The Racial Equality Directive and Effective Protection against Discrimination: Mismatches between the Substantive Law and its Application

Abstract

The success of the Racial Equality Directive (RED) in terms of effective protection against discrimination depends inter alia on the coherence and correlation between its substantive and procedural provisions, both in terms of the wording of the Directive and in terms of its interpretation and application. In this article, three, "mismatches," between the substantive law and its application are identified. Effective protection against discrimination requires that these mismatches are avoided. First of all, a teleological interpretation of a substantive provision should be matched by corresponding (broad) enforcement provisions. Secondly, the interpretation and application of the definitions of direct and indirect discrimination need to ensure a proper delineation of these substantive concepts. Thirdly, these substantive concepts have to be appropriately translated in terms of the enforcement dimension. In this respect, the ECJ has an essential role to play. In view of its special position as ultimate interpreter and guardian of the unity of EU law, it needs to take up the task of ensuring the ‘match’, while providing adequate guidance to the national courts. Although the ECJ remedied the first mismatch through its generous interpretation of the, "flawed," enforcement provision, it has failed to avoid the two other mismatches and thus has not realised the most effective protection possible against discrimination. It is to be hoped that the willingness to avoid mismatches between substantive law and its application will manifest itself more broadly in the future.

Keywords: Racial Equality Directive, Direct discrimination, Indirect discrimination, Burden of proof, Enforcement