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  • Writer's pictureDr. Nora Szabo, LL.M.

ANTI-DISCRIMINATION RULES BASED ON EUROPEAN LAW


Part II - European Law Overview


Following World War II, the Council of Europe as an intergovernmental organization was formed in order to promote democracy and human rights.


In the year 1950, the members of the Council of Europe adopted the Convention for the Protection of Human Rights and Fundamental Freedoms, which entered into force September 3, 1953.


This Convention was the first of the modern human rights treaties drawing from the United Nations Universal Declaration of Human Rights. It sets out a legally binding obligation for its members to guarantee a list of human rights to everyone within their jurisdiction, not just citizens.” [1]



The implementation of the Convention, which has non-discrimination regulations enshrined within its content, is reviewed by the European Court of Human Rights, which hears cases brought against member states. “The Convention’s Article 14 guarantees the equal treatment regarding the rights as set forth therein, further Protocol 12 of the Convention expands the scope of the prohibition of discrimination to equal treatment in the enjoyment of any right, including rights under national law.”[2]


Given that the European Union was supposed to enact the establishment of a free trade agreement, no particular anti-discriminatory human right issues were forecasted until the European Union’s Court of Justice found more and more human right related complaints in their workload of cases. Thereby, “the CJEU developed a body of judge-made laws, known as the ‘general principles’ of Community Law.”[3]


The European Union’s legal regulations in the subject matter of anti-discrimination law were originally limited to prohibiting discrimination based on sex in employment law and then evolved into the non-discrimination principle becoming one of the fundamental values of the European Union, whereas:


The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”[4]


Similarly as seen in the anti-discrimination law applicable in the United States of America, the European Union prescribes that:


In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.[5]


The European Union’s Charter of Fundamental Rights enhances the anti-discrimination law of the aforementioned treaties by declaring:


1. Any discrimination based on any ground such as sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.


2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.”[6]


The European Union’s directives evolved over time and expanded the scope of anti-discrimination law from the context of employment to accessing the welfare system and social security, as well as in the area of goods and services. These declared rights allowed for individuals to freely and equally pursue their full potential in the employment market, by being guaranteed equal access to significant areas such as education, healthcare and housing.


Based on the above, it is visible, that no matter if we consider the Constitution of the United States of America of the national constitution of the Member States of the European Union, anti-discrimination law globally is a ground pillar of human society.


Thereby, a civilized society will always prohibit discrimination per se, since from a cultural aspect, in the arena of anti-discrimination law a very high resemblance exists among the continental law and common law countries, globally prohibiting any shape or form of discrimination.


***



*ALL RIGHTS RESERVED. This blogpost may not be used in any way, shape or form, furthermore it does not serve as legal advice and does not constitute any kind of legal assignment agreement. In case of questions or remarks, please feel free to contact us at nora.szabo@noraszabolaw.com.


Sources: [1] “Handbook on European Non-Discrimination Law”, European Union Agency of Fundamental Rights and the Council of Europe (2018 Edition) page 18. [2] “Handbook on European Non-Discrimination Law”, European Union Agency of Fundamental Rights and the Council of Europe (2018 Edition) page 18. [3] “Handbook on European Non-Discrimination Law”, European Union Agency of Fundamental Rights and the Council of Europe (2018 Edition) page 20-24. [4] Article 2 of the Treaty on the European Union [5] Article 10 of the Treaty on the Functioning of the European Union [6] Article 21 of the European Union’s Charter of Fundamental Rights

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