New Issues, Theories and Methods
Judicial Review and Cooperation series
Edited by Bruno de Witte, Juan A. Mayoral, Urszula Jaremba, Marlene Wind and Karolina Podstawa
Chapter 12: Whither judicial Europeanization? The case of the Race Equality Directive
‘All Europeans, not only minority populations, tend to lack awareness of their rights.’ This was the broad assessment offered by the European Commission in 2014 concerning the application of the two anti-discrimination Directives that the European Union (EU) adopted in 2000. More specifically, though, looking at the equality jurisprudence of the Court of Justice of the European Union (CJEU), individuals in Europe seem to be much more aware of the justiciability of discrimination based on gender or age than they are of the legal provisions available when religious or racial discrimination occurs. Since the Employment Equality Directive (EED) and the Racial Equality Directive (RED) entered into force (offering protection from discrimination based on religion or belief, disability, age and sexual orientation) the CJEU has decided more than thirty cases of discrimination on the grounds of age, six on disability, four on sexual orientation, none on religion, and only a few on racial discrimination. The small volume of jurisprudence on racial discrimination is especially surprising in light of three areas of consideration. First, Eurobarometer respondents have constantly indicated race and ethnic origin as the principal motives for discrimination in the European Union over the last ten years. Thus, the absence of case law cannot be considered a sign that race discrimination is not a European problem. Second, the RED’s range of application is much wider than that of the EED. The RED offers protection from discrimination on the grounds of race and ethnic origin regarding access to all goods and services available to the public, including education and employment. The EED is limited to employment alone. Third, the RED extended non-discrimination rights in a majority of EU Member States where statutes against race discrimination were not as protective. In terms of substantive law, the RED introduced the concept of indirect racial discrimination throughout most of continental Europe, according to which ‘discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared to other persons’. In a crucial and far-reaching manner, both Directives were designed to improve the availability of the means for individual and collective judicial redress, or, in other words, the ‘procedural rights’ of discrimination plaintiffs. They provided for a shift in the burden of proof to the defendant and facilitated access to collective redress. In addition, the RED mandated the establishment of ‘equality bodies’: State agencies tasked with providing independent assistance to victims of discrimination. All these factors taken together meant that it was legitimate to expect an increase in the use of judicial redress for cases of racial discrimination throughout the EU.
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