Non-discrimination
9 important questions on Non-discrimination
Legal framework EU
- Art. 21 CFR
- secundary EU-law: equal treatment directives
- Directive 200/43 (race) - CJEU CHEZ
- Directive 200/78 (religion, disabilities, age, sexual orientation) - CJEU Achbita
- Directive 2006/54 (gender)
Scope EU non-discrimination law
It is a 'closed system'
- exception direct discrimination
- however, this is not an absolute right
- directives specify when direct discrimination is allowed.
Directive 200/78 (religion, disability, age, sexual orientation) + difference ECHR
Difference ECHR
- before the ECHR you can only brig cases against a state, so this would not be able to happen before the ECtHR
- directives also apply to horizontal relationships between citizens.
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Compliance with article 14 ECHR
- Was the applicant treated differently from persons in analogous situations?
- was the difference in treatment objectively and reasonably justified?
Art. 14 ECHR; accessory character
Article 14 needs to be combined with another article otherwise it is not applicable.
Prohibited grounds (ECHR)
see: ECtHR Kiyutin v. Russia §56
Justification of the prohibited ground (ECHR )
- is there a legitimate aim?
- reasonable relationship of proportionality between the aim and the means employed
- no specific justification grounds
states enjoy a margin of appreciation in assessing the justification of difference in treatment.
- However, this margin is narrower and it has to have VWR for the restrictions, if it is about a group in society -> §63
- However, European consensus can also play a role in te consideration of the court -> §65
Very weighty reasons (VWR-test) ECHR
- Suspected ground of discrimination
- more serious grounds (see table)
narrow margin of appreciation
- state needs to prove there are VWR
- hardly any possibility for justifications
- because: you cannot help it (gender, skin, etc.)
ECHR burden of proof
State must proof justification
exception -> ECtHR D.H v. Czech Republic
- indirect discrimination
- evidence shown by applicant shows a rebuttable presumption
- burden of proof shifts to government to prove there has been made no discrimination
- + government needs to show justification
The question on the page originate from the summary of the following study material:
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