The Concept of Direct Discrimination in European Anti-Discrimination Law: Theory, Practice and Limits

Abstract

Direct discrimination is the earliest form of discrimination recognised under EU and ECHR anti-discrimination law and remains to this day a fundamental element of the European anti-discrimination doctrine. It translates the first part of the well-known Aristotelian formula according to which ‘likes should be treated alike’ and reflects an intuitive understanding of equality as equal treatment. Broadly defined, the notion of direct discrimination describes the situation in which a person or group is treated less favourably than another similarly placed person or group on grounds of a characteristic protected under anti-discrimination law. The chapter examines how the concept has been defined and interpreted in the context of EU and ECHR anti-discrimination law. It shows that although the Court of Justice of the European Union and the European Court of Human Rights have enforced the prohibition of direct discrimination with a number of variations, their case law reveals three common central elements: the existence of a difference in treatment, the link to a protected ground and the comparability requirement. By contrast, the two courts differ in their approach to justifications. The chapter shows that where EU law only foresees limited and narrow derogations to the prohibition of direct discrimination, the European Court of Human Rights admits an open list of justifications but applies a gradual form of scrutiny depending on whether the differential treatment concerns ‘suspect grounds’. Throughout, the chapter also proposes a critical appraisal of the concept and doctrine of direct discrimination.

Keywords: Direct discrimination; Equal treatment; Court of Justice of the European Union; European Court of Human Rights; European anti-discrimination law; Comparison; Justifications