights like in private membership scenarios in
private associations or the right to be freed from privately imposed discriminatory fetters
like restrictive covenants on property rights. In effect, positive duties can go as far as
requiring that the state prevents private action compelling an individual to be a member of

95
A statement which itself replicates the wording of article 1.( James v UK Series A 98 (1980) paras 76-77)
Article 1 ECHR provides: “The High Contracting Parties shall secure to everyone within their jurisdiction
the rights and freedoms defined in Section I of this Convention”
 27

an association but cannot compel a private club to accept a member because that would
violate the freedom of association of the club, except perhaps, where such exclusion is
discriminatory.
In relation to the freedom of religion, positive obligations have imposed an
obligation on the state to take action against expression which gratuitously insults religious
feelings or to ‘introduce appropriate exceptions to a rule barring persons convicted of a
serious crime from the profession of chartered accountants’. One is right to expect that
positive duties will develop in areas where a strong European consensus exists such as
articles 10 and 11. Hence, an obligation to restrain racially inflammatory speech or
association to take action against private speech or action to ensure effective enjoyment of
Convention rights of those to whose sentiments such speech is directed.
Frequently, the need to establish positive obligations derives from an indirect
discrimination state of affairs where individuals who are in significantly different situations
require positive action towards them for equality to be achieved. In relation to gypsies’
rights, the Court was not initially willing to confer immunity on them from general laws.
However, it subsequently accepted that states must ensure that gypsies have a practical and
effective opportunity to enjoy their rights to home, private and family life and that the
‘gypsy way of life is facilitated.’ It nevertheless was not prepared to recognise ‘far-reaching
positive obligations of general social policy’ in relation to housing and camping facilities
for Roma in the UK. In any case, the express reference to positive obligations in these cases
should not be underestimated.
Finally, where a state fails to comply with its positive obligation a violation will be
avoided if an objective and reasonable justification is concluded for the treatment
experienced which simultaneously is proportionate to the means chosen for its realisation.
Yet the margin of appreciation is still likely to obstruct the finding of a violation, especially
in indirect discrimination cases.
 28

1.7. Conclusion

The fact that article 14 is neither a free-standing nor a ‘main’, ‘strong’ provision in
the Convention, together with its ‘silent’ wording and the poor initiative taken by the Court,
ominously negate the protection provided against discriminatory laws in the ECHR.
Discrimination in relation to rights not covered by the Convention, grounds not qualifying
as ‘suspect categories’ and the omission to consider article 14 where the ‘substantive
provision’ is violated create a major gap in the ECtHR’s jurisprudence. Even where article
14 is violated simultaneously to the violation of another right, it is often thought that it is
‘unnecessary’ to consider its content and with the exception of ‘suspect categories’ the state
has conveniently and successfully argued for a reasonable and objective justification under
a wide margin of appreciation. The precious to the applicant proportionality test has been
inconsistently applied and the Court has been disappointingly hesitant to rule for indirect
discrimination or exclusive positive obligations under article 14. The state on the other
hand has the upper hand in that public interest is prioritised over individual interest under a
rather one-sided balancing test.
Moreover the ‘within the ambit’ test constrains article 14 to a minimal effect,
adding little to the protection afforded by the rest of the Convention. ‘Discrimination’,
‘differential treatment’ and ‘analogous situations’ all require more conceptual clarity
whereas the use of overlapping tests and terms such as ‘legitimate aim’ and ‘objective
justification’ render this legal area complex, multifaceted and incoherent. At present, the
key to an increase of effective protection lies in the Court’s future approach to case-law.
Thlimmenos and Fretté point at a wider and stronger interpretation of article 14, and
demonstrate that it is possible to partly erase the current weaknesses and ‘fill the gap’ in
article 14. A lot remains to be seen within the Strasbourg jurisprudence, especially given
the recognition of many of these flaws by the Council of Europe and the positive step taken
to draft a new general prohibition of discrimination, Protocol No. 12.
 29

C. CHAPTER TWO: PROTOCOL 12 ECHR: FILLING THE GAP?

2. 1. The Council of Europe on Protocol No. 12

Article 14 almost became an embarrassment to the Council of Europe. The

limitations inherent within a non free-standing, accessory provision lacking independent
existence, urgently called for a general prohibition of discrimination capable of fulfilling
the requirements of the Universal Declaration of Human Rights. An additional protocol was
preferred to an amendment of the text of article 14 because the latter’s enforcement could
have been effectively vetoed by a single member state whereas the protocol’s coming into
force only required ten ratifications. Hence, by March 1998, the Committee of Ministers
granted the Steering Committee for Human Rights terms of reference to broaden the field
of application of article 14 and draft Protocol No.12.
Protocol 12 aims to provide stronger guarantees of equality before the law and equal
protection of the law96 as a commonly recognised reality in national constitutions and in
international human rights law.97 It was designed to compensate the failure of article 14 and
its case-law, giving comprehensive effect to these principles. The protocol came into force
on 1st May 2005, much later than the date expected, due to various objections by certain
member states, especially the UK.98 Yet in a number of states which have not ratified it,
article 14, with all its flaws and inadequacies, still remains the basic anti-discrimination
provision.
The relationship of Protocol No.12 to the Convention provisions is governed by
article 53 which prohibits the proviso from limiting or derogating from any other human
rights and freedoms ensured under national laws or under any other agreements to which a
High Contracting Party is a ‘party’. Surprisingly though, the explanatory notes make no

96
Firstly considered by the Steering Committee for Equality between Women and Men and the European
Commission against Racism and Intolerance
97
Principle firstly expressed in the Universal Declaration of Human Rights 1948
98
Council of Europe Website: The Protocol is now in force in Albania, Armenia, Bosnia and Herzegovina,
Croatia, Cyprus, Finland, Georgia, Luxembourg, Netherlands, Romania, San Marino, Serbia, the former
Yugoslav Republic of Macedonia and Ukraine http://conventions.coe.int/Treaty/Commun/-
ChercheSig.asp?NT=177&CM=7&DF=8/20/2006&CL=ENG
 30

reference to the limitation of protocol 12 under article 16 whose application consequently

remains vague. Additionally, the broader scope of the protocol is not meant to amend or
abrogate article 14 which will continue to apply. The question of an overlap between the
two provisions falls within the jurisprudence of the ECtHR.99
The new protocol ‘fills the gap’ in a number of ways, yet there remain ambiguities
and scope for further improvement something which seems to rest in the hands of the Court
and its future jurisprudence.

99
Explanatory Report paras.32-33
 31

2. 2. Protocol No.12: Filling the Gap?

i. The Scope of Protocol No. 12

Article 1 of the Protocol removes the ‘within the ambit’ test by providing that anti-
discrimination law will apply to ‘any right set forth by law’. Protection therefore extends
beyond the enjoyment of the rights and freedoms prescribed by the Convention. A general
prohibition of discrimination is provided for the first time in the Convention’s history. The
protocol specifies that it concerns cases where a person is discriminated against in the
enjoyment of any right specifically granted to him under national law or derived from a
public authority’s clear obligation under national law to behave in a particular manner,
where the public authority exercises a discretionary power (e.g. granting subsidies) where
the prohibition covers both an act or an omission of the public authority.100 The two
paragraphs of article 1 must be read together bearing in mind the objectives of the protocol
stated in the preamble, namely the principle of equality more than non-discrimination.
The relevant literature’s response to the UK’s ‘fear’ of which international ‘law’
will be subject to the provisions of Protocol 12 has clarified the scope of protocol 12. It is
true that there is nothing in the protocol to exclude non-incorporated rights from its
coverage. However, it has been asserted that a right set out in an international agreement
but not incorporated into the law of a dualist state,101 will be excluded from the scope of
Protocol 12.
Furthermore, the ECtHR has a supervisory role and, since the provisions of the
Convention will apply to the protocol,102 including article 53, it has no jurisdiction to
examine a state’s respect for and compliance with rules of law of international instruments
103
but whether the rights are recognised on a discriminatory basis. The Convention, as a

100
Explanatory Report para.22
101
E.g. a right included in the International Covenant on Economic Social and Cultural Rights in relation to
the UK.
102
Article 3 of Protocol No. 12 ECHR
103
Explanatory Notes para.29
 32

treaty, should be interpreted in context and in the light of its object and purpose. 104 Given
this function of the Court and the Convention, one can see why the protection against
discrimination has been so hesitant and slow to progress in relation to a law which by
nature is multi-faceted and can be applied in relation to nearly every piece of legislation.
The UK has also been concerned about the non-‘cost-free’ implications of social
and economical rights traditionally excluded from the scope of the Convention. Grief
recalls the conclusion reached in the judgment of the Constitutional Court of South Africa
in Grootboom,105 which emphasised the inherent inter-relation and mutual support between
the two kinds of rights. Additionally, states ratifying Protocol 12 must be aware of the
Court’s role to observe the engagements undertaken by the High Contracting parties in the
Convention and its Protocols therefore, ‘rights set forth by law’ refer to rights which are
already recognised within national law, or which are established by law106 whether they
stem from domestic legislation or an act of incorporation in a dualist state. What matters is
that the rule in question is binding on the UK under international law, like in V v UK,107
where the UN Convention satisfied the Court as common to the other member states.
Of course, the first type of international law expected to be covered by protocol 12
is customary international law which is based on common legal practice among states
accompanied by opinio juris and does not require express incorporation. Codified treaties
may also develop into customary law108 or even jus cogens which has been acknowledged
as ‘a norm …of a higher rank in the international hierarchy than treaty law’ or even
‘ordinary’ customary rules in Streletz, Kessler and Krenz v Germany109 and Al-Adsani v

104
Vienna Convention of the Law of Treaties of 23 May 1969, Article 3, Golder v UK Judgment of 21
February 1975, Series A No 18, para 30 (1979-80).
105
Case CCT 11/00, October 4,2000
106
S.Fredman, “Why the government should sign and ratify Protocol 12”
107
(2000)30 E.H.R.R. 121
108
Nicaragua v United States (merits), I.C.J. Reports 1986, p.14, para 175: “even if a treaty norm and a
customary norm relevant to the present dispute were to have exactly the same content, this would not be a
reason for the Court to take the view that the operation of the treaty process must necessarily deprive the
customary norm of its separate applicability”.
109
(2001) 33 E.H.R.R. 31
 33

UK.110 As for general principles of international law and EU law, the position is not yet
clear-cut but it can be assumed that they will be taken into account by the Court.

ii. Conceptual Issues.

The definition of ‘discrimination’ inspired by protocol 12 is intended to be the same

as under article 14. Contrary to the UK’s concern that the ECtHR may develop frivolous
cases due to the absence of the precedent principle, it has been observed that the article 14
case-law is very stable.111Consequently, it seems that the defence of a reasonable and
objective justification of differential treatment as a well-established formula of the growing
jurisprudence will be an integral part of ‘discrimination’. Differential treatment and positive
discrimination will be accepted where reasonably and objectively justified, due to a
legitimate aim pursued by the state, which is proportionate to the means employed for this
purpose.112 The Court is likely to consider the margin of appreciation the state is afforded in
relation to the particular matter which varies according to the circumstances, the subject-
matter and its background.113
The interplay of these ‘sub-tests’ is likely to bring different results in different cases
depending on the ground of discrimination invoked and its place in the ‘hierarchy of
grounds’, and the genre of discrimination involved, namely, direct, indirect or positive
discrimination. As observed above not all ‘tests’ are applied where the ground is not
‘serious’ enough to belong to ‘special categories’ or where the state argues for the public
interest. It remains to be seen whether the Court will impose obligations upon a state to
protect categories of individuals against discrimination on grounds not expressly mentioned
in the text in the absence of a consensus among the majority of the states of the Council of

110
(2002) 34 E.H.R.R. 11
111
S.Fredman, op. cit. supra. fn no.105, p.4
112
Abdulaziz para.72
113
Rasmussen v Denmark 8777/79 [1984] ECHR 17 (28 November 1984), para.40 and National and
Provincial Building Society and Others v UK 1997 (25) EHRR 127, para 80
 34

Europe that such discrimination should be prohibited.114 Traditionally the baton in such
cases will be passed to the proportionality test which again is likely to weigh more on the
interests of the state.115 Regrettably, the lack of particular factors such as the democratic
necessity test116 in comparison to which the state’s behaviour can be assessed is likely to
persist as inherited from the article 14 jurisprudence.
The express grounds on which discrimination is prohibited are identical to the ones
under article 14117 and the prevailing approach seems to be in line with Abdulaziz.118The
rationale is to avoid a contrario interpretations in relation to those grounds which will
remain excluded from the provision.119 Hence it is possible that the hierarchy of grounds
will also persist unless new grounds gain equal importance to the ‘suspect categories’ under
the Protocol. This however suggests that time and flexible law-making needs to take place,
for grounds, including non-choice grounds, to obtain adequate amount of attention.
Furthermore, the use of identical wording in relation to the protocol’s grounds may be
conversely interpreted as a reluctance of making a genuine move forward in terms of
widening the scope of article 14. Therefore, once more, the future of anti-discrimination
protection of the Council of Europe remains within the wide discretion of the Court.

iii. Positive Obligations

The protocol recognises that non-discrimination and equality are closely intertwined
principles.120 Reference to different forms of equality was made in Belgian Linguistic121

114
The Court has never defined what a ‘consensus’ really requires, L.Helfer “Consensus, Coherence and the
European Convention on Human Rights” (1993) 26 Cornell International Law Journal 133.An exception to
this is Da Silva Mouta where the Court did not in any way consider or justify why sexual orientation by
Article 14.
115
Or ‘common interest’
116
Commonly apply for a justification of an interference of articles 8-11 ECHR
117
Explanatory notes, para. 18
118
Judgment of 18 May 1985, Series A No.94, para. 72
119
Explanatory notes para. 19
120
Explanatory notes para.15
121
Para 10
 35

and in Abdulaziz.122 Consequently, at first glance, a more optimistic approach is accepted in

relation to positive duties imposed upon states to prevent discrimination even under a
horizontal effect, in relations between private individuals.123
Although the protocol fails to expressly provide for positive duties, the preamble
recites that the principle of non-discrimination does not prevent States Parties from taking
measures in order to promote full and effective equality provided that there is an objective
and reasonable justification for those measures. Also, Article 1 of the Protocol contains the
term ‘shall secure’ which hints that positive obligations must be inferred from it. The UK
argued124 that the preamble does not have the same force as a substantive provision in the
protocol, yet, this position is at odds with the rules of interpretation of the Convention. As
already mentioned, the Court purports to give full and practical effect to the Convention as
a living instrument for the protection of human rights and it must be interpreted in the light
of the rules of interpretation set out in the VCLT,125 that is, that a treaty should be
interpreted ‘in good faith in accordance with the ordinary meaning to be given to [its]
terms…in their context and in the light of its light and purpose’.126Hence, given the role of
the preamble to express these very purposes of the text following, it is obvious that it will
be taken into account in deciding anti-discrimination cases.
Nevertheless, in practice, the progress of finding positive obligations remains to be
seen. The definition of discrimination itself is one of proportionality; not all differential
treatment is discriminatory and positive action will be permitted where it is reasonable and
proportionate. This is a lucid continuation of the article 14 jurisprudence. Where there is
sufficiently serious and clear-cut failure to provide protection from discrimination, even
where relations between private parties are at issue, positive duties are expected to fall
within the ambit of protocol 12. This is very true where the case points at a lacuna in
domestic anti-discrimination law. Overall, a rather balanced approach is likely to be applied
to positive obligations under the protocol. On the one hand it recognises that the existence

122
Para 78
123
Explanatory notes para.24
124
Hansard, H.L. November 9, 2000, col. W.A.174
125
Article 3, Vienna Convention of The Law of Treaties 1969
126
Explanatory notes, para.16
 36

of certain groups or categories of persons who are disadvantaged or suffer by de facto

inequalities may justify the adoption of measures providing for specific advantages in order
to promote equality provided that the proportionality principle is respected.
On the other hand, however, an imposition of a general obligation to prevent or
remedy all instances of discrimination127 would sit ill with the nature of the Convention and
its control system based on collective guarantee- individual rights which are formulated in
terms sufficiently specific to be justifiable. To my understanding since it would be
inaccurate to codify the current, vague case-law in the area of positive discrimination, the
drafters have chosen to leave the protocol silent on this point. And, just as under article 14,
cases of positive discrimination for example in the form of entitlement of benefits will
heavily depend on the extent to which member states of the Council of Europe agree on the
‘appropriateness’ and ‘justifiability’ of certain distinctions.
Furthermore, the extent to which positive obligations are likely to flow from article
1 is likely to be limited and this is even clearer in the area of relations between private
persons. The lack of an express provision for positive obligations and the fact that article 1
prohibits discrimination by any public authority and any right set forth by law generally
limit state responsibility in relation to public duties and particularly in cases of
discrimination between private persons. Once more, exceptional protection against
horizontal discrimination may be afforded where a lacuna exists in domestic law or where
separate conventions devoted to the elimination of discrimination on specific grounds128
are taken into account in that they cannot be construed as limiting or derogating from
domestic or treaty provisions which provide further protection from discrimination. 129
In its horizontal application, protocol 12 is not intended to impose a general positive
obligation on the parties to take measures to prevent or remedy all instances of
discrimination in relations between private persons. Some positive obligations may be
inferred from a requirement that the state takes action against discrimination such as in A v

127
Which is usually ‘indirect discrimination’
128
e.g. Convention of Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All
Forms of Discrimination Against Women
129
Explanatory notes para.25
 37

UK130relating to a law failing to protect a child from excessive force used by his step-father
under article 3. The exact degree of positive obligations will have to be worked out by the
Court with due regard to the state’s margin of appreciation. A prediction is that the extent
of positive obligations imposed upon states under the protocol is appreciable but not likely
to be excessively burdensome131 or, at least, not as burdensome as in cases of a more
traditional form of discrimination.
Consequently, the prime obligation derived from protocol 12 remains negative in
both occasions of discrimination, public and private. A successful claim relating to the
latter is even rarer and is likely to refer to discrimination of a more public character such as
the provision of private services to the public or employment contracts while purely private
matters such as family relationships are likely to be excluded from the ambit of protocol
12.132

130
(1999) 27 E.H.R.R. 611 at para 22
131
U.Khaliq, “Protocol 12 to the European Convention on Human Rights: A step forward or a step too far”
UKPL 2001, P.L. 2001 , Aut 457-464
132
Explanatory notes para.28
 38

2.3. Conclusion: Protocol 12 and the future of the ECHR anti-discrimination policy

Protocol 12 partly ‘fills the gap’ witnessed in the jurisprudence of article 14. First, it
widens the article’s scope with a general prohibition combating discrimination in relation to
all laws established within a state whether derived from national or incorporated
international law, and potentially EU law. Discriminatory actions by a wider range of actors
will be more effectively scrutinised and balanced against their objectivity, reasonableness
and proportionality. Anti-discriminatory protection from individual persons’ actions is also
likely to fall within the scope of protocol 12 but only in exceptional cases.
Second, the objectives of the protocol set out by the preamble lead one to believe
that the principles of equality and non-discrimination are to be seen as two sides of one
coin. ‘More equality’, however, presupposes positive action by the state which awaits the
Court’s intervention. Positive action is allowed but not provided for, yet, the protocol
seems to be more accepting towards positive obligations in providing a more balanced
approach, affording the Court a fresh impetus to rule for them.
Third, ratification of protocol 12 is an opportunity to bring an end to the
development of a sophisticated jurisprudence stunted by the subservience of article 14 to
other rights, under which, occasionally, the Court has used a range of different tactics to
avoid consideration of article 14 when another right is violated.133 Additionally, in certain
areas poor equality and anti-discriminatory protection is afforded. An example is minority
rights. For instance gypsies need to meet a high threshold, that a ‘clear inequality of
treatment in the enjoyment of a right is a fundamental aspect of the case’134 while the states’
and article 14 considerations are overridden by considerations of other articles while a wide
margin of appreciation renders the test even more difficult to satisfy. 135Protocol 12 seems
promising in that discrimination issues and minority rights will not so easily be pushed
aside.

133
Fredman, op cit. fn no. 105, at pp.6-7
134
Chassagnou v France Application No 25088/94 April 1999
135
Sheffield and Horsham v UK Application No 22885/93 30 July 1998
 39

Nevertheless, as a consequence of the remaining silence of the protocol 12 text,

certain weaknesses in the protection afforded by article 14 are likely to be ‘conveyed’ to the
protocol 12 jurisprudence. First, discriminatory treatment on grounds falling foul of the
‘suspect categories’, indirect discrimination or positive discrimination are less rigidly
examined and may be hastily decided to be ‘objectively and reasonably’ justified due to the
state’s wide margin of appreciation or the conclusion of the proportionality test. Therefore
to a number of cases, it is the state that decides whether and to what extent differences in
otherwise similar situations justify a differential treatment. 136 137
Second, certain ambiguities and inconsistencies persist such as the question of when
positive duties are upheld, or when the tests of proportionality and the margin of
appreciation are applied or what factors will be taken into account when evaluating the
behaviour of the state. Third, neither the protocol nor the explanatory report refer to indirect
discrimination. This is disappointing given that, for anti-discriminatory measures to be truly
effective, they must also tackle practices which are neutral in form but discriminatory in
their application.138
The reason behind such express omissions lies, inter alia, in the drafters’
cautiousness in creating a protocol which will not easily be accepted by the Council of
Europe’s Contracting Parties. This has already been manifested in the UK’s objection139 to
ratifying the protocol. Ratification problems have occurred in a number of states, including
Central European states which are traditionally seen as the most representative of
‘European’ states in initiating the European institutions. In these countries, article 14, a
‘woefully inadequate as a constitutional equality guarantee’ remains the main anti-
discrimination provision. To deny protocol 12 is to deny a first-time opportunity to
establish a more effective equality guarantee in Europe.

136
E.g. in Rasmussen v Denmark - 8777/79 [1984] ECHR 17 (28 November 1984), para.40 and National and
Provincial Building Society and Others v UK 1997 (25) EHRR 127, para 80
137
N.Grief, “Non-Discrimination under the European Convention on Human Rights: A critique of the United
Kingdom Government’s refusal to sign and ratify Protocol 12” E.L.Rev. 2002, 27, SUPP
138
A.McColgan, “Discrimination Law, Text Cases and Materials” Oxford 2000, pp. 65-125
139
Lord Lester, Letter to PM, 2nd October 2000. E.g. Larkos v Cyprus, application no 29515/95, 18 February
1999
 40

Overall, protocol 12 is a pragmatic document facing the right direction towards a

more effective anti-discrimination protection. It aims to further improve the protection
against discrimination at the international level and more suitably reflects the principle
enshrined in the U.D.H.R that ‘all persons are equal before the law and are entitled to the
equal protection of the law’ and represents ‘further steps to promote the equality of all
persons’. It can be particularly important as a welcome addition to domestic anti-
discrimination laws which are currently fragmented and unsystematic whilst a new breath is
given to the context of the Charter of Fundament Rights of the EU which is likely to
become binding in the future.
Finally, notwithstanding its weaknesses, Protocol 12 contains one of the most
important ingredients of success; it provides the Court, under a wide discretion, with
flexibility to extend the scope of protection where needed and to take into account the
changes in the society. Therefore, away from the Court’s cautious and unsatisfactory
interpretation of article 14, the new protocol provides an opportunity to deal with the real
issues of equality and unequal treatment.
 41

D. CHAPTER THREE: EU ANTI-DISCRIMINATION POLICY

3.1. The emerging of an anti-discrimination policy in the EU

Traditionally, the European Union policy has been driven by the needs of economic
integration and the objective of a European common market. In the last decades, however, a
social citizenship model sprung either as complementary to the economic integration model
or as an autonomous social policy based on the protection of fundamental rights. If as some
support, it is true that the dynamics of market integration remain highly persuasive in
140
determining the direction of EU social policy, the understanding of the breadth of the
current anti-discrimination policy and its flaws becomes less bewildered.
In contrast, the Council of Europe aims, from the day of its creation, at economic
and social progress within its Contracting Parties. Its main source of anti-discrimination
policy is the ECHR, a rights- and freedoms- oriented document purely derived from the
Universal Declaration of Human Rights.141
The starting-point of the development of an anti-discrimination policy in the EU is
the principle of equality, which has surprisingly not per se been given adequate prominence
under the prohibition of discrimination in the ECHR. Numerous provisions of the TEC142
provide for the principle of equal treatment with regard to specific matters whereas the ECJ
has held that the principle of equality is one of the general principles of Community law.
Community competence must comply with such principles and equality, as one of them is
important as a matter of practical necessity of filling up a lacuna left in written law but
predominantly as a matter of principle. Moreover, ‘fundamental rights include the general
principle of equality and non-discrimination’143 therefore, as a fundamental right,144 it is
binding on Community institutions and Member States when implementing Community

140
M.Bell, “Anti-Discrimination Law and the European Union” Oxford Studies in European Law OUP
(Oxford, 2002), pp. 1-27, 191.
141
C. Ovey, R.C.A. White “European Convention on Human Rights”, 4rd ed. (Oxford, OUP, 2006) pp.1-4.
142
Treaty of the European Community
143
Case C-442/00, Caballero v Fondo de Garantia Salarial (Fogasa), [2003] IRLR 115, para 32
144
Drawn from the constitutional traditions of the member states and, in particular the ECHR
 42

legislation.145 Thus, equality seems to have an autonomous role in EC law albeit

uncertain146 this, again being a contrast to the ECHR jurisprudence.

3.2. The Scope of EU Anti-Discrimination Law

i. Discrimination in Employment

The sources of the EU’s expression against discrimination and in support to equality
are spread within different instruments including primary, secondary legislation and case-
law.
In economic context, prohibition of discrimination is mentioned as an enumeration
of the general principle of equality.147 In brief Article 12EC prohibits discrimination on the
ground of being a national of an EU Member State and Article 18EC provides such citizens
the right to move and reside freely within the EU territory subject to certain limitations.148
Articles 39-55 provide for the free movement of workers, the right of establishment and the
freedom to provide and receive services within the Community. The main contribution of
such provisions is limited to the economically-active citizens of the EU and to the ground
of nationality or origin.149 Nonetheless, recent case-law has utilised the citizenship
provisions150 in a more profitable way to non economically-active EU nationals with regard
to the right of entry, residence and the right to gain social advantages 151 within the EU.
Such promising change has been influenced by the principle of social solidarity, one’s ties

145
Case C-442/00, Caballero v Fondo de Garantia Salarial (Fogasa), [2003] IRLR 115, para 30
146
Tridimas, “The General Principles of EC Law”, Oxford University Press, Oxford, 1999, p.69
147
Case 1/72, Frilli v Belgium, [1972] ECR 457, para 19 and Royal Scholten-Honig (Holdings) Ltd v
Intevention Board for Agriculture Produce [1978]ECR 2037, para 26
148
The limitations aim to prevent the imposition of a financial burden on the host member state. Therefore
they require that all individuals are covered by sickness insurance and have sufficient resources. Other general
limitations justify discrimination on the grounds of public policy, public security or public health.
149
G. De Búrga, “The Role of Equality in European Community Law”, in A.Dashwood and S.O’Leary, “The
Principle of Equal Treatment in EC law”, p. 20
150
Articles 17-22 EC
151
Case C-138/02 Collins v Secretary of State for Work and Pensions, judgment of 23 March 2004, [2006]
EWCA Civ 376
 43

to or lengthy residence within a member state152 and the application of fundamental rights
such as the right to family life.153
Articles 2 and 3(2) TEC impose the promotion of equality between men and women
in the Community and article 141 which grants individuals the right to equal pay
irrespective of sex. Articles 249 and 141(3) entitle the Community Institutions to enact
measures and secondary legislation ‘to carry out their tasks when the TEC authorises them
to’ and to rule beyond pay equality, for equality of opportunity in occupation
respectively.154 The meaning, breadth and operation of these measures remain unclear. Yet,
the key-provision which has created today’s anti-discrimination policy is Article 13
discussed below.
Nationality and gender are privileged grounds in EU anti-discrimination policy in
that they have the longest history of being protected under numerous instruments. They are
prioritised because they are crucial to the single economic market, competition and
citizenship objectives, 155 to legitimacy considerations and because of the influence of the
European Parliament in supporting women’s rights.

a. Sex

Since the 1970s, a blend of economic and social policy impetuses gradually
produced legislation on sex equality and urged the institutions to enforce it at a practical
level. 156

152
Case 85/96 Martínez Sala v. Freistaat Bayern [1998] ECR I-2691
153
Case C-413/99, Baumbast and R v Secretary of State for the Home Department [2003], ICR 1347
154
Article 137 also permits the Council to introduce Directives which set minimum requirements for gradual
implementation. The Article purports to encourage the co-operation among Member States and harmonisation
of laws, regulations, directives or administrative provisions within the Member States and the common
market. However the application of this article follows a rather complex procedure requiring the unanimity of
the Council on consultation with the European Parliament, Social Committee and Committee of the Regions.
155
Arguably the notion of nationality has been subsumed under the notion of citizenship. In Bickel and Franz
[1998] ECR I-7437, para 24 (Case C-274/96) A-G Jacobs characteristically stated: “Freedom from
discrimination on grounds of nationality is the most fundamental right conferred by the Treaty and must be
seen as a basic ingredient of Union citizenship”.
156
The social policy reasons mentioned above have been emphasized in the Preamble of the Treaty
establishing the European Community.
 44

Article 141(1) provides for equal pay irrespective of sex and is directly effective.157
Article 142 provides for equality in paid holiday schemes, a surplus of directives has been
enacted for sex equality across various aspects of employment with the Equal Treatment
Directive being recently amended158 whereas the Court of Justice has attached a great
importance in this area. This is reflected by how broadly the ground has been interpreted.
The ECJ stated that it must not be read narrowly or restrictively and its meanings and effect
must be understood in the light of its purposes.
First, sex has been interpreted beyond a biological comparison between the sexes
but in consideration of social, psychological and cultural constructs. For example, the
legislation protects women from discrimination based upon pregnancy159 alone without
even requiring a comparison between ‘analogous situations’160 like the ECHR does, as long
as the comparison made between women.161
Second, under the Equal Treatment Directive, no employer may discriminate
against individuals by reason of having undergone gender reassignment.162 The ECJ has
utilised the ECHR as a secondary source of law, and, influenced by the right to a private
life jurisprudence,163 164
it has emphasised that transsexualism should be protected as a
matter of personal dignity and freedom which the Court has a duty to safeguard. 165 Such
expansion of the ground of sex derives from P v S, a prime example-case of the way the
Court views the principle of equality as a general principle of Community law transcending
the provisions of Community legislation. I agree with Tridimas’ statement that the ECJ
applied more an unwritten human rights law rather than applying the directive.166 Equality
is a precious vehicle for the progress of EU law in anti-discrimination policy construction.

157
Case 43/75 Defrenne v Sabena [1976]ECR 455, Wyatt, “Article 119 (now 141) EEC: Direct Applicability”
(19975-6) IELRev 418
158
The Directive was amended in 2002.
159
Case 177/88, Dekker v Stichting Vormingscentrum Coor Jonge v Colwassen Plus, [1990] ECR I-3941
160
Case C-32/93, Webb v EMO (Air Cargo) Ltd, [1994] ECR I-3567
161
If the comparison is made between a pregnant woman and a man suffering from temporary medical
ailment such comparison becomes necessary.
162
Case C-13/94, P v S and Cornwall Country Council, [1996] ECR I-2143
163
Article 8 ECHR (also providing for the right to family life and correspondence)
164
I v UK (2002) EHRR 447, the decision was followed by the Gender Recognition Act 2004 in the UK
165
Case C-13/94, at 2165
166
T.Tridimas, “The General Principles of EC Law”, Oxford University Press (Oxford, 1999), p.70
 45

Moreover, applying the same spirit and being influenced by the ECHR case-law,167
the ECJ has forbidden that transsexual workers and their partners are discriminated against
in that they are not ‘spouses’ or ‘fiancé(e)s’ where they do not have the option to marry
under national law. Therefore the restriction on a female nurse to access survivors’ benefits
in her pension under UK law was held to be contrary to Article 141. 168 However, criteria
upon which gender reassignment became legally recognised were left at the state’s
discretion. The ECJ left it to the state’s discretion to decide the criteria upon which gender
reassignment can be legally recognised.
Third, a similar approach was hinted in relation to homosexuality. Constrained
access of spouse-concessions to a lesbian employee and her partner was held to be contrary
neither to article 141 nor to the Equal Treatment Directive.169 Yet the AG and ECJ regarded
these provisions together with Article 13 and asserted that future legislative action in this
are is promising. This has been verified by the Framework Directive.
Finally, Article 2(1) Equal Treatment Directive prohibits discrimination on the
ground of marital or family status, a term which seems rather ambiguous within an area not
yet ruled on. However, a very ‘fresh’ Directive, was introduced on the 5th July,170 in the
form of the 2000 Directives explored below, aiming to consolidate previous directives and
codify case-law on sex discrimination, rendering the law more transparent. Such Directive
explicitly protects against discrimination arising from gender reassignment of an individual.

b. Nationality

In the course of achieving free movement of persons, Article 12EC prohibits direct
and indirect discrimination on the ground of nationality ‘within the scope of application of
[the] Treaty’. In effect this means that a migrant will enjoy equal treatment with nationals

167
Goodwin v UK (2002) 35 EHRR 447
168
Case C-117/01, KB v National Health Service Pensions Agency, [2004] 1 CMLR 28
169
Grant v South-West Trains Ltd, [1997] IRLR 297, at 303
170
2006/54/EC, L204/23
 46

of the host state and has so far been validated in the area of employment and access to
social advantages.171
Article 12 is supplemented by more detailed provisions such as Article 39(2)
providing for the abolition of discrimination based on nationality between workers as
regards employment, remuneration and other conditions of work and employment. Also
Regulation(EEC) 1612/68 provides for equality of social and tax advantages.
There is no statutory definition of ‘nationality discrimination’, however, the ECJ
refers to direct and indirect discrimination in its case-law while providing clear guidance
for the meaning of the concepts. The former is based on a distinction made between
national and non-national workers in a member state solely on the ground of nationality and
the latter refers to a measure which affects or is likely to affect migrant workers more than
national workers. The latter test shows the strength of the definition of indirect
discrimination which does not require statistical evidence to confirm the disadvantageous
effect on an immigrant. Therefore social benefits granted to families with more than three
children in Greece172 inaccessible to foreign nationals and ‘tideover’ allowances provided
only to Belgian nationals173 were both held to be discriminatory measures.
Nationality discrimination does not apply to employment in the public service,174
for example in the profession of teaching in support of the general interests of the
State.175Indirect discrimination may be ‘objectively justified’ by legitimate reasons such as
the enforcement of judgments,176 the prevention of fraud177 or the promotion of the official
language of a state.178 In general, ‘permissible justifications’ is not a clear-cut area on the
nationality ground contrary to the well-established formula on ‘justifications’ of the ECHR.

171
Case C-85/96, Martínez Sala v Frestaat Bayern [1998] ECR I-2691, an exceptional case where the
conclusion was reached under the application of Article 12 in conjunction with the citizenship provisions:
172
Case C-185/96, Commission v Greece [1998] ECR I-6601
173
Case C-278/94, Commission v Belgium [1996] ECR I-4307
174
Article 39(4)
175
Case C-473/93 Commission v Luxembourg [1996] ECR I-3207, 3258
176
Case C-29/95 Pastoors and Trans-Cap GmbH v Belgian State [1997] ECR I-285, 308
177
Case C-168/91 Konstantinidis [1993] ECR I-1191, 1206
178
Case C-378/87 Groener v Minister for Education and City of Dublin Vocational Education Committee
[1989] ECR 3967
 47

c. Racial or Ethnic Origin

In 2000, pursuant to Article 13, the EU institutions passed two directives

augmenting the established set of directives on sex discrimination and vindicating the
importance of the rest of the grounds of Article 13. The Equal Treatment Directive was
amended in 2002 to be in line with the standard of protection of the two directives.
The directives resulted as a response to a general and growing concern about racism
and as a result of strong political memorandum wanting such laws to become part of the
acquis communautaire before the accession of new Member States in the EU. An
accelerated ‘flurry of activity’ took place for their introduction and the result contains a
number of shortcomings but is, overall, remarkable.
The Racial Equality Directive179 prohibits discrimination in employment and in
other areas180 on the ground of “racial or ethnic origin”. It contains no definition the elusive
expression of the latter but textual hints reject theories on separate human races. 181Instead it
is targeted at discrimination against racial groups originating outside the EU. Ellis suggests
that the ECJ’s interpretation will be guided by UK law so as to include factors including
‘colour’, ‘race’ in the sense of one’s long shared and history still alive in memory, with
cultural, family, religious, linguistic and social customs182 distinguishing one group from
another.183 For good or for bad, an overlap between the term racial or ethnic origin’ and
‘nationality’ is possible.
Both the 2000 Directives184 expressly forbid four forms of discrimination.185First,
where a person is or would be treated less favourably than another in a comparable situation
is directly discriminated. Second, an apparently neutral provision, criterion or practice
which put or would put persons of a racial or ethnic origin at a particular disadvantage

179
Or ‘Race Directive’, Directive 2000/43, OJ [2000] L180/22
180
The scope of the Racial Equality Directive beyond Employment is discussed below.
181
Recital 6, Preamble of Racial Equality Directive 2000
182
Mandla v Dowell Lee [1983] AC 548
183
Where ‘another’ may be the majority, dominant group or just any group. The approach was followed in
Crown Suppliers v Dawkins, [1993] ICR 517, CRE v Dutton [1989] QB 783.
184
The Racial Equality Directive and the ‘Framework Directive’, Employment Equality Directive 2000/78,
L303/16
185
Articles 2(2), 2(2)(b), 2(3) and 2(4).
 48

compared with other persons is indirectly discriminatory even without proof that a higher
proportion of persons affected belong to that group. The phraseology ‘would be’ takes the
law a step forward from the Equal Treatment Directive and renders protection more
effective and preventative rather than merely a response to discrimination which has
already occurred. Such ‘future’ anti-discriminatory protection was only hinted in
Thlimmenos in the ECHR jurisprudence.
Third, any ‘unwanted conduct…which with the purpose or effect or violating the
dignity of a person and of creating an intimidating, hostile, degrading, humiliating or
offensive environment qualifies as ‘harassment’ and is prohibited under the Directive. The
broad interpretation omits a requirement of fault, covers a wide range of state and private
individual actions and seems objective in that the effect of such actions matters. Yet, the
exact extent the provision covers, for example, in relation to vicarious liability186 is
uncertain and is expected to be influenced by domestic laws of Member States. Finally,
instructions to discriminate are prohibited given that evidence is submitted that employers
have dissuaded employment agencies from sending them workers of a particular ethnic
origin.187 Optimistically, the ECJ will apply the BECTU approach to the last two provisions
namely that national discretion cannot undermine the substance of the right all together.

d. Other Grounds

The Framework Directive188 prohibits discrimination on five new grounds, which

together with racial and ethnic origin complete the grounds listed in Article 13. It is
however disappointingly limited to discrimination within employment, vocational training

186
E.g. whether employers or service-providers will take responsibility for discriminatory actions not directly
initiated by themselves
187
Although in relation to the Working Time Directive, a relevant case is Broadcasting, Entertainment,
Cinematographic and Theatre Union (BECTU) v Secretary of State for Trade and Industry [2001] ECR I-
4881
188
Employment Equality Directive 2000/78, L303/16
 49

and memberships of organisations of workers or employers whereas social security is

specifically excluded.189
None of the grounds provided for are defined in the Directive and uncertainty may
be experienced in forthcoming case-law. Nonetheless, it seems that interpretation of
‘religion or belief’ will be guided by Article 9 and the ECtHR jurisprudence. Therefore
engagement in a broad interpretation is expected whereby not only typical facets of
religious practices such as communical or individual worship will fall within the definition,
e.g. Buddhism, but also fringe religions190 and non-religious beliefs such as atheism and
agnosticism.191 ‘Disability’ however is an extremely vague and open-ended term. Although
the UK law may offer some assistance it may fall short of the demands of the increasingly
social view in the EU.192 Subsequently, the definition of ‘age’ is said to include all age
groups, yet the picture blurs by the exclusive reference to ‘the elderly’ in Recital 6 of the
Preamble.
Finally, ‘sexual orientation’ will expectedly cover heterosexuality, homosexuality,
bisexuality and sexual activities otherwise the practical application of the provision will be
undermined as failure to respect one’s behaviour in private preferences and lifestyle. Even
more ambiguity results in the area of minority sexual preferences such as
sadomasochism.193
Like the Race Directive the Framework Directive defines the same four types of
discrimination. As an addition, the Directive requires that reasonable accommodation is
provided for the disabled as part of guaranteeing compliance with the principle of equal
treatment.194Employers shall take ‘appropriate measures’, a term whose meaning and
criteria relevant to it await explanation by the Court of Justice.195

189
Article 3(3) Directive 2000/78
190
E.g. Jehovah’s witnesses: Hoffmann v Austria (1994) 17 EHRR 293 and Thlimmenos v Greece (2001) 31
EHRR 411 and the Penecostal Church: Larissis v Greece (1999) 27 EHRR 329
191
Kokkinakis v Greece (1994) 17 EHRR 397
192
Whittle, “The Framework Directive for Equal treatment in Employment and Occupation: an Analysis from
a Disability Rights Perspective”(2002) 27 ELRev 303
193
E.Ellis, “EU Anti-Discrimination Law” Oxford University Press (Oxford 2005), p.36
194
Employment Equality Directive, Article 5
195
Recital 20 of the Directive provides that such measures must be ‘effective and practical’ e.g. premises and
equipment, patterns of working time and distribution of tasks.
 50

ii. ‘Beyond Employment Discrimination’

a. Article 13 EC

Article 13 was inserted by the Maastricht Treaty196 and its position under Part One
of the TEC emphasises the constitutional importance of the measures adopted pursuant to
it. Article 13 encourages the adoption of general anti-discrimination legislation on sex,
racial or ethnic origin, religion or belief, new grounds and on non-choice grounds of age,
disability and sexual orientation197 which are disappointingly absent from the list of
grounds under Article 14 ECHR and not yet ruled on under Protocol 12. For the first time,
wider protection against discrimination is anticipated in the EU beyond the employment
area. Article 13 will unlikely become directly effective198 because it has a permissive rather
than an imperative character in relation to the obligations it states,199however, its derivative
directives and legislation are likely to be invoked before national courts. Furthermore, the
co-decision procedure now applies in relation to the provision therefore the European
Parliament’s voice which is the stronger representation of the European public is will be
heard.
However, the legal scope of Article 13 and the 2000 Directives is subject to the
‘limits of the powers conferred by the treaty’,200 namely to those areas where the Member
States have agreed to pool their national sovereignty, areas on which the Community
already has competence. 201 Additionally, it must be applied ‘without prejudice to the other
provisions of the treaty’, that is, it must not be applied to the detriment of the treaty

196
1992
197
One can disagree with the categorisation of the ground of sexual orientation as a non-choice ground. For a
more balanced approach, this thesis states that sexual orientation may be either a choice or a non-choice
ground depending on the individual circumstances of the complainant of discrimination.
198
Direct Effect can be defined as the capability of a measure to be invoked before a national court as
compliant to certain conditions of clarity, …………… ???
199
Contrary to for example, Article 10 which uses the term ‘shall’ rather than ‘may’.
200
Article 3 of the Race Directive and the Framework Directive provide so as well
201
M.Bell, “Anti-Discrimination Law and the European Union” Oxford Studies in European Law OUP
(Oxford, 2002), p.122 and principle under article 5(1) “The Community shall act within the limits of the
powers conferred upon it by this Treaty and of the objectives assigned to it therein” known as the principle of
‘limited powers’
 51

provisions202 Therefore, for a litigant to bring a claim based on Article 13 he must establish
that he is in a situation governed by EC law203 and within the treaty’s area of
application.204 The same applies under the directives enacted pursuant to Article 13
notwithstanding their different language-versions’ interpretations. Consequent to the
control imposed on Community competence by the Member States and the protectiveness
towards their national prerogatives, the list of grounds provided for under Article 13 is
exhaustive contrary to the ones in the ECHR provisions or the Charter of Fundamental
Rights. Therefore important grounds are excluded such as ‘language’, political opinion and
family status. Given the resulting inflexibility it can only be hoped that the ECJ will
generously ‘interpret Community law provisions within the current limits imposed on it and
depending on the relevant objective factors in each case. 205
Overall, Article 13 is a turning point in European anti-discrimination policy
development and covers a relatively wide range of forms of discrimination, even beyond
the area of employment. Although it omits a specification of a time frame for
implementation or carrying out of obligations, there has already been a great deal of
response towards it content which gradually fructifies.

b. Racial Equality Directive

“Even a cursory examination of the Racial Equality Directive confirms a departure

from the traditional labour market focus on European social policy.”206Indeed, the material
scope of the Race Directive not only covers employment thoroughly207 but extends to
education, social protection, social advantages and access to goods and services. 208 These

202
Irrespective of whether the provisions are specific or not, contrary to the approach taken in Cowan v
Trésor public Case 186/87, [1989] ECR 195, under Article 12.
203
‘personal scope’, Case C-122/96 Saldanha and MTS Securities Corporation v HiIross Holding AG [1997]
ECR I-5325, para 25
204
‘material scope’, Case C-291/96 Grado and Bashir [1997] ECR I-5531, para 13
205
E.g. the ‘aim and content of the measure’ Parliament v Council Case C-22/96, [1998] ECR I-3231
206
M.Bell, “Anti-Discrimination Law and the European Union” Oxford Studies in European Law OUP
(Oxford, 2002), p.136
207
Articles 3(1)(a)-(d)
208
Article 3
 52

are new areas for the EU whose deriving obligations must not be underestimated. First, in
forbidding discriminatory rules on access to goods and services it removes important
barriers at the internal market and within Member States,209 something which remained
unregulated by Article 12. Its harmonisation of laws’ effect bears the danger of an overlap
with Article 95, yet, it is for the ECJ to affront such scenarios. And although other
provisions210 are associated with similar rights of EU nationals in ‘housing’, the use of the
actual term promises additional protection to individuals discriminated against in this sense.
However, discrimination in healthcare is likely to collide with the Article 152
providing for health policy but under limitations such as the exclusion of any harmonisation
of laws and regulations of the Member States. Once more, complex questions are likely to
arise also because of the fuzzy boundaries of Community competence, thus an
unsatisfactory ambiguity awaits the ECJ

209
Known as ‘purely internal situations’
210
Article 44(e), Regulation 1612/68 EC
 53

3.3. Justifications under the 2000 Directives

Whereas departure from employment-orientated policy against discrimination has

taken place, the Race Directive just like the Framework Directive, is still restricted ‘within
the limits and powers conferred upon the Community’. The latter depends on the
dimensions the ECJ will attribute to Community law.
Furthermore, where there are ‘genuine and determining occupational requirements’
which are ‘necessary and proportionate’ to measures proven to pursue a legitimate aim,211
discrimination under both Directives212 is justified. Therefore it is possible for example that
a company sets different remuneration conditions for young or older people or to exclude
disabled candidates by reason of the nature of a job. The test for such justifications,
however, is rigid and the fact that it is expressly provided for, contrary to the ECHR,
guarantees greater consistency in the ECJ’s case-law and, potentially, greater protection.
The Framework Directive also justifies sexual orientation discrimination in
employment at religious organisations whose ‘ethos is based on religion or belief’ 213 or
requirements that employees ‘act in good faith’ to the organisation’s ethos by for example
keeping secret their homosexuality.214 However religious establishments may not simply
exclude all homosexuals from access to employment and the exception is to be applied only
in relation to sexual orientation.215 Yet, the danger is that certain facts may be non-
negotiable and extremely delicate issues may be engaged under such tension of rights in
respect of which more specific legislation and decision-making might be needed.
Moreover, the Framework Directive contains certain exceptions associated with the
grounds of age and disability by justifying discrimination in the armed forces in pursuance
of the legitimate aim to preserve the operational capacity of the armed forces and the policy

211
Article 4 Race Equality Directive, Article 4(1) Employment Equality Directive
212
Direct or indirect discrimination under article 2(1)-(2) of both Directives
213
Article 4(2)
214
M.Bell, “Anti-Discrimination Law and the European Union” Oxford Studies in European Law OUP
(Oxford, 2002)
215
Equal Opportunities Review, “EU Employment Framework Directive: an EOR guide” (Jan/Feb 2001)
No.95,32,36
 54

or emergency services to perform specific functions.216. For these grounds, Member States
were allowed to expand the period for implementation of the relevant provisions for further
three years.
Lastly, the Framework Directive has introduced an open-ended justification for any
form of discrimination217 for ‘measures laid down by law which, in a democratic society
are necessary for public security, health protection, protection of rights and freedoms of
others, maintenance of public order, prevention of criminal offences’. 218 This was added so
that the Directive will not apply its protection to members of harmful cults, paedophiles and
people with dangerous physical and mental illnesses.219 The drafting of this provision
reflects an influence from the ‘justification of interference’ provisions under the ECHR. On
the one hand, contrary to Article 14 and Protocol 12 of the latter, statutory examples are
given as to what ‘justifications’ qualify. On the other hand, however, the breadth of this
exception raises the possibility of an extended application and of manipulation of the
provision by member states which for example, defend the expression of homosexuality
within the armed forces.
The decision of what qualifies under these exceptional requirements rests with the
ECJ. It can only be hoped that the Court will draw the line between those instances where
discrimination is absolutely necessary and those where it is merely discrimination in
disguise. Fortunately exceptions must be limited to those expressly mentioned in the
Directives220 and are be narrowly construed namely the must not apply contrary to the
general principle of individual protection. 221

216
Preamble of the Framework Directive, paras 17-19
217
Article 2(5)
218
Article 2(5) Framework Directive
219
E.Ellis, “EU Anti-Discrimination Law” Oxford University Press (Oxford 2005), p.291
220
Case 222/84, Johnston v Chief Constable of the RUC, [1986] ECR 1651
221
E.g. Case 41/74, Van Duyn v Home Office [1974] ECR 1337
 55

3.4. Assessment of the current Anti-Discrimination policy in the EU

The 2000 Directives consist of the greater step taken so far by the EU in combating
discrimination. Given the normally slow, complex process of European law-making and the
long history of incrementalism in this policy area the fast-talk outweighing the agreement
of the Directives is remarkable. The Race Directive was supported by a strong political
momentum222 and complies with all three objectives set by the Commission in 1999,
namely, to forbid discrimination on the ground of racial or ethnic origin in employment, 223
education, social protection, social advantages and access to goods and services224 and to
establish an action programme against discrimination.225 Specifically, the Directive
provides for the establishment of bodies ‘for the promotion of equal treatment of all persons
without discrimination…at national level’ denoting the competences of such bodies.226
Unfortunately, the latter was not adhered in the Framework Directive and this is bizarre
given that no reason justifies why enforcement mechanisms should vary depending on the
ground of discrimination invoked.
As a strong advantage, both Directives provide for and define four forms of
discrimination forms and their justifications, ascribing clarity and consistency to the ECJ.
At the same time, an innovative aspect of both Directives is the focus on remedies and
enforcement under a variety of measures facilitating the practical use of their provisions.227
The latter includes a new concept of ‘victimisation’ albeit of a ‘trial’ character, 228 a
provision calling member states to encourage social dialogue between social partners and
non-governmental organisations229 and a provision on positive action. All such provisions

222
The compelling forces of the Portuguese Presidency the European Parliament
223
Commission, ‘Proposal for a Council Directive establishing a general framework for equal treatment in
employment and occupation’ COM (1999) 565
224
Commission, ‘Proposal for a Council Directive establishing a general framework for equal treatment in
employment and occupation’ COM (1999) 566
225
Commission, ‘Proposal for a Council Directive establishing a general framework for equal treatment in
employment and occupation’ COM (1999) 567
226
Article 13
227
Chapter II of both Directives
228
Article 9 Racial Equality Directive, Article 11 Employment Equality Directive
229
Article 11 Racial Equality Directive, Article 13 Employment Equality Directive
 56

are driven by one force; the effective fostering of the principle of equality, an approach
which is much more convincing to subjects of discrimination than the one adopted under
the ECHR. The more the principle of equality is considered to be the motivating power
towards the EU policy, the more effective anti-discrimination policy will be.
Still though, the main provisions prohibiting direct and indirect discrimination
pursuant to the principle of equal treatment230 are unlikely to become directly effective
when taken alone due to lack of elaboration on the circumstances under which they operate.
If, nonetheless, they are read together with the later provisions of the Directives on
specifically defined matters, it is hoped that litigants will be able to rely upon them to
ensure their protection against discrimination in the Directive’s context.231
However, the Directives are not without shortcomings. Firstly, although they apply
to third-country nationals and stateless persons in relation to general discrimination, they do
not cover differences of treatment based on nationality and are ‘without prejudice to the
provision governing their entry and residence’ within Member States.232 Arguably, the
privileged position granted to EU nationals consists of a sort of discrimination in itself.
This is to be contrasted to the ECHR’s principle of universality witnessed by the term
‘everyone’ present in the provisions examined in this dissertation. Yet, practical
effectiveness would have been less tangible had the EU expanded its protection to nationals
of states unfamiliar to the EU ideal. Regardless, the current interpretation of Directive
90/364 in conjunction with the citizenship provisions233 and the utilisation of the principle
of effet utile have already brought some promising change. Thus a Chinese citizen giving
birth in the UK obtained the right of residence so that her daughter’s already established
European citizenship would not have become ineffective.234 The case-law of Article 12 has
also partly balanced this criticism. Furthermore, the ECJ has ruled that this express

230
Article 2(1) of both Directives
231
E.g. the ECJ’s comments in: Case 152/84 [1986] ECR 723, Marshall v Southampton and South West
Hants Area Health Authority Case 222/84 Johnston v Chief Constable of the RUC [1986] ECR 1651
232
Article 3(2) of both Directives
233
Articles 17-22 EC
234
Case C-200/02, Kunquian Catherine Zhu, Man Lavette Chen v Secretary of State for the Home
Department, Judgment of 10 October 2004
 57

exception under Article 3(2) will be narrowly interpreted and the determination of its full
scope is at the Court’s discretion.235
Secondly, there are certain omissions in the Directives in relation to discrimination
on grounds like language, political opinion and family status. The Race Directive although
extending beyond employment still excludes certain areas and the Framework still limits its
material scope to the workplace and further precludes its application to ‘payments of any
kind made by state schemes’ such as social security.236 There are also omissions of
definitions such as ‘treatment’ or ‘employment’ and the approach to-be-taken towards
certain scenarios involving multiple discrimination, let us say against an individual on the
ground of her sex and her nationality or disability remain unknown.
Thirdly, the burden of proof237 of the Framework Directive connotes that it is not
for the respondent to prove that the plaintiff adheres to a particular ground. Therefore the
applicant may be placed in the inconvenient position to prove his/her sexual orientation or
even be deterred from litigating. It is stated238 that any discrimination ‘whatsoever’ is
prohibited, however, ‘whatsoever’ is ambiguous to deal with the latter issue and ambiguity
is likely to result. Fourthly, there is the fear explicated above, of expanding the ground-
specific exceptions (age, disability) in the Directive to further grounds and age
discrimination is brought to the bottom of the hierarchy of grounds. Also, the same may be
apprehended for the tension between religious organisations and the ground of sexual
orientation. Fifthly, the open-ended justification under article 2(5) may act as a defence and
undermine the effect of article 5 and article 7(2) respectively providing for ‘reasonable
accommodation’ and ‘positive action’ for the disabled. The Court is yet to strike the
balance in this area.

235
Case 222/84, Johnston v Chief Constable of the RUC [1986] ECR I-1651, 1686
236
Article 3(3) At referendum: Oddly, the European Employment Strategy encourages the provision of state
schemes under its aegis.
237
Article 10
238
Article 2(1)
 58

3.4. Indirect Discrimination

Although defined earlier,239 under the new Directives, indirect discrimination is

defined as ‘an apparently neutral provision, criterion or practice’ with unjustified adverse
impact to a protected class of persons on the grounds provided for under each Directive.
The definition continues by excluding provisions, criteria or practices which are objectively
justified by a legitimate aim whereby the means of achieving that aim are appropriate and
necessary.240
The test seems to clearly articulate the instances which the provision welcomes
contrary to the ECtHR which traditionally omits direct clarification on the issue of indirect
discrimination. However, as applied in the case-law, it reflects the hierarchy of grounds in
the EU, that is, depending on the seriousness of the ground; it has been possible to find for
indirect discrimination where it has merely been anticipated rather than having occurred.
For example, this was the case in relation to nationality discrimination241 but not in relation
to sex discrimination.242 However the wording ‘would put an individual at a disadvantage’
in all three directives243 seems to obviate the need for such evidence. Nonetheless, until the
new grounds are treated as of equal importance to the ground of nationality, practical
difficulties occur in relation to sensitive matters. An example is the requirement to prove
one’s sexual orientation by statistical evidence in order to assess the adverse impact of a
discriminatory measure such as a particular law allowing individuals to bring a claim of
unfair dismissal.244
A frequent scenario of indirect discrimination seems to be the occurrence of
differential treatment on the ground of sex in that different laws apply to part-time workers
as opposed to full-time workers and women are more likely to opt for part-time working
because of their domestic obligations and responsibilities. The ECJ takes a case-by-case

239
The first time it was defined was in the Social Protocol of Maastricht Treaty, Amsterdam Treaty 1997 on
parental leave under certain circumstances.
240
E.Ellis, “EU Anti-Discrimination Law” Oxford University Press (Oxford 2005), p.91
241
Case C-237/94 O’Flynn v Adjudication Officer [1996] ECR I-2617
242
Case 96/80, Jenkins v Kingsgate (Clothing Productions) [1981] ECR 911
243
The 2000 Directives and the Equal Treatment Directive as amended in 2002.
244
Case C-167/97, R v Secretary of State for Employment, ex parte Seymour-Smith [1999] ECR I-623
 59

approach and observes all factual circumstances balanced against this reality and has
upheld for indirect discrimination.245 Furthermore the burden of proof seems to be on the
complainant to point at his identifiable comparators and courts have an important element
of discretion on this. Disappointingly, such discretion may be applied in an unfair or
unconvincing way by for example choosing inappropriate criteria to decide a case. The ECJ
held that ‘maternity’ was not an ‘important enough reason’ to render a law, specifying the
amount of work carried out by a woman to be qualified for a promotion, as indirectly
discriminatory.246 Under the new Directives however, a welcomed change is the Court’s
current approach is likely to be experienced.

245
E.g. ibid. Jenkins v Kingsgate, Elsner-Lakeberg v Land Nordrhein-Westfalen Case C-285/02, judgment of
27 May
246
Case C-1/95, Gerster v Freistaat Bayern, [1997] ECR I-5253
 60

3.5. Positive Action

Positive action has so far been provided in relation to sex equality, equal pay and
recently, the Article 13 grounds pursued by the 2000 Equality Directives. The main purpose
is to protect the principle of formal equality. However, apart from the exceptions and
weaknesses of EU law which inhibit the production of real equality, the relationship
between positively discriminating and restoring equality is not always proportionate. Thus
the tension created when positively discriminating in pursuance of a policy aim is
extremely difficult.
The term ‘positive action’ has been defined for the first time in EU law under the
2000 Directives albeit being addressed earlier in the Equal Treatment Directive. 247 In
relation to the latter, positive discrimination is said to be a broadly construed exception.248
In the area of sex discrimination, the ECJ has ruled out measures which directly and
automatically excuse positive discrimination.249 It has, however, accepted a) measures
which do not automatically and unconditionally prioritise women where the two sexes are
equally treated and candidatures are subjected to an objective assessment taking into
account the specific personal situations of all candidates250 and b) measures which in reality
are flexible such as ‘advancement plans’ for women in the public service securing equality
of access for both sexes.251
Furthermore, the ECJ held that Article 2(4) must be applied with due respect for the
principle of proportionality, namely that there is a proportionate relationship between a
measure favouring women and the policy objective benefited by such measure.252Ellis,
regretting the peculiarity of combating discrimination by discrimination, suggests that
mainstreaming, contract and grant compliance, are more suitable ways to achieve what

247
Article 2(4)
248
Case 184/83, Hofmann v Barmer Ersatzkasse [1984]ECR 3047
249
Case C-450/93 Kalanke v Bremen [1995] ECR I-3051 ,Case 312/86, Commission v France [1988] ECR
6315,
250
C-409/95 Marschall v Land Nordrhein Westfalen, 11 November 1997
251
Case C-158/97 Badeck v Landsanwalt Beim Staatsgerichtshof des Landes Hessen [1999] ECR I-1875
252
Case C-476/99 Lommers v Minster van Landbouw [2002] ECR I-2891
 61

positive action purports to do and social policies.253Personally, having the ‘extra cautious’
approach of the ECHR in mind, I find positive action in the EU convincing enough as long
as a case-by-case scrutiny takes place justifying resort to ‘positive discrimination’. Besides,
the priority is equality and not prohibition of discrimination. Despite the increasing
importance of mainstreaming in EU anti-discrimination law today, I regard the area of
mainstreaming and additional social policy as outside the scope of this dissertation.
The language of the new 2000 instruments is, according to Ellis, more permissive
than the Equal Treatment Directive provision, but weaker than the one under Article
141(4). The Directives provide that ‘the principle of equal treatment shall not prevent any
Member State from maintaining or adopting specific measures to prevent or compensate
for disadvantages’ linked to the grounds each provides for.254 It is suggested that the
disparity in the wording is due to the expansion of anti-discriminatory protection to new
grounds. Perhaps the ECJ will slowly take the same approach under the Directives as in
141(4) namely to permit positive action but fall short of permitting positive discrimination.
In any case, the line between permissible and non-permissible positive discrimination is a
fine one and it can only be hoped that the ECJ will draw it duly.
Finally, the Framework Directive specifically provides for positive action
promoting the integration of disabled persons within the working environment.255 Health
and safety concerns can preclude the employment of disabled people and by regulating on
these issues, unfair disability discrimination may become more effective. It seems that the
provision extends the scope of positive action for the disabled by promoting the
introduction of measures which are not restricted to those designed to compensate for
previous disadvantages but which prevent future disadvantages.

253
E.Ellis, “EU Anti-Discrimination Law” Oxford University Press (Oxford 2005), pp.308-309
254
Racial Equality Directive, Article 5, Employment Equality Directive Article 7(1)
255
Employment Equality Directive, Article 7(2)
 62

3.6. Conclusion

Given the predominantly economic thrust dragging the EU, the current anti-
discrimination laws of Community’s social policy are remarkable. Although at its first
steps, anti-discrimination policy engages in a genuine effort to create a solid basis
protecting the principle of equality as a fundamental right. It is this direction that Union
policy must progress for the best possible protection against discrimination to be achieved.
The majority of the relevant legislation covers equality at the workplace; nonetheless,
moves beyond this field have been made in the Race Directive and will expectedly be
furthered by additional law-making. Although the material scope of anti-discrimination
policy remains inadequate, those areas which the EU places under its umbrella, are afforded
independent guarantees against discrimination, which are, at their most, clearly articulated
and gradually broadening.
Strong definitions of the forms of discrimination covered are to be balanced against
a series of general and ground-specific exceptions and justifications and further, specific
definitions of important terms are to be clarified. The task of the ECJ in this area is heavily
demanding. However, with the principle of equality set as a top priority in combating
discrimination and the ability of the ECJ to broadly interpret provisions and convincingly
influence national legal orders, a reality may be derived for only ameliorated anti-
discriminatory action to come.
 63

E. CHAPTER FOUR: COMBATING DISCRIMINATION FROM

TWO FRONTS.

Certain comparative comments between the EU and the ECHR anti-discrimination

policies have already been presented in Chapter 3. This section intends to clarify the most
basic, general points of comparison between the two regimes before a general conclusion
can be reached in relation to the overall ‘availability’ of protection for equality and against
discrimination.

4.1 Material Scope

The scope of protection in the ECHR is in a number of ways wider than that
otherwise to be found in EU law. First, Article 14 provides that all rights provided for
under the Convention should not be applied in a discriminatory way whereas Protocol 12
further prohibits discrimination in respect of any right set forth by law, a term which is
broadly interpreted as explained above. Additionally, support to equality and prohibition of
discrimination may be derived from the protection of certain other rights of the Convention
such as Article 8 and the protection of family and private life. 256 On the contrary, EU anti-
discrimination law is applied in relation to Community law which generally applies to
employment and only with regard to the ground of racial or ethnic origin, to education,
social protection, social advantages and access to goods and services. Paradoxically, the so
well-protected employment rights of the EU have been excluded from the ECHR prior to
the adoption of Protocol 12 and are likely to be dealt with under the ECHR within the
following years. Perhaps the co-existence of both ‘sources of anti-discriminatory’
protection will produce a new dimension of equality itself whereby the quality of, for
instance, an employment right will be protected in more depth.
Second, the ECHR provides a much longer list of grounds on which discrimination
is prohibited than Article 13 and its derivative Directives while the list of Article 14 and

256
E.g. Goodwin v UK (2002) 35 EHRR 447
 64

Protocol 12 is open-ended whereas the lists in EU law are exhaustive. The EU seems more
‘cautious’ in expanding anti-discrimination protection in ‘new’ areas, yet, the Framework
Directive already has introduced certain such innovations and further legislation coming
from the same source is likely to be observed within the next years. Nevertheless, the
ECHR list257 contains what to modern eyes is an ‘outmoded’ list of prohibited grounds, in
particular, unlike the Framework Directive; it omits age, disability or sexual orientation.
Therefore, such grounds will be protected as ‘other status’ which, as mentioned above, do
not acquire equal protection to those grounds expressly provided for.

4.2 Conceptual Clarity

In line with this is, a much greater clarity is provided to the concepts of
discrimination and the forms of discrimination protected within the EU. The ECHR does
not statutorily define direct or indirect discrimination and does not spell out what qualifies
as a justification. In this respect, the EU provides a stronger protection against
discrimination which, in part, compensates its limited material scope. Nonetheless, in some
respects the ECtHR has demonstrated some breadth in the concept of discrimination such
as in the approach applied in Thlimmenos.
Furthermore, the principles of equality and non-discrimination enjoy an
autonomous application under the Union policy something which has been much criticised
with regard to the Article 14 jurisprudence but is likely to change under Protocol 12. These
principles will be considered irrespective of whether another provision of Community law
is engaged or violated. Hence, in my opinion, the EU grants a less quantitative and more
qualitative protection against discrimination in those areas it chooses to produce legislation
on.

257
Which as mentioned above is identical under article 14 and Protocol 12.
 65

4.3 Justifications

EU anti-discrimination law makes clear which ‘justifications’ may defend a

discriminatory measure whereas evidence of the ECHR approach is all in case-law. The
latter requires that a reasonable and objective justification exists and, depending on the
ground engaged and its place in the ‘hierarchy of grounds’, it further examines the question
of proportionality and the width of a margin of appreciation while allowing a nearly
irresistible defence for ‘public interest’. The former applies the same test in relation to
indirect discrimination258 and the general defence sought is a ‘genuine and determining
occupational requirement’. At the same time the EU, like the ECHR precludes comparable
situations from being treated differently but more consistently precludes different situations
259
from being treated in the same way. The EU also calls for a legitimate aim, and
proportionality more consistently, and the margin of appreciation is not the applicant’s
‘enemy’ as often as it is in the ECHR. Of course one could argue that the fact that the two
regimes penetrate their anti-discrimination policies into different areas does not allow a
proper comparison to take place. Nevertheless, there is no indication that the ECHR will
respond in a different way when it comes to employment rights under Protocol 12. A more
in-depth and specialised tactic is provided by the EU policy, less willing to allow general
defences to pass so easily save where they are specifically provided for.
The EU provides for certain ground-specific ‘exceptions’ such as nationality
discrimination in public services or age and disability discrimination in the armed forces.
Again, this is stability and clarity in drawing the lines of when protection against
discrimination will be afforded or not. In line with this, the Framework Directive provides
statutory examples of limitations to the general anti-discrimination laws such as democratic
necessity, an element of guidance as to which criteria will be assessed in finding a
justification which is lacking from the ECHR.
The hierarchy of grounds in both jurisdictions privileges sex and nationality
discrimination over other grounds with the ECHR also privileging religion and illegitimacy

258
Case C-189/01 Jippes and Others 2001 ECR I-5689, para 129 and Case C-149/96 Portugal v Council
1999 ECR I-8395, para 91
259
Case 106/83 Sermide SpA v Cassa Conguaglio Zucchero and others 1984 ECR 4209, para 28
 66

contrary to the EU. The rest of the spectrum of grounds has been continued differently in
each regime as a reflection of the objectives of each institution, the issue of competence in
relation to national sovereignties, and the willingness of Member States or Contracting
Parties to compromise their national sovereignties and discretion with supranational bodies.
The capability of each regime to impose obligations on member States depends on the role
each Court has been attributed on its creation and has developed along the years. That is the
principles of supremacy of Community law, direct effect and state liability for the ECJ and
the supervisory role of the ECtHR together with the principles of the Convention. Activism
has arguably developed to different extent in each jurisdiction whose effectiveness is
beyond the scope of this dissertation.

4.4 The Charter of Fundamental Rights

The functioning of the two regimes is not necessarily divergent. With the
incorporation of the ECHR within the EU and the creation of the Charter of Fundamental
Rights, the Convention is a secondary source of Community law. As already shown, the
ECJ is influenced by the jurisprudence of the ECtHR in a number of cases although the
translation from the Convention language to the Community language is not always simple.
Furthermore, the Charter’s chapter headed ‘equality’ includes a general provision that
‘everyone is equal before the law’.260 It has been accepted that the Charter covers a wider
range of rights than the Convention. For this very reason though, objections by member
states have taken place and, partly, obstruct the approval of the proposed Constitutional
Treaty of the EU which, if ever enforced, will render the Charter binding on all EU member
States.

260
Article 20
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4.5 ‘Prohibition of Discrimination v Equality’: Positive Action

With Protocol 12, there is still no express provision for positive duties under the
ECHR although the Preamble importantly suggests a more welcoming approach towards
‘more equality’. The EU, on the contrary expressly covers positive action, and has
demonstrated in a number of ways how this may be put into practice while, the Race
Directive requires that a body is established to promote equality. Furthermore the Union is
more convincingly committed to equality as a general principle of Community law and as a
fundamental right whereas the ECHR is more reluctant to rule on equality per se and
emphasises on the negative right of prohibiting discrimination more.
Also, it can be assumed that Protocol 12 will take much longer to cure the defects of
Article 14 so far being occasionally applied as a subservient provision rather than moving
the law forward whereas the EU has already established an on-going jurisprudence which is
only likely to ameliorate.

4.6 Remedies and Enforcement

Finally, the enforcement of each policy inherently differs in each regime. The
general remedy-system of the ECHR applies for Article 14 and Protocol 12, therefore the
‘right to an effective remedy’ on violation of a right set forth in the Convention and before
a national authority. 261
Furthermore, the ECtHR has the discretion to award ‘just
satisfaction’, namely pecuniary or non-pecuniary damages to an individual where ‘the
internal law of the Contracting Party allows only partial reparation’. 262 The general rule in
this area remains that the subject to a violation must be awarded a remedy as close as
possible to restitutio in integrum.263 Therefore ‘just satisfaction’ applies where the State

261
Article 13
262
Article 41
263
The general rule of restitutio in integrum provides: The amount of compensation awarded should put the
successful plaintiff in the position he or she would have been had the violation not taken place.
 68

cannot or is not willing to provide full reparation or ‘maximum reparation possible’ to

restore a violation or even where the nature of the breach does not allow full reparation.
As for Community law against discrimination, Articles 141, 12 EC and Article
3(1)(c) Equal Treatment Directive take direct effect. Therefore individuals may invoke their
rights under these provisions before national courts and obtain national remedies.
Alternatively, a Member State may have to implement measures, amend or introduce
national law compatible with Community law. The Equality Directives have to a great
extent been implemented by EU Member States and contain their own remedies and
enforcement procedures.264 The ECJ, in applying the latter, seems to be quite assertive on
Member States to make sure that compensation guarantees real and effective judicial
protection, has a real deterrent effect on the employer and is adequate in relation to the
damage sustained even where, had discrimination not occurred, the applicant’s non-
employment decision would be the same.
In the absence of direct effect however, for instance in relation to horizontal direct
effect of the Directives, it is possible for applicants to invoke the state liability or
Francovich principle to obtain compensation from the party in breach of the anti-
discrimination provisions. This option, however, has a high threshold and is subject to a
number of conditions and criteria. Nonetheless, it is not the purpose of this thesis to
compare the effectiveness of the judgments of the two Courts in respect of the remedies
provided, but to examine their theoretical content from a legal point of view.

264
Article 3(2),4 Equal Treatment Directive, Chapter II of both the 2000 Directives
 69

F. CONCLUSIONS

The principles of equality and non-discrimination are realistically difficult to

pursue. They raise issues under complex scenarios and penetrate a wide range of laws by
telling the authorities how to apply already existing legislation. Together with the
reluctance of European states to co-operate with the European institutions in question, this
is perhaps the main reason why the creation of a strong legal framework against
discrimination in the EU and in the Council of Europe has been disappointingly delayed.
With Article 14, the ECHR showed a poor commitment to the principles and failed
to provide a sound foundation for individuals wanting to bring an end to the discriminatory
treatment they suffered. Individuals had to prove that the discrimination they experienced
occurred in their effort to access one of the Convention rights and, depending on the ground
invoked to satisfy high thresholds or satisfy vague criteria to have the particular aspect of
discrimination concerning them considered and not be set aside as ‘superfluous’ especially
where another right of the Convention was violated.
The above, as the greatest cause of a ‘gap’ in the ECHR jurisprudence was removed
with the introduction of Protocol 12. The latter has allowed individuals to complain against
the discriminatory application of a much wider range of rights, against a wider range of
potential violators and to some extent, at a horizontal effect. Simultaneously, the wording
of the protocol provides a stronger and more autonomous guarantee of equality so as to
prevent the Court from resorting to tricks and avoiding considering the discrimination
aspect of a complaint.
Yet, given the lack of explicit definitions of basic terms and the identical wording in
Protocol 12, for example in relation to the list of grounds on which discrimination in
prohibited, many defects of Article 14 are likely to be inherited by the Protocol 12
jurisprudence and persist. Non-choice grounds remain out of the hierarchy of grounds, and
nothing seems to change in the already existing hierarchy. Hence it may be feared that
discrimination on certain grounds will be easily justified, that the proportionality test may
 70

still be inconsistently applied or that public interest and a state’s wide margin of
appreciation may remain nearly irresistible factors against one’s claim.
It is hoped, firstly, that Protocol 12 will be implemented by even more contracting
parties of the Council of Europe. Secondly, the ECtHR must widely interpret the Protocol’s
content so as to strike a fair balance between the questions of competence of the Court and
the willingness of states to co-operate, individual and public interest, proportionality and
state discretion. The Court must also clarify important terms such as ‘discrimination’ itself
in the direct, indirect and positive form and apply its valuable flexibility into adjusting the
established tests to different case-scenarios for the best interests of the applicant in a more
predictable way.
The EU has inherently been slower in constructing an anti-discrimination policy and
its scope has always been limited in relation to the areas in which it applies as well as the
grounds on which it protects against discrimination. The development of its policy has been
dependent on the latter’s proximity and ‘usefulness’ to the Union’s market objectives.
However, although one would firstly reasonably seek to protect his rights against
discriminatory treatment under the ECHR, Community law today has established a
perfectly reliable legal framework within its own context. Areas of discrimination which
have not so far been ruled on under the ECHR have been legislated under the EU, namely a
gap left by the ECHR has been completed to some extend by the EU. Thus, European
citizens accessing their employment rights are perfectly safe from discrimination on
numerous grounds, including non-choice grounds of age and disability excluded from the
lists of Article 14 and Protocol No. 12. Led by diverging objectives, both regimes have
established a ‘hierarchy of grounds’ reflecting the achieved degree of co-operation each
institution has reached with its ‘Member States’ or ‘Contracting Parties’.
The only ‘escape’ from the employment area to areas such as education, social
protection, social security and health care, social advantages and access to and supply of
goods and services in the EU anti-discrimination policy is observed on the ground of racial
or ethnic origin under the Race Directive. Yet this step is not to be undermined. Most
importantly, the conceptual clarity, the express provisions on positive action and the sound
 71

legislative framework based on equality, explicating the application, interpretation and

enforcement of the policy, even against private actors, as well as the clarification of the
instances where discrimination may be justified within Community law must consist of a
paradigm to the ECHR.
Overall, hope for the enhancement of the equality and non-discrimination principles
may be derived from two sources. First, the ECtHR possesses a significant amount of
flexibility to broadly interpret Protocol 12 as a dynamic general prohibition of
discrimination and compensate for the lack of clarity, consistency and predictability so far
experienced in its jurisprudence. Second, the ECJ’s ability of combining equality as a
general principle of Community law and its key provisions such as Article 13 with its
ongoing production of ground- and area- specific secondary legislation such as the 2000
and 2006 Directives, may gradually cover a wide spectrum of discrimination incidents
across Europe. Once this is achieved, prohibition of discrimination suffered by third-
country nationals should be next on the agenda. The progress at the moment, points at a
crucial stage for equality and seems to be facing the right direction.
Finally, by utilising these precious tools, both regimes may simply collaborate by
completing each other at instances where it is genuinely impossible for them to
independently provide comprehensive anti-discriminatory protection. Alternatively, they
may join their effort at various stages such as by tracing the common denominators
between their frameworks and jointly promoting positive action under common
establishments.
Thankfully, positive progress is already on its way and remains to be seen…
 72

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M. MacEwen, “Tackling Racism in Europe: An Examination of Anti-Discrimination

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E. Howard, “Anti Race Discrimination Measures in Europe: An Attack on Two

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9009-d6cfbd9f1a12

Colum. J. Transnat'l L. “Anti-discrimination laws in Eastern Europe: Toward

effective implementation” 177 Columbia Journal of Transnational Law 2001
Maxine Sleeper Copyright © 2001 Columbia Journal of Transnational Law
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Robin Allen. Gay Moon, “Substantive Rights and equal treatment in respect of
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Discrimination and ECHR: Article 14 and Protocol 12

A.Mowbray, “ cases and Materials on the European Convention on Human Rights”

(Butterworths, London, Ediinburgh, Dublin, 2001) pp.605-625 KC 200 MOW (for
case-analysis)

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Opportunities Review, vol. 105, May 2002

Structure and substance: developing a practical and effective prohibition on

discrimination under the European Convention on Human Rights.

Joan Small. I.J.D.L. 2003, 6(1), 45-67 [International Journal of Discrimination and
the Law] Publication Date: 2003

Explanatory report: www.humanrights.coe.int/Prot12

S Spiliopoulou, Akermark, “The Limits of Pluralism –Recent Jurisprudence of the

European Court of Human Rights with Regard to Minorities: Does the Prohibition
of Discrimination Add Anything?”,

N.Grief “Non-discrimination under the European Convention on Human Rights”

E.L.Rev (2002) 27 pp 3-18

Human rights (Legislative Text) Council of Europe: Protocol No.12 to the

Convention for the Protection of Human Rights and Fundamental Freedoms. C.L.B.
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Gay Moon, “The Draft discrimination protocol to the European Convention on

Human Rights: A Progress report” E.H.R.L.R. 2000, 1, 49-53 European Human
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Ursula A. O'Hare, “Enhancing European equality rights: a new regional framework”

Maastricht J. 2001, 8(2), 133-165, Maastricht Journal of European and Comparative
Law Publication Date: 2001
 75

On Protocol No 12

Nicholas Grief ,“Non discrimination under the European Convention on Human

Rights: A critique of the United Kingdom’s government’s refusal to sign and ratify
Protocol 12” 31. E.L. Rev. 2002, 27 SUPP, 2002

Charlotte McCafferty “General prohibition of discrimination: the new Protocol to

the Human Rights Convention” H.R. 2002, Mar, 20-25 Publication Date: 2002

Charlotte McCafferty, “General prohibition on discrimination: the new Protocol to

the Human Rights Convention”. I.F.L. 2001, Jul, 78-81, International Family Law
Publication Date: 2001

“Interpreting the right to equality under article 26 of the international covenant on

civil and political rights” E.H.R.L.R. 2003, 1, 24-52 European Human Rights Law
Review 2003

Mohini Bharania “Who's afraid of Protocol Twelve?” N.L.J. 2001, 151(6967), 65-
66 Publication Date: 2001

Urfan Khaliq, “Protocol 12 to the European Convention on Human Rights: A step

forward or a step too far” P.L. 2001, AUT, 457-464, Public Law, 2001

On Anti-Discrimination Policy in the EU

H. Collins, “The Equal Opportunities Handbook, A guide to law and best practice
in Europe” (Helen Collins, 1992)

L. Betten, N.Grief, “EU Law and Human Rights” European Law Series, (London
and New York, Longman 1998)

E. Ellis, “EU Anti-Discrimination Law” Oxford EC Law Library, (OUP 2005)

J. Wrench, “The EU, Ethnic Minorities and Migrants at the Workplace”, European
Dossier Series, (Kogan Page, London European Research Centre 1998)

S. Blockmans, and J.W. de Zwaan, J.H.Jans, F.A. Nelissen, “The European Union
An Ongoing Process of Integration” T.M.C. Asser Instituut, (The Hague, 2004)

B.K.Goldewijk, A.C.Baspineiro, P.C.Carbonari, “Dignity and Human Rights. The

implementation of Economic, Social and Cultural Rights” (Antwerp-Oxford-New
York, Intersentia, 2002)
 76

F.Klug, H.Wildbore, “Equality, Dignity and Discrimination under Human Rights

Law; Selected Cases”, Centre for the Study of Human Rights LSE
http://www.lse.ac.uk/Depts/human-
rights/Documents/Human_rights_equality_and_discrimination.pdf

J Morijn, “Balancing Fundamental Rights and Common Market Freedoms in Union

Law: Schmidberger and Omega in the Light of the European Constitution”,
European Law Journal, Vol 12, No. 1 January 2006 pp. 15-40, A.Rosas. “The
European Union and International Instruments”

D. Caruso, “Limits of the Classic Method: Positive Action in the European Union
After the New Equality Directives” 44 Harv. Int'l L.J. 331, 2003

European Commission publications

“Equality, diversity and enlargement”, Employment and Social Affairs,

Fundamental rights and anti-discrimination

“The prohibition of Discrimination under European human Rights law, Relevance

for EC Racial and Employment Equality Directives”, Employment and Social
Affairs
http://ec.europa.eu/employment_social/publications/2005/ke6605103_en.pdf

“Comparative Study on the collection of data to measure the extent and impact of
discrimination within the United States, Australia, the United Kingdom and the
Netherlands” , Employment and Social Affairs (Belgium, European Communities
2004)

European Commission: Green Paper: “Equality and Non-Discrimination in an

enlarged European Union” Brussels, 28.05.2004, COM(2004) 379 final
http://web20.s112.typo3server.com/fileadmin/pdfs/Greenpaper/greenpaper_en.pdf

The Racial Equality Directive 2000/43/EC, The Employment Equality Directive

2000/78/EC, Background to the Directives on Racial Equality and Equality in
Employment http://web20.s112.typo3server.com/80.0.html
 77

European Parliament publications

Committee on Citizen’s Freedoms and Rights, Justice and Home Affairs, “Freedom,
security and justice: An agenda for Europe” Charter of Fundamental Rights of the
European Union , LIBE
http://www.europarl.europa.eu/comparl/libe/elsj/charter/art21/default_en.htm#5

Council of Europe publications

Conference on equality between women and men in a changing Europe, Pznań

(Poland), 31 March -2 April 1992

Exclusion, equality before the law and non-discrimination, Seminar organised by

the Secretariat General of the Council of Europe in co-operation with “Intercetnre”
of Messina (Italy) , Taormina-Mare (Italy), 29 September -1 October 1994 (Council
of Europe press 1995)

Other Websites

[02.06.2006] - 2007 starts now: 'European Year of Equal Opportunities for All' gets
green light http://www.stop-discrimination.info/32.0.html#31722

[12.06.006] - The European Union and MTV Networks Europe show the true
picture of Diversity
http://web20.s112.typo3server.com/fileadmin/pdfs/Europ_ische_Inhalte/EC_Presse
mitteilungen/MTV_Diversity_Spot/PM-MTVDiversitySpot-EN.pdf

[27.04.2006] - "For Diversity. Against Discrimination." EU Journalist Award

launched for third year running
http://web20.s112.typo3server.com/fileadmin/pdfs/Europ_ische_Inhalte/EC_Presse
mitteilungen/Launch_JA_2006/PMLaunch_EN.pdf

The European Convention on Human Rights and the Protection of the Roma as a
Controversial Case of Cultural Diversity. EDAP paper, 5/2004. Henrard, Kristin.
Year: 2004 http://aei.pitt.edu/6162/01/2004_edap05.pdf

Lister, Marjorie. (2005) "Gender and European Union Development Policy". In

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March 31-April 2, 2005, pages 11, Austin, Texas.
 78

Brennan, Fernne. (2005) ‘EU Enlargement, the Race Equality Directive and the
Internal Market.’ . In European Union Studies Association (EUSA) > Biennial
Conference > 2005 (9th), March 31-April 2, 2005, pages 39, Austin, Texas.

Toggenburg, Gabriel N. (2004) The Debate on European Values and the Case of
Cultural Diversity. EDAP papers, 1/2004.
http://aei.pitt.edu/6158/01/2004_edap01.pdf
 79

APPENDIX

EUROPEAN CONVENTION ON HUMAN RIGHTS AND

FUNDAMENTAL RIGHTS
ARTICLE 14

The enjoyment of the rights and freedoms set forth in this Convention shall be secured
without discrimination on any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national minority, property,
birth or other status.

PROTOCOL 12

Rome,4.XI.2000

The member States of the Council of Europe signatory hereto,

Having regard to the fundamental principle according to which all persons are equal
before the law and are entitled to the equal protection of the law;

Being resolved to take further steps to promote the equality of all persons through
the collective enforcement of a general prohibition of discrimination by means of
the Convention for the Protection of Human Rights and Fundamental Freedoms
signed at Rome on 4 November 1950 (hereinafter referred to as "the Convention");

Reaffirming that the principle of non-discrimination does not prevent States Parties
from taking measures in order to promote full and effective equality, provided that
there is an objective and reasonable justification for those measures,

Have agreed as follows:

Article 1 – General prohibition of discrimination

1 The enjoyment of any right set forth by law shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national minority,
property, birth or other status.

2 No one shall be discriminated against by any public authority on any ground such
as those mentioned in paragraph 1.
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Article 2 – Territorial application

1 Any State may, at the time of signature or when depositing its instrument of
ratification, acceptance or approval, specify the territory or territories to which this
Protocol shall apply.

2 Any State may at any later date, by a declaration addressed to the Secretary
General of the Council of Europe, extend the application of this Protocol to any
other territory specified in the declaration. In respect of such territory the Protocol
shall enter into force on the first day of the month following the expiration of a
period of three months after the date of receipt by the Secretary General of such
declaration.

3 Any declaration made under the two preceding paragraphs may, in respect of any
territory specified in such declaration, be withdrawn or modified by a notification
addressed to the Secretary General of the Council of Europe. The withdrawal or
modification shall become effective on the first day of the month following the
expiration of a period of three months after the date of receipt of such notification
by the Secretary General.

4 A declaration made in accordance with this article shall be deemed to have been
made in accordance with paragraph 1 of Article 56 of the Convention.

5 Any State which has made a declaration in accordance with paragraph 1 or 2 of

this article may at any time thereafter declare on behalf of one or more of the
territories to which the declaration relates that it accepts the competence of the
Court to receive applications from individuals, non-governmental organisations or
groups of individuals as provided by Article 34 of the Convention in respect of
Article 1 of this Protocol.

Article 3 – Relationship to the Convention

As between the States Parties, the provisions of Articles 1 and 2 of this Protocol
shall be regarded as additional articles to the Convention, and all the provisions of
the Convention shall apply accordingly.

Article 4 – Signature and ratification

This Protocol shall be open for signature by member States of the Council of
Europe which have signed the Convention. It is subject to ratification, acceptance or
 81

approval. A member State of the Council of Europe may not ratify, accept or
approve this Protocol without previously or simultaneously ratifying the
Convention. Instruments of ratification, acceptance or approval shall be deposited
with the Secretary General of the Council of Europe.

Article 5 – Entry into force

1 This Protocol shall enter into force on the first day of the month following the
expiration of a period of three months after the date on which ten member States of
the Council of Europe have expressed their consent to be bound by the Protocol in
accordance with the provisions of Article 4.

2 In respect of any member State which subsequently expresses its consent to be

bound by it, the Protocol shall enter into force on the first day of the month
following the expiration of a period of three months after the date of the deposit of
the instrument of ratification, acceptance or approval.

Article 6 – Depositary functions

The Secretary General of the Council of Europe shall notify all the member States
of the Council of Europe of:

a any signature;

b the deposit of any instrument of ratification, acceptance or approval;

c any date of entry into force of this Protocol in accordance with Articles 2
and 5;

d any other act, notification or communication relating to this Protocol.

In witness whereof the undersigned, being duly authorised thereto, have signed this
Protocol.

Done at Rome, this 4th day of November 2000, in English and in French, both texts
being equally authentic, in a single copy which shall be deposited in the archives of
the Council of Europe. The Secretary General of the Council of Europe shall
transmit certified copies to each member State of the Council of Europe.
 82

Treaty establishing the European Community

Article 12

Within the scope of application of this Treaty, and without prejudice to any special
provisions contained therein, any discrimination on grounds of nationality shall be
prohibited.

The Council, acting in accordance with the procedure referred to in Article 251, may adopt
rules designed to prohibit such discrimination.

Article 13

1. Without prejudice to the other provisions of this Treaty and within the limits of the
powers conferred by it upon the Community, the Council, acting unanimously on a
proposal from the Commission and after consulting the European Parliament, may take
appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or
belief, disability, age or sexual orientation.

2. By way of derogation from paragraph 1, when the Council adopts Community incentive
measures, excluding any harmonisation of the laws and regulations of the Member States,
to support action taken by the Member States in order to contribute to the achievement of
the objectives referred to in paragraph 1, it shall act in accordance with the procedure
referred to in Article 251.

Article 141

1. Each Member State shall ensure that the principle of equal pay for male and female
workers for equal work or work of equal value is applied.

2. For the purpose of this article, "pay" means the ordinary basic or minimum wage or
salary and any other consideration, whether in cash or in kind, which the worker receives
directly or indirectly, in respect of his employment, from his employer.

Equal pay without discrimination based on sex means:

(a) that pay for the same work at piece rates shall be calculated on the basis of the same
unit of measurement;
 83

(b) that pay for work at times rates shall be the same for the same job.

3. The Council, acting in accordance with the procedure referred to in Article 251, and
after consulting the Economic and Social Committee, shall adopt measures to ensure the
application of the principle of equal opportunities and equal treatment of men and women
in matters of employment and occupation, including the principle of equal pay for equal
work or work of equal value.

4. With a view to ensuring full equality in practice between men and women in working
life, the principle of equal treatment shall not prevent any Member State from maintaining
or adopting measures providing for specific advantages in order to make it easier for the
underrepresented sex to pursue a vocational activity or to prevent or compensate for
disadvantages in professional careers.

Article 142

Member States shall endeavour to maintain the existing equivalence between paid holiday
schemes.
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