The old wine and the new cask: The implications of the Charter of Fundamental Rights for European non-discrimination law

EU anti-discrimination law has evolved in several stages. While resting on the provisions of the Treaties, European anti-discrimination law has been characterised by the interplay of jurisprudence on general principles of EU law and on the equality directives.48 As a landmark development in the early 2000s, the currently operative Article 19 (ex Article 13) directives on non-discrimination were enacted in two waves. They in part replace the old equality directives and in part expand their scope of application. After the Lisbon Treaty, the proper incorporation of the EU Charter of Fundamental Rights, as well as the arrival of the European Convention on Human Rights, add further layers to this regime. In January 2013 the European Court of Human Rights (ECtHR) already rendered two judgments in cases where domestic proceedings had been conducted under transposed EU anti-discrimination directives.

The EU Charter is a unique instrument of human rights protection. It is the youngest bill of rights in Europe, with the most comprehensive non-discrimination and equality clauses of its genre. Yet its application is limited to the institutions of the Union and ‘the Member States only when they are implementing Union law’ (Article 51(1)). Also, the level of protection offered by the Charter is established with reference to the Union’s international obligations, to the European Convention on Human Rights, and to the constitutions of the Member States (Article 53). Thus, the application and impact of the Charter is highly dependent on several additional factors ranging from the Treaties of the Union to the jurisprudence of the ECtHR.

This article reflects on the impact of the EU Charter on the equality jurisprudence of the CJEU. The arrival of the Charter presents a unique opportunity: the Charter has the potential to become a consolidating force, infusing EU anti-discrimination law with a human rights perspective. There have been several notable attempts by the Court of Justice and the Attorneys General to exploit the Charter in discrimination cases. Still, in the light of recent developments it is yet to be determined whether the Charter indeed is capable of providing a much-awaited ‘authoritative foundation’ for EU non-discrimination law.