Equal rights versus special rights? Minority protection and the prohibition of discrimination

In regard to minorities and the adequate treatment of persons belonging to minorities, a central issue has been
whether this would require ‘equal’ rights or ‘special’ rights. The resulting, central question seemed to be whether one needs in addition to the prohibition of discrimination, also ‘special’ minority rights; or in other words to what extent does the prohibition of discrimination cater for the specific needs of minorities and contributes to an adequate minority protection.2
This concerns is actually an on-going debate, and it is hence unsurprising that it has also arisen in regard to the EU Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (29 June 2000, Directive 2000/43/EC; hereinafter: Racial Equality Directive), because of the obvious link between racial and ethnic groups on the one hand, and minorities on the other hand.

This study will demonstrate that there is no black and white answer to this question because everything depends
on how the concepts are interpreted. Indeed, everything depends on how ‘equality’ and ‘non-discrimination’ are
interpreted and approached.
While this study is triggered because of a concern to understand the position of the Racial Equality Directive in
this regard, the possible relevance of the position in terms of international law (instruments) is acknowledged and investigated as well.

It should furthermore be highlighted that some member states of the EU expressed concern about the
implications of the Racial Equality Directive’s prohibition of discrimination for the special minority rights they have in their national legal systems. In other words, they want to know whether having special minority rights in the national legal system, would be contrary to the demands of the Racial Equality Directive. While this study is mainly constructed around the central question identified in the first paragraph, this additional question will be addressed in the process.

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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