1. law, govt and politics

European Law Journal, Vol. 15, No. 6, November 2009, pp. 738–756.
© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
Race Equality and TCNs, or How to Fight
Discrimination with A Discriminatory Law
Sara Benedí Lahuerta*
Abstract: Two subjects often fit with difficulty in ‘Fortress Europe’: Equality and Third
Country Nationals (TCNs). EC Law presents fundamental weaknesses with regard to
TCNs in the intersections between race, religion and nationality discrimination. In particular for non-EU nationals, these three grounds of discrimination can be closely related,
and difficult to distinguish. However, they are of great importance for the integration and
fair treatment of migrants, which was one of the objectives of the Tampere Programme.
This article analyses the extent to which the Race Equality Directive (43/2000/EC) and
the Framework Equality Directive (78/2000/EC) provide an effective protection against
‘racial related discrimination’. It suggests that the loopholes of both Directives, together
with the current interpretation of Article 12 EC, have institutionalised not only a hierarchy of equalities, but also a hierarchy of peoples, and it explores possible interpretative
solutions.
I
Introduction
The rise of the immigrant population in Europe since 19941 has brought a greater
mixture of individuals and has created a parallel need to manage diversity and integration. This trend, together with pressures from NGOs,2 led European institutions to
take action against racism and xenophobia by inserting, in 1997, Article 13 in the EC
Treaty, which considerably extended the Community (EC) competences to fight
discrimination.3 The next development was the adoption of two Directives implementing this provision: the Race Equality Directive4 (RED) and the Framework
* PhD candidate at the University of Zaragoza. This article is partially based on a master thesis written at
the College of Europe (Bruges). The author would like to thank Síofra O’Leary and Osvaldo Saldias
Collao for their comments on earlier drafts. Any errors or omission are the author’s alone.
1
Eurostat, Europe in figures—Eurostat Yearbook 2006–07 (Office for Official Publications of the European
Communities, 2006), 75.
2
M. Bell, ‘Meeting the challenge? A comparison between the EU Racial Directive and the Starting Line’,
in I. Chopin and J. Niessen (eds), The Starting Line and the Incorporation of the Racial Equality Directive
into the national Laws of the EU Member States and Accession States (Commission for Racial Equality &
Migration Policy Group, 2001), 22.
3
T. K. Hervey, ‘Putting Europe’s House in Order: Racism, Race Discrimination and Xenophobia after the
Treaty of Amsterdam’, in D. O’Keeffe and P. Twomey (eds), Legal Issues of the Amsterdam Treaty (Hart
Publishing, 1999), 329–349.
4
Council Directive 43/2000/EC implementing the principle of equal treatment between persons irrespective
of racial or ethnic origin [2000] OJ L180/22.
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Race Equality and TCNs
Directive5 (FD) for the grounds of religion or belief, disability, age or sexual
orientation.6
Many commentators have signalled both the virtues and the weaknesses of these
Directives.7 However, a field which remains relatively unexplored is the real impact of
these Directives on Third Country Nationals (TCNs). It is true that, in principle, the
RED and the FD concern both EU citizens and TCNs, but in practice, they are of
special interest for the latter.8 As a matter of fact, the more immigration European
society receives, the higher potential for racial and religious conflict exists.9 In addition, the Community has always drawn a very clear distinction between EU citizens
(insiders) and non-EU citizens (outsiders), which makes TCNs more vulnerable for
the mere fact of being ‘the Other’.10 This shows that racial, religious and nationality
discrimination prohibitions can be equally important for the integration of TCNs.11
However, the protection provided by EC Law is lower for religious than for racial
discrimination, and even lower for nationality discrimination, which is not prohibited
for TCNs.12
This multilayered protection can be problematic due to the fact that racial discrimination can be easily mixed with discrimination on grounds of non-EU nationality13 or
religion.14 It is frequently the case that migrants ‘belong to several different overlapping
and intersecting groups’,15 which increases the difficulties of distinguishing between
each of them.16 Yet, we should also note that the Community measures are limited by
its competences and by the principles of subsidiarity and proportionality.17
5
6
7
8
9
10
11
12
13
14
15
16
17
Council Directive 78/2000/EC establishing a general framework for equal treatment in employment and
occupation [2000] OJ L 303/16.
Art 1 FD.
eg D. Chalmers, ‘The Mistakes of the Good European?’, in S. Fredman (ed), Discrimination and Human
Rights. The case of Racism (Oxford University Press (OUP), 2001) 193, 238–249; E. Howard, ‘Anti Race
Discrimination Measures in Europe: An Attack on Two Fronts’, (2005) 11 European Law Journal
468–486; D. Schiek, ‘A New Framework on Equal Treatment of Persons in EC Law?’, (2002) 8 European
Law Journal 290–314.
M. Bell, ‘EU anti-racism policy: the leader of the pack?’, in H. Meenan (ed), Equality Law in an Enlarged
European Union. Understanding the Article 13 Directives (Cambridge University Press, 2007) 178, 200-201.
cf E. Howard, ‘The EU race directive: its symbolic value—its only value?’, (2004) 6 International Journal
of Discrimination and the Law 141, 151; Commission (EC), Third Annual Report on Migration and
Integration, COM (2005) 389 final.
E. Guild, The Legal Elements of European Identity. EU Citizenship and Migration Law (Kluwer, 2004),
201-216.
cf H. Meenan, ‘Introduction’, in H. Meenan (ed), Equality Law in an Enlarged European Union. Understanding the Article 13 Directives (Cambridge University Press, 2007), 1, 28.
infra section III. See eg M. Bell, ‘Beyond European Labour Law? Reflections on the EU Racial Equality
Directive’, (2002) 8 European Law Journal 384, 388; S. Carrera and M. Formisano, ‘An EU Approach
to Labour Migration. What is the Added Value and the Way ahead?’ (CEPS, 2005) 10, available at
http://www.ceps.be/Article.php?article_id=16; B. Hepple, ‘Race and Law in Fortress Europe’ (2004) 67
Modern Law Review 1, 6–7; Bell, op cit n 2 supra, 30-32.
M. A. Ballester Pastor, ‘El Principio Comunitario de igualdad de trato por razón de origen racial o
étnico’, (2006) 63 Revista del Ministerio de Trabajo y Asuntos Sociales 33, 39.
R. A.D. Bloul, ‘Islamophobia and anti-discrimination laws: ethno-religion as a legal category in the UK and
Australia (2003) 6, available at http://www.anu.edu.au/NEC/Archive/bloul_paper.pdf; Bell, op cit n 8
supra, 178, 183–184.
S. Fredman, ‘Combating Racism with Human Rights’, in S. Fredman (ed), Discrimination and Human
Rights. The case of Racism (OUP, 2001) 9, 11.
cf M. Bell, Anti-discrimination Law and the European Union (OUP, 2002), 83.
Art 5 EC.
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The aim of this article is to identify the limits of the application of EU race-related
law18 to TCNs.19 For this purpose, section II deals with the limitations of Article 13 EC
(subsection A), the RED (subsection B) and the FD (subsection C). The paper continues with an analysis of the consequences of this legislative framework for the protection
of TCNs (section III), where I identify two hierarchies in EC Law: a hierarchy of
equalities and a hierarchy of persons (EU citizens—TCNs). In subsequent sections I
question the existence of these hierarchies (subsections A and B). Finally, I explore two
interpretative improvements (section IV) concerning Article 12 EC (subsection A) and
the concept of ‘racial discrimination’ (subsection B), before drawing the conclusion
(section V).
II
The Approach of EU Race-Related Law to Racial Discrimination
towards TCNs
A
Article 13 EC: The Root of the Problem
Article 13 EC is the legal basis for the Community action to combat racial or ethnic
origin discrimination, and it is under this provision that the RED was adopted. Its
insertion in the Treaty was generally welcomed as an important step to fight racism
within the EC.20 However, there are several elements in this provision which might
reduce its effectiveness as regards TCNs.
First, contrary to Article 12 EC, which prohibits nationality discrimination ‘within
the scope of the Treaty’, Article 13 does not have direct effect.21 It only gives to the EC
the power to take action, but it does not state clearly the existence of a prohibition of
discrimination on any of the grounds included therein. This makes it dependent on its
development by secondary legislation.
Second, the content of this legislation is likely to be constrained by the consultation
procedure and the requirement of unanimity of the Council.22 Consequently, whilst the
EP (known for its activism against racism)23 is given limited powers, the Council
(traditionally more conservative)24 retains a predominant role.
However, the most problematic aspect of Article 13 EC with respect to TCNs is its
exhaustive list of six discrimination grounds which includes racial or ethnic origin, and
excludes nationality. It seems that its omission is fully conscious, as a consequence of
the lack of agreement in the Council regarding the Community’s competence towards
18
19
20
21
22
23
24
The expression ‘race-related’ refers to situations where race, religion and nationality are interrelated.
The analysis focuses on TCNs who are legally resident in the EU.
eg C. M. Brown, The Race Directive: Towards Equality For All the Peoples of Europe? (Master Thesis,
College of Europe, 2001), 10.
L. Flynn, ‘The implications of Article 13 EC—After Amsterdam, will some forms of discrimination be
more equal than others?’, (1999) 36 Common Market Law Review 1127, 1133.
Art 13(1) EC.
cf G. Toggenburg, ‘A rough Orientation Through a Delicate Relationship: The European Union’s
Endeavours for (its) Minorities’, (2000) 4 European Integration online Papers 21, available at
http://www.eiop.or.at/eiop/pdf/2000-016.pdf; C. A. Gearty, ‘Race Discrimination and the Role of the
European Union’, in G. Moon (ed), Race Discrimination. Developing a d Using a New Legal Framework
(Hart Publishing, 2000) 113, 8.
cf A. Tyson, ‘The Negotiation of the European Community Directive on Racial Discrimination’, (2001)
3 European Journal of Migration and Law 199, 209-210.
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Race Equality and TCNs
TCNs.25 As a result, the wording of Article 13 EC contrasts with that of several
international human rights instruments, which include either more grounds of discrimination or an open list.26
On the other hand, Article 13 EC does not explicitly state its application to TCNs
and contains a very a limitative clause: ‘[w]ithout prejudice to the other provisions of
this Treaty and within the limits of the powers conferred by it upon the Community’,
which recalls the wording of Article 12 EC.27 However, whilst Article 12 is generally
interpreted as only applicable to EU citizens,28 TCNs are considered to be included
in the scope of Article 13. In fact, both the RED and the FD include ‘all persons’29 in
their scopes.
Therefore, whilst Article 12 EC prohibits nationality discrimination but has always
been interpreted as inapplicable to TCNs, Article 13 EC protects TCNs but not against
nationality discrimination. Accordingly, at least in appearance, TCNs would not be
covered at all in EU law regarding this ground of discrimination.30
B
The Scope of the RED: Some Considerations Regarding TCNs31
As already noted, the RED applies to TCNs.32 This is of special importance, taking into
account that its material scope goes far beyond the field of employment and includes
areas where non-EU national’s exposure to racial discrimination is considerably high,
such as social protection, social advantages, education33 and access to goods and
services, including housing.34
However, there are also considerable material limitations. First, the RED does not
apply to entry and residence of TCNs,35 which shows that border control remains a
highly sensitive issue for Member States.36 The willing to preserve their national
immigration and asylum systems is probably the main reason for this explicit statement. It is also the counter part of the restricted competences that the Community
25
26
27
28
29
30
31
32
33
34
35
36
E. Guild, ‘The European Union and Article 13 of the Treaty Establishing the European Community’, in
G. Moon (ed), Race Discrimination. Developing and Using a New Legal Framework (Hart Publishing,
2000), 65, 71–74. See also Meenan, op cit n 11 supra, 29.
eg Art 26 International Covenant on Civil and Political Rights (ICCPR), Art 7 International Convention
on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICPMW) and
Art 14 European Convention on Human Rights (ECHR).
Flynn considers that it is even more restrictive (see op cit n 21 supra, 1133–1135).
See eg M. Bell, ‘The new Article 13 EC Treaty: a platform for a European Policy Against Racism?’, in
G. Moon (ed), Race Discrimination. Developing a d Using a New Legal Framework (Hart Publishing, 2000)
81, 105; J. Niessen, ‘The further development of European Anti-Discrimination Policies’, in I. Chopin &
J. Niessen (eds), The Starting Line and the Incorporation of the Racial Equality Directive into the national
Laws of the EU Member States and Accession States (Commission for Racial Equality & Migration Policy
Group, 2001) 7, 8.
Arts 3(1) RED and 3(1) FD.
infra section IV.
The aim of this section is to underline the main problems concerning TCNs. For an analysis about the
scope of the RED see: Brown, op cit n 20 supra, 19–24.
Art 3(1) RED. Recital 13 RED clarifies it further: ‘[t]his prohibition of discrimination should also apply
to nationals of third countries’.
eg E. Sevillano, ‘Las fronteras nacen en la escuela’, El País (Madrid, 7 April 2008).
For detailed analysis about these fields see: Bell, op cit n 28 supra, 95–101; Brown, op cit n 20 supra, 23–26.
Art 3(2) and Recital 13 RED. See Guild, op cit n 10 supra, 210; Brown, ibid, 21.
See S. Lavenex, ‘Towards the constitutionalization of aliens’ rights in the European Union?’, (2006) 13
Journal of European Public Policy 1284, 1285.
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has in the field of entry and residence in the common immigration policy in Title IV
of Part III EC (‘Title IV’). Indeed, Article 63(3)(a) enables the Community to take
measures regarding the conditions of entry and residence, but the initial decision to
confer the right to entry or residence to TCNs remains totally up to the Member
State concerned.37
Second, the final phrase of Article 3(2) contains another safeguarding clause, which
plays to the detriment of legal certainty: ‘[t]his Directive [. . .] is without prejudice to
any treatment which arises from the legal status of the third country nationals’. The
rather open expression: ‘any treatment’ could relate to access to employment and
occupation if linked to Recital 13,38 which reads: ‘[t]his prohibition of discrimination
[. . .] is without prejudice to provisions governing the entry and residence of thirdcountry nationals and their access to employment and to occupation’. However, in
my view, the identification of ‘any treatment’ with employment should be rejected
because one of the primary aims of the Directive is to promote equal opportunities
in the field of access to employment.39 Indeed, the Commission stated in its proposal:
‘[U]nemployment among communities of different racial and ethnic origins varies by
a factor of up to 2 to 3 times the average for the labour market as a whole. [T]his
proposal, by discouraging discrimination, will lead [. . .] to a reduction in social
exclusion. [T]he Directive will contribute to the promotion of employability of
workers of all racial and ethnic origins, as required by the European Employment
Strategy.’40
Therefore, at least originally, the Directive was especially intended to foster equal
opportunities in employment among people of different races and ethnic origins, of
whom most are usually TCNs. This shows that the wording of Recital 13 sits uncomfortably with the general economy of the Directive. Thus, in order to reconcile Article
3(2) with the aims of the RED, it would be more appropriate to link the expressions
‘any treatment’ and ‘legal status’ to immigration and border control.41
Last but not least, nationality as ground of discrimination is excluded from the scope
of the RED.42 Taking into account that EU citizens are protected against nationality
discrimination by virtue of Article 12 EC, in practice, this exclusion is only relevant for
TCNs and it may be especially harmful for both their integration and equality rights.43
C
Limitations of the FD Compared to the RED
Despite the closeness between racial and religious discrimination,44 they are protected
by different anti-discrimination tools: religion is included in the FD, and not in the
RED. This would not be problematic, provided both grounds were equally enforceable,
but this is not the case. Although the FD seems to have been drafted under the model
37
38
39
40
41
42
43
44
Recital 13 RED. See also Bell, op cit n 2 supra, 30.
Brown, op cit n 20 supra, 21.
See Art 3(1)(a), Recitals 9 and 12 RED.
Commission (EC), Proposal for a Council Directive implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin, COM (99) 566 final, 22–23.
This would be in line with the amendment proposal of the UK (Council (EC), Report from the Social
Questions Working Party to the Permanent Representatives Committee (part 1), SOC (00) 201 JAI 58, 6).
Recital 13 and Art 2(3) RED.
infra section III.
supra section I and infra section III.
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Race Equality and TCNs
of the RED,45 there are several important differences which might be critical in borderline cases of race-religion discrimination.
The first important weakness lies in the material scope. Whilst the RED goes far
beyond the fields of employment and occupation, the FD only covers those areas.46
Indeed, the RED covers several fields which the FD does not, namely: social protection
(including social security and healthcare); social advantages; education; and access/
supply to goods and services, including housing.47 This is reinforced by the explicit
exclusion of social security and social protection schemes in Article 3(3) and Recital
13 FD.
In this respect, the Commission has recently presented a proposal for a Directive
which would extend the material scope of the FD to the fields that are now only covered
for racial discrimination.48 However, we should note that it also includes several important limitations49 and that, even if it was eventually adopted, the broad exceptions of
the FD will always be applicable in the field of employment. In any case, at the time of
submitting this article the text is still pending before the European Parliament (EP) and
a definitive analysis cannot be made until the final version is adopted.50
The FD and the RED also have important differences in terms of derogations from
the principle of equal treatment. Whilst the RED allows for very limited exceptions
(genuine and determining occupational requirements and positive action measures),51
the FD permits those52 and some others. The ‘most worrying exception’53 is the openended derogation on grounds of public security, public order, the protection of health,
rights and freedoms,54 especially because it is the only equality Directive which includes
such a clause.55 Considering the recent rise of ‘Islamophobia’56 in Western Countries
after the 11/09,57 this derogation could lead to abuses in the field of religious discrimination in the name of public security. There is also a specific exception of the
45
46
47
48
49
50
51
52
53
54
55
56
57
Recital 10 FD makes express reference to the RED, they have the same personal scope and they both
exclude nationality discrimination: see Art 3(2) and Recital 13 RED, Art 3(2) and Recital 12 and Art 3(2)
FD. Compare also, inter alia, Art 2 FD with 2(2), (2)(i), (3) and (4) RED; Art 4.1 FD with 4 RED.
Art 3(1) RED and Art 3(1) FD at points (a) to (d). See also E. Howard, ‘The case for a considered
hierarchy of discrimination grounds in EU Law’, (2006) 13 Maastricht Journal of European and Comparative Law 445, 447.
Art 3(1) RED at points (e) to (h).
Commission (EC), Proposal for a Council Directive on implementing the principle of equal treatment
between persons irrespective of religion or belief, disability, age or sexual orientation, COM (2008) 426 final,
Art 3(1), (‘the Commission’s Proposal’).
See eg Art 3(1) in fine which limits the protection in the field of access to and supply of goods and services.
Also Art 3(3) concerning religious discrimination and Art 3(5) which reproduces the same exception for
nationality discrimination that the RED and the FD already included. The EP Committee on Civil
Liberties, Justice and Home Affairs has already proposed amendments to these and other provisions
(Draft Report on the proposal for a Council Directive on implementing the principle of equal treatment
between persons irrespective of religion or belief, disability, age or sexual orientation, COM(2008)0426—C6
0291/2008—2008/0140(CNS)).
Accordingly, these possible improvements are not considered in the analysis of section III.
Arts 4 and 5 RED.
Arts 4(1) and 7 FD.
Howard, op cit n 46 supra, 447; Schiek, op cit n 7 supra, 302.
Art 2(5) FD.
L. Waddington & M. Bell, ‘More equal than others: distinguishing European Union Equality Directives’
(2001) 38 Common Market Law Review 587, 598.
Bloul, op cit n 14 supra, 3.
Note however that the FD was adopted in 2000, before the 11/09/2001 attacks. Thus, they could not
influence its wording.
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prohibition of religious discrimination,58 which preserves the rights of churches and
other organisations based on specific beliefs, They can ask their employees ‘to act in
good faith and with loyalty to the organisation’s ethos’.59 They can also set occupational requirements, but they will only be justified when the religious beliefs of the
employee are relevant for the functions he is intended to achieve and they must respect
certain conditions.60 These two last narrower exceptions are, to a certain extent, justified by the need to seek a balance between equality and religious liberty, which is not
the case of the public security derogation.
The enforcement mechanisms that each Directive provides for achieving substantial
equality are also different. It is true that both the RED and the FD allow Member
States to take positive action measures, but only the RED puts a duty on them to
‘designate a body [. . .] in the area of racial or ethnic origin’ which will provide
independent assistance to victims, conduct surveys and publish reports on an independent basis.61 Of course, Member States may entrust it with powers for all grounds of
Article 13 EC,62 but they are not obliged to it. However, if Member States already have
such a body, Article 8(2) provides that the implementation of this piece of legislation
cannot result in a lower protection.
III
Consequences of the Application of this Legislation to TCNs
In the previous analysis, three main issues were identified: (1) the total exclusion of TCNs
from protection against nationality discrimination; (2) the protection of TCNs against
religious discrimination only in the field of employment and occupation but with several
important derogations; (3) the protection of TCNs against racial discrimination in the
field of employment/occupation as well as in some other important fields, reinforced by
enforcement mechanisms and very limited exceptions. This shows that there are three
different levels of protection for each ground of discrimination (infra Annex I).
This has led some authors to use the expression ‘hierarchy’63 of equalities when
describing the current EU anti-discrimination system, where race equality would be at
the top and religion would be on a lower level. Some commentators place nationality
above race in the hierarchy,64 due to the direct effect of Article 12 EC and recent
developments in the field of citizenship.65 However, whilst it is true that protection
given to discrimination on grounds of nationality is very extensive for EU citizens, the
same cannot be stated as regards TCNs. Accordingly, it is difficult to see how it could
be at the top of the hierarchy when there are 18.5 million TCNs living in Europe66 who
are not protected against nationality discrimination. This confirms the ‘fundamental
58
59
60
61
62
63
64
65
66
Art 4(2) FD.
ibid.
ibid.
Art 13 RED. Still, the Commission’s Proposal could introduce an obligation to create Enforcement
Bodies also for the grounds of discrimination covered by the FD (Art 12 of the Proposal).
Art 8(1) FD.
eg Waddington and Bell, op cit n 55 supra, 610; Howard, op cit n 46 supra, 445; E. Howard, ‘The EU race
directive: time for change?’, (2007) 8 International Journal of Discrimination and the Law 237, 241; Schiek,
op cit n 7 supra, 300; M. Bell, ‘Equality and Diversity: Antidiscrimination Law after Amsterdam’, in
J. Shaw (ed), Social Law and Policy in an Evolving European Union, (Hart Publishing, 2000), 158, 169.
eg Bell, ibid, 158.
See Hepple, op cit n 12 supra, 7.
Commission (EC), op cit n 9 supra, 3.
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Race Equality and TCNs
EU NATIONALS
NATIONALITY
NON-EU
NATIONALS
RACE
RACE
RELIGION
RELIGION
NATIONALITY
Figure 1. Hierarchies of equalities and persons in EC Law
inequality’67 approach of ‘Fortress Europe’ towards TCNs and contrasts with the
declarations of principles of the Tampere68 and the Hague Programme.69 Therefore, it
would be more appropriate to identify two hierarchies: one for EU nationals, another
for non-EU nationals (infra Figure 1).
Yet, the key question is: should hierarchies of persons and equalities exist? The
following subsections provide a discussion on this issue.
A
The Hierarchy of Persons
International law allows for differentiation between citizens and non-citizens in the
context of border control. Therefore, immigration law clearly takes an inegalitarian
perspective towards foreigners, ie treating persons differently on the basis of their
nationality is considered fully legitimate.70 Still, we should note that differentiation does
not mean discrimination. Generally, differentiation becomes discrimination when two
requirements are fulfilled: (1) it does not pursue a legitimate aim and (2) the means are not
proportionate to this aim.71 Therefore, the exception of citizenship in the treatment of
foreigners in human rights legislation does not imply that they can be discriminated
against.
Indeed, Article 1(2) of the International Convention on the Elimination of all forms
of Racial Discrimination (ICERD) excludes its application to distinctions made by a
State Party between citizens and non-citizens, but the United Nations Committee
on the Elimination of Racial Discrimination (CERD) has clarified that ‘under the
67
68
69
70
71
L. Halleskov, ‘The Long-Term Residents Directive: A Fulfilment of the Tampere Objective of NearEquality?’, (2005) 7 European Journal of Migration and Law 181, 189.
EU Council, Tampere Presidency Conclusions (15–16 October 1999), at 18 and 21.
EU Council, Presidency Conclusions of the Brussels European Council (November 2002), Annex 1, at
19–20.
Guild, op cit n 10 supra, 202.
See eg Case Gaygusuz v Austria (16 September 1996) Reports of Judgments and Decisions 1996-V 42
(EctHR).
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Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation [ . . . ] are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim’.72
However, the problem is that differentiation can easily turn into disguised discrimination. For example, permissible nationality differentiation may be used to circumvent
prohibited racial or religious discrimination. This is a quite obvious issue in visa policy,
especially after 11 September 2001,73 although TCNs can also suffer it in their access to
education, health and other services.74 In this respect, as Guild points out, equality law
‘must not accept as a field of exceptionalism beyond its reach discrimination which has
as an essential element differential treatment on grounds of race or religion merely
because it has been formally categorised as nationality discrimination’.75
But are there real substantive reasons for inegalitarism? Some advocates of the inegalitarian approach, as Torpey, consider that the Nation State must be able ‘to identify its
nationals and exclude the nationals of other states in order to protect only those from
whom it has extracted resources’.76 Miller holds a similar view, making a parallelism
between nations and teams.77 He considers that, in the same way that benefits of the
teamwork are limited only to members of the team, the nation-state owes special
obligations to its co-nationals that it does not owe to other human beings.78 However,
he bases this affirmation not so much on the issue of contribution to the nation-state
resources, as Torpey, but on the concepts of ‘trust’ and ‘ties of solidarity’ that only
members of the same nation can experience towards one another.79 According to
Miller, this thesis also applies to multinational-democratic states, because it is not only
the strength of the national identity that matters, but also its character.80 Thus, in his
view, states like Canada or Switzerland have reached high levels of social justice thanks
to the quality of their public culture, which primes solidaristic over individualistic
values.81
Despite the wide support that the aforementioned theses seem to have in immigration law, in subsequent paragraphs I question their validity, especially for TCNs who
are already legally residing in the EU. I suggest that an egalitarian perspective based on
human rights, financial and social arguments should apply instead.
First, from a human rights point of view, TCNs and EU citizens have equal moral
status,82 because each human being is an ‘intrinsic good’ that gives an added value
72
73
74
75
76
77
78
79
80
81
82
CERD, ‘General Recommendation No. 30’ (16/02/2004–12/03/2004), CERD/C/64/Misc.11/rev.3, paragraph 1(4).
Guild, op cit n 10 supra, 203.
Fredman, op cit n 15 supra, 4.
Guild, op cit n 10 supra, 250.
J. Torpey, The invention of the Passport (Cambridge University Press, 2000) quoted by Guild, op cit n 10
supra, 45.
D. Miller, On Nationality (Oxford University Press, 1995), 18.
ibid, 191.
According to Miller: ‘A shared identity carries with it a shared loyalty, and this increases confidence that
others will reciprocate one’s own co-operative behaviour’, (ibid, 92).
ibid, 94.
ibid.
Christiano contends that ‘equal status is based on the fact that all human being have essentially the same
basic capacities to be authorities in the realm of value’ (T. Christiano, ‘A Foundation for Egalitarianism’
in N. Holtung and K. Lippert-Rasmussen (eds), Egalitarianism. New Essays on the Nature and Value of
Equality, (Oxford University Press, 2007) 41, 54).
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to the global community,83 and as such, it deserves equal weight, dignity and
rights.84 Therefore, equality, as a right which is valuable for the whole humanity,
cannot depend on the accident of being members of a non-voluntary group,85 such as
a nation-state.
Second, from a financial perspective, it does not seem justified that legally resident
TCNs, who are paying social security taxes to finance the welfare systems, are less
protected against discrimination precisely, and only, for the fact of being ‘outsiders’.
The fear that TCNs may weaken our social security systems does not provide sufficient
basis for such a restriction in so far that Member States can differentiate between
non-resident and resident foreigners.86 In fact, the Court of Human Rights has ruled
that the refusal to grant social benefits to non-nationals legally resident, when based
exclusively on the fact of not bearing the nationality of the host state, amounts to a
violation of Article 14 European Convention on Human Rights (ECHR) in conjunction with Article 1 of Protocol No. 187 or Article 8 ECHR.88 Obviously, these Court of
Human Rights rulings are not binding for the European Court of Justice (ECJ), but we
should note that all Member States have signed and ratified the ECHR and that the EU
may also do it in the future (if the ratification procedure of the Lisbon Treaty comes
finally to a successful end).89
Finally, as regards the sociological arguments, the feelings of belonging, ‘trust’ and
solidarity that Miller associates with the nation could also be fostered by effective
equality policies. This would allow people of different cultures to form a common
bond and to coexist within the framework of the law and equal rights, which could
bring a step forward their integration. Hence, Miller’s theory for ‘traditional’ multinational states (ie Switzerland) could also be valid for ‘new’ multinational states
(where national diversity is a consequence of immigration) and even for a multinational organisation, such as the EU, which is clearly based on the values of, inter alia,
the rule of law, tolerance, justice and solidarity.90 Indeed, if the Common Basic Principles for Immigrant Integration Policy in the EU91 were actually put into practice,
they would be a good start for creating this ‘common bond’ between EU citizens and
non-citizens.
B
The Hierarchy of Equalities
The existing hierarchy between race, religion and nationality as grounds of discrimination can be analysed from different perspectives. First of all, from a substantive point
of view, we should ask ourselves whether nationality, race and religion, as grounds of
discrimination, are inherently different in nature and thus may require different levels
of protection. For that, we can look at the Court of Human Rights case-law, which
83
84
85
86
87
88
89
90
91
ibid, 41–81.
This has been recognised by international instruments, such as Art 1 and 2 of the Universal Declaration
of Human Rights and Art 26 ICCPR.
T.G. Palmer, ‘Book Reviews: D. Miller, On nationality’, 16 The Cato Journal, available at:
http://www.cato.org/pubs/journal/cj16n2-9.html.
Guild, op cit n 10 supra, 65.
Gaygusuz, op cit n 71 supra and Case Koua Poirrez v. France (App No. 4089/98) 2003-X (EctHR).
Case Niedzwiecki v Germany (App No. 58453/00), (25 October 2005), (EctHR).
Consolidated versions of the Treaty on European Union and the Treaty on the functioning of the
European Union, Document 6655/08, Art 6(2) TEU and Declaration on Art 6(2) TEU.
Art 2 TEU as amended by the Lisbon Treaty, ibid.
Common Basic Principles for Immigrant Integration Policy in the EU, COM (2005) 0389 final.
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seems to follow a classification based on the ‘suspectness’ of each ground.92 The level of
review of the Court of Human Rights is much more strict for ‘suspect grounds’, where
it requires a justification based on a ‘very weighty reasons’ and a proportionality test93
because they are considered to affect essential human rights. The Court of Human
Rights has applied strict tests to race,94 religion95 and nationality,96 but with nuances
among the three: whilst its positioning is very clear in the field of race,97 it seems more
controversial for nationality and religion.
Indeed, the suspect nature of nationality as a ground of discrimination is a particularly sensible issue, as it is closely related to border control. However, this is only one
side of the ‘double dimension’ of nationality. As Gerards points out, we should make
the distinction between: (a) the ‘external dimension’ of the treatment of non-nationals’,
which would be linked to immigration law and is considered a non-suspect ground, and
(b) the ‘internal dimension’, which concerns their treatment in the field of employment
or social security once they are inside the country.98 In the latter cases, precisely those
of TCNs legally residing in Europe, nationality should be considered a suspect ground
because immigration control no longer plays a role.
In religious discrimination cases, the strictness of the test applied seems to depend on
the factual background.99 In fact, there is a main difference between race and religion
as grounds of discrimination: whilst race does not depend on the free choice of the
person, religion does.100 Still, Pitt points that religion is not always a matter of choice.101
He makes the difference between ‘religion as ethnicity’, which is inherent to the individual’s identity and thus should be considered a suspect ground, and ‘religion as
belief’, as a free choice of each person, and he affirms that in this case it should be a
non-suspect ground.102 However, in my opinion, if religion as a free choice is given less
protection than other discrimination grounds, it is not only the right to equality that is
being hampered, but also the right to hold a religion or belief freely, which is a right
inherent to the dignity of the person. Therefore, by providing a wide and adequate
protection to the freedom to choose a religion, it is not only the principle of equality
92
93
94
95
96
97
98
99
100
101
102
I follow Howard’s proposal consisting in applying this Court of Human Rights distinction to EC
legislation as a criterion to decide the level of protection that needs to be provided for each ground of
Art 13 EC, (Howard, op cit n 46 supra, 453–462).
eg Gaygusuz, op cit n 71 supra, 42; Koua Poirrez, op cit n 87 supra, 46; Case Timishev v Russia
(App No. 55762/00, 55974/00) 2005-X, 56-58 (EctHR).
Timishev, ibid, 56–58.
Case Hoffman v Austria (23 June 1993) Ser. A No. 155-C, 36 (EctHR).
Gaygusuz, op cit n 71 supra, 42; Koua Poirrez, op cit n 87 supra, 46.
The Court of Human Rights has held that: ‘Racial discrimination is a particularly invidious kind of
discrimination. [N]o difference in treatment which is based exclusively or to a decisive extent on a
person’s ethnic origin is capable of being objectively justified in a contemporary democratic society
built on the principles of pluralism and respect for different cultures’ (Timishev, op cit n 93 supra,
56–58).
J. Gerards, ‘Discrimination Grounds’, in D. Schiek, L. Waddington and M. Bell (eds), Cases, Materials
and Text on National, Supranational and International Non-Discrimination Law (Hart Publishing, 2007),
33, 66.
cf Gerards, ibid, 127.
Schiek, op cit n 7 supra, 309–312.
G. Pitt, ‘Religion or belief: aiming at the right target’ in H. Meenan (ed), Equality Law in an Enlarged
European Union (Cambridge University Press, 2007), 202, 225.
ibid.
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that is reinforced, but also the freedom of the individual.103 AG Poiares Maduro
supports this view:
[T]he values underlying equality [are] human dignity and personal autonomy. [P]ersonal autonomy [. . .]
dictates that individuals should be able to design and conduct the course of their lives through a
succession of choices among different valuable options. [T]he discriminator who discriminates against
an individual belonging to a suspect classification unjustly deprives her of valuable options. As a
consequence, that person’s ability to lead an autonomous life is seriously compromised since an important aspect of her life is shaped not by her own choices but by the prejudice of someone else. [I]n essence,
by valuing equality and committing ourselves to realising equality through the law, we aim at sustaining
for every person the conditions for an autonomous life.104
Next, from the point of view of the EC Treaty structure, as regards race and religion, it
is clear that Article 13 does not make any distinction about the level of protection to be
provided. Both the Council105 and the Commission106 have declared to be contrary to
distinctions between the different grounds of discrimination. What is then the reason
for the different material scope of the FD and the RED? The Commission has recognised that it was a question of pragmatism,107 as it has been confirmed by the new
Directive proposal it presented in July 2008.108 However, as we have seen, the text
improves the current situation but does not completely eliminate the hierarchy between
racial and religious discrimination.109
On the contrary, the EC Treaty draws a clear distinction between nationality (with
legal basis in, inter alia, Articles 12 and 39) and other types of discrimination (with legal
basis in Article 13). The reason for this distinction comes from the origins of the EU
itself. The prohibition of nationality discrimination ‘within the scope of application of
[the] Treaty’110 was, from the very beginning, one of the bases of the Common Internal
Market111 and thus, it had an economic rationale. With the evolution of the case law,112
the increasing importance of the Principle of Equality113 and the insertion of the
Citizenship provisions in the Treaty,114 the scope of the prohibition has been developed
and reinforced. However, in the last decades, EC Law has experienced an increasing
103
104
105
106
107
108
109
110
111
112
113
114
See M. Rodríguez-Piñero and M.F. Fernández López, Igualdad y Discriminación (Editorial Tecnos,
1986), 212–215.
AG Poiares Maduro in Case 303/06, Coleman v Attridge, [2008] ECR I-5603, Opinion delivered on
31 January 2008, at 8-11.
eg Council Decision 750/2000/EC establishing a Community action programme to combat discrimination
(2001 to 2006) [2000] OJ L303/23, Recital 5.
eg K. Hughes, Article 13—A Framework for Action (Conference Ethnic Minorities in Europe: Rethinking
and Restructuring Anti-discriminatory Strategies (Birmingham, 2000) 5–6, available at http://
ec.europa.eu/dgs/employment_social/speeches/000217ad.pdf.
Hughes held that it ‘did not want to waste the opportunity to go further on racial discrimination’ in a
favourable European context, (ibid, 6).
See Commission (EC), op cit n 48 supra.
supra section II C.
Art 12 EC.
G. More, ‘The Principle of Equal Treatment: From Market Unifier to Fundamental Right?’ in P. Craig
and C. De Burca (eds), The Evolution of EU Law (Oxford University Press, 1999), 517, 536–537.
See S. O’Leary, Developing an Ever Closer Union between the Peoples of Europe? A reappraisal of the
case-law of the Court of Justice on the free movement of persons and EU citizenship, Edinburgh Mitchell
Working Papers, 10-23, available at http://www.law.ed.ac.uk/mitchellworkingpapers/papers.aspx.
See eg Meenan, op cit n 11 supra, 12–17.
Arts 17–22 EC.
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importance of its social rationale,115 and Article 13 can be seen as a clear expression of
this shift.116 This shows that the current wording of the EC Treaty is rooted in the
origins of the Community, and a static interpretation does not reflect anymore its
current commitments in the fields of social policy and Equality.
From a practical point of view, we should note that ‘many people belong to several
different overlapping and intersecting groups’.117 Thus, the existence of a hierarchy of
grounds of discrimination can be problematic in cross-relations. As a matter of fact,
discrimination can be the result from the cumulation of several grounds at the same
time—‘multiple discrimination’—or from their inseparable combination in a sole
person—‘inter-sectional discrimination’.118 Paradoxically, both the RED and the FD
make explicit reference to the problem of multiple discrimination,119 but then, the
overall picture they provide does not allow for it to be addressed effectively.
The different levels of protection of closely-related grounds, such as race, religion and
nationality, can create significant problems for the victims of cases of multi-dimensional
discrimination. For instance, it can be that a case is only partially covered or even that it
is difficult to identify the different grounds because the root of the discrimination was
their unique combination in a specific person. Another concern is that the lowest
protected ground—religion or nationality—could be used as a hidden method of racial
discrimination, in order to evade legal action.120 Besides, an Equality Agency may find it
problematic to provide assistance to the victim if it can only deal with one aspect of the
case. Finally, in the interpretation and application of the law itself some doubts may also
arise as regards the application of different far-reaching exceptions.
In many cases, these and other problems have led victims to take a pragmatic
approach and choose to base their claims on the ‘strongest ground’,121 because there are
no possibilities of success basing it on other grounds or on all of them together.122 Yet,
this does not reflect the real situation of victims of a ‘multilayered experience of
discrimination’.123 For example, if a black Muslim non-EU national was denied the
rental of a flat for the sake of being a Muslim, what would be the real ground of
discrimination: race, religion, nationality or a combination? This shows the limits of the
single ground approach to tackle these situations.124 Providing a similar scope of
115
116
117
118
119
120
121
122
123
124
See eg J. Shaw, ‘A Strong Europe is a Social Europe’ (1 February 2003), The Federal Trust Constitutional
Online Paper Series No. 05/03, available at SSRN: http://ssrn.com/abstract=515783.
cf More, op cit n 111 supra.
Fredman, op cit n 15 supra, 11.
Commission (EC), Tackling Multiple Discrimination. Practices, policies and laws (2007) 16-17. See also
G. Moon, Multiple Discrimination—problems compounded or solutions found ’ 4–5, available at
http://www.justice.org.uk/images/pdfs/multiplediscrimination.pdf. For practical reasons, when referring
to multiple and inter-sectional discrimination at the same time I will use the term ‘multi-dimensional
discrimination’.
Both references are in the context of women. See Recitals 14 RED and 3 FD.
Howard, op cit n 63 supra, 241. See also Hepple, op cit n 12 supra, 6; Brown, op cit n 20 supra, 19–20. The
EP also warned about this danger (Parliament (EC), Report on the proposal for a Council Directive on
implementing the principle of equal treatment between persons irrespective of racial or ethnic origin A5-0136
final, 11 and 17).
Commission (EC), op cit n 118 supra, 21.
This is often the case if the victim cannot identify which aspect of her claim relates to a specific
characteristic (Equality and Diversity Forum, Multi-dimensional discrimination: Justice for the whole
person, available at www.edf.org.uk/news/Multiple%20Discrimination.doc).
ibid.
eg Waddington and Bell, op cit n 55 supra, 311; ENAR, Racism in Europe. Enar Shadow Report 2006
(2006) 8–9; S. Parmar, ‘The European Court of Justice and Anti-discrimination Law: some reflections on
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protection and similar exceptions for at least all related grounds would be an important
step to improve the enforcement of equality in cases of multi-dimensional
discrimination.125
IV
Open Doors for Inclusive Interpretations?
In order to overcome the limitations of the single ground approach, the most
straightforward solution would be to amend current legislation, in order to provide
a similar scope of protection and similar exceptions for at least all related grounds of
discrimination. In this respect, the approval of the Commission’s proposal would be
a big step forward. However, Article 13 EC requires unanimity, which may create
some problems in the adoption of the Directive. On the other hand, it seems difficult
that Member States, concerned by preserving their sovereignty, would agree on an
amendment extending nationality discrimination protection to TCNs. Therefore,
taking into account these limitations, it might be worth considering other possibilities
before engaging in legislative changes. In the following subsections of this article, I
contend that the extension of the scope of Article 12 EC to TCNs and an inclusive
interpretation of the concept of ‘racial discrimination’ might be two ‘middle-way’
solutions.
A
Nationality Discrimination. An Open Door in Article 12 EC?
As noted above, Article 12 EC has always been considered to be applicable only to EU
citizens, but there are reasons to think that Article 12 may now be open to a further
evolution in its personal scope, after the insertion of Title IV and Article 137(g) in the
EC Treaty.126 However, these new provisions do not create a true ‘European immigration policy’127 and do not have direct effect.128 Therefore, their development by secondary legislation is crucial for the inclusion of TCNs in the scope of the Treaty.
Accordingly, the adoption of the Family Reunification Directive129 (FRD) and the
Long-Term Residents Directive130 (LTRD) could provide sufficient grounds for the
ECJ to consider that, at least in some fields, it is proven that the Treaty now includes
TCNs. However, not all TCNs have the same status in the Treaty and secondary
legislation, which create differences between their rights to equal treatment. For
instance, long-term residents (LTRs) seem to have a right to equal treatment with EU
nationals in several fields, which would protect them from nationality discrimination in
125
126
127
128
129
130
the experience of gender equality jurisprudence for the future interpretation of racial equality directive’,
in J. Niessen, I. Chopin (eds), The development of Legal Instruments to Combat Racism in a Diverse
Europe, (Martinus Nijhoff, 2004) 131, 138.
Howard, op cit n 46 supra, 463–462.
For a complete analysis on this possibility see C. Hublet, ‘The scope of Article 12 of the Treaty of the
European Communities vis-à-vis third-country nationals: evolution at last?’, This issue.
D. O’Keeffe, ‘Can the Leopard Change its Spots? Visas, Immigration and Asylum- Following Amsterdam’, in D. O’Keeffe and P. Twomey (eds), Legal Issues of the Amsterdam Treaty (Hart Publishing, 1999)
271, 272.
E. Guild, Immigration Law in the European Community (Kluwer, 2001) 296; D. O’Keeffe, ibid.
Council Directive 2003/86/EC on the right to family reunification [2003] OJ L251/12.
Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term
residents [2004] OJ L16/44.
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areas such as employment, social security, education, free movement, etc131 but still
with very important limitations.132 On the contrary, family members seem to enjoy
equal treatment only in the field of employment and education,133 and not in respect of
EU nationals, but in respect to other TCNs.134 Therefore, their protection against
nationality discrimination would be narrower.
However, on the whole, the insertion of Title IV and Article 137(g) EC seems to be
an important step already, and it can be the ‘wind’ which little by little may open the
‘door’ of Article 12 EC to TCNs.
B
Inclusive Interpretation of the Concept of ‘Racial Discrimination’
This second proposal does not entail the consideration of religion and nationality as
free standing grounds of discrimination included in the material scope of the RED,
which would hardly be admitted by the ECJ.135 Rather, I suggest that a broad interpretation of the concept of racial discrimination would allow to consider that racial
discrimination ‘which is presented as’ religion or nationality discrimination falls within
the scope of the RED.136
The definition given to a ground of discrimination is of crucial importance because
it determines the scope of the legislation.137 As Gerards points: ‘if “race” is also taken
to mean “skin colour”, “ethnic origin” and “belonging to a national minority”, a
prohibition of racial discrimination is obviously much more inclusive than if only a
narrow definition is given to the notion’.138 However, the RED does not specify what
should be understood by ‘race or ethnic origin’.139 It only states that the EU rejects
theories about separated human races and that the use of the expression ‘racial origin’
does not imply its acceptance.140
Still, the title and the whole wording of the Directive refer always to discrimination
based on ‘racial or ethnic origin’. This is, in my opinion, the key to the interpretation of
the Directive, because both concepts are closely related but not totally interchangeable:
whilst race is more often connected to the idea of biological and physical differences
131
132
133
134
135
136
137
138
139
140
Art 11(1) LTRD. See S. Peers, ‘Implementing equality? The Directive on long-term resident third-country
nationals’ (2004) 29 European Law Review 454–460.
For a detailed analysis see K. Groenendijk, ‘The Long-Term Residents Directive, Denizenship and
Integration’, in A. Baldaccini, E. Guild and H. Toner (eds), Whose Freedom, Security and Justice? EU
Immigration and Asylum Law and Policy (Hart Publishing, 2007) 429, 442–450.
Art 14(1) FRD.
Cholewinski considers that at the current stage of the treaty, Art 12 protects TCNs in respect to
other TCNs (R. Cholewinski, ‘Borders and Discrimination in the European Union’, in M. Anderson
and J. Apap (eds), Police and Justice Cooperation and the New European Borders (Kluwer, 2002)
81, 94).
The ECJ has held that the scope of the FD ‘should [not] be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1 thereof’ (Case C-13/05 Chacon Navas v
Eurest Colectividades SA [2006] ECR I-6467 56). A similar approach is to be expected towards the
RED.
Parliament (EC), Report on the proposal for a Council Directive on implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin, A5-0136/2000 final, Amendments 15, 29,
17.
Gerards, op cit n 98 supra, 33.
ibid.
This proved to be a very sensible issue during the negotiations (Tyson, op cit n 24 supra, 201).
Recital 6 RED.
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between human beings, ethnicity is associated to the belonging to a specific group with
‘common nationality, tribal affiliation, religious faith, shared language, or cultural and
traditional origins and background’.141 Thus, the fact that the RED includes the notion
of ethnicity besides race can be a crucial element in favour of a broad interpretation of
the concept of ‘racial discrimination’.
A broad concept is also supported by the European Commission against Racism and
Intolerance (ECRI), which provides the following definition of ‘racism’:
‘racism’ shall mean the belief that a ground such as race, colour, language, religion, nationality or
national or ethnic origin justifies contempt for a person or a group of persons, or the notion of
superiority of a person or a group of persons.142
Still, the ECJ will probably provide its own definition of ‘racial discrimination’, as it has
done with other grounds of discrimination,143 but according to settled case law of the
court, when doing so, it may take inspiration from the already existing international
conventions, and especially, from the ECHR,144 to which the ECRI belongs.
Additionally, when configuring EC’s definition of ‘racial discrimination’, the ECJ
may also take into account the Charter of Fundamental Rights of the European Union
(‘the Charter’). The Charter clearly favours a broad interpretation of the concept
because it elevates Equality to a ‘key fundamental right within EU law’,145 using a very
inclusive language: ‘[a]ny discrimination based on any ground such as . . .’.146 Its value
is especially relevant in view of the possible entry into force of the Lisbon Treaty,147
which would give to it the same value than the Treaties.148 However, even considering
its current non-binding force, the ECJ has already taken it into account in its case law,
and thus, it is likely to do it again.149
However, probably the most important argument supporting a wide concept of
‘racial discrimination’ is the empiric evidence for this interpretation that the ECJ has
given in the first ruling where the RED has been applied, Firma Feryn.150 In this case,
both AG Poiares Maduro151 and the ECJ clearly made an inclusive interpretation of
this expression, even if none of them addressed the issue directly. It concerns the public
declarations made by one of the firm’s directors about their recruitment policy, stating
141
142
143
144
145
146
147
148
149
150
151
For example. the Court of Human Rights has ruled that: ‘ethnicity has its origin in the idea of societal
groups marked by common nationality, tribal affiliation, religious faith, shared language, or cultural and
traditional origins and background’, Timishev, op cit n 93 supra, 55.
ECRI, General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination, (Council of Europe, 17/02/2003).
See eg Chacon Navas where the ECJ repeated its classical approach as regards concepts of EC Law,
stating that ‘the terms of a provision of Community law [. . .] must normally be given an autonomous and
uniform interpretation throughout the Community, having regard to the context of the provision and the
objective pursued by the legislation’ (op cit n 135 supra, 40).
See eg Case C-36/02 Omega v Oberbürgermeisterin Bonn [2004] ECR I-9609 33 (and other judgments there
mentioned).
L. Waddington, The Expanding Role of the Equality Principle in European Union Law (European University Institute, 2003) 22, available at http://www.iue.it/RSCAS/e-texts/CR2003-04.pdf.
Art 21(1) of the Charter.
Art 6(1)(2) TEU as amended by the Lisbon Treaty (op cit n 89 supra) establishes the binding character of
the Charter. However, this cannot result in an extension of the Community’s competences.
ibid.
Case C-540/03 European Parliament v Council [2006] ECR I-5769, 38.
Case C-54/07 Firma Feryn [2008] ECR I-5187.
AG Poiares Maduro’s Opinion in Firma Feryn (ibid), delivered on 12/03/2008.
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that they ‘aren’t looking for Moroccans [. . .] people often say: “no immigrants”’.152
Interestingly, the controversial declarations do not refer to any physical traits from
those which might be considered as being related to race, such as skin colour, facial
features or hair texture,153 but to the nationality of the applicants. Thus, it would have
been possible to argue that it was a case of non-EU nationality discrimination, excluded
from the scope of the RED.154 Yet, Poiares Maduro did not enter into this discussion
and directly identified these statements with racial discrimination: ‘[t]he announcement
that persons of a certain racial or ethnic origin are unwelcome as applicants for a job
is thus itself a form of discrimination’155 and concluded that it ‘constitutes direct
discrimination within the meaning of Article 2(2)(a) of the Directive [43/2000/EC]’.156
The ECJ did not define the concept of racial discrimination, but it ruled in the same
sense than AG Poiares Maduro, and indirectly confirmed its openness to a broad
interpretation.157
Finally, another argument in favour of a broad interpretation of the concept of racial
discrimination would be the existence of a general principle of Equality in the Community legal order. Indeed, it is possible to derive from the previous case law of the ECJ
in the field of equal treatment that Equality is ‘one of the fundamental principles of
Community law’.158 This case law has favoured broad interpretations of legal concepts
when the law had some loopholes159 or was not clear enough,160 by complementing it
with the principle of Equality. For instance, in Mangold, the ECJ has recently ‘overrule[d] the broad exceptions provided in the FED’161 in favour of an inclusive interpretation of the Directive. However, the case law is not uniform, and in cases such as
Grant162 or Chacón Navas163 the ECJ has also adopted more restrictive approaches,
closer to the literacy of the law.
V
Conclusion
The RED has been acknowledged for its ‘symbolic value’,164 but that is not enough to
effectively fight discrimination. Its loopholes and inconsistencies with the FD, considerably diminish its potential protective effect. This especially affects TCNs, who are still
152
153
154
155
156
157
158
159
160
161
162
163
164
ibid, at 3–4.
M. J. Bamshad, S. E. Olson, ‘Does Race Exist?’ 10/11/2003 Scientific American Magazine, available at:
http://schools.tdsb.on.ca/rhking/departments/science/bio/evol_pop_dyn/does_race_exist.pdf.
Recital 13 and Art 3(2) RED.
AG Poiares Maduro’s Opinion in Firma Feryn, op cit n 150 supra, at 16.
ibid, at 19.
Firma Feryn, op cit n 150 supra.
AG Poiares Maduro’s Opinion in Coleman, op cit n 104 supra, at 8. Tridimas also considers that an
underlying principle of Equality has been present in many fields of the case law of the ECJ (T. Tridimas,
The General Principles of EC Law (OUP, 2000) 40-88).
In the field of sex equality: Cases 149/77 Defrenne v Sabena [1978] ECR 1365, at 26-28 and 13/94 P v. S
and Cornwall County Council [1996] ECR I-2143.
Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981 and Coleman, op cit n 104 supra.
M. Jesse, ‘Missing in Action: Effective Protection for Third-Country Nationals from Discrimination
under Community Law—The Example of the hollow Interplay between the Racial Equality Directive and
the Long Term Residents Directive and its detrimental Consequences for Integration’, in E. Guild,
K. Groenendijk and S. Carrera (eds), Illiberal Liberal States: Immigration, Citizenship and Integration in
the EU, (Ashgate, forthcoming), 13.
Case C-249/96 Grant v. South-West Trains [1998] ECR I-621.
Chacon Navas, op cit n 135 supra.
See eg Howard, op cit n 9 supra.
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much more vulnerable to discrimination than EU citizens. With the current EC law
interpretation, TCNs are not protected against nationality discrimination and are less
protected against racial and religious discrimination. Therefore, the law has institutionalised different levels of coverage depending on ‘who’ and ‘what’, and has not only
created a hierarchy of equalities, but also a hierarchy of peoples.
Concerning the hierarchy of peoples, throughout this article we have seen that
TCNs, as human beings and also as ‘tax payers’, are equally valuable as EU citizens.
Accordingly, they deserve the same level of protection against race-related discrimination. On the other hand, racial, religious and nationality discrimination are linked to
the essence of human dignity and are equally unacceptable from a substantive point of
view. Therefore, a hierarchy between them cannot be justified either. The practice in
multi-dimensional discrimination cases also shows the need of a global approach and
a similar scope of protection for all race-related grounds.
However, even if in abstract terms none of these hierarchies can be justified, the ECattributed competences, as well as the principles of subsidiarity and proportionality,
may limit the reach of the Community legislation. Yet, without neglecting this constraint, the shift towards a stronger EC social policy and the insertion of Title IV and
Article 137(g) in the EC Treaty are pointing to the need of a progressive interpretation
at EC level.
Accordingly, two interpretative alternatives have been proposed, namely, the possible application of Article 12 EC to TCNs, and a broad interpretation of the concept
of ‘racial discrimination’. Both possibilities require further consideration and discussion, but already at the current stage of EC Law, the ECJ has shown some openness, for
example in its recent judgment in Firma Feryn.165 Ultimately, it may happen that the
current legislation does not provide enough flexibility to eliminate the existing hierarchies through interpretation alone. At that point, legislative amendments should be
considered, because, quoting Lissy Gröner, ‘[a]nti-discrimination policy can only be
credible if it itself does not discriminate further’.166
165
166
Firma Feryn, op cit n 150 supra.
Parliament (EC), Progress made in equal opportunities and non discrimination in the EU (debate), CRE
20/05/2008—6.
© 2009 Blackwell Publishing Ltd.
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European Law Journal
Volume 15
Annex I. EC Law Protection Against Racial, Religious and Nationality
Discrimination as Regards TCNs.
Source: author’s elaboration on the basis of the RED, the FD and the current interpretation of Article 12 EC.
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© 2009 Blackwell Publishing Ltd.