UNDER EUROPEAN HUMAN RIGHTS LAW

UNDER EUROPEAN HUMAN RIGHTS LAW

The report is structured in three parts.

Part I offers an overview of the anti-discrimination clauses of the ECHR and of the relevant case-law of the European Court of Human Rights (EctHR). It notes in particular that the level of the scrutiny exercised by the Court will vary according to a largely implicit and evolving, but nevertheless identifiable, hierarchy of prohibited grounds of discrimination. Part I of the report includes a study of the added value of Protocol n°12 to the ECHR, providing for a general anti-discrimination clause. The author notes however, that the relatively low number of ratifications of this instrument as well as the timid approach it appears to take on the scope of positive obligations which may be derived from it will limit its effectiveness in imposing on States parties to adopt measures to combat discrimination in private relationships.

Part II examines the protection from discrimination under the ESC. It emphasizes the content of the nondiscrimination requirements derived from Article 1 para. 2 of the 1961 ESC and the 1996 Revised ESC (the right to work), as well as from Article 15 (the right of persons with disabilities to independence, social integration and participation in the life of the community) and Article 23 (the right of elderly persons to social protection), whether combined or not with the non-discrimination clause included in Article E of the 1996 Revised ESC. On the basis of this latter provision, the European Committee of Social Rights (ECmtSR) imposes on States parties to the Revised ESC a positive duty to promote equality which goes beyond what the ECtHR has imposed on the basis of Article 14 ECHR and what we may expect it to derive from Protocol n°12 to the ECHR. Part II of the report also examines the content of the practical measures (especially of a procedural nature) which the ECmtSR encourages the States bound by these provisions to adopt, which promote the full effectiveness of the efforts to combat discrimination according to these provisions.

Part III examines the relationship of these instruments and the case-law of those bodies to the interpretation of Directives 2000/43/EC and 2000/78/EC. An overview is proposed, ground per ground, of the questions of interpretation which the ECtHR and the ECmtSR have addressed, to the extent that they may influence the interpretation of the directives.

The conclusions which may be derived from the study concern both the general orientation of an antidiscrimination strategy based on legal tools and specific questions of interpretation relating to each of the grounds covered by the ‘Race’ and Framework Directives. At the level of the general orientation of the strategy against discrimination, the report concludes that in the progressive development of anti-discrimination law in Europe, despite the important influence traditionally exercised by the ECHR on fundamental rights in the legal order of the Union, the ESC may become of rising importance. It may be better placed than the EctHR to develop a jurisprudence on the need for an active labour policy aimed at the integration of target groups and, more generally, on the need for affirmative action directed towards the social and professional integration of the most vulnerable segments of the population. The report argues that combating discrimination requires more than prohibitions: it requires an active social and employment policy commensurate to the aim of realizing integration. On the other hand, the case-law of the EctHR under Article 14 ECHR may have an impact on certain specific issues of interpretation.

From the point of view of the impact on the interpretation of the ‘Race’ and Framework Directives of the reference to the jurisprudence of the ESC and the ECHR, the clearest lesson from the report is that such reference could lead to move beyond the explicit definition of indirect discrimination under Articles 2 § 2, b), of the both the ‘Race’ and the Framework Directives.

The report also draws two further conclusions with regard to two specific grounds of prohibited discrimination, namely disability and sexual orientation. In the context of the Framework Directive, the requirements deriving from Article 8 ECHR may be have a decisive role to play in order to counter the risk of discrimination against workers with disabilities resulting from the imposition of health and safety requirements creating an obstacle to their recruitment or their detainment. The same provision of the Convention may contribute to the effectiveness of the prohibition of direct discrimination on the ground of sexual orientation. On the other hand, the report shows that the EctHR has not considered that reserving advantages to married couples should be treated as discrimination based on sexual orientation in violation of Article 14 ECHR, read in combination with either Article 8 ECHR or Article 1 of Protocol n°1 to the ECHR, even under jurisdictions where marriage is not available to same-sex couples.