This paper will have as its aim to assess the impact of Directive 2000/78 on the protection of LGB individuals and same-sex couples from discrimination under EU law. It will analyse the 2000 Directive, aiming to demonstrate how it has improved the position of LGB persons and same-sex couples under EU law but, also, to highlight its shortcomings. It will, moreover, consider whether the gaps in protection left by the Directive are satisfactorily filled by other instruments and, in particular, by the EU Charter of Fundamental Rights which, in its Article 21, prohibits discrimination on, inter alia, the ground of sexual orientation. Finally, it will be examined whether other pieces of EU legislation which may come into force in the future will be able to cover these gaps. The paper will not merely seek to analyse the above legal instruments, but it shall also focus on critically assessing the judgments in which the ECJ has offered an interpretation of these instruments.
The year 2000 marked the birth of EU anti-discrimination law as a field with the adoption of two Equality Directives. They extended the prohibition of discrimination to five additional grounds and expanded the material scope of equality. Having reached its eighteenth birthday in the year 2018, EU anti-discrimination law deserves an exploration of its achievements and prospects. This paper zooms into these twin Directives, as well as on the new grounds of discrimination planted therein, namely race and ethnicity, religion, sexual orientation, age, and disability. It first outlines the genesis of EU anti-discrimination law, which is followed by a discussion of major normative and practical themes emerging in EU anti-discrimination law after 2000 such as the personal and material scope of the Directives, new forms of discrimination and mechanisms to counteract discrimination, including the proceduralization of EU anti-discrimination law.
The Union endorses discriminatory practices of Member States by taking ‘culture’ at face value, even when this implies disregarding the spirit of the EU Equality Directives and when national regimes of minority protection conflict with internal market rules. It is problematic that the Union is inconsistent in either quashing national minority protection or weighing in with the Member States punishing minorities for being different under the pretext that only majority culture is protected by constitutions. It would appear that the EU does not consider minority protection as a value, thus depriving the matter of any systemic importance. This will have to change in the interests of both minority protection and the internal market: belonging to a minority should not disqualify EU citizens from non-discrimination guarantees on the basis of nationality upon return to their Member State of origin, notwithstanding the European Court of Justice’s regrettable stance in Runevič.
As opposed to what was feared or hoped before its implementation, the Race Equality Directive did not lead to an important amount of case law and falls short of challenging widespread racism in many domains that are isolated from constitutional equality provisions. This contribution maps the successes of this instrument by considering the positive attributes of its text, the expansive interpretations that the CJEU has given it, and national case law. Secondly, it will analyze its failures by looking at general limitations, then at the CJEU’s restrictive interpretations, and finally at some problematic interpretations at the national level. Lastly, an attempt to identify potential areas to which EU law applies (such as family reunification and headscarf bans), and in which this instrument could and should be invoked, will be conducted. To conclude, despite encouraging case law, the Directive will be seen as not yet having addressed the structural issues of racism in Europe.
The position of young persons in the labour market has been a concern of the EU since the 1950s. The attention to this group has resulted in a widespread field of policy actions. Characteristic of these initiatives is that they acknowledge the vulnerable position of young persons in society, particularly in the labour market. These initiatives identify young persons as a group for whom special measures need to be taken to correct their unequal position. As such, Member States are encouraged to adopt affirmative measures with regard to young persons. However, these measures are at odds with the EU's non-discrimination regulations, which are based on the idea of formal rather than substantive equality. Although the EU's age discrimination provision includes a margin for justifications, it is expected to have a limiting effect on the EU's Youth Policy. The aim of this contribution is to test this hypothesis.