Limits and potential of the concept of indirect discrimination

The prohibition of discrimination is a cornerstone of European Community law. It is therefore not surprising that
the distinction between different forms of discrimination is of great relevance in its practical application. The most important distinction is that between direct and indirect discrimination. However, important as it is, this distinction does not appear in the wording of the EC Treaty, the basic text of EC law. Rather, it has been developed by the Court of Justice through its case law since the 1960s, in order to enhance the effectiveness of EC non-discrimination law.

Today, the concept of indirect discrimination has a firm place in both international human rights law and in EC law.
In international human rights law, legal texts such as the Convention on the Elimination of Racial Discrimination,
the Convention on the Elimination of All Forms of Discrimination AgainstWomen, and the Convention on the Rights of Persons with Disabilities explicitly define discrimination as an effects-based concept. Under these Conventions, the prohibition of discrimination therefore includes measures that are not discriminatory at face value but are discriminatory in fact and effect, i.e. indirect discrimination. Similarly, the relevance of the concept of indirect discrimination has been recognised by the European Court of Human Rights in relation to the European Convention on Human Rights. Under this case law, a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group.

The European Network of Legal Experts in the Non-discrimination Field http://www.non-discrimination.net/

European Commission: DG Justice: Tackling discrimination http://ec.europa.eu/justice/discrimination/index_en.htm

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