The Prohibition of Discrimination under European Human ... - cridho

■ THE PROHIBITION OF DISCRIMINATION UNDER EUROPEAN HUMAN RIGHTS LAW ■
Introduction
This report offers an overview of the protection from discrimination under the European Convention on Human
Rights and the Revised European Social Charter, and seeks to identify aspects of that protection which could
influence the outstanding questions of interpretation of Directive 2000/43/EC of 29 June 2000 implementing the
principle of equal treatment between persons irrespective of racial or ethnic origin1 and Directive 2000/78/EC of
27 November 2000 establishing a general framework for equal treatment in employment and occupation2 .
Although other instruments adopted within the Framework of the Council of Europe may also in the future
influence the interpretation of the directives, insofar as they contain clauses protecting from discrimination based
on the membership of a national minority3 or on genetic heritage, 4 grounds which intersect with those of religion
or ethnic origin or of disability, the European Convention on Human Rights has been recognized to have a
particular significance in European Union law, and its requirements are to be considered part of the general
principles of Union law which the European Court of Justice applies as part of its task of ensuring that the law is
respected in the application of the Treaties. 5 The reference to the European Social Charter is justified to the extent
that the European Court of Justice has occasionally referred to that instrument for the interpretation of EC law. 6
The report is structured in three parts. Part I offers an overview of the anti-discrimination clauses of the European
Convention on Human Rights and of the relevant case-law of the European Court of Human Rights. Part II
examines the protection from discrimination under the European Social Charter, under the interpretation given to
the Charter by the European Committee of Social Rights (previously the Committee of Independent Experts)
either in its conclusions adopted on the basis of the periodic State reports, or in the context of collective
complaints. 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. Certain general comments are offered, after which an
overview is proposed, ground per ground, of the questions of interpretation which the European Court of Human
Rights and the European Committee of Social Rights have addressed, to the extent that they may influence the
interpretation of the directives.
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OJ L 180 of 19.7.2000, p. 22.
OJ L 303 of 2.12.2000, p. 16.
Framework Convention for the Protection of National Minorities (ETS n° 157), signed in Strasbourg on 1 February 1995, in force on 1 February
1998 : see Art. 4. On 15 January 2005,The Framework Convention had been ratified by all the Member States of the EU, with the exception of
Belgium, France, Greece, Latvia, Luxemburg and the Netherlands.
Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine :
Convention on Human Rights and Biomedicine (ETS n° 164), signed in Oviedo on 4 April 1997, in force on 1 December 1999: see Article 11.
See, in the context of the EC Treaty, article 220 EC.
Case 149/77, Defrenne v. Sabena [1978] ECR 1365, at para. 26. See also Case 6/75, Horst v. Bundesknappschaft [1975] ECR 823, at 836.
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thematic report