- difference in treatment may be acceptable in certain circumstances if justified.
- the justification can be general or limited in scope.
- the ECHR permits a general justification for both direct and indirect discrimination.
- the CJEU allows a limited justification for direct discrimination, but a general justification for indirect discrimination.
- direct discrimination can only be justified if pursuing specific objectives explicitly stated in european law.
advocacy of less favorable treatment
general justification
- the ECHR (and CJEU on indirect discrimination) states that treatment differences are discriminatory unless objectively justified, pursuing a legitimate aim with a reasonable relationship between means and goal (burden v. the united kingdom, 2008).
- to justify a difference in treatment, it must be shown that:
- the rule or procedure pursues a legitimate aim.
- the means chosen are proportionate and necessary to achieve this aim.
- the justification is not a true defense but a reason to avoid concluding discrimination.
- the court must assess if there is no less intrusive means to achieve the objective, limiting harm to the lowest possible level.
- the objective must be sufficiently important to justify the level of intervention.
- in employment, the CJEU does not accept differential treatment based on economic interests but is more open to broader social or fiscal objectives.
- the ECHR is less likely to recognize differential treatment based on personal dignity (e.g., race, ethnicity, private life) but is more likely to do so for broader social policies with fiscal implications.
- the concept of "discretion" refers to the state's leeway in justifying differences in treatment.
special justification in EU law
- a specific set of means of defense can justify differences in treatment in limited circumstances.
- equal treatment directives allow employers to differentiate based on a protected ground if it is directly related to the ability to perform the job or required qualifications.
- the equal treatment directive includes two additional justifications:
- discrimination based on religion or belief by employers or organizations with a religious basis.
- age discrimination in certain circumstances.
- all exceptions are interpreted restrictively, emphasizing the importance of individuals' rights under EU law.
actual professional requirement
- member states may allow a difference in treatment based on a protected characteristic if it is a genuine and decisive requirement for the profession, provided the aim is legitimate and the requirement is proportionate.
- employers can treat individuals differently based on a protected characteristic if it directly relates to the suitability or ability to perform the job.
- this exception applies in specific professions, such as artistic roles, where personal characteristics (e.g., acting ability, dance skills) are essential.
- the exception is not absolute and must be carefully justified.
- examples include hiring a chinese ethnic person in a chinese restaurant for authenticity or hiring women in exclusively women’s fitness clubs.
To remember :
case example:
- in kreil, the appellant, a woman, applied for a position as an electrical engineer in the armed forces but was rejected due to an exclusion of women from military occupations involving weapons.
- the CJEU ruled that the exclusion was too broad, as it applied to nearly all military jobs, merely because women might have to use weapons in some circumstances.
- a more specific justification was required for the tasks involved in certain jobs.
- rhe CJEU questioned the credibility of the government's reasoning, as women in accessible roles still had to undergo basic weapon training for self-defense.
- the measure was deemed inadequate to achieve the objective, and the court emphasized that no distinction should be made between men and women based solely on the need for more protection, unless it concerns specific situations (e.g., pregnancy).
religion
- the employment equality directive allows organizations based on religion or faith to impose certain conditions on employees. ,- religious institutions may use the "actual professional requirement" defense to justify differential treatment based on the religious principles of the organization. ,- this allows organizations, such as churches, to refuse to employ women as priests or clergy if it conflicts with the spirit of their religion.
age
- age discrimination is allowed for "statutory employment policy, labor market, and training objectives," provided it meets the proportionality test.
- setting minimum conditions for age, professional experience, or years of service for access to employment is permitted.
- age discrimination regarding access to occupational social security schemes and benefits under such schemes is allowed without needing to pass the proportionality test.
scope of european anti-discrimination law
- ECHR: guarantees protection against discrimination for everyone within the jurisdiction of a member state, including non-citizens and even outside the state's territory in areas under its effective control (e.g., occupied territories).
- EU law: the scope of protection is more limited; anti-discrimination on nationality applies to the free movement of persons and only to EU citizens.
- non-discrimination directives: exclude third-country nationals from some protections, particularly on grounds of nationality, which is covered by the free movement directive.
- EU citizens' rights: EU citizens have the right to move and reside in other member states. after five years of legal residence, they gain permanent residence rights and equivalent rights to workers.
- a homosexual german citizen made redundant in greece can invoke the equal treatment directive for employment but must address nationality- based discrimination under the free movement directive.
- third-country nationals: they are excluded from rights to equal treatment in employment, entry, and residence under certain EU directives but are protected in other areas like gender equality and access to goods.
- third-country national directive: provides rights to long-term residents (five years of legal residence), granting equal treatment in employment, social welfare, and goods/services.
- family reunification directive: allows third-country nationals to be joined by family members under certain conditions.
- protection in employment: extended to all protected grounds listed in anti-discrimination directives.
access to employment
CJEU adopted broad interpertation of this concept
To remember :
- meyers: The CJEU ruled that state allowances based on income could influence a candidate's decision to accept a job.
- this impact on employment decisions links social benefits to access to employment, making it relevant under anti-discrimination law.
dismissals and remuneration
- redundancies: the protection against discrimination applies to nearly all situations where employment is terminated, including voluntary retirement schemes or compulsory retirement.,- remuneration (article 157 TFEU): the CJEU has ruled that remuneration covers all employment-related benefits, such as rail tickets, eviction allowances, christmas bonuses, and occupational pension schemes.,- determining remuneration**: a benefit is considered remuneration if it is linked to the existence of an employment relationship.
To remember :
- meyers: the appellant, a single parent, claimed indirect sex discrimination due to the method of calculating family credit eligibility.
- the CJEU considered whether family benefits should be classified as social security or a condition for employment.
- the court ruled that the equal treatment directive (now the gender equality directive) applied, even if the benefit was part of a social security scheme, because eligibility depended on employment status (either the claimant or their partner had to work).
- this decision expanded the scope of discrimination law to include family benefits tied to employment conditions.
access to careere guidance and training
broad interpretation
To remember :
gravier: french student charged a registration fee for vocational training in belgium, while belgian students were not. the ECJ ruled that charging non-belgian students a fee violated EU law.
any education preparing for a specific profession, craft, or occupation, even if it includes general education elements.
employee and employer organisations
according to the guideline issued by the european commission, it is a matter of ensuring the elimination of discrimination in relation to either membership or benefits in relation to these bodies
access to the social security system and its forms
racial equality directive
provides extensive protection against discrimination in access to social care and social security systems, including public healthcare, education, and social security schemes (e.g., sickness, invalidity, old age, accidents, unemployment). excludes "social assistance" intended to supplement or replace previous schemes.
gender equality directive on social security
ensures equal treatment in social security systems, but the scope is narrower and specifically relates to gender-based discrimination.
healthcare discrimination
the extent of protection against discrimination in healthcare is unclear, but discriminatory actions (e.g., refusing insurance or charging higher premiums based on race or ethnicity) can be considered discrimination.
social benefits
defined broadly through CJEU case law under free movement laws, including benefits that facilitate a migrant worker’s integration into the host state. Includes post-employment benefits like pensions and other social advantages that aid workers' mobility within the EU.
ECHR and social security / healthcare
- the ECHR has ruled that benefits like pensions fall under article 1 of protocol no. 1 or article 8 (right to family/private life).
- healthcare access can be protected under article 8 or article 3 if the lack of access constitutes inhumane or degrading treatment.
- complaints related to discrimination in healthcare could be covered under article 14 (non-discrimination).
housing
- the racial equality directive and sex-based directives apply to discrimination in access to goods and services, including housing.
- discriminatory refusal to rent housing based on race or nationality is prohibited.
- a case in belgium saw a landlord convicted for refusing to rent to individuals of congolese origin, despite positive references and adequate income.
judicial protection
- EU law ensures the right to effective judicial protection of rights derived from EU law. member states must establish judicial or administrative procedures to enforce rights under anti-discrimination directives.
- the ECHR found that excessive delays in proceedings, especially in cases involving discrimination (e.g., moldovan v. romania), breached the right to fair trial under article 6, combined with article 14 (discrimination).
council of europe's convention
provides a broader scope of protection beyond EU law, including:
family and private life
includes adoption, marriage, freedom of expression, assembly, and elections.
private life
covers personal development, relationships, gender identity, sexual orientation, and the right to have or not have children under article 8 of the convention.
To remember :
members of the congregation of jehovah's witnesses of gldani and others v. georgia: jehovah's witnesses group attacked by an ultra-orthodox group, with police failing to intervene and a subsequent inadequate investigation.
the ECHR found violations of article 3 and article 9 in conjunction with article 14.
police failed to intervene during a racially motivated attack on the victims.
