Lecture 3 Non-discrimination and Equal treatment
Nicola Gundt 29 April 2019
This was one of the first things regulated, think about the equal pay of men and women. We
didn’t start with regulating this because we wanted to be nice to employees. It had a far more
economic reason, see the lectures before. Labour law all started with this one small provision
and then it all blew out.
Equal treatment as Fundamental Right
UN Declaration of Fundamental Rights: art. 1 One source is the UN Declaration. You
find the same in article 2 of the TFEU. Second sentence mentions the non-
discrimination.
• Art. 2 TEU about the EU’s values
• EU Charter of Fundamental Rights: art. 21 (e.g. Egenberger case) and art. 23, in
combination with art. 47 (enforcement) the development started with a case
regarding age discrimination and the court of justice said; the right for non-
discrimination is a fundamental social value and it has been clarified in the directives
but it has been there since the beginning. So with regarding to age that you could
provoke that to the private employer. This is something completely different than
saying it is a social principle. If the court says that it is a general principle of law, fine.
But if that means that an employer will have right and duties, that is a different thing.
One is the abstract thing of the right that states have acknowledged. The other one is
that the employer should take into account all these fundamental social rights. We
now this for age discrimination. The employee can rely on article 21 of the Charter in
order to get that measure undone. In Egenberger the Court of Justice added the
freedom of religion. The same thing said in the other case was held true for the
freedom of religion. This also means that an employee can invoke article 21 of the
charter. Then the problems comes up: what about the other criteria’s of article 21.
Some of the criteria have not been laid down in the article. There is no directive of
that. Could you say that it is a fundamental right?
Article 23: equality between men and women there is no case law on this topic.
There has been case law on article 21, but none on article 23.
• Art. 14 ECHR it’s not that important because it’s an accessory right. It needs
another right in order to be revoked.
• Art. 20 ESC, limited and indirectly applicable via art. 6 TEU know that it exists, but
not all countries accept the rights in there and the ESC does not have a court about
it. So there is no enforcement, making the rights less enforceable.
What does it mean?
• Equal treatment of equal cases
• Unequal treatment of unequal cases
The court of justice thinks this is the core of everything. Then another thing is important, you
need to find a relevant difference. By this we mean a difference that is forbidden by law. Find
a relevant difference in law. Example: if you only want to hire people who can sing (has
nothing to do with the work), it is not forbidden by law.
Another example in Danish case: the person was pretty overweight. He thought that he was
dismissed because of the fact that he was too large. Is that discrimination? CoJ said no. Just
being overweight is not a relevant discrimination. If this adds up to someone being disabled,
it becomes a different thing because you have a relevant criteria. If you find that he had
diabetes, he could not stand long etc. than that would have been a different story. But just
being overweight is not something that was forbidden. There you see the relevant
differences. If you can’t fine relevant differences, you don’t have a case.
1
, There are two forms of unequal treatment and one of them is often forgotten. Think about the
Me too movement. Harassment is a form of discrimination. When you create an environment
where women don’t feel safe, it is harassment and discrimination.
• Only relevant differences count
• “suspect” criterion needed
• What about art. 21 CFREU “such as”?
• Prohibition of harassment
• Instruction to discriminate happens a lot in cases that involve agencies.
Suspect criteria
• Nationality (art. 18 TFEU) it is not allowed to discriminate on the bases of
nationality according to EU law. This will come up in social security law. Also
important for health law, getting the same care as nationals.
• Other criteria provided: Sex, racial/ethnic origin, religion/belief, disability, age, sexual
orientation (art. 19 TFEU) For us article 19 and the directives that follow from that
will be much more important. Realize that the directives are different. You have the
race directive / gender directive / framework directive. The race directive is very
broad, so not just access to work. The 2 others mostly relate to work. Take into
account that the gender directive is a directive combined from different directives.
The first chapter is on equal pay and equal pay only. The second chapter is on social
security. Chapter 3 is on equal treatment. The chapters have different grounds /
justifications. That is why the directive is difficult. The man / woman directive (Gender
directive) is not easy to use.
• Elaborated and specified in Directives
• Directives differ with regard to material scope
• Kücükdeveci on applicability in horizontal relations
• Egenberger (C-414/16, 17 April 2018) on the basis of art. 21 Charter
can be a legal base for an action against a private employer. What
about the other grounds laid down in article 21? There is a lot more
criteria there and in the directives. Can you rely on any other criteria,
also when they have not been codified in the directive? We don’t
know. There has been one Spanish case in which the issue was
raised. The CoJ answered the first question and didn’t have to answer
the question on how to deal with suspect criteria that do figure in the
directive and are not clarified in any directive. And the other way
around: things are that are laid down in the directive and do not figure
in article 21 of the charter. We still don’t know if it possible. What
would you think? If you want to make an equal case for genetic
features. It is not in any of the directives. What do you have to show?
It is laid down in article 21 and is a forbidden criteria. Is that enough?
You have to show at least some sort of general agreement that this
really should not be done. It would really depend on what case it is to
know how the Court of Justice will decide. Genetic features could also
mean people with a possibility of genetic diseases. They can rely on
this.
stick to those that have been laid down in the directive.
Article 19 is related to the person: age / sex / disability. The other directive
is not related to the person.
• Applicable to other grounds in art. 21?
• Part-time, fixed-term, agency work
Direct vs indirect discrimination
The question is directly related to whether or not something is direct / indirect discrimination.
• Direct:
• Different (less favourable) treatment directly linked to suspect criterion
2
Nicola Gundt 29 April 2019
This was one of the first things regulated, think about the equal pay of men and women. We
didn’t start with regulating this because we wanted to be nice to employees. It had a far more
economic reason, see the lectures before. Labour law all started with this one small provision
and then it all blew out.
Equal treatment as Fundamental Right
UN Declaration of Fundamental Rights: art. 1 One source is the UN Declaration. You
find the same in article 2 of the TFEU. Second sentence mentions the non-
discrimination.
• Art. 2 TEU about the EU’s values
• EU Charter of Fundamental Rights: art. 21 (e.g. Egenberger case) and art. 23, in
combination with art. 47 (enforcement) the development started with a case
regarding age discrimination and the court of justice said; the right for non-
discrimination is a fundamental social value and it has been clarified in the directives
but it has been there since the beginning. So with regarding to age that you could
provoke that to the private employer. This is something completely different than
saying it is a social principle. If the court says that it is a general principle of law, fine.
But if that means that an employer will have right and duties, that is a different thing.
One is the abstract thing of the right that states have acknowledged. The other one is
that the employer should take into account all these fundamental social rights. We
now this for age discrimination. The employee can rely on article 21 of the Charter in
order to get that measure undone. In Egenberger the Court of Justice added the
freedom of religion. The same thing said in the other case was held true for the
freedom of religion. This also means that an employee can invoke article 21 of the
charter. Then the problems comes up: what about the other criteria’s of article 21.
Some of the criteria have not been laid down in the article. There is no directive of
that. Could you say that it is a fundamental right?
Article 23: equality between men and women there is no case law on this topic.
There has been case law on article 21, but none on article 23.
• Art. 14 ECHR it’s not that important because it’s an accessory right. It needs
another right in order to be revoked.
• Art. 20 ESC, limited and indirectly applicable via art. 6 TEU know that it exists, but
not all countries accept the rights in there and the ESC does not have a court about
it. So there is no enforcement, making the rights less enforceable.
What does it mean?
• Equal treatment of equal cases
• Unequal treatment of unequal cases
The court of justice thinks this is the core of everything. Then another thing is important, you
need to find a relevant difference. By this we mean a difference that is forbidden by law. Find
a relevant difference in law. Example: if you only want to hire people who can sing (has
nothing to do with the work), it is not forbidden by law.
Another example in Danish case: the person was pretty overweight. He thought that he was
dismissed because of the fact that he was too large. Is that discrimination? CoJ said no. Just
being overweight is not a relevant discrimination. If this adds up to someone being disabled,
it becomes a different thing because you have a relevant criteria. If you find that he had
diabetes, he could not stand long etc. than that would have been a different story. But just
being overweight is not something that was forbidden. There you see the relevant
differences. If you can’t fine relevant differences, you don’t have a case.
1
, There are two forms of unequal treatment and one of them is often forgotten. Think about the
Me too movement. Harassment is a form of discrimination. When you create an environment
where women don’t feel safe, it is harassment and discrimination.
• Only relevant differences count
• “suspect” criterion needed
• What about art. 21 CFREU “such as”?
• Prohibition of harassment
• Instruction to discriminate happens a lot in cases that involve agencies.
Suspect criteria
• Nationality (art. 18 TFEU) it is not allowed to discriminate on the bases of
nationality according to EU law. This will come up in social security law. Also
important for health law, getting the same care as nationals.
• Other criteria provided: Sex, racial/ethnic origin, religion/belief, disability, age, sexual
orientation (art. 19 TFEU) For us article 19 and the directives that follow from that
will be much more important. Realize that the directives are different. You have the
race directive / gender directive / framework directive. The race directive is very
broad, so not just access to work. The 2 others mostly relate to work. Take into
account that the gender directive is a directive combined from different directives.
The first chapter is on equal pay and equal pay only. The second chapter is on social
security. Chapter 3 is on equal treatment. The chapters have different grounds /
justifications. That is why the directive is difficult. The man / woman directive (Gender
directive) is not easy to use.
• Elaborated and specified in Directives
• Directives differ with regard to material scope
• Kücükdeveci on applicability in horizontal relations
• Egenberger (C-414/16, 17 April 2018) on the basis of art. 21 Charter
can be a legal base for an action against a private employer. What
about the other grounds laid down in article 21? There is a lot more
criteria there and in the directives. Can you rely on any other criteria,
also when they have not been codified in the directive? We don’t
know. There has been one Spanish case in which the issue was
raised. The CoJ answered the first question and didn’t have to answer
the question on how to deal with suspect criteria that do figure in the
directive and are not clarified in any directive. And the other way
around: things are that are laid down in the directive and do not figure
in article 21 of the charter. We still don’t know if it possible. What
would you think? If you want to make an equal case for genetic
features. It is not in any of the directives. What do you have to show?
It is laid down in article 21 and is a forbidden criteria. Is that enough?
You have to show at least some sort of general agreement that this
really should not be done. It would really depend on what case it is to
know how the Court of Justice will decide. Genetic features could also
mean people with a possibility of genetic diseases. They can rely on
this.
stick to those that have been laid down in the directive.
Article 19 is related to the person: age / sex / disability. The other directive
is not related to the person.
• Applicable to other grounds in art. 21?
• Part-time, fixed-term, agency work
Direct vs indirect discrimination
The question is directly related to whether or not something is direct / indirect discrimination.
• Direct:
• Different (less favourable) treatment directly linked to suspect criterion
2
