The 21st of all EU-r rights: non-discrimination and how the Charter contributes

Half a century ago a former US-Senator underlined that the moral test for any government is how it “treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy, and the handicapped.”[1] Indeed, the principle of equaliy requires that persons belonging to such groups are not discriminated (formal equality) and that their specific situation and disadvantages are taken into account in law and policy making (substantial equality).

The inaugural speech of the new US President indicated that he is against such an approach. At least in the context of racial origin he equates it with “social engeneering” that is not “merit-based”.[2] This, however, did not prevent him from claiming during the presidential debate that Haitian immigrants were stealing and eating pets: obviously, this is his version of social engeneering (one that appears to replicate an “old stereotype and 'very old racism'”)[3].

Also in Europe immigrants are a vulnerable group that is often the target of manipulative rhetoric and politics in order to gain favour with the majority population at their expense. But such acts have to respect the limits established by human rights obligations.

To give an example from within the EU: the long term head of the Hungarian government explained to his audience that in his eyes the “internationalist left” claims that “Europe by its very nature is populated by peoples of mixed race” which according to him conflated two things: One is ?a world in which European peoples are mixed together with those arriving from outside Europe. Now that is a mixed-race world.“ An entirely different thing is a ?world, where people from within Europe mix with one another, move around, work, and relocate.“ The latter world is not a ?mixed-race“ but ?simply a mixture of peoples living in our own European homeland.“ Basically, it is fine for Europeans to mingle but not with people from outside Europe. In the Prime Minister’s words: we are “willing to mix with one another, but we do not want to become peoples of mixed-race”.[4]

It appears that Orbán later explained that he is sometimes “misunderstood” given that his views present “a cultural standpoint".[5] However, “cultural” views of high-ranking politicians tend to be quickly assimilated into legal interpretations within the respective national administrations, some of which might collide with the EU Charter of Fundamental Rights.

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The Charter right in action

Take the example of a case which came before the European Court of Justice (CJEU) concerning the legality of a Council Decision to establish a provisional system which relocated migrants from Italy and Greece to other EU Member States.[6] The case was brought before the CJEU by both Hungary and Poland who argued that binding EU-wide relocation quotas would have disproportionate effects for countries that are “virtually ethnically homogeneous“ and as such, these relocation quotas were therefore illegal. The Grand Chamber of the CJEU replied that making relocation conditional upon the existence of cultural or linguistic ties between each applicant for international protection and the Member State of relocation, would make the adoption of any relocation mechanism impossible. What is more relevant for our context is that the Court continued by stressing: “It should be added that considerations relating to the ethnic origin of applicants for international protection cannot be taken into account since they are clearly contrary to EU law and, in particular, to Article?21” of the Charter.[7]

Article 21 forbids “any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation”. This builds on Article 14 of the Council of Europe’s Convention of Human Rights adding the modern element of genetic features and 3 more specific aspects of equality, namely disability, age and sexual orientation. These additions are not all too relevant practically speaking given that both catalogues just give examples of protected grounds. However, what is of practical relevance is that Article 21 creates a self-standing right which is not (!) accessory in nature. This is very different under the ECHR in which Article 14 is only applicable in combination with another ECHR provision.[8] Another major practical strength of Article 21 is that it is not only directly applicable to vertical relationship between the individual and the State, but even in the horizontal relationships between individuals.[9]

Non discrimination is an area where the EU holds a strong legislative competence. However, Article 19 of the Treaty on the Functioning of the EU (TFEU) requires the Council to decide by unanimity and the European Parliament needs to consent. Moreover, EU anti-discrimination legislation may only fight certain forms of discrimination, namely those based “sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”.

Given that there is a lot of EU legislation fighting discrimination, Article 21 is one of the most often used provisions of the Charter. The Court of Justice has used it already in close to 300 judgments and also amongst national courts Article 21 is relatively often used.[10] Finally, the prohibition in Article 21 is to be read in combination with Article 22 obliging the EU to respect diversity, Article 23 guaranteeing equality between women and men and Article 24, Article 25 and Article 26 each addressing specific groups, namely children, older persons and persons with disabilities.

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Examples of how the EU is protecting against discrimination

Over the years, the has EU adopted a bundle of EU Directives which build a rather far-reaching protective shield against discrimination. Gender and race are grounds that find especially strong protection in EU legislation. Similar can be said of the area of race given that the respective Racial Equality Directive covers vast areas of life going well beyond the context of employment (Council Directive 2000/43/EC). At the same time, the area of employment is the area of life where the EU legislator has outlawed most forms of discrimination, namely those based on race, gender, disability and sexual orientation (Employment Equality Directive 2000/78/EC).[11]

The proposal for a so called “Horizontal Directive” aims to extend that wide protection to other areas such as housing or access to services. Proposed back in 2008 by the European Commission (COM(2008) 426final), the proposal has still not found consensus in the Council of the EU.

Data and evidence collected by EU’s agency for fundamental rights show that people across the EU regularly experience discrimination on the grounds and in the areas of life covered by the mentioned EU Directives. This calls into question the effectiveness of the measures and institutional arrangements Member States have put in place to enforce non-discrimination legislation as the agency underlined in a 2021 opinion.[12] Two new directives are meant to partly address this implementation gap: they harmonise the standards of national equality bodies (EU Directive 2024/1499 and EU Directive 2024/1500).

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What do Member State constitutions say?

Non-discrimination clauses are classic components of national human rights catalogues.[13] Most constitutions establish that discrimination based on certain “protected grounds” is forbidden in the exercise of all fundamental rights with Ireland being an outlier by referring to non-discrimination only in reference to the freedom of association. Gender, religion and race are grounds protected explicitly in many constitutional catalogues. Some non-discrimination provisions provide special emphasis to minorities such as those of Czechia, Slovakia and Sweden[14] whereas others specifically stress gender equality (in the case of Finland)[15], children (in the cases of Finland and Sweden)[16], disability (in Austria)[17] or religion (in the case of Germany)[18]. The fact that discrimination based on sexual orientation is explicitly prohibited only in the human rights catalogues of Greece and Portugal shows that the Charter’s Article 21 is more encompassing than the non-discrimination provisions in most constitutional texts.[19]

The overall picture that emerges is that the constitutions of the EU Member States follow three different models. They establish exhaustive (taxative) lists of protected grounds on which discrimination is forbidden or lists of examples of protected grounds on which a distinction is illegal (demonstrative lists). While this is counterintuitive, the length of lists does not correlate with the fact of whether the list is taxative or demonstrative in nature.[20] Finally, there is a small group of States, including Latvia and Poland, where discrimination is outlawed in the constitution without the provisions providing specifics of especially protected grounds.[21]

So what?

Article 21 is a very prominent provision. It is amongst the few Charter provisions that apply directly in the relations between private parties (horizontal effect). And it has prominent ‘normative friends’ in the EU Treaties. Article 2 of the EU-Treaty establishes equality, non-discrimination and tolerance as key values shared between the EU and its Member States. Moreover, Article 21 is complemented by Article 19 TFEU offering a competence base in EU primary law which has allowed the EU legislator to develop a dense net of EU legislation which protects against discrimination. It is noteworthy, however, that not all the protected grounds in Article 21 (a prohibitive provision) are reflected in the enabling provision of Article 19 TFEU. This leads to the situation that, discrimination based on language or discrimination based on membership of a national minority are forbidden under the Charter without that the EU legislator would hold a competence to actively combat such forms of discrimination.[22]

NOTA BENE:

·?????? If you are new to the Charter and want to get a video-introduction to the Charter you might want to consult these tutorials:

o?? The Charter - History & legal nature (7 minutes)

o?? The Charter - Structure & content (10 minutes)

o?? For a more encompassing introduction: Introducing the Charter at the 1stCharterXchange (45 minutes)

·?????? Who wants to know even more about the Charter might want to consult the Charter material and tools of the European Union Agency for fundamental rights (FRA).

·?????? This and all other posts are just my personal views. They might be entirely wrong and can under no circumstance be attributed to my current or former employers. The LinkedIn newsletter "All EU-r rights" builds on earlier blog posts that were first published by Eurac Research in their Science blogs.

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[1] The quote stems from a speech by Mr. Humphrey, then a Senator from Minnesota, at the Democratic National Convention in 1976. A variation of it is often – wrongly, it appears – attributed to Mahatma Gandhi and President Biden has used it without mentioning the author. See e.g. Maureen Doubt, Biden Is Facing Growing Debate On His Speeches, New York Times, 16 Sept. 1987.

[2] His inaugural speech is available here. Race is mentioned only twice, including in this telling para: “This week, I will also end the government policy of trying to socially engineer race and gender into every aspect of public and private life.? (Applause.)? We will forge a society that is colorblind and merit-based.? (Applause.)”

[3] Karen Weintraub et al, Immigrants-eat-pets trope is a century-old stereotype and 'very old racism', USA TODAY. For more reference see Springfield pet-eating hoax on Wikipedia.

[4] The full and official transcript of PM Orbán's speech held in 2022 at the 31st Bálványos Free Summer University and Youth Camp is available here: https://abouthungary.hu/speeches-and-remarks/speech-by-prime-minister-viktor-orban-at-the-31-st-balvanyos-summer-free-university-and-student-camp.

[5] See: Hungary PM Victor Orban defends controversial 'mixed race' remarks, in Le Monde, 28 July 2022, available here.

[6] ?Council Decision (EU) 2015/1601 of 22 September 2015, the consolidated version is available here.

[7] CJEU, Joined Cases C?643/15 and C?647/15, judgment of 6.9.2017, para. 303.

[8] Admittedly, this limitation does not apply to those 9 EU Member States (HR, CYP, FI, LUX, MT, NL, RO, SI, ES) that have ratified Additional Protocol number 12. However, there is a very long path until all Member States have ratified this protocol and some might never do so. In fact, a quarter of them (BG, DK, FR, SE, LITH, PL, PT) have not even signed it.

[9][9] See CJEU, Case C-414/16, Egenberger, judgment of 17.4.2018. See also Bauer, Cases C-569/16 and C-570/16; IR, Case C-68/17; Cresco, Case C-684/16; Max-Planck, Case C-684/16; CCOO, Case C-55/18, for an analysis see Elenei Frantziou, The Horizontal Effect of the Charter: Towards an Understanding of Horizontality as a Structural Constitutional Principle, in Cambridge Yearbook of European Legal Studies , Volume 22 , December 2020 , pp. 208 – 232.

[10] See GNT and David Reichel, References for a Preliminary Ruling and the Charter of Fundamental Rights: Experiences and Data from 2010 to 2018, in M. Bobek and J. Prassl (eds), The EU Charter of Fundamental Rights in the Member States, Hart 2020, pp. pp. 467-482.

[11] For a simple table summarizing the situation, see Gabriel N. Toggenburg, Antidiskriminierungspolitik, in W.Weidenfeld et al (Hrsg.), Europa von A bis Z, Springer, Wiesbaden, 2020, pp. 55-60.

[12] FRA (2021), Equality in the EU 20 years on from the initial implementation of the equality directives. See also GNT, The EU human rights regime: development, actors, policy framework and effectiveness, in B?rd A Andreassen (ed.), Politics of international human rights law, Ed Elgar Series on Research Handbooks in International Human Rights Law 2023, pp. 409-439, at 427-429.

[13] The exception rather than the rule is the constitution of Luxembourg which refers to equality without also including an explicit prohibition of discrimination. Art. 10b of the constitution states that “Luxembourgers are equal before the law” and Article 11 (2) states that “Women and men are equal in rights and duties.” Note that Luxembourg is currently working on a major constitutional reform. See for instance Venice Commission, Opinion on the proposed revision of the constitution, Opinion 934/2018, 18.3.2019.

[14] Art. 3(1) of the Czech constitution, Art. 12 (2) of the Slovak constitution, Artt. 2 and 12 of the Swedish Instrument of Government.

[15] Section 6 of the Finnish constitution.

[16] Section 6 of the Finnish constitution, Art. 2 of the Swedish Instrument of Government.

[17] Art. 7 of the Austrian constitution: “No one shall be discriminated against because of his disability”.

[18] Art. 33 (3) of the German constitution: “No one may be disadvantaged by reason of adherence or non-adherence to a particular religious denomination or philosophical creed”.

[19] See Articles 2 and 12 of the Swedish Instrument of government as well as Art. 13 (2) of the Portuguese constitution.

[20] While one would expect that exhaustive lists are longer than demonstrative lists this is not the case. The constitutions of Croatia, Cyprus, Czechia, Estonia, Hungary, Slovakia or Slovenia all have lists of 10 or more protected grounds despite the fact that these are demonstrative lists. At the same time, some constitutions using taxative lists include less than ten protected grounds as the examples of Austria, Denmark, France, Germany, Greece, Italy, Lithuania or Malta show.

[21] Art. 91 of the Latvian Constitution (“Human rights shall be realised without discrimination of any kind”), Art. 32(2) of the Polish constitution (“No one shall be discriminated against in political, social or economic life for any reason whatsoever”.

[22] Other forms of discrimination that are explicitly prohibited under Article 21 of the Charter without being covered in Article 19 TFEU are discriminations based on social origin, genetic features, political or any other opinion, property and birth.