Opinion of the Advocate General — ECLI:EU:C:2016:914
Date: 2016-12-01
Language of the case: Danish
Subject matter: Principles, objectives and tasks of the Treaties;Approximation of laws;Fundamental rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Denmark

Summary — Judgment of the Court (First Chamber), 6 April 2017 EU law — Principles — Equal treatment — Equal treatment between persons irrespective of racial or ethnic origin — Directive 2000/43 — Practice engaged in by a credit institution whereby a customer who has produced a driving licence indicating a country of birth other than a Member State of the European Union or the European Free Trade Association is required to produce additional identification — Lawfulness (Council Directive 2000/43, Art. 2(2)(a) and (b)) Article 2(2)(a) and (b) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin is to be interpreted as not precluding the practice of a credit institution which requires a customer whose driving licence indicates a country of birth other than a Member State of the European Union or of the European Free Trade Association to produce additional identification in the form of a copy of the customer’s passport or residence permit. It should be noted in that regard that the concept of ‘ethnicity’ has its origin in the idea of societal groups marked in particular by common nationality, religious faith, language, cultural and traditional origins and backgrounds (judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 46). While a person’s country of birth does not appear on that list of criteria, it should be noted that, as the list begins with the words ‘in particular’, it is not exhaustive and it cannot therefore be ruled out that a person’s country of birth might be included among those criteria. However, even if that were the case, it is clear that it is only one of the specific factors which may justify the conclusion that a person is a member of an ethnic group and is not decisive in that regard. Ethnic origin cannot be determined on the basis of a single criterion but, on the contrary, is based on a whole number of factors, some objective and others subjective. Moreover, it is not disputed that a country of birth cannot, in general and absolute terms, act as a substitute for all the criteria set out in paragraph 17 above. As a consequence, a person’s country of birth cannot, in itself, justify a general presumption that that person is a member of a given ethnic group such as to establish the existence of a direct or inextricable link between those two concepts. Furthermore, it cannot be presumed that each sovereign State has one, and only one, ethnic origin. It cannot therefore be concluded that, even if it were possible to classify it as ‘unfavourable treatment’, the requirement to provide the additional identification requested in the main proceedings is directly based on ethnic origin. With regard, in the second place, to whether such a practice constitutes indirect discrimination based on ethnic origin, it is necessary to determine whether, in the light of Article 2(2)(b) of Directive 2000/43, that practice, although on the face of it neutral, would put persons of a given racial or ethnic origin at a particular disadvantage compared with other persons. As the Advocate General observed in point 64 of his Opinion, for the purposes of ascertaining whether a person has been subject to unfavourable treatment, it is necessary to carry out, not a general abstract comparison, but a specific concrete comparison, in the light of the favourable treatment in question. It follows that the argument that the use of the neutral criterion at issue in the main proceedings, namely a person’s country of birth, is generally more likely to affect persons of a ‘given ethnicity’ than ‘other persons’ cannot be accepted. The same applies to the argument that the use of that criterion would place at a disadvantage persons whose ethnic origin is that of a country other than a Member State of the European Union or the EFTA. Reference should also be made to paragraphs 18 and 21 of this judgment, from which it is apparent that ethnic origin cannot generally be presumed on the sole basis of a person’s country of birth. (see paras 17-21, 23, 26, 32-34, 37, operative part)