European equality law review. 2019/1.
Date: 2019-07-17
Institutions: Directorate-General for Justice and Consumers
Subjects: Community acquis, EU law, EU law - national law, equal treatment, gender equality, national implementing measure, serial publication, sexual discrimination, social legislation

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ISSN 2443-9606

European equality
law review

European network of legal experts in 
gender equality and non-discrimination

2019/1

IN THIS ISSUE

 ■ The legal standing of equality bodies

 ■ The Bauer et al. and Max Planck judgments and EU 

citizens’ fundamental rights: An outlook for harmony

 ■ Matters of individual conscience or non-discriminatory 

access to public services and goods?

 ■ Protection from victimisation in the workplace: 

Comparative EU-Icelandic perspectives

Justice  
and Consumers

EUROPEAN COMMISSION

Directorate-General for Justice and Consumers 
Directorate D — Equality and Union citizenship 
Unit D.1 Non-discrimination and Roma coordination
Unit D.2 Gender Equality

European Commission
B-1049 Brussels

EUROPEAN COMMISSION

European equality law review

Issue 1 / 2019

2019 

Directorate-General for Justice and Consumers

 
 
 
 
 
 
 
 
 
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Print   ISSN 2443-9592  DS-AY-19-001-EN-C
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© European Union, 2019

Contents

Introduction on the state of play  

Members of the European network of legal experts in gender equality and non-discrimination 

The legal standing of equality bodies 
Tamás Kádár

The Bauer et al. and Max Planck judgments and EU citizens’ fundamental rights: An outlook  
for harmony 
Sybe A. de Vries

Matters of individual conscience or non-discriminatory access to public services and goods? 
Romanița Elena Iordache

Protection from victimisation in the workplace: Comparative EU-Icelandic perspectives 
Herdís Kjerulf Thorgeirsdóttir

European case law update

Court of Justice of the European Union 
European Court of Human Rights 

Key developments at national level in legislation, case law and policy

v

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1

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30

44

62
71

76

77

79

81

82

86

87

89

90

93

94

96

99

Albania 

Belgium 

Bulgaria  

Croatia 

Cyprus 

Denmark 

Estonia 

Finland 

France 

Germany 

Greece 

Hungary 

Iceland 

Ireland 

Italy 

Latvia 

Luxembourg 

Netherlands 

Poland 

102

103

104

105

 106

109

iii

Portugal 

Romania 

Slovakia 

Spain 

Sweden 

Turkey 

United Kingdom 

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115

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 120

122

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iv

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Introduction on the state of play 

This is the ninth issue of the biannual European equality law review, produced by the European network 
of legal experts in gender equality and non-discrimination (EELN). The Network is pleased to confirm 
that the European equality law review will continue to be published for another four years.1 This issue 
provides an overview of legal and policy developments across Europe and as far as possible reflects 
the state of affairs from 1 July to 31 December 2018. The aim of the EELN is to provide the European 
Commission and the general public with independent information regarding gender equality and non-
discrimination law and, more specifically, the transposition and implementation of the EU equality and 
non-discrimination directives.

In this issue

This Law Review opens with four in-depth analytical articles. First, Tamás Kádár, Deputy Director and 
Head of Legal and Policy at Equinet, the European Network of Equality Bodies, analyses the legal standing 
of equality bodies with a particular focus on Belgium, Romania and Sweden. The article explores different 
forms of legal standing as well as the different ways in which equality bodies have used their standing to 
ensure effective enforcement of the EU non-discrimination directives. In the second article, Sybe de Vries, 
Professor of EU Single Market Law and Fundamental Rights at Utrecht University, explores the question 
of the horizontal direct effects of the EU Charter of Fundamental Rights for gender equality after the 
2018  landmark  decision  of  the  CJEU  in  Bauer.2  In  the  third  article,  the  Romanian  non-discrimination 
expert Romanița Iordache examines the practice of invoking a religious ethos to discriminate notably 
on grounds of sexual orientation in access to goods and services. Finally, the article section of this Law 
Review closes with an article by the Icelandic gender equality expert Herdís Thorgeirsdóttir tackling the 
issue of victimisation and the protection afforded by EU gender equality law. This Law Review also offers 
a section presenting the most recent case law of the Court of Justice of the European Union and of the 
European Court of Human Rights in the field of gender equality and non-discrimination, and closes with a 
section detailing the most recent developments in legislation, case law and policy at the national level.3

Recent developments at the European level4

In July 2018, the European Parliament published its revised guidelines on how to use gender-neutral 
language in the Parliament.5 The guidelines were first published in 2008 and provide practical advice in 
all official languages of the European Union on the use of gender-fair and gender-inclusive language. 
The aim of these guidelines is to encourage Members of the European Parliament to adopt a gender-
neutral/gender-fair/non-sexist use of language in order to reflect the principle of gender equality and 
non-discrimination  on  grounds  of  gender  which  is  deeply  rooted  in  the  Treaties  and  the  Charter  of 
Fundamental  Rights  of  the  European  Union.  The  guidelines  are  also  to  be  applied  in  parliamentary 
publications and communications. It is hoped that using gender-fair and inclusive language also helps to 
reduce gender stereotyping, promotes social change and contributes to achieving gender equality. 

1 
2 

3 

4 
5 

The intention is four years upon annual renewal. 
C-569/16 Stadt Wuppertal v Maria Elisabeth Bauer and Volker Willmeroth v Martina Broßonn, Judgment of 6.11.2018, 
EU:C:2018:871.
On the basis of information provided by the national experts, the sections on non-discrimination were drafted by 
Catharina Germaine of the Migration Policy Group while the sections on gender equality were drafted by Raphaële 
Xenidis and Franka van Hoof of Utrecht University. Catharina Germaine made the final compilation.
This section, like the rest of the Review, covers the period of 1 July to 31 December 2018.
Gender-neutral language in the European Parliament, full text available at: www.europarl.europa.eu/cmsdata/151780/
GNL_Guidelines_EN.pdf.

v

Protocol No 16 to the Council of Europe Convention for the Protection of Human Rights and Fundamental 
Freedoms6 was ratified by 10 State parties7 and entered into force on 1 August 2018, allowing the higher 
courts of ratifying states to request advisory opinions from the ECtHR on the interpretation or application 
of the Convention and the rights it protects. The first request under this protocol was made by the French 
Cour de Cassation on 11 October 2018 in the context of domestic judicial proceedings concerning the 
legal recognition of parents of a child born abroad through a surrogacy arrangement. On 3 December 
2018, the Strasbourg Court agreed to review the French court’s request and questions.8 In accordance 
with Protocol 16, the opinion of the ECtHR will be issued by the Grand Chamber’s panel of five judges 
and will not be binding.

Members  of  the  European  Parliament  adopted  an  own-initiative  report  on  measures  to  prevent  and 
combat mobbing and sexual harassment at the workplace, in public spaces and in political life in the 
EU on 11 September 2018.9 Following up on the #MeToo movement, MEPs from the Women’s Rights 
and Gender Equality Committee (FEMM) drafted the report proposing measures to combat mobbing and 
sexual harassment in the EU. FEMM calls on the EU Commission to propose a directive against all forms 
of violence against women, including updated definitions and legal standards treating it as a crime. The 
report has been forwarded to the European Commission for consideration.

In  October  2018,  the  European  Parliament  adopted  a  resolution  calling  for  action  against  the  recent 
surge in racism, fascism and xenophobia, voicing concern about the increasing normalisation of such 
movements in some Member States.10 Denouncing the lack of serious action against neo-Fascist and neo-
Nazi groups in Europe, Parliament called on national authorities to effectively ban groups, foundations 
and associations that ‘exalt and glorify’ Nazism and fascism. 

The  European  Union  Agency  for  Fundamental  Rights  (FRA)  published  two  reports  in  November  2018 
which were of direct relevance to the work of the Network. First, a report providing an overview of data 
available in the EU on antisemitism between 2007 and 2017 was published, drawing on international 
organisations as well as official and unofficial sources in the Member States.11 The report highlighted 
the concerning levels of antisemitic hate speech and hate crime, discrimination, unequal treatment and 
harassment, while noting the importance of relevant equality data. The second FRA report attempted 
to provide a picture of what ‘Being Black in the EU’12 means, by outlining some selected results from 
its second EU MIDIS survey on migrants and minorities. The report examined the experiences of almost 
6 000 people of African descent across 12 EU Member States, showing that both discrimination and 
harassment as well as racial profiling by police are common phenomena in the everyday lives of black 
Europeans.

In November 2018, the European Commission’s High-Level Group on combating racism, xenophobia and 
other  forms  of  intolerance  published  a  Guidance  Note  on  the  practical  application  of  the  Framework 

6 

7 
8 

9 

10 

11 

12 

Council of Europe Treaty Series-N0.214, Protocol No 16 to the Convention for the Protection of Human Rights and 
Fundamental Freedoms, Strasbourg 2.X.2013, available at: https://www.coe.int/en/web/conventions/full-list/-/
conventions/rms/0900001680084832.
Albania, Armenia, Estonia, Finland, France, Georgia, Lithuania, Netherlands, San Marino, Slovenia and Ukraine.
See Registrar of the Court, Press release ECHR 415 (2018), ‘Grand Chamber Panel accepts first request for an advisory 
opinion under Protocol 16’ (European Court of Human Rights, 4 December 2018) available at: http://hudoc.echr.coe.int/
app/conversion/pdf/?library=ECHR&id=003-6269064-8165703&filename=Grand%20Chamber%20Panel%20accepts%20
first%20request%20for%20an%20advisory%20opinion%20under%20Protocole%2016.pdf.
European Parliament resolution of 11 September 2018 on measures to prevent and combat mobbing and sexual 
harassment at workplace, in public spaces, and political life in the EU (2018/2055(INI)), available at: http://www.europarl.
europa.eu/doceo/document/TA-8-2018-0331_EN.html?redirect.
European Parliament resolution of 25 October 2018 on the rise of neo-fascist violence in Europe (2018/2869(RSP)), 
available at: http://www.europarl.europa.eu/doceo/document/TA-8-2018-0428_EN.html?redirect.
FRA (2018), Antisemitism – Overview of data available in the European Union 2007-2017, available at: http://fra.europa.eu/en/
publication/2018/antisemitism-overview-2007-2017.
FRA (2018), Being Black in the EU – Second European Union Minorities and Discrimination Survey, available at: http://fra.
europa.eu/en/publication/2018/eumidis-ii-being-black.

vi

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Introduction

Decision on Combating Racism and Xenophobia13 on its 10-year anniversary. The aim of the Guidance 
Note is to assist national authorities in addressing common issues encountered in the practical application 
of  the  Framework  Decision  and  to  ensure  effective  investigation,  prosecution  and  sentencing  of  hate 
crime and hate speech on the ground.

On 29 November 2018, the Rights, Equality and Citizenship (REC) Annual Work Programme for 2019 
was adopted.14 With a total budget of EUR 64 771 000, the Work Programme will finance activities that 
strive to protect rights or promote non-discrimination, aiming to contribute to the Commission’s priority 
‘An  area  of  Justice  and  Fundamental  Rights  Based  on  Mutual  Trust’.  More  particularly,  the  relevant 
budget line related to the promotion of non-discrimination and equality amounts to EUR 37 262 000 and 
contains a number of highly relevant focus areas for future projects.

Finally,  in  further  response  to  the  #MeToo  movement,  the  Gender  Equality  Commission  (GEC)  of  the 
Council of Europe (CoE) adopted the draft Committee of Ministers recommendation on preventing and 
combating sexism on 7 December 2018.15 The recommendation provides an international definition of 
sexism  and  proposes  a  list  of  comprehensive  measures  to  address  it.  The  recommendation,  which  is 
the first international legal instrument to prevent sexism, is embedded in the legal framework of the 
Istanbul Convention which provides the legal basis for its implementation. Parties to the Convention are 
required, “to promote changes in the social and cultural patterns of behaviour of women and men with 
a view to eradicating prejudices, customs, traditions and all other practices which are based on the idea 
of the inferiority of women or on stereotyped roles for women and men”, and also requires that “parties 
criminalise stalking and take the necessary measures to ensure that sexual harassment is subject to 
criminal  or  other  legal  sanctions”.16  The  Recommendation  was  finally  adopted  by  the  Committee  of 
Ministers on 28 March 2019.17

Network publications and activities

On  30  November  2018,  the  Network  held  its  annual  legal  seminar  in  Brussels,  including  a  highly 
appreciated keynote address delivered by Eleanor Sharpston, Advocate General at the Court of Justice of 
the EU. Similar to previous years, thematic workshops were also held in relation to the issues covered by 
the thematic reports published that year by the Network, in addition to the recurring workshop providing 
an update on recent case law of the Court of Justice and of the European Court of Human Rights. 

Five  thematic  reports  were  published  during  the  second  half  of  2018,  including  one  on  the  rights  of 
transgender  and  intersex  people,  by  Marjolein  van  den  Brink  and  Peter  Dunne,  which  analyses  the 
national, EU and international legal developments in relation to discrimination on the grounds of sex, 
gender identity and gender expression. This report was selected by the EU Publications Office as one of 
the key publications of the European Union for 2019. 

15 

14 

13  High-Level Group on combating racism, xenophobia and other forms of intolerance (2018), Guidance note on the practical 
application of Council Framework Decision 2008/913/JHA on Combating Certain Forms and Expressions of Racism and 
Xenophobia by Means of Criminal Law, available at: https://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=51025.
Commission Implementing Decision on the financing of the Rights, Equality and Citizenship Programme and the adoption 
of the work programme for 2019, C(2018) 7916 final, Brussels, 29.11.2018. Available at: https://ec.europa.eu/newsroom/
just/item-detail.cfm?item_id=639676.
Council of Europe, Gender Equality Commission, CEG-DC sexism (2018) draft Committee of Ministers recommendation to 
prevent and combat sexism, Strasbourg 21 September 2018, available at: https://rm.coe.int/gec-dc-sexism-2018-report-
september/16808ec28a.
All EU Member States and the European Union are party to the Council of Europe Convention on preventing and 
combating violence against women (Istanbul Convention). Full text of the Istanbul Convention is available at: www.coe.
int/en/web/conventions/full-list/-/conventions/rms/090000168008482e.
Recommendation CM/Rec(2019)1 of the Committee of Ministers to member States on preventing and combating sexism, 
Strasbourg, 27 March 2019, available at: https://search.coe.int/cm/pages/result_details.aspx?objectid=090000168093b26a.

17 

16 

vii

With  regard  to  non-discrimination,  two  thematic  reports  were  published.  Firstly,  Lisa  Waddington  and 
Andrea  Broderick  authored  a  report  related  to  disability  equality  and  non-discrimination,  providing 
a  comprehensive  analysis  of  the  UN  and  EU  legal  provisions  addressing  disability  equality  and  non-
discrimination. Secondly, a thematic report, entitled Equality bodies making a difference, was produced 
by Niall Crowley, former chief executive of the Equality Body in Ireland and an independent expert in 
equality  and  human  rights.  The  report  established  the  state  of  play  of  equality  bodies  in  Europe  by 
building on, updating and developing further the existing literature on the topic. 

Two thematic reports were also published in the area of gender equality. In the first of these, Annick 
Masselot, a professor at the University of Canterbury, analysed the enforcement of the protection against 
dismissal  and  unfavourable  treatment  in  relation  to  the  take-up  of  family-related  leave.  Masselot 
identified enforcement gaps and good practices at EU and national level across the 28 Member States 
and three EEA countries: Iceland, Liechtenstein and Norway. 

In a second thematic report on gender equality, Susanne Burri, former coordinator for gender equality of 
the Network and associate professor at Utrecht University, looked back at 60 years of gender equality 
acquis and provided a comprehensive update on the central concepts, legal instruments and enforcement 
mechanisms of EU gender equality law. In addition to these thematic reports, the Network also published 
its annual comparative analyses of non-discrimination law in Europe 2018 and gender equality law in 
Europe 2018, as well as two issues of the European equality law review. 

As always, please check the Network’s website – www.equalitylaw.eu – for the full text of all reports.

Isabelle Chopin

Linda Senden

Marcel Zwamborn

Migration Policy Group

Utrecht University

Human European Consultancy

viii

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 IN MEMORIAM

Nada Bodiroga-Vukobrat

Our dear friend and colleague Nada Bodiroga-Vukobrat, gender equality expert for Croatia, passed away 
on 21 March 2019, leaving a void in the European network of legal experts in gender equality and non-
discrimination. 

Over  the  years  we  got  to  know  Nada  as  a  very  engaged,  inspiring  and  cheerful  person,  who  in  her 
professional career was strongly dedicated to the social dimension of the European integration process. 
Nada’s commitment to this cause was not only visible through her work for the Network, but also in her 
position as Jean Monnet chairholder where she organised many conferences and projects on European, 
national and transnational labour relations and on European values. Despite her difficult circumstances, 
her contributions have always been of high quality and of great value for the European Commission and 
other engaged parties. 

On behalf of the European Commission, all the members of the network and its supporting staff, we wish 
to say that it was a great honour to have her in the network. We are very sad to see her go so early in 
life; she will be deeply missed. 

Linda Senden
Specialist coordinator gender equality

ix

Members of the European network of 
legal experts in gender equality and 
non-discrimination

Management team

General coordinator

Marcel Zwamborn

Human European Consultancy

Specialist coordinator  
gender equality law

Content coordinator  
gender equality law

Specialist coordinator  
non-discrimination law

Project managers

Linda Senden

Utrecht University

Alexandra Timmer

Utrecht University

Isabelle Chopin

Migration Policy Group

Ivette Groenendijk
Yvonne van Leeuwen-Lohde

Human European Consultancy

Content managers 
gender equality law

Franka van Hoof
Raphaële Xenidis

Utrecht University

Catharina Germaine

Migration Policy Group

Content manager 
non-discrimination law

Senior experts

Senior expert on racial or ethnic origin
Senior expert on age
Senior expert on EU and human rights law
Senior expert on social security
Senior expert on religion or belief
Senior expert on gender equality law
Senior expert on sexual orientation/trans/intersex people
Senior expert on EU law, CJEU case law, sex, gender identity 
and gender expression in relation to trans and intersex people
Senior expert on disability

Lilla Farkas
Elaine Dewhurst
Christopher McCrudden
Frans Pennings
Isabelle Rorive
Susanne Burri
Peter Dunne
Christa Tobler

Lisa Waddington

x

Gudrun D. Gudmundsdottir

Herdís Thorgeirsdóttir

Gender
Eralda Çani

Martina Thomasberger

Nathalie Wuiame

Genoveva Tisheva

Nada Bodiroga-Vukobrat
Adrijana Martinović

Vera Pavlou

Kristina Koldinská

Stine Jørgensen

Anu Laas

Kevät Nousiainen

Marie Mercat-Bruns

Ulrike Lembke

Panagiota Petroglou

Lídia Hermina Balogh

Frances Meenan

Simonetta Renga

Kristīne Dupate

Nicole Mathé

Tomas Davulis

Nicole Kerschen

Romina Bartolo

National experts

Albania

Austria

Belgium

Bulgaria

Croatia

Non-discrimination
Irma Baraku

Dieter Schindlauer

Emmanuelle Bribosia

Margarita Ilieva

Ines Bojić

Cyprus

Corina Demetriou

Czech Republic

Jakub Tomšej 

Pia Justesen

Vadim Poleshchuk

Rainer Hiltunen

Sophie Latraverse

Matthias Mahlmann

Athanasios Theodoridis

András Kádár

Judy Walsh

Chiara Favilli

Anhelita Kamenska

Birutė Sabatauskaitė

Tania Hoffmann

Tonio Ellul

Liechtenstein

Patricia Hornich

Denmark

Estonia

Finland

France

Germany

Greece

Hungary

Iceland

Ireland

Italy

Latvia

Lithuania

Luxembourg

Malta

Montenegro

Netherlands

Norway

Poland

Portugal

Republic of  
North Macedonia

Romania

Serbia

Slovakia

Slovenia

Spain

Sweden

Turkey

Maja Kostić-Mandić

Vesna Simovic-Zvicer

Titia Loenen

Lene Løvdal

Łukasz Bojarski

Marlies Vegter

Marte Bauge

Eleonora Zielinska

Ana Maria Guerra Martins

Maria do Rosário Palma Ramalho

Biljana Kotevska

Biljana Kotevska

Romanița Iordache

Ivana Krstić Davinic

Vanda Durbáková

lustina Ionescu

Ivana Krstić Davinic

Zuzana Magurová

NeŽa KogovŠek Šalamon

Tanja Koderman Sever

Lorenzo Cachón

Paul Lappalainen

Dilek Kurban

United Kingdom

Lucy Vickers

María-Amparo Ballester-Pastor

Jenny Julén Votinius

Kadriye Bakirci

Grace James

xi

The legal standing of equality bodies

Tamás Kádár*

The definition of legal standing

At its simplest, legal standing or locus standi means the right or ability to bring a legal action to a court 
of law, or to appear in a court.1 Legal standing can be viewed as a key element of access to justice as 
it determines who is entitled to initiate legal proceedings, either before a court or before a non-judicial 
body.2 Legislative texts at the European level, such as the Racial Equality Directive3 do not necessarily 
use  the  concept  of  legal  standing  but  may  instead  focus  on  listing  the  different  powers  granted  to 
relevant  natural  and  legal  persons  in  relation  to  court  proceedings.4  This,  coupled  with  the  variations 
between the national legal systems in Europe, leads to a complex picture and might lead to different 
interpretations of legal standing.

A further layer of complication is added in the case of the legal standing of equality bodies as they do 
not acquire legal standing due to their status as victims of discrimination. Rather, their powers are based 
on normative provisions granting them legal standing as public institutions set up to promote equality 
and combat discrimination. Granting them this standing has the potential to improve the enforcement 
of legislation and access to justice for victims of discrimination and is a typical approach to ensuring 
that equality bodies can provide the independent assistance to victims of discrimination in pursuing their 
complaints about discrimination required under the Racial Equality Directive5 and the gender equality 
directives6 as one of the key competences and raison d’être of equality bodies.

Taking into account the multiple definitions, the legal standing of equality bodies, for the purposes of 
this article, is understood to include all situations in which equality bodies appear before the courts for 
reasons linked to their core mandate under the EU equal treatment directives. Broadly speaking, this 
covers situations in which equality bodies:

1.  Represent victims of discrimination before the courts: the use of this power could be exercised 
through  representation  by  the  equality  body’s  own  staff  or  by  engaging  and  paying  for  a  lawyer 
to  represent  the  person  before  the  court.  In  either  case,  the  consent  or  approval  of  the  victim  of 
discrimination is necessary. 

* 

1 
2 

3 

4 
5 
6 

Tamás Kádár is Deputy Director (Head of Legal and Policy) at Equinet, the European Network of Equality Bodies. Tamás 
worked previously at the Hungarian Equal Treatment Authority as a lawyer, investigating discrimination cases on all 
grounds. He graduated from the Faculty of Law of Eötvös Loránd University in Budapest and also holds a Master of 
Economic Science degree from University College Dublin in Ireland.
Cambridge Dictionary (https://dictionary.cambridge.org/dictionary/english/locus-standi).
Explanatory memorandum by Mr Viorel Riceard Badea, Rapporteur of the Parliamentary Assembly of the Council of 
Europe Resolution 2054 (2015) on equality and non-discrimination in the access to justice.
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons 
irrespective of racial or ethnic origin.
See, for instance, Article 7 of the Racial Equality Directive on the defence of rights.
Article 13(2) of the Racial Equality Directive.
Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and 
women in the access to and supply of goods and services (Gender Goods and Services Directive) and Directive 2006/54/EC of 
the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and 
equal treatment of men and women in matters of employment and occupation (Gender Recast Directive).

1

2.  Bring proceedings in their own name: this power is understood as the equality body taking a case 
before the court with no identifiable victim as a party to the proceedings. This covers situations of 
actio popularis when the equality body represents the common good in the absence of an identifiable 
victim, where the discrimination affects a larger, unidentifiable group of persons holding the same 
protected characteristics. Depending on the legal system and traditions, the equality body may also 
bring  proceedings  in  its  own  name  when  taking  up  the  case  of  an  identifiable  victim,  with  their 
consent, who does not become a party to the proceedings.

3.  Intervene in support of a party: this covers situations where the victim of discrimination is a party 
to the proceedings and the equality body intervenes on their side as an interested party to seek a 
particular outcome in the case. This may be subject to approval by the victim and/or the court.

4.  File an amicus curiae brief or similar: this covers situations where the equality body submits its 
observations as an expert institution in equality law to assist the court, without seeking a particular 
outcome  or  taking  the  side  of  one  party.  The  equality  body  may  request  leave  from  the  court  to 
submit such a contribution, be invited by the court or obliged by legislation to do so.

5.  Defend their legally binding decisions before the courts: this competence is relevant for quasi-
judicial equality bodies vested with the power to issue legally binding decisions that can be appealed 
before the courts.

European standards for the legal standing of equality bodies

The purpose and objective of the EU equal treatment directives is to put into effect and ensure the principle 
of equal treatment.7 This is the result that Member States have an obligation to achieve, although the 
directives  leave  the  choice  of  form  and  methods  for  doing  so  to  the  national  authorities.8  European 
Union legislation provides only limited guidance for the legal standing of equality bodies. Article 13 of 
the Racial Equality Directive requires the designation of an equality body or bodies with the overall aim 
of promoting equal treatment and it stipulates that equality bodies should have competence to provide 
independent assistance to victims of discrimination in pursuing their complaints about discrimination.9 
Similar  provisions  can  be  found  in  Article  12  of  the  Gender  Goods  and  Services  Directive  and  Article 
20 of the Gender Recast Directive. A noteworthy difference is that the two gender equality directives 
also  require  Member  States  to  ‘make  the  necessary  arrangements’  for  the  equality  body  or  bodies. 
One could argue that making the necessary arrangements should include ensuring an appropriate legal 
standing for the equality body to effectively exercise its function of independent assistance to victims 
of  discrimination  in  light  of  this  being  one  of  the  key  competences  and  differentia  specifica  of  these 
institutions. However, it is evident that some Member States transposed the EU directives by designating 
an equality body with a primarily decision-making function. In some of these cases, legal standing is 
not granted for equality bodies or the legal standing is not or rarely used in practice.10 The latest reports 
by the European Commission on the implementation of the EU Racial Equality Directive and the gender 
equality directives11 and some inputs to it by civil society12 seem to indicate that the Commission and 
at least parts of civil society do not take issue with the compliance of such equality bodies with the 
directives. 

7 
8 
9 
10 

11 

Article 1 of all EU equal treatment directives.
See Articles 288 and 291 of the Treaty on Functioning of the European Union (TFEU).
See also Recital 24 of the Racial Equality Directive.
See, for example, the case of Bulgaria, Czech Republic, Hungary and the Netherlands. Crowley, N., Equality bodies making a 
difference, European network of legal experts in gender equality and non-discrimination, European Commission, 2018, p. 107.
Joint Report on the application of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal 
treatment between persons irrespective of racial or ethnic origin (Racial Equality Directive) and of Council Directive 
2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation 
(Employment Equality Directive), p. 12; Report on the application of Directive 2006/54/EC of the European Parliament 
and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of 
men and women in matters of employment and occupation (recast), p. 10; Report on the application of Council Directive 
2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of 
goods and services, pp. 11-12.

12  Hermanin, C. and de Kroon, E., The Race Equality Directive: a Shadow Report. Lessons learnt from the implementation in nine 

EU member states, Open Society European Policy Institute, 2013. 

2

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Article 7 of the Racial Equality Directive13 on the defence of rights requires Member States to ensure that 
associations, organisations or other legal entities which have, in accordance with the criteria laid down 
by their national law, a legitimate interest in ensuring that the provisions of this directive are complied 
with, may engage, either on behalf or in support of the complainant, with his or her approval, in any 
judicial and/or administrative procedure provided for the enforcement of obligations under this directive. 
This opens up the possibility for Member States to accord legal standing to equality bodies under this 
article.14 Importantly, Article 6 provides that these provisions are only minimum requirements, therefore 
Member States are allowed to introduce more favourable provisions and, conversely, the directive cannot 
constitute grounds for a reduction in the level of protection against discrimination already afforded by 
Member  States.  It  is  on  this  basis  that  the  Court  of  Justice  of  the  EU  clarified  in  its  renowned  Feryn 
judgment that ‘Article 7 of Directive 2000/43 does not preclude Member States from laying down, in 
their  national  legislation,  the  right  for  associations  with  a  legitimate  interest  in  ensuring  compliance 
with that directive, or for the body or bodies designated pursuant to Article 13 thereof, to bring legal or 
administrative proceedings to enforce the obligations resulting therefrom without acting in the name of a 
specific complainant or in the absence of an identifiable complainant’.15 Feryn also makes it clear that the 
objectives of the Racial Equality Directive would be difficult to achieve if it was left to rely on individual 
enforcement only.16 In light of this and the general duty of Member States to ensure the implementation 
of directives, one could argue that Member States have a duty to provide for public enforcement in the 
absence  of  an  identifiable  complainant  and  that  equality  bodies  are  logical  vehicles  to  do  so.  While 
Articles 6 and 7 do not constitute an obligation for Member States to accord legal standing to equality 
bodies,  they  nonetheless  provide  for  this  possibility,  including  going  beyond  engaging  on  behalf  or  in 
support of the complainant and potentially encompassing bringing proceedings in their own name. 

In June 2018 the European Commission adopted its Recommendation on standards for equality bodies 
with the objective of setting out measures that Member States may apply to help improve the equality 
bodies’ independence and effectiveness, in particular as regards their capacity to ensure that individuals 
and groups that are discriminated against can fully enjoy their rights.17 Commission recommendations 
are EU legal acts, allowing the Commission to make their views known and to suggest a line of action 
without imposing any legal obligation on those to whom it is addressed as they have no legally binding 
force.18 In interpreting the competence of independent assistance, the recommendation proposes that 
Member States should take into consideration inter alia representing complainants in court and acting as 
amicus curiae or expert.19 The recommendation also proposes that independent assistance can include 
strategic litigation by granting equality bodies the possibility to engage or assist in litigation in order to 
address structural and systematic discrimination in cases selected by the bodies themselves because of 
their abundance, their seriousness or their need for legal clarification. Depending on national procedural 
law,  such  litigation  could  take  place  either  in  the  body’s  own  name  or  in  the  name  of  the  victims  or 
organisations representing the victims.20 The recommendation also stipulates that equality bodies should 
be granted the power to gather relevant evidence and information, something that can also underpin 
their  legal  standing.21  Importantly,  the  recommendation  acknowledges  that  assistance  to  victims  can 

13 
14 

15 
16 
17 
18 

19 
20 
21 

See also Article 8 of the Gender Goods and Services Directive and Article 17 of the Gender Recast Directive.
Legally, it is also possible to go one step further and argue that, since equality bodies are legal entities with a legitimate 
interest in ensuring that the provisions of the directives are complied with, they should be recognised a right according to 
the respective directive to go to court in a similar manner to the right enjoyed by interested associations (either on behalf 
or in support of the complainant, with his or her approval). 
Paras 26-27 of Case C‑54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV.
Para. 24 of Feryn (C-54/07).
European Commission Recommendation of 22.6.2018 on standards for equality bodies.
Article 288 of Treaty on Functioning of the European Union, see also at https://ec.europa.eu/info/law/law-making-process/
types-eu-law_en.
Point 1.1.2 (1) of the Commission Recommendation.
Point 1.1.2 (2) of the Commission Recommendation.
Point 1.1.2 (4) of the Commission Recommendation. The gathering of evidence and information is necessary for equality 
bodies to effectively assist victims of discrimination before the courts (or, in the case of bodies with a decision-making 
function, to decide a case).

3

The legal standing of equality bodiesinclude issuing recommendations or legally binding decisions with adequate, effective and proportionate 
sanctions in individual or collective cases of discrimination.22

The Council of Europe’s European Commission against Racism and Intolerance (ECRI) adopted its General 
Policy Recommendation No. 2 (GPR 2) on equality bodies to combat racism and intolerance at national 
level in 2017, revising its original GPR 2 adopted in 1997.23 While, similarly to the European Commission 
recommendation  and  other  comparable  standards,24  the  ECRI  standards  are  not  legally  binding,  they 
carry a substantial political weight as monitoring of their implementation will form part of the country 
monitoring and constructive dialogue between ECRI and the Council of Europe Member States.25 ECRI’s 
GPR 2 provides a detailed and ambitious set of standards for the establishment, mandate and functions, 
independence and effectiveness of equality bodies and it includes provisions for the legal standing of 
equality bodies. GPR 2 foresees that equality bodies should be assigned  a promotion  and  prevention 
function as well as a support and litigation function and they may also be assigned a decision-making 
function.26 For equality bodies that hold both a support and litigation and a decision-making function 
(something  that  ECRI  considers  suboptimal  due  to  the  competing  requirements  of  taking  the  side  of 
the complainant on one hand and impartiality on the other hand),27 it is necessary to ensure that each 
function is provided by a different unit or by different staff and that appropriate human and financial 
resources  are  allocated  to  both  functions.28  GPR  2  stipulates  that  equality  bodies  holding  a  support 
and litigation function should have the competence to represent, with their consent, people exposed to 
discrimination  or  intolerance;  bring  cases  of  individual  and  structural  discrimination  or  intolerance  in 
the equality body’s own name; and intervene as amicus curiae, third party or expert before institutions, 
adjudicatory bodies and the courts.29 Equality bodies should be allowed to conduct strategic litigation 
based on published criteria established by them30 and have powers to obtain evidence and information.31 
The  staff  of  equality  bodies  should  have  the  multiple  skills  required  for  fulfilling  all  functions  and 
competences assigned to the equality body.32 

The Explanatory Memorandum of GPR 2 offers valuable details on the interpretation of these various 
legal powers and forms of legal standing. Representing people exposed to discrimination or intolerance 
can be performed through the equality body’s own staff, but also by engaging and paying for a lawyer 
to represent the person before the court.33 Equality bodies need the competence to bring cases in their 
own  name,  particularly  where  there  is  no  identified  complainant  as  a  whole  category  of  persons  is 
discriminated against. This competence is also relevant where the person exposed to discrimination and 
intolerance feels unable to bring forward a case in their own name, for example in areas where people 
are  fearful  of  victimisation.34  In  order  for  equality  bodies  to  effectively  support  victims  in  structural 
discrimination cases and strategic litigation, GPR 2 requires the provision of sufficient resources to enable 
equality bodies to represent people exposed to discrimination and intolerance.35

In 2015 the Parliamentary Assembly of the Council of Europe adopted a resolution on equality and non-
discrimination in the access to justice, calling on Member States to ensure that all categories of people 

22 

23 
24 

25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 

Point 1.1.2 (3) and (5). For a criticism of this aspect of the recommendation see Crowley (2018), p. 70. He takes the view 
that hearing cases cannot be considered a form of assistance where those experiencing discrimination need assistance to 
access such a hearing effectively and refers to the challenge of impartiality required from such equality bodies.
See https://rm.coe.int/ecri-general-policy-/16808b5a23.
For example, the UN Principles relating to the Status of National Institutions (Paris Principles) for National Human Rights 
Institutions.
Point 41 of GPR 2.
Point 10 of GPR 2.
See point 45 of the explanatory memorandum in GPR 2.
Point 11 of GPR 2.
Point 14 of GPR 2.
Point 15 of GPR 2.
Point 21 of GPR 2.
Point 39 of GPR 2.
Point 75 of the explanatory memorandum in GPR 2.
Point 77 of the explanatory memorandum in GPR 2.
Point 83 of the explanatory memorandum in GPR 2.

4

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 have access to effective remedies and, in particular, to remove legal obstacles to legal standing, notably 
by allowing courts to accept the submission of third-party interventions and equality bodies to represent 
individuals in legal proceedings in certain cases.36 The explanatory memorandum to the resolution makes 
a clear connection between the legal standing of equality bodies and access to justice.37

In his Opinion on national structures for promoting equality, the former Council of Europe’s Commissioner 
for  Human  Rights  found  it  important  for  Member  States  to  ensure  that  equality  bodies  that  are  not 
focused on decision-making can take cases on their own initiative and bring cases to court.38

For a comparison, it is interesting to note that the legal standing of data protection authorities (DPAs) 
is expressis verbis guaranteed by the EU’s General Data Protection Regulation (GDPR) in order to ensure 
effective  enforcement  of  the  GDPR.  According  to  the  GDPR,  each  Member  State  shall  provide  by  law 
that  its  supervisory  authority  shall  have  the  power  to  bring  infringements  of  this  Regulation  to  the 
attention of the judicial authorities and, where appropriate, to commence or engage otherwise in legal 
proceedings, in order to enforce the provisions of this Regulation.39 While this provision leaves a certain 
margin of appreciation for Member States, it can be considered a stronger guarantee of effective public 
enforcement of data protection rules and consistency in EU law as regards the legal standing of DPAs 
than what is available for equality bodies. This is hardly surprising as the guarantees of independence 
and effectiveness of DPAs stipulated in the GDPR also exceed those for equality bodies.

The legal standing of equality bodies in Europe

The legal standing of equality bodies is to date an under-researched field of equality law. Different legal 
traditions,  codes  of  procedure  and  different  interpretations  of  legal  standing  and  legal  powers  make 
comparisons difficult, potentially resulting in different findings on the same issue or country.

In 2010 Equinet, the European Network of Equality Bodies, published a report on the ability of equality 
bodies  to  influence  the  interpretation  of  national  and  EU  anti-discrimination  law,  based  on  a  survey 
covering  25  equality  bodies  in  20  countries.40  While  the  results  are  likely  to  be  outdated,  it  is  still 
interesting to give a short overview of the structure of the report, its interpretation of legal standing 
and its results. According to the report, 15 of the surveyed equality bodies had the power to represent 
individuals in court and a little over half of them made use of this power in practice. The main barriers to 
using litigation powers were financial considerations and, to a lesser extent, national procedural rules.41 
Seventeen  equality  bodies  reported  holding  powers  to  bring  proceedings  in  their  own  name,  seen  as 
particularly useful in cases where there are no identifiable victims of discrimination. However, only six 
equality  bodies  reported  making  use  of  this  power  in  practice.  Potential  barriers  to  using  this  power 
included the lack of clarity about using it, financial considerations and the perceived conflict with the 
impartial decision-making role of the equality body.42 Thirteen equality bodies reported holding powers to 
intervene in national proceedings before a court and/or a tribunal, but only three of them reported using 
these in practice. Besides financial considerations and a lack of clarity about holding this power, some 
equality bodies also reported courts being reluctant to permit interventions.43 The report also examined 

36 

37 

Parliamentary Assembly of the Council of Europe Resolution 2054 (2015) on equality and non-discrimination in the access 
to justice.
Explanatory memorandum by Mr Viorel Riceard Badea, Rapporteur of the Parliamentary Assembly of the Council of 
Europe Resolution 2054 (2015) on equality and non-discrimination in the access to justice.

38  Opinion of the Commissioner for Human Rights on National Structures for Promoting Equality, Strasbourg, 2011.
39 

Article 58(5) of the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the 
protection of natural persons with regard to the processing of personal data and on the free movement of such data, and 
repealing Directive 95/46/EC (General Data Protection Regulation).
Jacobsen, B.D. (2010), Influencing the law through legal proceedings – The powers and practices of equality bodies, Equinet, 
Brussels.
Jacobsen (2010), pp. 13-14.
Jacobsen (2010), pp. 16-17.
Jacobsen (2010), pp. 19-20.

40 

41 
42 
43 

5

The legal standing of equality bodiesthe role of equality bodies before the Court of Justice of the EU (CJEU) and proposed that European 
institutions should consider whether equality bodies should be permitted under the Statute of the CJEU 
to make submissions to the CJEU in all cases concerning the interpretation of the anti-discrimination 
directives.44

Equinet’s  European  Directory  of  Equality  Bodies,  a  unique  source  of  information  from  and  about  the 
mandates, functions and accountability of equality bodies, provides more up-to-date information about 
the legal powers of equality bodies. The directory lists a membership of 49 equality bodies. Of these, 12 
can represent victims before the courts, 19 can bring proceedings in the equality body’s own name and 
16 can intervene before the courts. Notably, this compares with 27 equality bodies that have the power 
to formally decide on complaints (legally binding or not).45 This appears to suggest that more countries 
decided to grant decision-making powers to their equality bodies than legal standing before the courts.

Another key source on the topic is the European network of legal experts in gender equality and non-
discrimination, supported by the European Commission. The network issues annual comparative analyses 
of non-discrimination law46 and of gender equality law47 in Europe and annual country reports on non-
discrimination and on gender equality. With dedicated sections on equality bodies and on legal standing, 
they provide a wealth of information even in the absence of a comprehensive focus on the topic. The 
same  network  published  Crowley’s  report,  entitled  Equality  bodies  making  a  difference,  analysing  the 
potential and practical work of equality bodies, in 2018.48 This report, covering a total of 43 equality 
bodies in 31 EU Member States and EFTA countries, provides valuable information, notably regarding the 
legal standing of equality bodies.

Crowley’s  report  uses  the  ECRI  GPR  2’s  classification  of  functions,  differentiating  between  promotion 
and prevention, support and litigation and decision-making functions. Of the 43 equality bodies covered, 
seven are found not to have a support and litigation function, although in four cases another equality 
body vested with this function exists in the country.49 Crowley, referring also to the ECRI GPR 2, underlines 
the challenge of holding a mix of functions where one of these functions is decision-making, given the 
possible  tension  between  the  impartiality  required  by  this  function  and  the  need  to  take  the  side  of 
those experiencing or alleging discrimination for fulfilling the support and litigation function.50 A total of 
25 equality bodies are found to have some form of legal standing before the courts, leaving 18 of the 
equality bodies covered without any such competence.51 Crowley identifies 17 equality bodies as lacking 
or  having  only  limited  legal  standing  to  take  cases  of  discrimination  or  act  as  amicus  curiae  before 
the courts, but this appears to omit at least some of the equality bodies that do not hold support and 
litigation functions. Various limitations of legal standing are identified, including some equality bodies 
that are limited to submitting amicus curiae or observations to courts; others are limited to taking cases 
or to taking cases only in limited circumstances.52 Another important factor in the effective use of legal 
standing is taking a strategic approach to using the equality body’s powers and measuring the impact of 
the work. Crowley identifies that 25 out of the 43 equality bodies do not have a strategic plan and only 
10 equality bodies have engaged in any form of evaluation.53 Developing a strategic plan and putting 
in place evaluation measures can yield high returns in terms of the effectiveness of the equality body 
and doing so appears to be entirely within the power of equality bodies and therefore relatively easy to 
undertake as internal measures without necessitating external guidance or support. One of Crowley’s 

44 
45 
46 

47 

48 
49 
50 
51 
52 
53 

Jacobsen (2010), p. 34.
Equinet, European Directory of Equality Bodies, http://equineteurope.org/comparative-data/functions/.
For the latest information, see: European network of legal experts in gender equality and non-discrimination (2019),  
A comparative analysis of non-discrimination law in Europe, Brussels.
For the latest information, see: European network of legal experts in gender equality and non-discrimination (2019),  
A comparative analysis of gender equality law in Europe, Brussels.
Crowley (2018).
Crowley (2018), p. 47.
Crowley (2018), p. 47, p. 71.
Crowley (2018), pp. 73-77.
Crowley (2018), p. 105.
Crowley (2018), p. 108.

6

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 key  learnings,  central  to  the  topic  of  this  article,  is  that  the  support  and  litigation  function  of  many 
equality bodies is undermined where they are not afforded adequate legal standing before the courts.54 
Consequently, Crowley proposes to review the competences afforded to equality bodies with steps to 
ensure they have the full range of competences required to give effect to their functions, in particular 
the competence to have legal standing before the courts.55

In  the  following,  the  article  will  analyse  the  legal  standing  of  three  equality  bodies  as  case  studies, 
observing a balance in terms of geography and functions. The analysis relies on the country reports on 
non-discrimination by the European network of legal experts in gender equality and non-discrimination 
and specific inputs from the country experts on non-discrimination and the equality bodies themselves.

Belgium – Unia (Interfederal Centre for Equal Opportunities)

The  predecessor  of  Unia56  was  set  up  in  1993  as  a  federal  institution,  hence  counting  among  the 
European equality bodies with a long history preceding the EU law obligation to set up such institutions. 
An important change occurred in 2014 when, following a Cooperation Agreement signed by the federal 
state,  the  regions  and  the  communities,  Unia  became  an  inter-federal  Centre  competent  (competent 
authority) for promoting equal opportunities and fighting any kind of distinction, exclusion or restriction 
based on the prohibited grounds contained in various anti-discrimination instruments adopted at both 
regional  and  federal  levels.57  Unia  is  competent  in  relation  to  all  the  protected  grounds  listed  in  the 
federal and regional anti-discrimination legislation, apart from language (for which no equality body has 
been set up) and gender (which is covered by the Institute for the Equality of Women and Men). While not 
an open list of grounds, Unia’s competence goes well beyond the scope of EU equal treatment directives, 
covering in excess of 15 protected characteristics.58

According  to  Crowley,  Unia  holds  two  out  of  the  three  types  of  functions  (promotion  and  prevention, 
support and litigation).59 The lack of a decision-making function is generally seen by Crowley as a positive 
aspect as he identifies tensions for equality bodies holding a mix of all three functions. Unia also has the 
competence to negotiate settlements which the author sees as part of the support and litigation function, 
while Crowley does not seem to accept that it provides effective assistance to victims and rather sees it 
under the same umbrella as decision-making.60 This is of key relevance for Unia as, according to Bribosia 
and Rorive, it is an equality body with significant expertise and is especially renowned for its practice of 
assisting victims in having the alleged perpetrator of the discrimination agree to some form of amicable 
settlement.61 In effectively using alternative dispute resolution, Unia ought to be helped by its strong 
legal standing, which can be triggered should the mediation efforts not bear fruit.

According to Bribosia and Rorive, Unia has legal standing to bring discrimination complaints on behalf of 
an identified victim or on its own behalf. They state that the General Anti-Discrimination Federal Act and 
most of the regional statutory laws give Unia the power to file suits, and thus to contribute to the defence 
of legal principles in the name of the public interest.62 

Unia  follows  two  distinct  procedures  depending  on  whether  the  alleged  violation  has  an  identifiable 
victim (either a natural or a legal person). In cases where there is an identifiable victim, Unia’s action 

54 
55 
56 
57 

58 
59 
60 
61 
62 

Crowley (2018), p. 110.
Crowley (2018), p. 14.
Centre for Equal Opportunities and Opposition to Racism.
Bribosia, E. and Rorive, I. (2018), Country report non-discrimination: Belgium, European network of legal experts in gender 
equality and non-discrimination, European Commission, p. 128.
Bribosia and Rorive (2018), p. 133.
Crowley (2018), p. 50.
Crowley (2018), pp. 70-71.
Bribosia and Rorive (2018), p. 138.
Bribosia and Rorive (2018), p. 138.

7

The legal standing of equality bodiescan be classified as intervention in support of the victim according to the classification detailed above. 
The power to file a suit is conditional upon the consent of the victim and is used for an intervention 
supporting the victim’s case. The main reason for this legal avenue (rather than representing the victim) 
is that sometimes the action of the victim and the action of Unia may differ. Therefore, Unia wishes to 
remain able to define its strategy of action without undermining or being undermined by the victim’s 
strategy before the court.63 A leading example of Unia’s use of such legal standing can be observed in the 
seminal Achbita judgment of the CJEU.64 In essence, this case concerned the circumstances under which 
private companies could prohibit employees from expressing their religion in the workplace, by wearing 
a headscarf, for example. The case was taken to court by Ms Achbita, supported by her trade union, who 
alleged that she was a victim of discrimination. Unia’s predecessor, the Centre for Equal Opportunities 
and Opposition to Racism appeared as a plaintiff in the case as it joined the case intervening on the side 
of Ms Achbita.

If  there  is  no  identified  victim,  Unia  may  act  on  its  own  behalf  to  challenge  a  breach  of  the  anti-
discrimination  legislation.  This  actio  popularis  power  granted  to  Unia  gained  European  visibility  and 
recognition in the Feryn case before the CJEU.65 This case concerned the question of whether a public 
statement by Feryn’s director that his company would not recruit persons of Moroccan origin because 
the company’s customers did not want them in their homes could be seen as applying a discriminatory 
recruitment  policy.  Unia’s  predecessor  took  the  case  to  court  on  its  own  behalf  given  the  lack  of  an 
identifiable victim. Ireland and the United Kingdom questioned the legal standing of the equality body in 
the absence of an identifiable victim. Therefore the CJEU in its seminal judgment analysed this issue and 
established that the Racial Equality Directive does not preclude national legislation granting the equality 
body the right to bring legal or administrative proceedings to enforce the obligations resulting therefrom 
without acting in the name of a specific complainant or in the absence of an identifiable complainant.66 
The CJEU went on to rule that such public statements constitute direct discrimination and are enough to 
shift the burden of proof and that sanctions must be effective, proportionate and dissuasive, even where 
there is no identifiable victim.

The creation of Unia’s predecessor in 1993 is the result of a suggestion by the Royal Commissariat for 
Immigrant Policy, a body that had observed the lack of effectiveness of the Act of 30 July 1981 aiming 
to combat certain acts inspired by racism or xenophobia with criminal law measures. This Act had not 
led  to  any  convictions  in  the  early  1990s,  proving  to  be  the  main  reason  for  granting  the  power  to 
Unia’s predecessor to take legal action alongside the victim. The Act’s explanatory memorandum stated 
that ‘the Center may assist any person wishing to initiate proceedings or wishing to lodge a complaint, 
because this concerns a matter of principle or because it would be unjustifiable to give no assistance in 
view of the complexity of the case or the position of the offended person, or any other special reason. 
Assistance may include advice, conciliation assistance, legal or legal advice, legal assistance and any 
other appropriate form of assistance. This corresponds to one of the tasks of the British Commission for 
Racial Equality’. First granted in the field of criminal law, this power of action was extended to the civil 
domain (from 2003) and to discrimination grounds other than race as Unia’s mandate was extended.67

Unia may also intervene as amicus curiae in cases concerning discrimination, when such intervention 
is possible according to judicial procedure law. However, this power is not seen as particularly useful at 
national level, given that Unia has the power and legal standing to engage in court cases either in support 
of the victim or acting on its own behalf.68 Unia’s annual report for 2017 references an amicus curiae 

63 

64 
65 
66 
67 

68 

Input to the article from Emmanuelle Bribosia and Isabelle Rorive, country experts for Belgium in the European network of 
legal experts in gender equality and non-discrimination.
C-157/15, Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV.
C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV.
C-54/07, Section 27.
Input to the article from Emmanuelle Bribosia and Isabelle Rorive, country experts for Belgium in the European network of 
legal experts in gender equality and non-discrimination.
Input to the article from Emmanuelle Bribosia and Isabelle Rorive, country experts for Belgium in the European network of 
legal experts in gender equality and non-discrimination.

8

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 brief  submitted  to  the  Council  of  Europe’s  European  Committee  of  Social  Rights  concerning  inclusive 
education.69

In 2017 Unia received 6 602 complaints and it opened 2 017 files.70 As explained by Bribosia and Rorive 
as well as Unia in its annual report, Unia prioritises alternative dispute resolution in order to achieve 
structural responses, such as the adaptation of certain rules and procedures besides offering solutions 
to the individual problems. On average, therefore, Unia takes cases to court in only around 1 % of all 
files, focusing on strategic litigation. These are cases where the facts are particularly serious or where 
a dialogue with the alleged perpetrator did not prove to be possible.71 In 2016 a total of 18 cases were 
taken to court;72 in 2017 the figure was 13.73 Importantly, while the competence of a majority of equality 
bodies is limited to civil and administrative law, Unia also has legal standing in criminal matters and in 
2017 four out of its 13 judicial actions concerned criminal law, including discrimination, hate speech and 
hate crime cases.

A key challenge for the effective use of Unia’s legal standing is keeping the potential cost of litigation 
reasonable.  This  is  all  the  more  relevant  given  Unia’s  strategic  litigation  approach  and  its  record  of 
successfully proposing to courts to send a reference for a preliminary ruling to the CJEU, extending the 
length and costs of the procedure. While Unia’s budget should in principle suffice for the legal procedures 
it brings, based on a decision of its Management Board, it should be noted that parliamentary questions 
were raised on the costs of the Achbita case (considered exorbitant). Litigation costs can be prohibitively 
high, especially when cases are in appellate courts and/or are referred to the CJEU. As detailed in Equinet’s 
handbook on strategic litigation, when considering whether to pursue a strategic case, the equality body 
should determine whether it has sufficient funds and internal resources to cover the costs of the other 
parties (as well as its own) if the case is lost. Furthermore, it should be established that the possible 
benefit from successful litigation justifies the possible costs. Where funding is limited, it is better to focus 
on cases with little or no factual dispute in order to reduce costs and avoid poor settlement agreements 
which do not require the perpetrator to admit guilt or rectify a policy or behaviour.74

Another important challenge is to build trust and confidence among groups vulnerable to discrimination 
and  their  organisations  and  thereby  contribute  to  tackling  under-reporting  of  discrimination.  Unia’s 
approach  of  litigating  in  only  around  1  %  of  all  cases  and  otherwise  focusing  on  alternative  dispute 
resolution constitutes an immense challenge in this respect. A satisfactory balance needs to be found and 
clearly communicated between strategic litigation and effective assistance to all or most victims in order 
to avoid undermining a positive and helpful relationship with victims’ groups and their organisations. 
Equinet’s handbook on strategic litigation lists external pressure as a potential risk and suggests that, as 
statutory public bodies, equality bodies have a strong standing and their support for cases is requested 
by various actors. In high-profile cases, the equality body might find itself under immense pressure to 
support the case. While not doing so might risk harsh criticism towards the equality body, it remains 
important to stick to an objective assessment based on the published and transparent selection criteria.75 
Unia has not published such a litigation strategy to date and could usefully consider doing so. 

Romania – National Council for Combating Discrimination

The National Council for Combating Discrimination (Consiliul Național pentru Combaterea Discriminării, 
NCCD) is the Romanian specialised national equality body mandated to monitor and combat all forms 

69  Unia, Rapport Annuel 2017 – Refuser l’inertie, Brussels, 2018, p. 48.
70  When Unia considers itself competent to process a complaint and this reporting goes beyond a simple request for 

information, it gives rise to the opening of a file. Unia (2018), p. 61.

71  Unia (2018), pp. 61-62.
72  Unia, Rapport Annuel 2016 - Pour une société inclusive : par où (re)commencer?, Brussels, 2017, p. 75. 
73  Unia (2018), p. 65.
74 
75 

Equinet (2018), Strategic Litigation. An Equinet Handbook, Brussels, p. 21.
Equinet (2018), p. 32.

9

The legal standing of equality bodiesof discrimination. Set up in 2002, the current mandate of the NCCD goes beyond the required powers 
established by the EU equal treatment directives. The institution covers an open list of grounds and it 
has administrative-jurisdictional powers with legally binding decisions.76 According to Crowley, the NCCD 
holds all three types of functions (promotion and prevention, support and litigation, decision-making),77 
but  Iordache  makes  it  clear  that  it  is  predominantly  a  quasi-judicial  body.78  The  equality  body  is  one 
of the best-known state institutions in Romania owing not the least to taking a large number of cases 
involving politicians.79

As a result of its quasi-judicial function, the NCCD has legal standing and uses it in every case to act as 
defendant when its decision is appealed to the courts under administrative law provisions. In such cases, 
an NCCD representative can be expected to appear in court almost every time the hearing takes place in 
Bucharest, while such representation is not always possible if the hearing takes place outside the capital 
given that the NCCD has only three legal advisors available for such representation.80 According to its 
recent annual reports, the NCCD achieves a solid judicial success rate of around 80 % or more in the 
appeals against its decisions.81 Legal standing to defend their decisions can be seen as a necessary and 
standard competence for quasi-judicial bodies with legally binding decision-making powers.

Amendments to the anti-discrimination law in 2006 introduced a special and rare, if not unparalleled, 
competence whereby the NCCD must be subpoenaed as an expert in all cases on grounds of the anti-
discrimination  law  filed  directly  with  the  civil  courts.  While  it  is  not  rare  for  courts  to  invite  or  allow 
equality  bodies  to  submit  expert  opinions,  this  power  is  noteworthy  as  the  NCCD’s  legal  standing  to 
provide such expert opinions is mandatory and not a result of the assessment and discretionary power of 
the judges. These expert opinions do not amount to interventions on the side of the victim but rather to 
providing an informed commentary on the relevant legal and societal context of discrimination. Iordache 
defines this competence as an amicus curiae duty set out in imperative terms in the law and sees its 
main value in informing and educating judges and ensuring uniformity in discrimination cases.82 

Perhaps the most striking example thus far of the NCCD using its legal standing as an expert or amicus 
curiae  came  in  the  Coman  case83  before  the  CJEU.  In  essence,  the  case  concerned  the  interpretation 
of the term ‘spouse’ in Article 2(2)(a) of the Free Movement Directive (2004/38/EC) and whether the 
term  includes  same-sex  couples.  The  NCCD  was  subpoenaed  in  the  case  at  national  level  and  when 
the  Constitutional  Court  requested  a  preliminary  ruling  from  the  CJEU,  it  also  provided  a  submission 
before the CJEU. It is worth noting for our purposes that the CJEU seems to have grappled with the right 
label for the NCCD’s position in the case, incorrectly listing the equality body among the respondents 
in the Advocate General’s Opinion, but correctly  as an  intervener in  the judgment  by  the  Court.  In  its 
intervention, the NCCD supported an inclusive interpretation of the term, referring to the principle of non-
discrimination, the Charter of Fundamental Rights of the EU, the right to human dignity and respect for 
private and family life, and relevant European Court of Human Rights jurisprudence.84 Iordache describes 
this  pro-active  contribution  by  the  NCCD  as  its  biggest  achievement  in  using  its  legal  standing  and 
contributing to further developing equality legislation.85 At the same time, the position of the NCCD in 

76 

77 
78 
79 
80 
81 

Iordache, R., Country report non-discrimination: Romania, European network of legal experts in gender equality and non-
discrimination, European Commission, 2018, p. 104.
Crowley (2018), p. 53.
Iordache (2018), p. 104.
Iordache (2018), p. 106.
Information provided by the NCCD.
See Iordache (2018), p. 113. In 2016 the NCCD had to defend its decisions before the administrative courts in 351 cases. 
The courts decided in favour of the NCCD in 236 cases and 281 cases are still pending. In 2017 the courts decided in favour 
of the NCCD in 130 cases, against the NCCD in 35 cases, and 365 cases are still pending.
Iordache (2018), p. 112.
C-673/16, Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne.

82 
83 
84  Written submission to the CJEU, received from the NCCD.
85 

Input to the article from Romanița Iordache, country expert for Romania in the European network of legal experts in 
gender equality and non-discrimination.

10

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 the Coman case both before the CJEU and the Romanian Constitutional Court also led to criticism and 
attacks against the equality body.86

Notwithstanding the virtues of such a mandatory amicus curiae function, it puts an immense strain on 
the already stretched resources of the equality body as it does not seem to have come with a significant 
and stable increase in the NCCD’s budget. In 2017 the NCCD’s presence as an expert in court cases was 
required in over 1 400 cases.87 According to Iordache, both NCCD members and NGOs mention that the 
equality body is not able to send representatives for all the cases at which it is invited to appear because 
it lacks the human and material resources to do so.88 There appears to be no clear internal procedure 
or strategy determining the cases for which the NCCD should send a person to represent the position 
of  the  institution  before  the  court,  for  which  cases  a  written  submission  should  be  sent  or  for  which 
cases nothing at all should be done. Cases were reported in which the courts ordered the NCCD to file 
a position.89 A clear strategy for the use of this legal standing as mandatory amicus curiae or expert 
would also be useful and relevant in maximising the effectiveness of the NCCD’s submissions by focusing 
on strategic cases that have the potential to clarify or further develop equality law and jurisprudence. 
Another potential challenge to this competence could be that providing expert opinions in court cases 
might  jeopardise  the  NCCD’s  impartiality  as  a  decision-making  body.  However,  this  challenge  can  be 
refuted as, on one hand, the expert opinions do not amount to interventions on the side of one party and, 
on the other hand, a firewall is in place between the two functions, as decisions in the NCCD are taken by 
the Steering Board while the presence in court is provided by the Legal department.

Sweden – Equality Ombudsman

The  Equality  Ombudsman  (DO)90  is  an  independent  government  agency,  formed  in  2009  when  four 
existing  anti-discrimination  ombudsmen  were  merged  into  a  new  body  by  an  Act  of  Parliament.  The 
mandate  of  the  DO  goes  beyond  the  requirements  of  the  EU  equal  treatment  directives,  covering 
seven discrimination grounds (the six grounds listed in the EU directives, plus transgender identity and 
expression) in many fields of life.

According to Crowley, the DO holds all three types of functions (promotion and prevention, support and 
litigation and decision-making).91 The DO’s legally non-binding decision-making powers in discrimination 
cases  relate  to  requiring  the  suspected  discriminator  to  provide  information,  allow  access  to  their 
premises and enter into discussions as well as supervising active measures by employers. In 2018 the 
DO issued 650 supervisory decisions, following investigations of complaints and ex officio investigations, 
mainly of active measures and equality duties by employers.92

According to the Equality Ombudsman Act, the DO has the right to investigate complaints concerning 
discrimination as well as the right to represent individuals.93 This provision grants the DO legal standing 
to bring discrimination complaints on behalf of identified victims provided that it has received a power 
of attorney. In such situations, the DO becomes the named party in the case instead of the individual 
victim. Therefore, in practice, the use of the DO’s legal standing also means that the individual victim will 

86 

Iordache, R., Attacks against the Romanian equality body (NCCD), news report by the European network of legal experts 
in gender equality and non-discrimination, 31.10.2018 (https://www.equalitylaw.eu/downloads/4710-romania-attacks-
against-the-romanian-equality-body-nccd-pdf-193-kb). 

87  NCCD Annual Report 2017, cited by Iordache (2018), p. 114.
88 
89 

Iordache (2018), p. 109.
Input to the article from Romanița Iordache, country expert for Romania in the European network of legal experts in 
gender equality and non-discrimination.
Abbreviation based on Diskrimineringsombudsmannen, the Swedish name of the equality body.
Crowley (2018), p. 54.

90 
91 
92  DO Annual Report 2018, p. 34, available in Swedish at: http://www.do.se/globalassets/om-do/diskrimineringsombuds 

93 

mannens-arsredovisning-20182.pdf. 
Lappalainen, P., Country report non-discrimination: Sweden, European network of legal experts in gender equality and non-
discrimination, European Commission, 2018, p. 115.

11

The legal standing of equality bodiesnot use their own legal standing. This method, also used when an NGO or a trade union takes on a case, 
is an answer to the problem of the ‘loser pays’ system whereby the losing party becomes liable not only 
for their own, but also for the opposing party’s legal costs.94 This solution is intended to help overcome 
the potentially exorbitant legal costs that may plausibly deter individuals, particularly of a disadvantaged 
socio-economic status, from taking their case to court themselves. 

Since it was set up, the DO has brought a number of important and strategic cases concerning a wide 
variety of different grounds and fields, aiming to clarify or establish a point of law; to overturn ‘bad case 
law’; to achieve a change in law; to obtain judicial clarity on the application of the law; to establish that 
non-discrimination law covers a particular situation; to highlight a serious issue; and to ensure that non-
discrimination law is upheld.95 Some of these leading cases are mentioned below. The use of the DO’s 
legal standing to bring cases is necessary not only due to the inequality of arms between victims and 
perpetrators of discrimination, but also in view of the fact that litigating, especially by the less powerful, 
is not common practice in Sweden.96 

Under Swedish law, an employer may lawfully dismiss a person from permanent employment without 
due cause at the time when the person turns 67. This 67-year rule, as it is known, has been deemed a 
legitimate exception from the prohibition against discrimination on grounds of age by the CJEU.97 A major 
bus operator had a 70-year age limit for bus drivers applying for fixed-term (one-year) employment. 
Despite  the  fact  that  drivers  could  show  through  rigorous  annual  health  checks  that  they  were  fit  to 
drive,  they  were  excluded  from  fixed-term  employment  possibilities  after  having  turned  70.  The  DO 
brought a case to the Swedish Labour Court (a court of last instance) for three drivers. The Labour Court 
held that the exception to age discrimination provided for in the 67-year rule did not apply to fixed-term 
employment and that the age limit prescribed by the bus operator was discriminatory and could not be 
justified by occupational demands or generalised safety concerns. The Labour Court awarded the three 
workers  SEK  40  000  (approximately  EUR  4  400)  each  as  a  discrimination  award.  The  case  has  had 
significant impact in Sweden by providing fixed-term employment possibilities to persons above the age 
of 67.98

Another case concerned certain legal measures taken post 9/11 requiring companies to block money 
transfers  from  persons  who  could  be  suspected  of  being  on  the  ‘UN  terror  lists’.  As  a  consequence 
of  these  legal  measures,  a  financial  institution  blocked  all  transactions  from  persons  whose  names 
matched those on the terror lists. The DO brought a claim against the institution on behalf of certain 
individuals whose transactions had been blocked, claiming the practice of the institution to be indirectly 
discriminatory  on  grounds  of  ethnicity  since  it  overwhelmingly  affected  persons  with  Arab  or  Muslim 
names. The main charge was that the institution in question did not collect other relevant data regarding 
the individual (date of birth, etc.) before blocking the transaction. The court found in the DO’s favour and 
held that the financial institution’s practice amounted to indirect discrimination. The case was important 
to ensure respect for non-discrimination law in the context of anti-terrorism measures. Specifically, it 
limits the permissibility of simplistic measures liable to negatively affect certain persons based on their 
ethnicity and/or religion.99

The DO does not have legal standing to bring discrimination complaints to court in its own name in the 
absence of an identified victim and it cannot intervene in support of a party or act as amicus curiae.100 

94 

95 
96 

Input to the article from Paul Lappalainen, country expert for Sweden in the European network of legal experts in gender 
equality and non-discrimination.
For the objectives of strategic litigation see Equinet (2018), pp. 9-15.
Input to the article from Paul Lappalainen, country expert for Sweden in the European network of legal experts in gender 
equality and non-discrimination.
C-141/11, Hörnfeldt v Posten meddelande AB.
Equality Ombudsman v Keolis Sverige AB (Swedish Labour Court, A 73/15, A 75/15 and A 76/15).
Equality Ombudsman v Western Union Financial Services GmbH (Stockholm District Court T 9176-08).

97 
98 
99 
100  The 2017 report on Sweden for the European network of legal experts in gender equality and non-discrimination claims 
that the DO has the power to intervene on the side of the victim, while Equinet’s European Directory of Equality Bodies 

12

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Crowley considers this to be an important practical limitation of competences relating to legal standing.101 
Lappalainen observes that, from a legal standpoint, neither the directives nor the Feryn judgment of the 
CJEU  can  be  seen  as  requiring  all  equality  bodies  to  be  granted  legal  standing  in  the  absence  of  an 
identified complainant.102 As far as the amicus curiae powers are concerned, their absence is not specific 
to the DO as Swedish law in general does not currently recognise the use of amicus curiae briefs.103

The major point of criticism against the DO with regard to the use of its legal standing appears to be 
the low number of cases taken up by the organisation. Crowley identifies it as a concern that the DO 
investigates only about 15 % to 20 % of complaints received and has not used its litigation powers to 
a  significant  extent.104  In  Lappalainen’s  opinion  a  key  problem  is  that  there  are  insufficient  resources 
dedicated to the reported complaints and thus there is little risk that a discriminator will end up in court. 
A related issue for Lappalainen is trust in the DO by victims of discrimination and NGOs which he claims 
can be eroded if a critical mass of complaints are not investigated and taken to court.105 A government 
inquiry investigating how more people can receive help in pursuing discrimination complaints found that 
most complaints received by the DO are not investigated. While acknowledging that it is not reasonable 
to expect the DO to investigate all complaints, it recommended that more of them should be investigated. 
The inquiry also recommended that the DO could adopt a more creative approach to settlements and 
provide clearer explanations when it decides not to take particular cases to court. Lappalainen also notes 
that the DO basically rejected the inquiry’s recommendations in its response.106 In contrast, the DO claims 
that in recent years it has come to focus more on strategic litigation and that the overall conclusions 
of the inquiry support this approach.107 The DO holds that in light of its main mandate of promoting 
equality and preventing discrimination (prevention and enforcement) it is justified in not investigating 
all complaints and not focusing on settlements providing redress of a purely individual character. It is 
also claimed that the notifications that the DO may receive are not representative of the discrimination 
problems that occur in society, for instance due to the different levels of under-reporting among different 
groups. Equinet’s handbook on strategic litigation, drafted with the participation of the DO, claims that 
drafting and publishing a strategic litigation policy can facilitate equality bodies’ success and that the 
policy  should  clarify  the  selection  criteria  and  describe  current  strategic  objectives,  thus  informing 
stakeholders, victims and others that the equality body will only consider cases that can be expected 
to further these objectives and in which there is a clear public interest. In order to pre-empt critique of 
subjectivity and lack of transparency, the policy should be published and the reasons underpinning it 
explained,  also  stressing  the  complexity  of  the  assessment.  The  Equinet  handbook  also  lists  possible 
strategic criteria and practical criteria for case selection and it also analyses key guiding questions for 
the  assessment.108  While  there  are  important  differences  of  opinion  as  regards  the  right  strategy  to 
be taken by the DO for handling complaints, the key issue for our purposes is that there seems to be 
agreement that once the DO takes on a case it seriously invests time and energy in the case and this has 
resulted in a number of important judgments in recent years.109 In order to prevent or respond to some 
of the criticism, the DO might usefully consider making its guidelines for strategic litigation (a public 
document) openly available on its website.

states that besides representing victims, the DO can also bring proceedings in its own name. These discrepancies illustrate 
the definitional difficulties around different forms of legal standing. Input to the article from Paul Lappalainen confirmed 
the situation as described in the current article.

101  Crowley (2018), p. 105.
102  Lappalainen (2018), p. 122.
103 

Input to the article from Paul Lappalainen, country expert for Sweden in the European network of legal experts in gender 
equality and non-discrimination.

104  Crowley (2018), p. 107.
105  Lappalainen (2018), p. 109, p. 115.
106  Lappalainen (2018), pp. 115-117.
107  Answer of the DO to the government inquiry, available in Swedish at: http://www.do.se/om-do/vad-gor-do/remissvar/

remissvar-under-2017/battre-skydd-mot-diskriminering/.

108  Equinet (2018), Chapter 2.
109 

Input to the article from Paul Lappalainen, country expert for Sweden in the European network of legal experts in gender 
equality and non-discrimination.

13

The legal standing of equality bodiesAnother  challenge  identified  by  Lappalainen  is  the  Swedish  legal  tradition  of  adopting  laws  and/or 
implementing them in ways that are intended to change opinions and attitudes while lacking in remedies 
and enforcement. This can result in situations where violations of the law lack effective sanctions. While 
educating duty bearers can be important, the reason for the EU directives requiring sanctions that are 
‘effective,  proportionate  and  dissuasive’  is  to  affect  behaviour.  An  implementation  strategy  focusing 
primarily  on  attitudes  is  a  problem  when  most  of  those  duty  bearers  with  the  power  to  discriminate 
already have good attitudes. What is needed is a focus on the behaviour of those with the power to 
discriminate, regardless of their attitudes. According to Lappalainen, a focus on behaviour should also 
lead to more effective long-term sustainable changes in attitudes.110

Conclusion and recommendations

This overview of legal standing of equality bodies in Europe, together with the three case studies, while 
far  from  being  comprehensive,  allow  us  to  draw  some  conclusions.  A  first  key  learning  concerns  the 
complexity of legal standing, a concept that is deeply rooted in and linked to national procedural law and 
legal traditions. International instruments such as EU law, the Commission or ECRI recommendations, 
as well as general studies of equality legislation and equality bodies, are necessary and useful tools 
to provide and analyse general principles and guidelines, but they cannot be capable of describing all 
national  situations  in  detail.  This  is  evident,  for  instance,  when  looking  at  the  multitude  of  situations 
‘representing victims of discrimination’ or ‘bringing cases in the equality body’s own name’ may cover in 
different jurisdictions. As demonstrated by the Belgian and Swedish examples, what is generally described 
as  legal  standing  to  represent  victims  may  in  practice  mean  intervening  on  the  side  of  the  victim  or 
litigating in the equality body’s own name in terms of procedural law. At the end of the day, however, the 
key issue remains to ensure that the different and complex national procedural rules and legal traditions 
do not undermine the effective work of the equality bodies in assisting victims of discrimination.

Notwithstanding the different national circumstances, some common challenges can also be identified 
that are shared by most equality bodies. 

A general lack of adequate funding for equality bodies to investigate and litigate cases is evident. This, 
together with the threat of excessive legal costs being awarded against the equality body when losing a 
court case, can result in an inability of equality bodies to use their legal standing and litigate to the extent 
necessary to fulfil their potential. It might also influence their decision on whether or not to litigate in a 
particular case, potentially leading to litigating primarily in relatively straightforward and low-risk cases 
at the expense of other, perhaps equally strategic but more controversial cases. As demonstrated above, 
a small number of cases taken up by an equality body may risk limiting the effectiveness of assistance 
to victims, leading to limited dissuasive effect and diminishing trust among victims of discrimination and 
their organisations. At the same time, investigating and litigating in all or most cases will likely strain 
the equality body’s budget and may be hard to reconcile with a strategic approach, leading to individual 
redress instead.

The  tension  between  support  and  litigation  on  one  hand  and  impartial  decision-making  on  the  other 
hand  may  also  influence  how  the  equality  body  uses  its  legal  standing,  although  it  appears  that  in 
practice equality bodies holding both these competences tend to have a clear vision for prioritising one 
or the other or they build in safeguards such as clear firewalls between the units deploying the different 
competences.

110 

Input to the article from Paul Lappalainen, country expert for Sweden in the European network of legal experts in gender 
equality and non-discrimination.

14

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Interventions and amicus curiae powers are not granted to equality bodies in all jurisdictions. However, 
even where they are granted such powers, the reluctance of courts to allow equality bodies to use them 
in practice appears to be a considerable challenge.

The internal rules and procedures of equality bodies also constitute an important challenge when they 
lack a clear and well-thought-through strategy for the use of their legal standing.

In light of the challenges identified, the following proposals are offered for consideration to effectively 
strengthen the legal standing of equality bodies:

 – Member  States  should  implement  all  aspects  of  the  recently  adopted  European  Commission  and 
ECRI recommendations, ensuring the independence of equality bodies and granting them sufficient 
financial and staff resources to effectively deploy their litigation powers.

 – Member States should ensure that the national equality body or at least one of the national equality 
bodies has support and litigation competences in order to assist victims of discrimination in court.
 – Member States could usefully ensure that equality bodies with support and litigation competences 
are granted the full range of legal powers relating to legal standing described in this article, allowing 
them to effectively assist victims of discrimination.

 – Member States could usefully consider revising the ‘loser pays’ system for discrimination cases in 

light of the typically significant power imbalance in these cases.

 – The European Commission could usefully ensure that its recommendation on standards for equality 
bodies is monitored and followed up, including the provisions relating to legal standing. The upcoming 
reports  of  the  Commission  on  the  application  of  the  EU  equal  treatment  directives  provide  an 
opportunity for such follow-up.111

 – Equality bodies should develop and publish clear strategies for the use of their litigation powers and 
legal standing and ensure that the strategy and its practical implementation is regularly monitored 
and evaluated.

 – Equality bodies need to strive to find the right balance between providing assistance to individual 
victims of discrimination and strategic litigation. They need to build a sufficient body of case law and 
an image of an institution effectively assisting victims. At the same time, they cannot reasonably 
strive to bring all complaints to court and will need to focus their litigation efforts on cases that have 
a broader legal and societal impact and can also lead to general prevention.112 The development, 
publication  and  public  explanation  of  litigation  strategies  and  policies  will  also  be  helpful  in  this 
regard, as will a strategic approach to amicable settlements.113

 – Equality bodies need to make use and test the limits of their legal standing and litigation powers. This 
may include, for example, clarifying and testing the use of amicus curiae powers if this instrument is 
not explicitly prohibited in the jurisdiction.114

111  The provisions of all EU equal treatment directives include a requirement for Member States to report periodically 

(typically every five years, with the exception of the Gender Recast Directive) on the application of the directive. In turn, 
the Commission draws up a report on the application of the directive to the European Parliament and the Council. The 
latest (joint) report of the Commission on the Racial Equality Directive and the Employment Equality Directive was 
published in January 2014; on the Gender Goods and Services Directive in May 2015; and on the Gender Recast Directive 
in December 2013.

112  See in this respect Equinet’s handbook on strategic litigation, Equinet (2018).
113  Notice in this respect the different approach to amicable settlements taken by Unia and the DO.
114  Jacobsen (2010) shares some interesting examples from Great Britain and Hungary in this regard on p. 20.

15

The legal standing of equality bodiesThe Bauer et al. and Max Planck 
judgments and EU citizens’ 
fundamental rights:  
An outlook for harmony

Sybe A. de Vries*

Introduction

On  6  November  2018,  the  Court  of  Justice  of  the  EU  (hereafter  CJEU  or  Court)  delivered  important 
judgments  in  two  similar  cases:  one  in  joined  cases  Bauer  and  Broßonn  (hereafter  Bauer  et  al.),  and 
one in Max-Planck-Gesellschaft (hereafter Max Planck). In these cases the Court determined that Article 
31(2) of the EU Charter on paid annual leave has direct effect and horizontal application.1 The judgments 
constitute a crucial step in the further strengthening of citizens’ fundamental rights in general, including 
the principle of non-discrimination and gender equality and social rights in particular, also vis-à-vis other 
private individuals. Not only did the Court unequivocally hold that EU Charter rights may have horizontal 
direct effect, but also that this extends to rights included in the Solidarity Title; i.e., social rights. 

In  this  article  the  focus  will  lie  on  the  impact  of  the  Bauer  et  al.  and  Max  Planck  judgments  on  the 
direct effect and horizontal application of the EU Charter in general and on fundamental social rights 
in  particular.  Although  the  judgments  do  not  directly  concern  gender  equality  and  non-discrimination, 
they  bring  the  Court’s  case  law  in  relation  to  the  horizontal  applicability  of  the  EU  Charter,  including 
Article 21 as set out in Egenberger,2 to a higher level. By enhancing the legal effects of fundamental 
social rights contained in the Charter  and  by  clarifying the conditions under  which  Charter  provisions 
have horizontal application, these judgments necessarily have repercussions for the principles of gender 
equality (contained in Art. 23 EU Charter) and non-discrimination (Art. 21  EU Charter) in  the  EU. This 
article thus provides a thorough analysis of these judgments and assesses their consequences for EU 
equality law.

The judgments build upon the narrative of the recognition of (horizontal) direct effect of EU law as it 
has unfolded in a number of seminal cases. This narrative starts with the foundational judgment of 
the Court in Van Gend & Loos, where it set out the doctrine of direct effect for Treaty provisions, and 
Defrenne, in which it recognised the horizontal direct effect of Article 157 Treaty on the Functioning 
of the European Union (TFEU), which establishes the principle of equal pay for men and women. This 
continues with, inter alia, Van Duyn – in respect of direct effect of directives – and Faccini Dori – in 

* 

1 

2 

Sybe de Vries (1970) is full professor of EU Single Market Law and Fundamental rights and since 2012 the Jean Monnet 
Chair at the Europa Institute of Utrecht University. His research and his education focuses on EU Single market law, the 
Digital Single Market and the interconnection between EU free movement law and fundamental rights. Sybe is also an 
honourary judge in the field of public economic law at the District Court of Rotterdam.
CJEU 6 November 2018 Stadt Wuppertal v Maria Elisabeth Bauer and Volker Willmeroth v Martina Broßonn joined cases 
C-569/16 and C-570/16; CJEU 6 November 2018 Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Tetsuji 
Shimizu Case C-684/16.
CJEU 17 April 2018, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V. Case C-414/16.

16

 
respect  of  the  non-horizontality  of  Directives.  Finally,  the  narrative  ends  (for  now,  at  least)  with  the 
horizontal nature of the EU Charter.3

By analogy with Piet Mondriaan’s painting ‘Composition with Yellow, Blue and Red’, the development of 
the Court’s case law can be categorised into three stages. During the first stage, the Court – similarly to 
the painter who draws horizontal and vertical lines – defines and demarcates the conditions under which 
EU law has vertical and horizontal direct effect. During the second stage, the painter uses colours to fill 
in blank spaces. The different colours may well reflect the different status of fundamental rights and the 
extent to which they have been subject to secondary legislation, been given shape and meaning in case 
law, and have (horizontal) direct effect. 

During the third and final stage, whereas the painter illustrates a lookout for harmony, the Court works 
towards a harmonious and ‘seamless web of judicial protection’4 for citizens within the EU. We will then 
be able to assess how fundamental (social) rights, in particular the right to non-discrimination, have been 
strengthened and may further contribute to the social and human face of the EU.

Introduction: the Bauer et al. and Max Planck judgments

The case of Max Planck concerns an employee of Max-Planck-Gesellschaft (Mr. Shimizu) who had not 
taken  his  right  to  51  days  of  paid  annual  leave  before  the  termination  of  his  employment,  and  who 
unsuccessfully sought payment from Max Planck of an allowance corresponding to this 51 days of paid 
annual leave. In the procedure that followed, the referring German court noted that ‘Max Planck is a non-
profit-making  organisation  governed  by  private  law  which  is,  admittedly,  largely  financed  from  public 
funds but which, however, has no special powers as compared to the rules applicable between individuals, 
so that it should be regarded as an individual’.5 The dispute between Max Planck and Mr. Shimizu was 
thus horizontal in nature, which raises questions on the horizontal application of the EU Charter.

The preliminary ruling in Bauer et al. stems from two distinct yet similar cases. After the death of her 
husband, Mrs. Bauer, who was the sole legal heir of her husband, claimed nearly EUR 6 000 from Stadt 
Wuppertal, the employer of her husband and a public authority. This amount corresponded to 25 days 
of outstanding paid annual leave, which her husband had not taken prior to his death. However, Stadt 
Wuppertal rejected Mrs. Bauer’s request.

Mrs. Broßonn was also the sole legal heir of her husband, who had been employed by a private company, 
TWI  Technische  Wartung  und  Instandsetzung  Volker  Willmeroth  e.K.,  owned  by  Mr.  Volker  Willmeroth. 
Mrs. Broßonn claimed an amount of almost EUR 4 000, which corresponded to 32 days of outstanding 
paid annual leave, which her husband had not taken prior to his death. Therefore, contrary to the case 
of Bauer but (highly) similar to Max Planck, the dispute between Mrs. Broßonn and Mr. Willmeroth was 
horizontal in nature.

According to German law, the right to paid annual leave lapsing upon a worker’s death or, in the case of 
Mr. Shimizu, upon the expiring of the employment relationship, cannot be converted into an entitlement 
to an allowance in lieu or form part of the deceased’s estate. According to the referring German court, 
any other interpretation of the provisions of the national law would be contra legem.6

3 

4 

5 
6 

CJEU 5 February 1963 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue 
Administration Case C-26/62; CJEU 8 April 1976 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena 
Case C-43/75; CJEU 8 April 1976 Defrenne v Sabena (II) Case C-43/75; CJEU 4 December 1974 Yvonne van Duyn v Home 
Office Case 41/74; CJEU 14 July 1994 Paola Faccini Dori v Recreb Sri Case C-91/92.
Prechal, S. and de Vries, S. (2009), ‘Seamless Web of Judicial Protection in the Internal Market?’ European Law Review vol. 34 
issue 5.
CJEU 6 November 2018 Max-Planck-Gesellschaft Case C-684/16.
CJEU 6 November 2018 Bauer and Broßonn joined cases C-569/16 and C-570/16, para. 15. 

17

The Bauer et al. and Max Planck judgments and EU citizens’ fundamental rights: An outlook for harmonyIn both cases, the CJEU was asked to interpret Article 7 of Directive 2003/887 concerning certain aspects 
of the organisation of working time and Article 31(2) of the EU Charter of Fundamental Rights.8 Article 7 
of Directive 2003/88 provides the following:

‘(1) Member States shall take the measures necessary to ensure that every worker is entitled to 
paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and 
granting of, such leave laid down by national legislation and/or practice.
(2) The minimum period of paid annual leave may not be replaced by an allowance in lieu, except 
where the employment relationship is terminated.’

Article 31(2), which is laid down in the Solidarity Chapter of the EU Charter, stipulates the right of every 
worker to a limitation of maximum working hours, to daily and weekly rest periods, and to an annual 
period of paid leave. In the following assessment I refer mainly to the relevant paragraphs of the Bauer 
et al. judgment, as the Court in Max Planck in part refers to Bauer et al.

The Court first looked into the reach and nature of the right to paid annual leave;9 or, in other words, into 
the question of whether the right to paid annual leave under Article 7 of Directive 2003/88 and Article 
31(2) of the EU Charter can give rise to an entitlement after a worker’s death, and whether that can be 
passed on to the worker’s legal heirs by inheritance. According to the referring court, ‘the purpose of the 
right to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure’, 
which no longer appears once the person concerned has died.10

According to the Court, however, the right to paid annual leave must be considered as a ‘particularly 
important principle of EU social law’, and ‘in order to ensure respect for that fundamental right affirmed 
in EU law, Article 7 of Directive 2003/88 may not be interpreted restrictively at the expense of the rights 
that  workers  derive  from  it’.11  Furthermore,  the  ‘receipt  of  financial  compensation  if  the  employment 
relationship is terminated by reason of the worker’s death is essential to ensure the effectiveness of the 
entitlement to paid annual leave’.12

The  Court  goes  on  by  emphasising  the  fundamental  nature  of  the  right  to  paid  annual  leave,  which 
is  expressly  recognised  by  Article  31(2)  of  the  EU  Charter  and  which  applies  to  national  legislation 
implementing Article 7 of Directive 2003/88. That right can only be limited under strict conditions as 
stipulated by Article 52(1) of the EU Charter. 

According to Article 52(1) of the EU Charter: 

‘any  limitation  on  the  exercise  of  the  rights  and  freedoms  recognised  by  this  Charter  must 
be  provided  for  by  law  and  respect  the  essence  of  those  rights  and  freedoms.  Subject  to  the 
principle  of  proportionality,  limitations  may  be  made  only  if  they  are  necessary  and  genuinely 
meet objectives of general interest recognised by the Union or the need to protect the rights and 
freedoms of others’.

The Court stated that Article 7 of Directive 2003/88 read in light of Article 31(2) of the Charter does not 
allow a Member State to adopt legislation ‘pursuant to which the death of a worker retroactively deprives 

7 

8 
9 

10 
11 
12 

Council Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time,  
OJ L 299, 18.11.2003, pp. 9-19.
Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, pp. 391-407. 
Frantziou, E. (2018) ‘Joined Cases C-569/16 and C-570/16, Bauer et al: (Most of ) the Charter of Fundamental Rights is 
Horizontally Applicable’, European Law Blog, 19 November 2018: available at: http://europeanlawblog.eu/2018/11/19/
joined-cases-c-569-16-and-c-570-16-bauer-et-al-most-of-the-charter-of-fundamental-rights-is-horizontally-applicable/.
CJEU 6 November 2018 Bauer and Broßonn joined cases C-569/16 and C-570/16, para. 37.
CJEU 6 November 2018 Bauer and Broßonn joined cases C-569/16 and C-570/16, para. 38.
CJEU 6 November 2018 Bauer and Broßonn joined cases C-569/16 and C-570/16, para. 50.

18

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 him of the right to paid annual leave acquired before his death, and, accordingly, his legal heirs of the 
allowance in lieu thereof by way of the financial settlement of those rights’.13

In a similar vein, in Max Planck the Court held that where a worker has not asked to exercise their right to 
paid annual leave during the reference period concerned, Article 7 of Directive 2003/88 and Article 31(2) 
of the Charter preclude national legislation. This automatically, and without prior verification of whether 
the employer had in fact enabled them to exercise that right, excludes a right to an allowance in lieu of 
paid annual leave not taken in the event that the employment relationship is terminated.

The Court has thus ‘used’ Article 31(2) of the EU Charter to provide for a particularly broad interpretation 
of  Article  7  of  Directive  2003/88,  underlining  the  fundamental  status  of  the  principle  of  paid  annual 
leave and leaving no or little discretion for Member States to delineate this principle in national law.

The second question relates to the consequences of the Court’s interpretation of the Directive and Article 
31(2) of the EU Charter for the applicable national law, and in particular, the horizontal dispute between 
Mrs. Broßonn and the private employer Mr. Willmeroth. In the case of Max Planck, the second question 
related to the horizontal dispute between Mr. Shimizu and Max Planck. 

Regarding  Bauer  et  al.,  the  Court  first  states  that  the  national  legislation  should  be  interpreted  in 
conformity  with  EU  law,  the  possibility  of  which  is  for  the  national  court  to  decide.  The  Court  then 
holds that Article 7 of Directive 2003/88 is sufficiently precise and unconditional and is thus capable of 
producing direct effect. In the case of Bauer, which after all concerned a vertical dispute between Bauer 
and a public authority, the national court must disapply the national legislation that precludes the award 
of the financial allowance by Stadt Wuppertal.

However,  in  Broßonn  –  and  in  its  judgment  in  Max  Planck14  –  the  Court  reiterates  its  case  law  that 
confirms Directives cannot impose obligations upon individuals, and that Article 7 of Directive 2003/88 
cannot apply in a dispute exclusively between private persons. In this light it must be assessed, according 
to the Court, whether Article 31(2) of the EU Charter may be invoked in a dispute between individuals 
with  a  view  to  require  the  national  court  to  set  aside  national  legislation  and  grant  Mrs.  Broßonn  an 
allowance in lieu of paid annual leave not taken by her deceased husband.

By referring to the Community Charter of Fundamental Social Rights, Article 151 TFEU on social policy, 
and other international instruments the CJEU states that the right to paid annual leave constitutes an 
essential principle of EU social law, which is mandatory and unconditional in nature and does not require 
concrete  expression  by  the  provisions  of  EU  or  national  law.  This  means  that  Article  31(2)  of  the  EU 
Charter can be relied upon by workers in a dispute between them and their employer, in a field covered 
by EU law. Furthermore, Article 51(1) of the EU Charter, which states that the provisions of the Charter 
are addressed to the institutions, bodies, offices, and agencies of the European Union, and to Member 
States only when they are implementing EU law, cannot be interpreted as precluding the possibility that 
private individuals may be required to comply with the Charter. 

First, the Court observes that provisions of primary law addressed to Member States can be relied upon 
vis-à-vis  other  individuals.  Here  it  refers  to  its  judgment  in  Egenberger,  where  the  Court  referred  to 
case law on the Treaty freedoms and non-discrimination on grounds of nationality, including Defrenne, 
Angonese, Ferlini, and Viking Line.15 Ms. Vera Egenberger’s application for a job with Evangelisches Werk 

13 
14 
15 

CJEU 6 November 2018 Bauer and Broßonn joined cases C-569/16 and C-570/16, para. 61.
CJEU Max-Planck-Gesellschaft Case C-684/16, para. 67.
CJEU Defrenne Case C-43/75, para. 39; CJEU 6 June 2000, Roman Angonese v Cassa di Risparmio di Bolzano SpA Case 
C-281/98, paras. 33-36; CJEU 3 October 2000, Angelo Ferlini v Centre hospitalier de Luxembourg Case C-411/98 Paragraph 50; 
CJEU 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ 
Viking Line Eesti Case C-438/05, paras. 57-61;CJEU 17 April 2018, Vera Egenberger v Evangelisches Werk für Diakonie und 
Entwicklung e.V. Case C-414/16, para. 77.

19

The Bauer et al. and Max Planck judgments and EU citizens’ fundamental rights: An outlook for harmonywas rejected, as she did not belong to a denomination. In the ensuing dispute, Ms. Egenberger relied upon 
the prohibition of discrimination on grounds of religion to claim compensation. In particular, she relied on 
Article 4(2) of Directive 2000/78 establishing a general framework for equal treatment in employment 
and occupation, and on Article 21(1) of the EU Charter prohibiting discrimination on any grounds such 
as sex, race […], religion or belief […]. Second, and as the Court held in Egenberger, the Court confirmed 
that Article 21(1) of the EU Charter, which establishes the prohibition of discrimination, can be invoked in 
a dispute between private actors. Finally, Article 31(2) of the EU Charter itself entails by its very nature 
a corresponding obligation on the employer, whether a public or private actor, to grant periods of paid 
leave.

The Court concludes by stating that the judicial protection for individuals flowing from Article 31(2) of the 
EU Charter and the guarantee of full effectiveness of this provision require the national court to disapply 
conflicting national legislation, if needed.

Stage I: Painting vertical and horizontal lines 

The clear strand of argumentation that is used in Bauer et al. and Max Planck to support direct effect 
of Article 31(2) of the EU Charter and its horizontal application should certainly be welcomed. I will first 
examine the doctrine of direct effect in general, particularly in relation to the EU Charter, before turning 
to the Charter’s horizontal application.

1  Drawing vertical lines: the doctrine of direct effect 

1.1  Direct effect and EU law in general

The doctrine of direct effect finds its origin in the well-known and seminal Van Gend & Loos judgment, 
where the Court held that for provisions of EU law to have direct effect, there must be clear and precise 
obligations  for  Member  States,  the  obligation  must  be  unconditional,  compliance  with  the  obligation 
must  not  require  any  further  legal  action,  and  the  Member  States  have  no  discretion  regarding  the 
implementation of the obligation.16 Later, the Court gradually extended the doctrine of direct effect. First, 
it relaxed the conditions for provisions to have direct effect – i.e., provisions must be sufficiently precise 
and unconditional – and second, it turned the doctrine into a test of justiciability: is the norm sufficiently 
operational  to  be  applied  by  a  court?17  The  key  test,  as  mentioned  above,  is  whether  provisions  are 
unconditional and sufficiently precise.

Defrenne, a landmark gender equality case, may well serve as an illustration of how the Court determines 
that a treaty provision – in this case Article 157 TFEU on equal pay for male and female workers – has 
direct  effect.  First,  the  Court  held  that  the  principle  of  equal  pay  for  men  and  women  forms  part  of 
the  foundations  of  the  Community.  It  then  stated  that  Article  157  TFEU  is  mandatory  in  the  sense 
that Member States are bound to ensure and maintain the application of the principle of equal pay. It 
concluded by stating ‘the Court is in a position to establish all the facts which enable it to decide whether 
a woman is receiving lower pay than a male worker performing the same tasks’, and that Article 157 
TFEU ‘is directly applicable and may thus give rights to individual rights which the courts must protect’.18

16 

Jans, J., de Lange, R., Prechal, S., and Widdershoven, R. (2007) Europeanisation of Public Law, Europa Law Publishing, 88-93; 
see also de Vries, S. (2018) ‘Securing private actors’ respect for civil rights within the EU: actual and potential horizontal 
effects of instruments’, in: de Vries, S., de Waele, H., and Granger, M.P. (eds.) (2018), Civil Rights and EU Citizenship – 
Challenges at the Crossroads of the European, National and Private Spheres, Cheltenham, Edward Elgar, 2018, p. 46.

17  De Witte, B. ‘Direct Effect, Primacy and the Nature of the Legal Order’, in: Craig P. and De Burca, G. (eds) (2011), The Evolution 

of EU Law, Oxford University Press, p. 323.
CJEU Defrenne II Case 43/75, paras. 12, 16, 23 and 24.

18 

20

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 We now know that a number of core provisions of EU primary law, including Article 18 TFEU establishing 
the principle of non-discrimination on grounds of nationality, the four freedoms, Article 157 TFEU on 
the principle of equal pay for men and women, and the general principles of EU law have direct effect. 
Regulations are directly applicable and are therefore by their very nature capable of having direct effect.19 
Furthermore, directives have direct effect insofar as their provisions are unconditional and sufficiently 
precise.

1.2  Direct effect and the EU Charter

The situation is somewhat more complicated with regard to the EU Charter, at least for the following 
two reasons: first, the EU Charter will only apply to Member States, when, in the words of Article 51(1), 
Member States are implementing EU law. Second, the EU Charter, through Article 52(5) of the Charter, 
introduced a new type of distinction in EU law, namely between rights that are directly enforceable and 
principles that require further elaboration in EU or national law.

Scope of application of the EU Charter

According to the Court, the word ‘implementing’ in Article 51 applies when a Member State acts within 
the  scope  of  application  of  EU  law.20  However,  from  the  Court’s  case  law  it  is  not  always  clear  what 
exactly this entails. There is a minimum threshold, as the Charter does not operate in a vacuum, which 
means that there must be another ‘accompanying’ or ‘supportive’ provision of primary or secondary EU 
law that triggers the application of the EU Charter. Whereas in some cases the Court denied jurisdiction 
to apply the Charter because of the lack of a (sufficient) connection with EU law, although the national 
measures were adopted within the framework of EU legislation, in others the Court did not and allowed 
for the application of the Charter.21 

One such case where the Court was unwilling to apply the Charter concerned the unemployed Romanian 
Elisabeta  Dano,  a  legal  resident  in  Germany22  who  was  refused  the  right  to  social  assistance.  She 
could not seek a remedy under the EU Charter; according to the CJEU, Member States are competent 
to  determine  the  conditions  for  granting  social  benefits  and  thus  also  to  establish  the  level  of  social 
protection. The outcome of this case may well be reasonable, but the way in which the Court restricts the 
scope of application of the Charter stands in sharp contrast with other decisions. Although Germany did 
not implement EU law, it did act within the framework of EU legislation,23 which should normally suffice 
to trigger the application of the EU Charter. This lack of clarity regarding the scope of application of the 
EU Charter is undesirable, because once a ‘legal situation does not come within the scope of European 
Union law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon 
cannot, of themselves, form the basis for such jurisdiction’.24 

19 

20 

21 

22 
23 

24 

CJEU 17 May 1972, Orsolina Leonesio v Ministero dell’agricoltura e foreste Case 93/71; see also Jans, J., de Lange, R., Prechal, 
S., and Widdershoven, R. (2007) Europeanisation of Public Law, Europa Law Publishing, p. 65.
CJEU 26 February 2013, Åklagaren v Hans Åkerberg Fransson Case C-617/10; see also Ward, A. (2014), ‘Article 51’, in: Peers, 
S., Hervey, T., Kenner, J., and Ward, A. (eds.) (2014), The EU Charter of Fundamental Rights – A Commenatry, (Hart Publishing, 
Oxford, p. 1428.
See for instance CJEU 7 March 2013, Sindicato dos Bancários do Norte and Others v BPN – Banco Português de Negócios SA 
Case C-128/12; see also Barnard, C. (2013) ‘The Charter, the Court – and the Crisis’, Legal Studies Research Paper Series No. 
18/2013, University of Cambridge; and Barnard, C. (2015) ‘The Silence of the Charter: Social Rights and the Court of Justice’ 
in: de Vries, S. Bernitz, U. and Weatherill, S. (eds.) (2015) The EU Charter of Fundamental Rights as a Binding Instrument – Five 
Years Old and Growing, Hart Publishing, pp. 173-188.
CJEU 11 November 2014, Elisabeta Dano and Florin Dano v Jobcenter Leipzig Case C-333/13.
Regulation (EC) 883/2004 No. 883/2004 of the European Parliament and of the Council of 29 April 2004 on the 
coordination of social security systems, OJ 2004, L 166/1; Directive 2004/38/EC on the right of citizens of the Union and 
their family members to move and reside freely within the territory of the Member States, OJ L 158, 30.4.2004, p. 77-123.
Pech, L. and Platon, S. (2018) ‘Judicial independence under threat: The Court of Justice to the rescue in the ASJP case Case 
C-64/16, Associação Sindicaldos Juízes Portugueses’, Common Market Law Review, vol. 55, 1833. Citizens will then have to 
take recourse to other human rights instruments, see: de Vries, S. ‘Protecting Fundamental (Social) Rights through the Lens 

21

The Bauer et al. and Max Planck judgments and EU citizens’ fundamental rights: An outlook for harmonyThe situations in the Bauer et al. and Max Planck cases, however, were clearly governed by EU law. Bauer 
et al. builds upon previous case law in the field of non-discrimination. This includes the Egenberger case, 
where  Directive  2000/78  establishing  a  general  framework  for  equal  treatment  in  employment  and 
occupation25 was held to constitute the linchpin of the relationship between the existing EU legislation 
and the principle of non-discrimination on grounds of religion, as contained in Article 21 of the EU Charter. 
According to the Court in Bauer et al., ‘[s]ince the national legislation at issue in the main proceedings is 
an implementation of Directive 2003/88, it follows that Article 31(2) of the Charter is intended to apply 
in  the  main  proceedings’  (para  53).  Furthermore,  according  to  the  Court,  a  national  court  must,  as  a 
consequence of Article 31(2) of the Charter, disapply national legislation in situations falling within the 
scope of the Charter (para. 86). The Directive’s mere existence and the corresponding domestic measures 
seeking to implement the Directive, warrant, although incorrectly, the application of the Charter.26

Despite this, questions remain on the relationship between the EU Charter and secondary EU legislation. 
First, could the Charter be used to extend the scope of application of EU law, and thereby the reach of 
a Directive, which in turn materializes the right established in the Charter? The answer should probably 
be ‘no’, as anything else would lead to a situation whereby Article 51(1) of the Charter is circumvented. 
However, the Charter can be used to ensure the full effectiveness of the Directive through the application 
of the Charter to a national measure at first sight not clearly covered by the Directive itself. This was the 
case in CCOO, where A-G Pitruzzella held that the lack of a national system for measuring working time 
is incompatible with Directive 2003/88 and Article 31 of the Charter, even though the Directive does not 
include a specific provision and obligation for measuring working time:

‘In particular, the obligation upon Member States to take the ‘necessary measures’ should extend not 
only to the transposition of the rules on working time into national law, but also to the introduction of 
whatever is necessary to safeguard the fundamental rights enshrined in Article 31 of the Charter and to 
eliminate any impediment that might in fact restrict or undermine the enjoyment of the rights conferred 
on individuals for that purpose by Directive 2003/88, which, as I observed in point 36 of this Opinion, is 
a measure implementing Article 31 of the Charter.’27

In a similar vein, in Google Spain the EU Charter – in particular Articles 7 and 8 – played an important 
role  in  providing  for  a  broad  scope  of  application  of  the  rights  to  privacy  and  protection  of  personal 
data elaborated by the former Data Protection Directive 95/46, including a right to be forgotten.28 The 
Court  will  have  the  chance  to  shed  more  light  on  the  question  concerning  the  relationship  between 
directives and the EU Charter in two pending Finnish cases, AKT and TSN, which both concern the reach of 
Directive 2003/88/EC and Article 31(2) of the EU Charter in relation to a national provision in a collective 
agreement.29

Second, could Article 21(1) of the EU Charter, which is broader in scope than Article 19 TFEU, be invoked 
to challenge discrimination on grounds that are not elaborated in the equal treatment directives, based 
on  Article  19  TFEU?  Next  to  the  grounds  mentioned  in  Article  19,  Article  21(1)  of  the  Charter  also 
prohibits discrimination on grounds of colour, social origin, genetic features, language, political or any 

25 

26 

of the EU Single Market: the Quest for a More “Holistic Approach’” (2016), The International Journal of Comparative Labour 
Law and Industrial Relations, vol. 32, issue no. 2, pp. 207-208.
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment 
and occupation, Official Journal L 303, 02/12/2000 pp. 16-22.
Fontanelli, F. (2018) ‘You can teach a new court Mangold tricks – the horizontal effect of the Charter right to paid annual 
leave’, EU Law Analysis, 11 November 2018, available at: http://eulawanalysis.blogspot.com/2018/11/you-can-teach-new-
court-mangold-tricks.html.

27  Opinion of Advocate General Pitruzzella delivered on 31 January 2019 in Federación de Servicios de Comisiones Obreras 

28 

29 

(CCOO) v Deutsche Bank SAE Case C-55/18, para. 51.
CJEU 13 May 2014, Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja 
González Case C-131/12.
CJEU Cases Terveys- ja sosiaalialan neuvottelujärjestö (TSN) C-609/17, and Auto- ja Kuljetusalan Työntekijäliitto (AKT) 
C-610/17, both lodged on 24 October 2017 and currently pending. See also Rossi, L., http://eulawanalysis.blogspot.
com/2019/02/the-relationship-between-eu-charter-of.html.

22

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 other opinion, membership of a national minority, property and birth. The point of departure is that as 
these grounds are not the object of EU legislation, they cannot be invoked in a national procedure merely 
to challenge national discriminatory rules. Neither Bauer et al. nor Egenberger give rise to a different 
conclusion on this matter.

This means that a tension continues to exist between Article 21(1) of the Charter and Article 19 TFEU, 
as the grounds not mentioned in the latter provision may find themselves in a certain vacuum.30 This can 
also be inferred from the Court’s decision in Kaltoft. Here the Court was asked to decide on discrimination 
on grounds of obesity, and whether this ground would fall within the scope of Directive 2000/78, which 
prohibits,  inter  alia,  discrimination  on  grounds  of  disability.  According  to  the  Court,  obesity  cannot  be 
regarded as a ground protected by Directive 2000/78, and since neither Article 19 nor the Directive refer 
to obesity, the provisions of the Charter were inapplicable.31 The only possibility in this case to invoke the 
equal treatment Directive and/or Article 21(1) of the Charter would be if obesity constituted disability 
within the meaning of the Directive; something the Court, for that matter, did not exclude.

However, the scope of application of some fundamental rights seems to be broader. This appears true 
for the principle of non-discrimination on grounds of nationality, which constitutes the cornerstone of 
EU Single Market law and is laid down in Articles 18 TFEU and 21(2) of the EU Charter. This principle is 
triggered either ‘when the interstate trade is affected in some way (even indirectly), or when there is 
some competence within the Treaty to act on a certain issue’.32 

The second Charter provision with a broad of application is Article 47 on effective judicial protection. 
Article 47 was applied in Egenberger alongside the principle of non-discrimination on grounds of religion, 
but it did not specifically materialise in the equal treatment Directive. It rather served to support the 
horizontal direct effect of Article 21(1) of the Charter in the dispute between Ms. Egenberger and the 
Evangelical Foundation (‘Evangelisches Werk’). 

That  Article  47  of  the  Charter  in  itself  could  have  horizontal  application  had  been  suggested  by  the 
English Court of Appeal in the case Benkharbouche v Sudan and Janah v Libya. This case involved two 
UK workers that brought employment law complaints against the embassies of Sudan and Libya. The 
question was whether invoking state immunity amounted to a breach of fundamental rights, in particular 
Article 6 of the European Convention on Human Rights (ECHR) and the corresponding provision in the 
EU Charter, Article 47, on effective judicial protection. The Court of Appeal assimilated the embassies of 
non-EU Member States to private parties,33 and held that Article 47 must fall into the category of Charter 
provisions that can be the subject of horizontal direct effect.34 

There are limits to the broad scope of Article 47 of the EU Charter. In the Portuguese judges case on the 
principle of independence of the judiciary, the Court preferred to apply Article 19(1) Treaty on European 
Union (TEU) on effective legal protection, which has a broader scope of application and could be seen as 
‘a systematic requirement used in abstracto to challenge national measures affecting the independence 
of judges, to Article 47 of the Charter’.35 

30  Dudek, T. ‘EU citizenship and EU anti-discrimination law’ (2018) in: de Vries, S. de Waele, H., and Granger, M. P. (eds.) (2018), 

31 
32 

Civil Rights and EU Citizenship – Challenges at the Crossroads of the European, National and Private Spheres, Edward Elgar, 
Cheltenham, p. 141.
CJEU 18 December 2014, Fag og Arbejde (FOA) (Kaltoft) v KL Case C-354/13, paras. 34-39.
Prechal, S. de Vries, S., and van Eijken, H. (2011), ‘Chapter 12 – The Principle of Attributed Powers and the “Scope of EU Law”’ 
in: Besselink, L., Pennings, F., and Prechal, S. (2011), The Eclipse of the Legality Principle in the European Union, Kluwer Law 
International, Alphen a/d Rijn 2011, p. 221.
Peers, S., EU law analysis at: http://eulawanalysis.blogspot.nl/2015/02/rights-remedies-and-state-immunity.html.

33 
34  UK Court of Appeal (civil devision), 5 February 2015, Benkharbouche v Sudan Embassy and Janah v Libya, EWCA Civ 3, para. 78.
CJEU 27 February 2018, Associação Sindical dos Juízes Portugueses v Tribunal de Contas Case C-64/16, See in particular 
35 
Pech, L. and Platon, S. (2018) ‘Judicial independence under threat: The Court of Justice to the rescue in the ASJP case Case 
C-64/16, Associação Sindicaldos Juízes Portugueses’, Common Market Law Review, vol. 55, p. 1839.

23

The Bauer et al. and Max Planck judgments and EU citizens’ fundamental rights: An outlook for harmonyRights and principles 

The second complication relates to Article 52(5) of the EU Charter, which distinguishes between rights and 
principles. The idea behind this distinction is that there exists a ‘dichotomy between individual and fully 
enforceable rights on the one hand, and programmatic norms (principles) that require the intervention 
of the legislator or the executive […] on the other’.36 But, although the aim of Article 52(5) was to clarify 
the judicial nature of rights and principles and thereby reinforce legal certainty,37 it has been questioned 
whether Article 52(5) does not in fact lead to more confusion. Deciding which provision contains a right 
or principle is complex, and introducing a new category of principles – especially considering that EU law 
already contains a range of various principles – is not altogether helpful.38

It is therefore perhaps not surprising that the Court in AMS avoided the question of whether Article 27 
of  the  EU  Charter  on  workers’  representation  or  the  right  to  information  and  consultation  should  be 
considered as a right or a principle. One of the questions raised in this case was whether Article 27 could 
be  invoked  to  disapply  a  rule  that  excluded  certain  categories  of  employees  from  the  threshold  that 
triggers a right to information and consultation. The Court confined its analysis to whether Article 27 
could be considered fully effective or not, and came to the conclusion that it was not directly effective. 
This led many to believe that the social rights in the Solidarity Title should be considered principles; until 
the Court’s decisions in Bauer et al and Max Planck.39

By contrast, the early case law of the Court made clear that the principle of non-discrimination on grounds 
of nationality (EU free movement law) or sex (Defrenne) has direct effect. Later the Court confirmed that 
the  principle  of  non-discrimination  or  the  right  not  to  be  discriminated  on  the  grounds  elaborated  in 
the equal treatment directives based on Article 19(1) TFEU (race, gender, sexual orientation, disability, 
religion and belief, and age) is directly effective. Article 21(1) of the EU Charter reinforces the ‘rights 
character’ of the principle of non-discrimination, which was made unequivocally clear by the Court in 
respect of discrimination on grounds of religion in Egenberger. According to the Court, Article 21(1) of the 
EU Charter on the prohibition of discrimination does not have to be made specific in EU or national law 
and is sufficient in itself. The Court held that: 

‘the prohibition of all discrimination on grounds of religion or belief is mandatory as a general 
principle of EU law. That prohibition, which is laid down in Article 21(1) of the Charter, is sufficient 
in itself to confer on individuals a right which they may rely on as such in disputes between them 
in a field covered by EU law.’40

With respect to the mandatory effect of Article 21 of the Charter, the situation is no different, in principle, 
from the various provisions of the founding Treaties prohibiting discrimination on various grounds, even 
where the discrimination derives from contracts between individuals.’41

By reiterating its doctrine of (vertical) direct effect in respect of directives and treaty provisions, the Court 
has in Bauer et al. and Max Planck now developed a general test to be applied to all the rights protected 
by the Charter. This test ‘is based on a twofold condition’, according to which Charter rights have direct 

36 

37 

38 

39 
40 

41 

Peers, S. and Prechal, S. (2014), ‘Article 52- Scope and Interpretation of Rights and Principles’, in: Peers, S., Hervey, T., Kenner, 
J., and Ward, A. (eds.), The EU Charter of Fundamental Rights – A Commentary, Hart Publishing, pp. 1505-1506. 
Peers, S. and Prechal, S. (2014), ‘Article 52- Scope and Interpretation of Rights and Principles’, in: Peers, S., Hervey, T., Kenner, 
J., and Ward, A. (eds.), The EU Charter of Fundamental Rights – A Commentary, Hart Publishing, p. 1506.
Peers, S. and Prechal, S. (2014), ‘Article 52- Scope and Interpretation of Rights and Principles’, in: Peers, S., Hervey, T., Kenner, 
J., and Ward, A. (eds.), The EU Charter of Fundamental Rights – A Commentary, Hart Publishing, p. 1506.
See also Barnard, C. (2019), ‘Brexit and the Charter of Fundamental Rights’, Modern Law Review vol. 82, issue 2, p. 354.
CJEU Egenberger, Case C-414/16, para. 76 (See, with respect to the principle of non-discrimination on grounds of age, 
judgment of 15 January 2014, Association de médiation sociale, C176/12, EU:C:2014:2, Paragraph 47).
CJEU Egenberger, Case C-414/16, para. 77 (see, by analogy, judgment of 8 April 1976, Defrenne, 43/75, EU:C:1976:56, 
Paragraph 39; of 6 June 2000, Angonese, C281/98, EU:C:2000:296, Paragraphs 33 to 36; of 3 October 2000, Ferlini, C411/98, 
EU:C:2000:530, Paragraph 50; and of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s 
Union, C438/05, EU:C:2007:772, Paragraphs 57 to 61).

24

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 effect if they are (i) unconditional in nature, and (ii) mandatory.42 We must thereby assess whether the 
Charter provisions themselves do not explicitly contain the caveat ‘the conditions provided for by Union 
law and national laws and practices’ – as it was the case with Article 27 of the Charter, and which was 
at issue in the AMS case. If such a reference is absent in the Charter provision itself, the fundamental 
(social) right may be an individually enforceable right, which is only subject to the limitations laid down 
in the general derogations clause in Article 52 of the Charter.43

2  Drawing horizontal lines: horizontal application of the EU Charter

2.1  Horizontal application and direct effect of fundamental rights in general

The classic approach to fundamental rights relates to the vertical relationship between the state and 
the citizen. However, in EU law we have seen that the principles of non-discrimination on grounds of 
nationality  and  of  equal  pay  for  male  and  female  workers  could  be  invoked  in  horizontal  disputes. 
This was not self-evident, as the point of departure was that the treaty provisions on free movement, 
incorporating  the  principle  of  non-discrimination  on  grounds  of  nationality,  were  primarily  drafted  for 
Member States or public authorities. In a similar vein, Article 157 TFEU only refers to Member States. The 
EU provisions on competition, however, were drafted for private parties; companies.44 

However, the Court has extended the scope of application of EU free movement provisions and Article 
157 TFEU to private actors. If we look at this case law the following three strands of argumentation 
can be discerned:45 the first argument is based on the effet utile principle, which implies that neither the 
State nor private law bodies may detract from the useful effectiveness of EU law. The free movement 
provisions  would  be  prevented  from  functioning  effectively  if  private  organisations  were  allowed  to 
create or maintain obstacles that governments are not allowed to create or maintain.46 A second and 
related  argument  for  the  Court  to  accept  a  (limited)  form  of  horizontal  direct  effect  is  the  aspect  of 
dominance; or, in other words, the fact that certain private organisations exercise a certain power over 
(other)  individuals.47  In  Raccanelli  it  was  the  prestigious  research  institute,  Max-Planck-Gesellschaft, 
which undoubtedly exercises some powers over (especially young) researchers. 

The third and final argument relates to the fundamental (mandatory) nature of the freedoms and the 
key role of the principle of non-discrimination. The fact that the principle of non-discrimination may have 
triggered horizontal direct effect could be deduced from Angonese,48 where the Court emphasised the 
fact that Article 45 TFEU constitutes a specific application of the general principle of non-discrimination, 
as contained in Article 18 TFEU. It could therefore be argued that the fundamental rights character of the 
non-discrimination principle is crucial in creating obligations for private individuals. A similar approach 
can be found in the cases of Defrenne and Viking & Laval.49

Rossi, L., http://eulawanalysis.blogspot.com/2019/02/the-relationship-between-eu-charter-of.html. 
Barnard, C. (2019), ‘Brexit and the Charter of Fundamental Rights’, Modern Law Review vol. 82, issue 2, p. 355.

42 
43 
44  Mortelmans, K. (2001), ‘Towards Convergence in the Application of the Rules on Free Movement and on Competition?’ 
Common Market Law Review, vol. 38, pp. 613-614. This dividing line has been marked by the terms ‘imperium’ and 
‘dominium’, or public and private interests.

45  De Vries, S. and van Mastrigt, R. (2013). ‘The Horizontal Direct Effect of the Four Freedoms: From a Hodgepodge of Cases 

to a Seamless Web of Judicial Protection in the EU Single Market?’, in: Bernitz, U., Groussot, X., and Schulyok, F. (eds.) (2013) 
General Principles of EU law and European Private Law, Kluwer Law International, Alphen a/d Rijn, pp. 264-265.
CJEU 12 December 1974 B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche 
Wielren Unie and Federación Española Ciclismo Case C-36/74; CJEU 15 December 1995 Union royale belge des sociétés 
de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des 
associations européennes de football (UEFA) v Jean-Marc Bosman Case C-415/93; CJEU Viking Case C-438/05, and CJEU 
18 December 2007 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet Case C-341/05. 
For instance, CJEU Ferlini Case C-411/98.
CJEU Angonese Case C-281/98.
CJEU Defrenne II Case C-43/75.

46 

47 
48 
49 

25

The Bauer et al. and Max Planck judgments and EU citizens’ fundamental rights: An outlook for harmonyThe acceptance by the Court of (limited) forms of horizontal direct effect of EU treaty provisions has thus 
also caused ramifications for fundamental rights; this despite the rather rigorous dividing line between 
the  vertical  and  horizontal  dimensions  of  fundamental  rights  in  the  legal  systems  of  most  Member 
States.50 In addition, the Court in the Mangold et seq case law recognised the horizontal application of the 
principle of non-discrimination on grounds other than nationality as a general principle of EU law.51 This 
particularly served to circumvent the prohibition of horizontal direct effect of directives, which led at first 
to considerable confusion as to whether it was the directive, despite its lack of horizontal direct effect, 
or the general principle that has the capacity to be invoked in a horizontal dispute. However, Mangold is 
especially significant, as it was the first case wherein the Court recognised the horizontal direct effect of 
a fundamental right, thereby using the Directive as a metaphoric trampoline.

2.2  Horizontal application of fundamental rights enshrined in the EU Charter 

As some of the general principles are incorporated in the EU Charter as fundamental rights, it would 
seem self-evident that Charter rights could also apply and be invoked in horizontal disputes between 
private parties. The main legal obstacle for accepting horizontal direct effect of EU Charter rights appears 
to be Article 51(1) of the Charter. Advocate General Trstenjak at the time of the Dominguez case argued 
in favour of a restrictive reading of the EU Charter. According to her, Article 31 of the Charter could not 
apply in a horizontal dispute, as Articles 51(1) and 52(2) of the Charter ‘indicate an intentional restricting 
of the parties to whom fundamental rights are addressed’.52 This point of view, however, was clearly not 
shared by everyone. In his Opinion in AMS, Advocate General Cruz Villalon noted, contrary to AG Trstenjak, 
that ‘it would be paradoxical if the advent of the Charter changed this state of affairs [i.e. the recognition 
in the Court’s case law of horizontal direct effect of Treaty provisions and general principles prior to the 
Charter] in a negative sense’ and held:53 

‘[…] There is nothing in the wording  of the article  or,  unless I am  mistaken,  in  the  preparatory 
works or the Explanations relating to the Charter, which suggests that there was any intention, 
through the language of that article, to address the very complex issue of the effectiveness of 
fundamental rights in relations between individuals.’54 

The Court itself in AMS did not exclude the possibility of horizontal direct effect of Charter provisions per se.55 

The reasoning of the Court with respect to the horizontal application of the EU Charter in Bauer et al. 
largely rests upon its previous judgment in Egenberger, although it is more detailed and extensive. In 
Egenberger the Court basically uses two arguments for the horizontal direct effect of the principle of 
non-discrimination  on  grounds  of  religion.  First,  it  states  that  it  is  mandatory  as  a  general  principle 
of  law,  and  that  Article  21(1)  of  the  EU  Charter  is  no  different  from  various  provisions  of  the  TFEU 
prohibiting discrimination. Here it refers to the case law on free movement (the judgments in Angonese 
and Viking) and its judgment in Defrenne (see above). This outcome is not really surprising, and implies 
that with respect to the grounds of discrimination elaborated in EU directives based on Article 19 TFEU 
and discrimination on grounds of nationality and sex (Article 157 TFEU), the EU Charter can be invoked 
in a horizontal dispute.

50  Walkila, S. (2016) Horizontal Effect of Fundamental Rights in EU Law, Europa Law Publishing, Groningen; de Vries, S. (2018) 

‘Securing private actors’ respect for civil rights within the EU: actual and potential horizontal effects of instruments’, in: 
de Vries, S., de Waele, H., and Granger, M.P. (eds.) (2018), Civil Rights and EU Citizenship – Challenges at the Crossroads of the 
European, National and Private Spheres, Cheltenham, Edward Elgar, 2018, p. 47.
CJEU 22 November 2005, Werner Mangold v Rüdiger Helm Case C-144/04; CJEU 19 January 2010, Seda Kücükdeveci v Swedex 
GmbH and Co. Case C-555/07.
CJEU Opinion of AG Trstenjak, delivered on 8 September 2011, Maribel Dominguez v Centre informatique du Centre Ouest 
Atlantique and Préfet de la région Centre Case C-282/10, para. 80.
See Ward, A. (2014), ‘Article 51 – Field of Application’ in Peers, S. and others (eds.) (2014), The EU Charter of Fundamental 
Rights: A Commentary, Oxford, Hart Publishing, p. 1429.
CJEU 15 January 2014, Association de médiation sociale v Union locale des syndicats CGT (AMS) Case C-176/12 (Opinion of AG 
Cruz Villalón), para 31.
CJEU 15 January 2014, Association de médiation sociale v Union locale des syndicats CGT (AMS) Case C-176/12. 

51 

52 

53 

54 

55 

26

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Contrary  to  Egenberger,  the  Court  in  Bauer  et  al.  and  Max  Planck  explicitly  refers  to  Article  51(1)  of 
the Charter and the addressees mentioned therein. By pondering on its personal scope of application, 
the  Court  in  Bauer  et  al.  affirms  for  the  first  time  the  horizontality  (in  principle)  of  the  EU  Charter.56 
Furthermore,  the  Court  emphasises  that  in  Article  31  of  the  Charter  there  is  an  explicit  reference  to 
‘worker’, which necessarily entails that there is an obligation for the employer to grant the right to a 
limitation of working hours. This individualisation of addressees leads to a ‘strong presumption in favour 
of horizontal application’.57 Lastly, the Court regards Article 31(2) as the essential principle of EU social 
law based on various international instruments and EU law itself. The national constitutional traditions 
to  which  the  Court  refers  in  the  equal  treatment  case  law,  including  in  the  Egenberger  case,  are  not 
mentioned in its judgment in Bauer et al. Does this mean that national constitutional traditions are not a 
relevant criterion anymore for a Charter right to be considered mandatory and to have (horizontal) direct 
effect? Does the Court herewith leave the door ajar to accepting the (horizontal) direct effect of Article 
21(1)  of  the  Charter  as  a  whole,  where  other  grounds  than  those  elaborated  in  the  equal  treatment 
directives are at issue and whose fundamental rights’ status is perhaps not recognised in all Member 
States, but is at EU level, simply because they are in the Charter?

Stage II: Filling in the white blanks with yellow, blue and red: 
Strengthening the social face of the EU

Turning to the second stage of Mondriaan’s painting, and to spaces filled with the non-colours white and 
grey and the primary colours red, yellow and blue, we can discern a certain pattern in the status and 
scope of fundamental rights enshrined in the Charter.

At the background in the white spaces, ‘creating a point of rest’, remain those fundamental rights which 
need to be further clarified and elaborated in EU or national legislation. These rights must probably be 
seen as principles within the meaning of Article 52(5) of the Charter. An example is Article 27 on workers’ 
rights to information, as can be inferred from the AMS case. After AMS it was unclear to what extent 
social rights stipulated in the Solidarity Title  could  be considered enforceable.  Advocate General  Cruz 
Villalon held that social and employment rights generally belong to the category of principles, but this 
view should, after Bauer et al. and Max Planck, be put into perspective.

The  primary  colours  red,  yellow  and  blue  represent  the  Charter  rights,  which  are  directly  enforceable 
and  not  subject  to  the  caveat  in  the  Charter  provision  itself  ‘provided  for  by  Union  law  and  national 
laws and practices’. Here we find Article 21(1) and Article 31(2) of the Charter, but also other important 
rights, including the rights to privacy and protection of personal data (Articles 7 and 8), right to property 
(Article 17) or the right to freedom of expression (Article 11).

However, depending on the fundamental right at issue, the colour may be bright red, yellow or blue. As 
set out above, the principles of non-discrimination on grounds of nationality, sex, and effective judicial 
protection  have  a  far-reaching  scope  of  application.  Treaty  provisions  or  the  EU  Charter  are  easily 
triggered, also in horizontal disputes. For discrimination on the grounds mentioned in Article 19 TFEU, 
however, the scope of application of Article 21 of the Charter is more limited, as it can be invoked only 
in respect of the grounds corresponding to those in Article 19 TFEU and the directives. That there should 
be a clear connection with EU secondary law also appears from Bauer et al. 

56 

57 

Frantziou, E. (2018) ‘Joined Cases C-569/16 and C-570/16, Bauer et al: (Most of ) the Charter of Fundamental Rights is 
Horizontally Applicable’, European Law Blog, 19 November 2018: available at: http://europeanlawblog.eu/2018/11/19/
joined-cases-c-569-16-and-c-570-16-bauer-et-al-most-of-the-charter-of-fundamental-rights-is-horizontally-applicable/. 
Sarmiento, D. (2018), ‘Sharpening the Teeth of EU Social Fundamental Rights: A Comment on Bauer’, 8 November 2018, 
available at: https://despiteourdifferencesblog.wordpress.com/2018/11/08/sharpening-the-teeth-of-eu-social-fundamental-
rights-a-comment-on-bauer/.

27

The Bauer et al. and Max Planck judgments and EU citizens’ fundamental rights: An outlook for harmonyThe  importance  of  this  judgment  is,  though,  that  the  Court  has  taken  a  first  and  important  step  in 
recognising that fundamental social rights produce (horizontal) direct effect, which so far seemed to have 
been reserved to the domain of non-discrimination. The Court has now finally extended this rationale 
to social rights differently to discrimination, ‘thus opening up a new playing-field in the enforcement of 
social rights in Europe’.58

Concluding Stage III: Towards a harmonious and ‘seamless web of 
judicial protection’ for EU citizens?

It is assumed that Mondriaan’s painting is a depiction of the essence of life. The interplay of contrasting 
pictorial elements is indicative of the inner harmony of life that lies beneath the surface.59 Creating more 
convergence and harmony between different EU rules having their own modes of application has perhaps 
been  at  the  back  of  the  Court’s  mind  when  it  developed  judicial  techniques  such  as  horizontal  direct 
effect. These techniques, as Sacha Prechal and I argued ten years ago, served to fill the gap in judicial 
protection of citizens against breaches of EU free movement and competition law.60

Similarly, the acceptance of horizontal direct effect of EU Charter provisions supports the development 
of  a  harmonious  and  seamless  web  of  judicial  protection  for  EU  citizens.  That  there  can  be  a  gap  in 
protection caused by, for instance, the prohibition of horizontal direct effect of directives materialising 
fundamental rights, becomes most strikingly clear from the Bauer et al. case. After all, in Bauer we are 
dealing with two similar situations, which, as a result of the non-horizontality of directives, could have 
led  to  entirely  different  outcomes.  Whereas  Bauer  could  invoke  the  directly  effective  provision  of  the 
Directive vis-à-vis the public authority (Stadt Wuppertal), Broßonn could not do so vis-à-vis the private 
employer. The Court uses Article 31(2) of the Charter to fill this gap in judicial protection. It is however 
unclear whether all private actors, irrespective of their dominance and possibility to exercise a certain 
power over individuals, can be bound by a fundamental right like Article 31(2). Max Planck is quite a 
different private individual compared to Mr. Wilmeroth in the Bauer et al case.

Together  with  the  Max  Planck  and  the  Egenberger  cases,  Bauer  et  al.  demonstrates  how  the  Court 
recognises  the  role  of  private  employers  in  regulating  gainful  employment.  Whether  this  also  means 
that  the  Court  more  generally  accepts  the  increasingly  important  role  of  private  actors  in  our  mixed 
economies  and  the  fading  dividing  lines  between  the  public  and  private,  remains  to  be  seen.  In  our 
increasingly digitalised societies, private actors play a major role. Think, for instance, about the five big 
tech companies, whose actions have a significant impact on the fundamental rights of EU citizens. To 
what extent could these private actors be obliged to comply with EU fundamental rights as enshrined in 
the Charter, like Article 21 on non-discrimination, Articles 7 and 8 on privacy and protection of personal 
data, or Article 11 on the freedom of information and expression, in a dispute with citizens before a 
national civil court?61

The creation of a truly seamless web of judicial protection against infringements of fundamental rights, 
including the right not be discriminated, runs up against certain limits that are – at least to some extent – 
inherent in EU law. First, the lack of clarity regarding the scope of application of the EU Charter leads to 
legal uncertainty about when exactly citizens can invoke the EU Charter. It seems that a certain hierarchy 
exists between EU fundamental rights, with the principle of non-discrimination on grounds of nationality 
and sex and the principle of effective judicial protection taking the lead.

58 

59 
60 

61 

Sarmiento, D. (2018), ‘Sharpening the Teeth of EU Social Fundamental Rights: A Comment on Bauer’, 8 November 2018, 
available at: https://despiteourdifferencesblog.wordpress.com/2018/11/08/sharpening-the-teeth-of-eu-social-fundamental-
rights-a-comment-on-bauer/. 
‘Composition with Red Blue and Yellow’, painting by Piet Mondriaan, 1929. 
Prechal, S. and de Vries, S. (2009), ‘Seamless Web of Judicial Protection in the Internal Market?’ European Law Review vol. 34 
issue 5. 
CJEU Google Spain Case C-131/12.

28

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Second, this hierarchy between fundamental rights may be reinforced through the adoption of secondary 
legislation in areas where the EU legislator has competence, for instance the field of the internal market 
or  (closely  related)  non-discrimination  and  employment.  Once  the  EU  has  adopted  legislation  that 
materialises  certain  fundamental  rights,  the  EU  Charter  can  be  easily  triggered  in  disputes  between 
citizens and domestic public or private actors. These fundamental rights may, as a consequence, gain 
more prominence than others that remain second division.

Next to the development of a seamless web of judicial protection, the value of Bauer et al. lies in the 
Court’s reiteration of the EU’s social values and objectives, which have been inherent in the economic 
integration process right from the inception of the EEC (Defrenne), as well as the EU’s respect for non-
discrimination and equality between men and women, which according to Article 2 TEU, belong to the 
EU’s  foundational  values.  The  Court  affirms  the  constitutional  status  of  fundamental  social  rights  as 
enshrined in the EU Charter, and aligns them with, for instance, the right to equal treatment. Against 
this background, Bauer at al. strengthens the position and status of the right to gender equality and 
non-discrimination in EU law. This approach may also contribute to the attainment of a social market 
economy as set out in the objectives of the Treaty (Article 3(3) TEU) and give the EU a human face. 

29

The Bauer et al. and Max Planck judgments and EU citizens’ fundamental rights: An outlook for harmonyMatters of individual conscience or 
non-discriminatory access to public 
services and goods?

Denial of access to public goods and services 
under the colours of religious ethos

Romanița Elena Iordache*

Abstract:

In the changing tides of illiberalism eroding the space of fundamental freedoms and liberties, 
religiously  motivated  individuals  increasingly  invoke  their  religious  ethos,  or  claim  to  be 
conscientious  objectors,  in  the  attempt  to  be  exempted  from  the  non-discrimination  principle, 
while effectively denying or limiting the rights of others. Whether it is the therapist working for a 
relationship counselling service who refuses his services; the owner of a bed and breakfast, or of 
the cake shop or photo shop denying services to same-sex families, believing that such services 
would condone homosexuality; the health care professionals refusing to provide particular health 
services; or pharmacists who refuse to sell properly prescribed legal drugs to women or to trans 
persons  –  there  is  a  common  thread:  those  denying  services  or  goods  felt  that  to  provide  the 
services requested would be incompatible with their religious beliefs and asked to be exempted 
from  the  general  principle  of  non-discrimination.  Conscientious  objection  was  developed  in 
relation  to  mandatory  military  service,  articulating  the  obligation  of  states  to  guarantee  the 
effective exercise of the right to freedom of conscience. It was further revisited in the context 
of  health  services.  However,  not  all  religiously  motivated  conduct  is  recognised  as  deserving 
protection. This article seeks to shed light on the standards emerging at ECHR and EU level, to 
assess the challenging task of balancing the expression of religious ethos with the prohibition of 
discrimination – including discrimination on grounds of sexual orientation and gender identity – or 
with women’s rights to personal integrity, life, health, and autonomy and concludes that, in spite 
of the conservative rhetoric, there is no emerging right to discriminate.

It is now well-established that when exercising a public function as a representative of the state, a public 
official cannot invoke private religious constraints in order to refuse to provide state services such as 
those to be ensured by judges, registrars or marriage commissioners.1 There is, however, an increasingly 
present debate about religious individuals who provide public services or goods and invoke their religious 
ethos  when  denying  access  to  such  services  on  discriminatory  grounds.  Media  often  present  such 

* 

1 

Romanița Iordache is a human rights researcher and member of the European network of legal experts in gender 
equality and non-discrimination for Romania. She is the Senior Expert coordinating the Romanian FRANET team of the 
Fundamental Rights Agency, co-president of ACCEPT Romania, a non-governmental organisation, and president of the 
Impreuna Agency for Community Development.
ECtHR, Eweida, Ladele, McFarlane v UK, Nos. 48420/10, 59842/10, 51671/10 and 36516/10, 15.01.2013. See also Supreme 
Court of Spain, Interpuesto por Pablo de la Rubio Comos, No 69/2007, 11.05.2009 available at: https://e00-elmundo.uecdn.
es/documentos/2009/05/29/sentencia.pdf.

30

 
incidents as newsworthy scandals – religious beliefs invoked for women being denied contraceptive pills 
by  the  pharmacists;2  transgender  women  being  denied  prescribed  hormone  therapy  by  pharmacists;3 
the entire Ob-Gyn departments of public hospitals refusing to provide health services such as abortion, 
during religious celebrations, or permanently;4 the contractor refusing to provide building services to a 
man he assumes is homosexual;5 the printing house which refuses to print the roll-up banner for an 
LGBTI initiative6 or invitations for the celebration of a civil partnership.7 Some of the cases, however, 
end up developing into conflicts which reach the highest courts. In Europe, one of the most discussed 
cases in the jurisprudence of the Strasbourg Court is the one of Mr McFarlane, a therapist working for 
a confidential sex therapy and relationship counselling service, who refused to carry out some of his 
duties and work with same-sex couples, as he felt that such a service was incompatible with his religious 
belief that homosexuality is against God’s law. After being warned and subsequently dismissed by his 
employer, when the British courts refused to punish the dismissal, he alleged that British law had failed 
to protect his right to manifest his religious beliefs. He complained before the Strasbourg Court, without 
any success.8 

An  earlier  case  which  did  not  get  the  attention  it  deserved  states  briefly  the  key  concerns  and  the 
approach applied by the Strasbourg Court in cases when religious considerations are invoked in order to 
deny public services and goods. In Pichon and Sajous v France, the two joint owners of a pharmacy in 
rural France invoked their religious beliefs in defence when convicted under the Consumers’ Code and the 
Public Health Law, as they refused to stock, or sell contraceptives to three women.9 

The ‘gay cake’ cases, made famous by the debates before the US Supreme Court in Masterpiece Cakeshop 
v Colorado Civil Rights Commission,10 had earlier European counterparts in the UK, with the decision of 
the Court of Appeal in Northern Ireland in Lee v McArthur and Ashers Baking. In this case, the court upheld 
the decision that the owners of a customised cakes baking service, Ashers Bakery, had discriminated 
on grounds of sexual orientation, religious belief and political opinion, as they refused to bake a cake 
requested by the claimant, because the message the cake was supposed to display was ‘Support Gay 
Marriage’.11 This decision was overturned by the UK Supreme Court.12 In an earlier, similar case in 2008, 
the Bulls, who were Christian hoteliers, preferred to let their rooms to heterosexual married couples. They 
were subsequently held to have directly discriminated against a same-sex couple in a civil partnership, a 

2 

3 

4 

5 

6 

7 

US Supreme Court, Stormans Inc et al v Wiesman, 576 US_(2016) decided on 28.06.2016, denying the writ of certiorari for 
the Washington State pharmacists contesting state regulations requiring them to provide emergency contraceptives.
Palmieri, G., Arizona Republic, ‘Transgender woman: A CVS pharmacist in Fountain Hills denied my hormone prescription’ 
published 25.07.2018, available at: https://eu.azcentral.com/story/news/local/scottsdale/2018/07/20/hilde-hall-arizona-
transgender-woman-speaks-out-after-being-denied-hormone-prescription/805381002/.
Neagu, A., Cozmei, V., Hotnews, ‘Harta interactivă: 51 de spitale din România nu fac avorturi la cerere, iar alte 36 refuză 
procedura în perioada sărbătorilor religioase ’ (Interactive map: 51 hospitals do not perform abortions by request and 
another 36 refuse the procedure during religious holidays in Romania), 28.06.2019, available at: https://www.hotnews.
ro/stiri-sanatate-23228667-harta-interactiva-51-spitale-din-romania-nu-fac-avorturi-cerere-iar-alte-36-refuza-procedura-
perioada-sarbatorilor-religioase. Notably, a research using the same methodology in 2018 revealed that there were 12 
hospitals refusing this service as for 29.09.2018. Hotnews, ’12 spitale din Romania nu fac avorturi la cerere’ (12 hospitals in 
Romania do not perform abortions by request) available at: https://www.hotnews.ro/stiri-sanatate-22727735-12-spitale-
din-rom-nia-nu-fac-avorturi-cerere-spune-legea-spun-doctorii-medic-interzicerea-avortului-ntoarcere-abrupt-ntuneric.htm.
ILGA Europe, Third party intervention in Ladele v UK, available at: https://www.ilga-europe.org/sites/default/files/
Attachments/third_party_submission_ladele_v_uk_2.pdf. 
European network of legal experts in gender equality and non-discrimination, Poland, available at: https://www.
equalitylaw.eu/downloads/4648-poland-printing-house-employee-guilty-of-refusal-to-print-a-roll-up-for-lgbt-initiative-
supreme-court-upholds-the-verdict-pdf-166-kb.
Workplace Relations Commission, Brennan v Beulah Print, DEC-S2018-020, 09 November 2018, available at: https://www.
workplacerelations.ie/en/cases/2018/november/dec-s2018-020.html.
ECtHR, Eweida and Others v the United Kingdom, Chamber judgment, 15.01.2013.
ECtHR, Pichon and Sajous v France (dec.), no. 49853/99, ECHR 2001-X, 02.10.2001.

8 
9 
10  US Supreme Court, Masterpiece Cakeshop v Colorado Civil Rights Commission, 584 U.S. 4.07.2018.
11 

Court of Appeal in Northern Ireland, Lee v McArthur & Ors [2016] NICA 39, 24.10.2016, available here: www.bailii.org/nie/
cases/NICA/2016/39.html. 

12  UK Supreme Court, Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland), 10.10.2018 

available at: https://www.supremecourt.uk/cases/docs/uksc-2017-0020-judgment.pdf.

31

Matters of individual conscience or non-discriminatory access to public services and goods?decision confirmed by the England and Wales Court of Appeal in 2012 and by the UK Supreme Court in 
2013 in Bull & Bull v Hall & Preddy.13

The  discussions  around  invoking  religious  ethos,  seeking  reasonable  accommodation  on  religious 
grounds or presenting religiously motivated objections as conscientious objections when denying access 
to public goods and services, provide a rich source of inspiration. The moment when ‘businesses find 
their conscience’ is a good opportunity to discuss human rights and what they actually mean.14 Such 
debates require diving into the substantive content of freedom of religion, conscience and thought, and 
its limits: assessing the ambit of religious ethos as an exception to the prohibition of discrimination; the 
balancing exercise courts have to ensure between the effective exercise of religious freedom and the 
rights of those affected by a discriminatory exercise of religious freedom, as well as the more theoretical 
discussion about the conceptions of equality and non-discrimination, bringing forth the theory of equality 
as protective of ‘prized public goods.’ In this context, human rights are subsumed to such ‘public goods’ 
which are goods or services provided by the state or public authorities, or even by private individuals who 
are offering their services to the public.15

What does conscientious objection mean? Is there any link between 
mandatory military service, provision of health services, and 
access to public goods and services?

The concept of conscientious objection was developed in international jurisprudence in the context of 
mandatory military service.16 In response to countries in which the constitution made military service 
mandatory and criminalised or punished the refusal to serve in the army, the UN Commission on Human 
Rights adopted its Resolution 1989/59, in which it affirmed:

‘the right of everyone to have conscientious objections to military service as a legitimate exercise 
of  the  right  of  freedom  of  thought,  conscience  and  religion,  as  laid  down  in  article  18  of  the 
Universal Declaration of Human Rights and article 18 of the International Covenant on Civil and 
Political Rights.’17

For the Human Rights Committee, the right to conscientious objection to military service ‘could be derived 
from article 18 in as much as the obligation to use lethal force might seriously conflict with freedom of 
conscience and the right to manifest one’s religion or belief.’18 Notably, the Human Rights Committee 
guarantees  conscientious  objection  to  military  service  derived  not  only  from  religions,  but  also  ‘from 
principles  and  reasons  of  conscience,  including  profound  convictions,  arising  from  religious,  ethical, 
humanitarian or similar motives.’19 Similarly, the European Court of Human Rights found that the right 

13 

England and Wales Court of Appeal, Bull & Bull v Hall & Preddy [2012] EWCA Civ 83, 10.02.2012, available here: https://www.
icj.org/wp-content/uploads/2010/01/Hall-v.-Bull-Court-of-Appeal-United-Kingdom.pdf. Final decision of the Supreme 
Court [2013] UKSC 73 available here https://www.supremecourt.uk/cases/docs/uksc-2012-0065-judgment.pdf.
Bribosia, E; Rorive, I, ‘Why a Global Approach to Non-discrimination Law Matters? Struggling with the “Conscience” of 
Companies’ in Human Rights Tectonics, Global Dynamics of Integration and Fragmentation, Intersentia 2018.
15  McCrudden, C and Kountouros, H, ‘Human rights and European equality law’ in Meenan, H. (ed), Equality Law in an 

14 

Enlarged European Union – Understanding the Article 13 Directives (Cambridge University Press, Cambridge, 2007). 
ECtHR, Bayatyan v Armenia, No. 23459/03, 7.07.2011, para. 110.

16 
17  UN, Commission on Human Rights, Res. 1989/59, 8.03.1989.
18  UN, Human Rights Council, Annual report of the United Nations High Commissioner for Human Rights and reports of 

the Office of the High Commissioner and the Secretary-General Promotion and protection of all human rights, civil, 
political, economic, social and cultural rights, including the right to development, Approaches and challenges with regard 
to application procedures for obtaining the status of conscientious objector to military service in accordance with human rights 
standards, A/HRC/41/23, 24.05.2019.

19  UN, Human Rights Council, Annual report of the United Nations High Commissioner for Human Rights and reports of 

the Office of the High Commissioner and the Secretary-General Promotion and protection of all human rights, civil, 
political, economic, social and cultural rights, including the right to development, Approaches and challenges with regard 
to application procedures for obtaining the status of conscientious objector to military service in accordance with human rights 
standards, A/HRC/41/23, 24.05.2019, Paragraph 27.

32

European equality law review – Issue 1 / 2019  
to conscientious objection to obligatory military service is derived from the right to freedom of thought, 
conscience,  and  religion  under  Article  9  of  the  European  Convention.  However,  the  Strasbourg  Court 
jurisprudence also indicates that the Court will assess the interference under Article 9(2), balancing the 
general interests of society as a whole with those of the conscientious objector, and that conscientious 
objectors cannot expect that their objections will always be accepted.20 

From  here,  the  next  step  was  invoking  individual  conscience  or  religious  considerations  in  order  to 
object to providing health services, in particular in the context of sexual and reproductive rights.21 The 
number of cases in which health care professionals may legitimately refuse to provide specific health-
related services, under the justification that such services would be contrary to their personal beliefs 
and convictions, increased gradually.22 When consulted, however, the European Court made it clear in the 
context of abortion, that

‘services should not be made difficult or impossible to obtain because of conscientious objections 
by individuals.’23

Although this is only soft law, the Parliamentary Assembly of the Council of Europe in its 2013 Resolution 
already proposed a broader coverage, going beyond mandatory military service and health services, and 
calls Member States to

‘ensure the right to well-defined conscientious objection in relation to morally-sensitive matters 
such as military service or other services related to health care and education … provided that 
the rights of others to be free from discrimination are respected and that the access to lawful 
services is guaranteed.’24

However,  conscientious  objections  to  mandatory  military  service  are  quite  different  from  arguments 
raised  when  denying  access  to  public  goods  and  services.  There  is  therefore  a  need  to  distinguish 
between  the  two  situations.  The  individual  constraints,  the  overall  impact,  and  the  degree  to  which 
the religious objections affect the rights of others, are significantly different. In the case of mandatory 
military service, the failure to accommodate the expression of a religious belief leads to an infringement 
of the religious freedom of the person who is forced into a practice contrary to his religious beliefs, or 
penalised for failing to observe the practice. Quite differently, the failure to ensure accommodation of 
the religious ethos in cases of denial of access to goods and services is not aimed to directly target the 
individuals invoking their religious beliefs. In this case, the requested accommodation of the religious 
expression  leading  to  the  denial  of  rights  makes  it  imperative  to  check  whether  or  not  the  denial  of 
access to services or goods is disproportionately affecting other concerns, such as public safety or the 
rights of others. 

In the case of religious motives invoked as justification when denying particular public services or goods, 
the starting point is different, as it is the personal choice of the individuals, and not an obligatory service 
imposed from outside, to enter into a certain profession or to provide certain goods and services which 
entails observing the regulatory considerations of the field in which they choose to act. Also, the religious 
ethos put into action leads to a direct and immediate effect on the rights of other persons, be it the 
right not to be discriminated against or the rights to dignity, personal integrity, autonomy, health, and 

20 
21 

22 

23 
24 

ECtHR, Bayatyan v Armenia, Ercep v Turkey, No. 43965/04, 22.11.2011, Savda v Turkey, No. 42730/05, 12.06.2012. 
Center for Reproductive Rights, Conscientious Objection and Reproductive Rights, International Human Rights Standards, 
available at: https://reproductiverights.org/document/conscientious-objection-and-reproductive-rights-international-
human-rights-standards.
Fiala, C; Gemzell Danielsson, K; Heikinheimo, O; Guðmundsson, J & Arthur, J, ‘Yes we can! Successful examples of disallowing 
“conscientious objection” in reproductive health care’, The European Journal of Contraception & Reproductive Health Care, 
21:3, 201-206, DOI: 10.3109/13625187.2016.1138458.
ECtHR, Tysiąc v Poland, No. 5410/03, 20.03,2007, para. 116. Also, R.R. v Poland, No. 27617/04, 26.05.2011. 
Parliamentary Assembly of the Council of Europe, Resolution 1928 (2013), Safeguarding human rights in relation to 
religion or belief, and protecting religious communities from violence, para. 9.10 and para. 9.11.

33

Matters of individual conscience or non-discriminatory access to public services and goods? 
 
(in extreme situations) even the right to life, when someone’s life depends on the timely provision of 
a  particular  service.  The  role  of  the  State  is  also  different,  entailing  a  positive  obligation  as  the  duty 
bearer of securing access to public services, as suggested in the General Recommendation 24 of the UN 
Committee on the Elimination of Discrimination against Women:

‘[i]t is discriminatory for a state party to refuse to provide legally for the performance of certain 
reproductive health services for women. If health service providers refuse to perform such services 
based  on  conscientious  objection,  measures  should  be  introduced  to  ensure  that  women  are 
referred to alternative health providers.’25

What are the limits of invoking religious ethos in the context of 
denying access to public goods or services?

A terminological and conceptual clarification is needed as a starting point. Freedom of religion protects a 
person’s private sphere of conscience but not necessarily any public conduct inspired by that conscience. 
As stated by the European Court of Human Rights, freedom of conscience and of religion does not protect 
each and every act or form of behaviour motivated or inspired by a religion or a belief.26 The difference 
between conscientious objections and invoking religious ethos as a public expression of a religious belief, 
with  the  result  of  directly  or  indirectly  affecting  the  rights  of  other  persons,  cannot  be  blurred.  The 
concept of forum externum as ‘public expression of a religious belief’ is developed in its case law by 
the Strasbourg Court as well as the Luxembourg Court.27 The Human Rights Committee in its General 
Comment 22 uses the terminology of ‘freedom to manifest religion or belief’, providing examples.28

When  assessing  conscientious  objectors,  from  the  perspective  of  Article  18(3)  of  the  International 
Covenant  on  Civil  and  Political  Rights,  or  of  Article  9(2)  of  the  European  Convention,  one  of  the  first 
principles emerging is that freedom of conscience cannot be restricted, while the external manifestation 
or the expression of the religious belief can be limited under a strict necessity and proportionality test. 
This test involves balancing the exercise of one’s religious beliefs with the public interest (public safety, 
order, health or morals) and the rights of other persons. This balancing exercise was intentionally and 
falsely presented as women’s or LGBTI rights trumping religious freedom.29 Such an approach is, however, 
untenable. 

Notably, the UN Human Rights Committee (HRC) in its General Comment 22, when interpreting the right 
to freedom of thought, conscience, and religion, as established in Article 18 of the ICCPR, distinguishes 
between  freedom  of  thought,  conscience,  religion,  and  belief,  and  the  freedom  to  express  one’s  own 
religion or beliefs.30 The HRC General Comment 22 highlights that although no limits can be placed on 

25  UN, CEDAW Committee, General Recommendation No. 24: Women and health (Article 12 of the Convention on the Elimination 
of All Forms of Discrimination against Women), (20th Session, 1999), in Compilation of General Comments and General 
Recommendations Adopted by Human Rights Treaty Bodies, (Vol. II) (2008).
ECtHR, Pichon and Sajous v France (dec.), no. 49853/99, ECHR 2001-X, 02.10.2001. Inadmissibility decision.
CJEU, C157/15, G4S Secure Solution, 14.03.2017, para. 28, and C188/15, Bougnaoui and ADDH of 14.03.2017, para. 30.

26 
27 
28  UN, Human Rights Committee (HRC), General Comment No. 22: Freedom of thought, conscience and religion (Article 18), 
(48th Session, 1993), in Compilation of General Comments and General Recommendations adopted by Human Rights 
Treaty Bodies, at 245, UN Doc. HRI/GEN/1/Rev.9 (Vol. I) (2008). Paragraph 4: ‘The freedom to manifest religion or belief 
in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to 
ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including 
the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of 
holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also 
such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation 
in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group.’
European Centre for Law and Justice, Grégor Puppinck, Conscientious Objection and Human Rights: A Systematic Analysis, 
Brill, 2017, available at: https://eclj.org/conscientious-objection/echr/objection-de-conscience-et-droits-de-lhomme-
essai-danalyse-systmatique?lng=en. 

29 

30  UN, Human Rights Committee (HRC), General Comment No. 22: Freedom of thought, conscience and religion (Article 18), 
(48th Session, 1993), in Compilation of General Comments and General Recommendations Adopted by Human Rights 
Treaty Bodies, at 245, para. 11, UN Doc. HRI/GEN/1/Rev.9 (Vol. I) (2008).

34

European equality law review – Issue 1 / 2019 freedom of religion, quite differently, the freedom to express one’s religion or beliefs may be subject 
to restrictions. The HRC goes further in clarifying that any limitations on the freedom to express one’s 
religion or beliefs must be established by law and must be necessary for the protection of public safety, 
order, health, or morals, or the fundamental rights and freedoms of others.31 A similar type of assessment 
is applied in the case law of the Strasbourg Court, while in the case of EU law, a preliminary scrutiny of 
the jurisprudence would suggest the use of an even more restrictive approach to cases when religious 
ethos was invoked to deny access to employment.

Invoking religious beliefs before the European Court of Human Rights 
in the context of denying access to public services or goods

Freedom of thought, conscience and religion, as spelled out in Article 9 of the European Convention for 
the Protection of Human Rights and Fundamental Freedoms, can be restricted but only if the restriction is 
prescribed by law and it is necessary ‘in a democratic society’ as specified by Article 9(2). The Convention 
further  mentions  that  such  restrictions  should  be  for  the  protection  of  public  safety,  public  health  or 
morals, or for the protection of the rights and freedoms of others. The formula ‘the protection of the 
rights and freedoms of others’ includes the right not to be discriminated against, as provided for in Article 
14  and  Protocol  12  of  the  Convention.  The  test  developed  by  the  Strasbourg  Court  in  assessing  any 
limitation of the rights guaranteed by the Convention has established that ‘necessary in a democratic 
society’ means that the interference must fulfil a pressing social need and must be proportionate to the 
legitimate  aim  pursued.32  The  principle  of  proportionality  applied  requires,  as  a  must,  the  reasonable 
relationship between the aim of the restriction and the means employed to achieve the aim sought.

The ECtHR case law also established that limitations to the principle of non-discrimination as provided 
by Article 14 can be justified. The Strasbourg Court held that the equal treatment principle in Article 14 
is only violated if the distinction has no objective and reasonable justification.33 Discrimination on some 
(suspect)  grounds  had  been  deemed  by  the  Court  as  particularly  serious  and  requiring  very  weighty 
reasons to justify the different treatment.34 In the case of the right not to be discriminated against on the 
grounds of sex or sexual orientation, particularly serious reasons need to be presented as justification 
before the Court proceeds to examine whether the means employed to achieve the legitimate aim sought 
were appropriate. Only at this later  stage  can we  speak about the  balancing  between  the  competing 
interests.

In  Pichon  and  Sajous  v  France,  the  case  of  the  two  owners  of  a  pharmacy  in  rural  France  who  were 
sanctioned under the Consumer’s Code and the Public Health Law after they refused to sell contraceptives 
to three women and justified their conduct by invoking their religious convictions, the Strasbourg Court 
swiftly decided the inadmissibility of the application as manifestly ill-founded. The Court considered that 
their conviction did not interfere with the rights guaranteed by Article 9: 

31  UN, Human Rights Committee (HRC), General Comment No. 22: Freedom of thought, conscience and religion (Article 18), 
(48th Session, 1993), Paragraph 8: ‘Article 18.3 permits restrictions on the freedom to manifest religion or belief only if 
limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights 
and freedoms of others… In interpreting the scope of permissible limitation clauses, States parties should proceed from 
the need to protect the rights guaranteed under the Covenant, including the right to equality and non-discrimination on 
all grounds specified in Articles 2, 3 and 26. Limitations imposed must be established by law and must not be applied in 
a manner that would vitiate the rights guaranteed in Article 18. The Committee observes that Paragraph 3 of Article 18 
is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as 
restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those 
purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are 
predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.’ (emphasis 
added)
ECtHR, Handyside v UK, No. 5493/72, 7.12.1976, para. 49.
ECtHR, Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium v Belgium Nos. 1474/62, 
1677/62, 1691/62, 1769/63, 1994/63 and 2126/64, 23.07.1968, B para. 10. 
ECtHR, Smith and Grady v UK para. 94. See also SL v Austria, 9.01.2003, para. 29, Karner v Austria, 24.07.2003, para. 37 or EB v 
France, 22.01.2008, para. 91. 

32 
33 

34 

35

Matters of individual conscience or non-discriminatory access to public services and goods?‘It considers that, as long as the sale of contraceptives is legal and occurs on medical prescription 
nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs 
and impose them on others as justification for their refusal to sell such products, since they can 
manifest those beliefs in many ways outside the professional sphere.

It follows that the applicants’ conviction for refusal to sell did not interfere with the exercise of the 
rights guaranteed by Article 9 of the Convention and that the application is manifestly ill-founded 
within the meaning of Article 35 § 3 of the Convention.’35 

The key principle spelled out by the Strasbourg Court in Pichon and Sajous v France provides guidance in 
establishing the ambit of the religious ethos: 

‘Article 9 of the Convention does not always guarantee the right to behave in public in a manner 
governed by that belief. The word “practice” used in Article 9 § 1 does not denote each and every 
act or form of behaviour motivated or inspired by a religion or a belief.’36 

This principle is further invoked and confirmed by the Court in similar cases, for example, in responding to 
the argument of the Polish government which claimed to protect the conscientious objectors in the health 
profession in the case R.R. v Poland.37 This establishes the baseline used by the Court in understanding 
the  differences  between  individual  objectors  and  cases  of  institutional  objections  and  in  the  scrutiny 
of the positive duties incumbent on the states. In providing a proper balance between the conflicting 
interests, the Court stated that if the choice of the state is to allow for religious objections, there is a 
correlative obligation for the state to create the necessary framework to ensure the full exercise of the 
rights by those who would otherwise be affected. In R.R. v Poland the Court stated that

‘(the states) are obliged to organise the health services system in such a way as to ensure that an 
effective exercise of the freedom of conscience of health professionals in the professional context 
does not prevent patients from obtaining access to services to which they are entitled under the 
applicable legislation.’38

The same position is spelled out by the Strasbourg Court in P. and S. v Poland, a case in which the Court 
found that Poland had violated Articles 3 (prohibition of torture), 5(1) (right to liberty and security), and 8 
(right to respect for private and family life) of the European Convention, given that P., a 14-year-old Polish 
girl, who became pregnant after being raped, suffered numerous hindrances and abuses from medical 
professionals who invoked their religious beliefs to justify their refusal to provide a legal abortion.39

Notably,  the  Strasbourg  Court  does  not  use  the  term  ‘conscientious  objector’  when  mentioning  the 
applicants in Pichon and Sajous v France or the medical personnel who denied access to legal health 
services in R. v Poland or in P. and S. v Poland. Only in Eweida, Ladele and McFarlane, the two dissenting 
judges treated Ladele and McFarlane as conscientious objectors, while the Court itself did not refer to 
either Ladele or McFarlane as such, but focused its reasoning on the proportionality of the restriction of 
their right to freedom of religion or belief, balancing their rights with the public interest in providing non-
discriminatory services and ‘ensuring that members of the public, regardless of their sexual orientation, 
are treated with dignity and have equal access to services.’40

ECtHR, Pichon and Sajous v France (dec.), 02.10.2001.
ECtHR, Pichon and Sajous v France (dec.), 02.10.2001.
ECtHR, R.R. v Poland, 26.05.2011.
ECtHR, R.R. v Poland, 26.05.2011, para. 200 and 206.
ECtHR, P. and S. v Poland, 30.10.2012. 

35 
36 
37 
38 
39 
40  Observations of the Government of the United Kingdom in Ladele and McFarlane v UK, 14.10.2011.

36

European equality law review – Issue 1 / 2019 Religious ethos in the context of the prohibition of discrimination 
in EU Law

Articles  20  and  21  of  the  Charter  of  Fundamental  Rights  of  the  European  Union  contain  the  right  to 
equality  and  non-discrimination  including  a  comprehensive  list  of  protected  grounds  and  Article  10 
guarantees the freedom of thought, conscience and religion in a language similar to Article 9 of the 
European Convention.41 The prohibition of all discrimination as laid down in Article 21(1) of the Charter 
is mandatory as a general principle of EU law and it has reached the position in which it ‘is sufficient in 
itself to confer on individuals a right which they may rely on as such in disputes between them in a field 
covered by EU law.’42

In EU law there is no clear-cut provision prohibiting discrimination in access to goods and services on 
grounds other than ethnic origin and gender. However, the Directives 2000/43/EC and 2004/113/EC do 
not  mention  religious  ethos  as  a  potential  exemption  from  the  prohibition  of  discrimination.  In  cases 
of indirect discrimination, where the right to religious freedom might be invoked as justification for the 
apparently  neutral  rules  leading  to  differential  treatment  consisting  of  the  refusal  to  provide  certain 
goods or services, the strict test would be applied to assess the ‘disproportionately prejudicial effects of 
a general policy or measure which, though couched in neutral terms, discriminates against a group’.43 

The  proposal  of  a  horizontal  directive  prohibiting  discrimination  on  the  grounds  of  religion  or  belief, 
disability,  age  or  sexual  orientation  in  all  areas  of  social  life  is  not  adopted  so  far.44  In  the  absence 
of  a  horizontal  directive,  there  is  no  clearly  justiciable  content  in  cases  of  denial  of  access  to  public 
goods or services under the justification of religious ethos. There are, however, enough helpful mileposts 
established by the Luxembourg Court when interpreting the justification of religious ethos in employment 
discrimination  cases  based  on  the  clearly  defined  exemption  provided  in  Article  4(2)  of  the  Council 
Directive 2000/78/EC of 27 November 2000. Still, it has to be underlined that the analogy with Article 
4(2)  of  the  Council  Directive  2000/78/EC  and  the  subsequent  case  law  is  not  perfect,  given  that  the 
current draft of the horizontal directive prohibiting discrimination on the grounds of religion or belief, 
disability, age or sexual orientation in all areas of social life does not include any specific exemption 
clauses regarding religious ethos.45 Furthermore, the proposed Article 2.8 (using the same wording as the 
current Article 2.5 of Directive 2000/78/EC) specifically mentions that

‘This Directive shall be without prejudice to general measures laid down in national law which, in 
a democratic society, are necessary for public security, for the maintenance of public order and 
the prevention of criminal offences, for the protection of health and the protection of the rights 
and freedoms of others.’

The EU has adopted Directive 2000/78/EC prohibiting discrimination in employment and occupation on the 
grounds of religion or belief, as well as discrimination on grounds of sexual orientation, age or disability. 
Under EU law, be it Directive 2000/43/EC, 2000/78/EC or 2002/73/EC, direct discrimination cannot be 
justified. In addition to Article 2.5 of Directive 2000/78/EC mentioned above, the Directives provide for 
exceptions, prescribed in detail: the genuine occupational requirements and the positive action. Under the 
umbrella of the genuine occupational requirements, the Directive includes the exemptions for churches 

41 
42 

43 

44 

45 

European Union, Charter of Fundamental Rights of the European Union, 2012/C 326/02, 26.10.2012.
CJEU, Case C414/16, Egenberger, 17.04.2018, para 76. CJEU, Case C193/17, Cresco Investigation GmbH v Markus Achatzi, 
paras. 76-77.
ECtHR [Grand Chamber], Biao v Denmark, 24.05.2016, para.103. Also, ECtHR, D.H. and Others v the Czech Republic [Grand 
Chamber], 13.11.2007, para.184.
Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of 
religion or belief, disability, age or sexual orientation {SEC(2008) 2180} {SEC(2008) 2181} /* COM/2008/0426 final – CNS 
2008/0140 */.
Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of 
religion or belief, disability, age or sexual orientation {SEC(2008) 2180} {SEC(2008) 2181} /* COM/2008/0426 final – CNS 
2008/0140 */.

37

Matters of individual conscience or non-discriminatory access to public services and goods? 
and organisations with an ethos based on religion or belief, as spelled out in Article 4(2) of the Council 
Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in 
employment and occupation:

‘Art. 4 2. Member States may maintain national legislation in force at the date of adoption of this 
Directive or provide for future legislation incorporating national practices existing at the date of 
adoption of this Directive pursuant to which, in the case of occupational activities within churches 
and  other  public  or  private  organisations  the  ethos  of  which  is  based  on  religion  or  belief,  a 
difference of treatment based on a person’s religion or belief shall not constitute discrimination 
where, by reason of the nature of these activities or of the context in which they are carried out, a 
person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, 
having  regard  to  the  organisation’s  ethos.  This  difference  of  treatment  shall  be  implemented 
taking account of Member States’ constitutional provisions and principles, as well as the general 
principles of Community law, and should not justify discrimination on another ground.

Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the 
right of churches and other public or private organisations, the ethos of which is based on religion 
or belief, acting in conformity with national constitutions and laws, to require individuals working 
for them to act in good faith and with loyalty to the organisation’s ethos.’

Notably, as an exception to the prohibition of discrimination, the exception of the religious ethos under 
Article  4(2)  must  be  interpreted  restrictively46  and  it  is  subjected  to  a  strict  test  of  effective  judicial 
review. The exception applies solely in the context of employment and occupation, only to churches or 
other religious organisations whose ethos is based on religion or belief. From the language of Article 
4(2) and the case law of the Luxembourg Court the exception does not apply to for-profit corporations or 
individuals.47 It allows difference of treatment based on a person’s religion or belief only in cases where, 
by reason of the specific nature of the activities concerned or the particular context in which the activities 
are to be carried out, ‘religion constitutes a genuine, legitimate and justified occupational requirement, 
having regard to the ethos of the church or organisation.’48 The principle of proportionality as developed 
in EU law will be applied.49

The ‘religious ethos’ exception provided for in Article 4(2) of Directive 2000/78/EC was interpreted by the 
Court of Justice in 2018 in C-414/16 Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV50 
and in C-68/17 IR v JQ.51 In both cases, the Luxembourg Court linked the exception of the religious ethos 
to the principle of proportionality:

‘The  requirement  in  Article  4(2)  of  Directive  2000/78  must  comply  with  the  principle  of 
proportionality. While that provision, unlike Article 4(1) of the directive, does not expressly provide 
that  the  requirement  must  be  “proportionate”,  it  nonetheless  provides  that  any  difference  of 
treatment must take account of the “general principles of Community law”. As the principle of 
proportionality  is  one  of  the  general  principles  of  EU  law…the  national  courts  must  ascertain 
whether the requirement in question is appropriate and does not go beyond what is necessary for 
attaining the objective pursued. 

In the light of those considerations … Article 4(2) of Directive 2000/78 must be interpreted as 
meaning  that  the  genuine,  legitimate  and  justified  occupational  requirement  it  refers  to  is  a 

46 
47 

48 
49 
50 
51 

CJEU, C447/0913 Prigge and Others, 2.09.2011, paras. 55 and 56, and C267/12 Hay, 12.12.2013, para. 46.
CJEU, C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV, 17.04.2018, para. 65. Also, C-68/17 IR v JQ, 
11.09.2018.
CJEU, C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV, 17.04.2018, para. 59.
CJEU, C190/16, Fries, 5.07.2017, para. 44.
CJEU, C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV, 17.04.2018.
CJEU, C-68/17, IR v JQ, 11.09.2018.

38

European equality law review – Issue 1 / 2019 requirement that is necessary and objectively dictated, having regard to the ethos of the church or 
organisation concerned, by the nature of the occupational activity concerned or the circumstances 
in which it is carried out, and cannot cover considerations which have no connection with that 
ethos or with the right of autonomy of the church or organisation. That requirement must comply 
with the principle of proportionality.’52

In  C-68/17  IR  v  JQ,  judgment  of  11  September  2018,  the  Luxembourg  Court  further  clarified  the 
application of the proportionality test in this context, and underlined the need to show a clear connection 
between the specific employment position and the maintenance of the religious ethos of the religious 
entity in the case. Even if it is still premature to imagine cases of religiously motivated denial of public 
services  or  goods  making  their  way  up  to  the  Luxembourg  Court,  there  are  no  reasons  to  speculate 
that the Court will not maintain its restrictive interpretation of the exceptions from the prohibition of 
discrimination. 

Strict test applied to exceptions to the prohibition of discrimination 
in domestic laws

In application of the general prohibition of discrimination as derived from international and European 
standards, all EU Member States adopted legislation prohibiting discrimination relating to access to public 
goods and services. A comparative survey of the norms adopted reveals that there is no country in which 
the domestic legislation incorporated an explicit provision with a specific exemption for discrimination 
in access to public goods and services for individuals who hold religious beliefs. In the UK, Regulation 
14 of the Equality Act (Sexual Orientation) Regulations 2007, later replaced by the 2010 Equality Act, 
provides  for  a  specific  and  ‘carefully  tailored  exemption  for  religious  organisations  and  ministers  of 
religion from the prohibition of both direct and indirect discrimination on grounds of sexual orientation,’53 
which cannot, however, be used by religious individuals.54 

Though not being tested in the case law, also of interest in alluding to the type of strict test applied to 
cases where the expression of religious beliefs and the prohibition of discrimination in access to public 
goods and services need to be balanced, is the provision in the Hungarian Equal Treatment Act which 
includes, as a general rule, Article 7(2): 

‘Article 7(2) Unless this law stipulates otherwise, an action, conduct, omission, requirement, order 
or practice (hereinafter: action) shall not be deemed to violate the requirement of equal treatment 
if
a) it restricts the aggrieved party’s fundamental right for the sake of the enforcement of another 
fundamental right, provided that the restriction is absolutely necessary, suitable for achieving the 
aim and proportionate with the aim, or
b) in cases not falling under the scope of point a), it is found by objective consideration to have a 
reasonable ground directly related to the relevant legal relation,
(3) Paragraph (2) shall not be applied concerning differentiation based on points b)-e) of Article 8 
[racial affiliation, colour of skin, nationality (not in the sense of citizenship), belonging to a national 
minority].’55

CJEU, C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV, 17.04.2018, paras. 68-69.

52 
53  UK Supreme Court, Bull & Bull v Hall & Preddy, para. 38 available here: https://www.supremecourt.uk/cases/docs/uksc-

2012-0065-judgment.pdf.

54  UK, The Equality Act (Sexual Orientation) Regulations 2007, Regulation 14, Organisations relating to religion or belief, 

available at: http://www.legislation.gov.uk/uksi/2007/1263/contents/made. Equality Act 2010 available at:  
http://www.legislation.gov.uk/ukpga/2010/15/contents. 

55  Hungary, Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities, available at:  

https://www2.ohchr.org/english/bodies/cescr/docs/E.C.12.HUN.3-Annex3.pdf. 

39

Matters of individual conscience or non-discriminatory access to public services and goods?In Poland, when upholding the verdict which found against the employee of a printing house who refused 
to provide services to an LGBTI initiative, the Polish Supreme Court stated that freedom of conscience 
and religious beliefs may justify a refusal to provide a service, however, a balance between freedom of 
conscience and religious beliefs and the prohibition of discrimination should always be struck in light of 
the circumstances of the case.56 According to the Polish Supreme Court: 

‘When religious beliefs are in obvious contradiction with the features and character of the service, 
it is allowed to refuse to perform such a service, even if it is in conflict with other values, including 
constitutional  ones,  such  as  the  prohibition  of  discrimination.  However,  a  refusal  can  not  be 
justified by individual characteristics of persons for whom this service is to be performed, such as 
religious denomination, manifested views or sexual preferences’.57 

In  this  case,  the  Court  ordered  the  defendant  (the  printer)  to  pay  a  fine  of  EUR  45  (PLN  200),  while 
underlining that he had no legitimate reason to invoke his Catholic convictions when refusing to provide 
the service requested. The service he was supposed to provide (printing a roll-up banner) was purely 
reproductive (not entailing artistic work) and only involved the performance of purely technical activities. 
The Polish Supreme Court also noted that the roll-up contained only the logotype of the NGO, thus the 
contents of the roll-up could not be deemed as to promote behaviours that could be contrary to the 
values and canons of the Catholic faith.

Although the French legal context is quite specific given the constitutional value of the laïcité (secularity) 
principle in relation to public education and public servants, it is worth mentioning the rationale applied 
by  the  French  Council  of  State  when  balancing  the  expression  of  religious  beliefs  with  other  public 
interests,  as  the  reasoning  might  be  applied  through  analogy  to  cases  of  denial  of  access  to  public 
goods and services on grounds of religious beliefs. In the report published by the Council of State in 
the case of public school authorities refusing to allow mothers wearing the Islamic veil to accompany 
children on field trips, the Council of State expressly underlined that in the professional field, outside the 
public service, restrictions to expression of religious freedom cannot be justified by the secularity of the 
State or by the principle of neutrality of public service.58 Restrictions to forms of expression of religious 
freedom can be established solely on the ground of the task to be accomplished in as much as they 
are proportionate. The Council of State illustrated such restrictions by referring to the jurisprudence of 
the European Court of Human Rights on the execution of the labour contract – the religious ethos and 
convictions of the employer and requirements related to safety considerations – and defined the duty 
of neutrality of the public service as strictly opposable to public agents in the exercise of their function, 
while also affirming its position against an expansion of the duty of neutrality beyond the public sphere.

In  applying  the  provisions  of  the  Equal  Status  Acts  2000-2018,  which  are  the  primary  laws  notably 
prohibiting  discrimination  in  the  provision  of  goods  and  services  in  Ireland,  the  Workplace  Relations 
Commission  (WRC)  found  in  Brennan  v  Beulah  Print  that  a  respondent’s  motive  (based  on  Christian 
beliefs) does not operate as a defence to less favourable treatment (direct discrimination) under the 
Equal Status Acts 2000-2018 and directed the respondent company to pay EUR 2 500 in compensation. 
In  the  case,  the  printing  company  conceded  that  it  refused  to  print  invitations  for  the  celebration  of 
the complainant’s civil partnership. A complaint of discrimination on grounds of sexual orientation was 
upheld before the Workplace Relations Commission (the first instance forum for determining complaints 
under  the  Equal  Status  Acts  2000-2018).  The  business  owners  argued  that  their  refusal  to  provide 

56 

57 

58 

European network of legal experts in gender equality and non-discrimination, Poland, available at:  
https://www.equalitylaw.eu/downloads/4648-poland-printing-house-employee-guilty-of-refusal-to-print-a-roll-up-for-
lgbt-initiative-supreme-court-upholds-the-verdict-pdf-166-kb.
Poland, Supreme Court, 14.06.2018; II KK 333/17 cited in European network of legal experts in gender equality and 
non-discrimination, Poland, available at: https://www.equalitylaw.eu/downloads/4648-poland-printing-house-employee-
guilty-of-refusal-to-print-a-roll-up-for-lgbt-initiative-supreme-court-upholds-the-verdict-pdf-166-kb.
France, Council of State, Application du principe de neutralité religieuse dans les services publics – Etude du Conseil d’Etat, 
23.12.2013.

40

European equality law review – Issue 1 / 2019 the printing service was not due to the complainant’s sexual orientation per se but was based on their 
objection to gay marriage as Christians.59 The Adjudication Officer did not accept the proposed argument:

‘The respondent in this case is submitting that the motive for their refusal to provide the service to 
the complainant is due to their Christian beliefs but the case being advanced by the complainant 
is that he was refused this service due to his sexual orientation….

The respondent in this case refused to provide its wedding invitation service to the complainant, 
a  gay  man,  who  was  seeking  to  access  a  service  which  is  freely  available  to  heterosexual 
couples.  Thus,  it  is  clear  that  whatever  the  respondent’s  reasons  for  refusing  to  provide  the 
complainant with the wedding invitation service the complainant could have accessed that service 
but for the fact that he is a gay man. I am thus satisfied that in refusing to provide the service 
to the complainant the respondent did discriminate against the complainant on the ground of his 
sexual orientation.’60

In the United Kingdom, the case Bull v Hall61 gave the Supreme Court the opportunity to discuss whether 
the requirement – later incorporated in the Equality Act 2010 section 29 and schedule 3 para. 2962 – not 
to discriminate on grounds of sexual orientation when providing services, amounts to disproportionate 
interference by the State in someone’s right to live according to their religious beliefs.63 The hoteliers, 
Mr and Mrs Bull, refused to let a same-sex couple in a civil partnership stay in a double room at their 
hotel in Cornwall, claiming that they do not allow unmarried couples to stay in double rooms in their 
hotel. The hoteliers claimed that this policy was operated by them due to the fact that they were devout 
Christians who let double rooms to ‘heterosexual married couples only.’ The complainants were a gay 
couple  who  were  in  a  civil  partnership  recognized  under  British  law  as  having  similar  rights  to  those 
enjoyed by heterosexual married couples.64 In the first instance, the county court judge found in favour 
of the complainants, finding that they were discriminated against on grounds of their sexual orientation, 
as they were treated differently from a heterosexual married couple and that this treatment was on the 
grounds of their sexual orientation. The judgment was appealed by the hotel owners who argued that 
the  requirement  not  to  discriminate  on  grounds  of  sexual  orientation  in  the  Equality  Act  Regulations 
2007  (subsequently  replaced  by  the  Equality  Act  2010)  imposed  a  disproportionate  burden  on  their 
right to freedom of religion and that the Regulations were therefore incompatible with Article 9 of the 
European  Convention  on  Human  Rights.  Both  the  Court  of  Appeal  and  the  Supreme  Court  upheld  the 
decision in favour of the complainants.65

The England and Wales Court of Appeal concluded that the Regulations did limit the hoteliers’ right to 
manifest their religious beliefs within the meaning of Article 9. The Court underlined that ‘the limitation 
imposed upon them by the Regulations was necessary in a democratic society for the protection of the 
rights of others.’66 In its decision, the UK Supreme Court started from the baseline that ‘a fair balance 
should be struck between the [hoteliers’] right to manifest their faith and the right of [the complainants] 

59 

The owners of the printing company informed the WRC that they had previously provided printing services to the 
complainant for his hairdressing business and did not object to providing a printing service to him but objected to 
providing a printing service in respect of something which was contrary to their beliefs.

60  Workplace Relations Commission, Brennan v Beulah Print, DEC-S2018-020, 09.11.2018, para. 5.3.20, available at:  

https://www.workplacerelations.ie/en/cases/2018/november/dec-s2018-020.html.

61  UK Supreme Court, Bull & Bull v Hall & Preddy, 27.11.2013, available at: https://www.supremecourt.uk/cases/docs/uksc-

2012-0065-judgment.pdf. 

62  UK Equality Act, 2010 available at: https://www.legislation.gov.uk/ukpga/2010/15/section/29.
63 
64 
65 

https://www.equalityhumanrights.com/en/legal-work-scotland/bull-v-hall-why-supreme-court-found-direct-discrimination.
At the time of the relevant facts, the right to marriage was restricted in the UK to opposite-sex couples only.
England and Wales Court of Appeal, Bull & Bull v Hall & Preddy [2012] EWCA Civ 83, 10.02.2012, available here:  
https://www.icj.org/wp-content/uploads/2010/01/Hall-v.-Bull-Court-of-Appeal-United-Kingdom.pdf. Final decision of the 
Supreme Court [2013] UKSC 73 available here: https://www.supremecourt.uk/cases/docs/uksc-2012-0065-judgment.pdf. 
England and Wales Court of Appeal, Bull & Bull v Hall & Preddy [2012] EWCA Civ 83, 10.02.2012, available here:  
https://www.icj.org/wp-content/uploads/2010/01/Hall-v.-Bull-Court-of-Appeal-United-Kingdom.pdf.

66 

41

Matters of individual conscience or non-discriminatory access to public services and goods?to obtain goods, facilities and services without discrimination on grounds of their sexual orientation.’67 
Lady Hale writing for the British Supreme Court proceeded to underline that:

‘To  permit  someone  to  discriminate  on  the  ground  that  he  did  not  believe  that  persons  of 
homosexual orientation should be treated equally with persons of heterosexual orientation would 
be to create a class of people who were exempt from the discrimination legislation. We do not 
normally allow people to behave in a way which the law prohibits because they disagree with 
the  law.  But  to  allow  discrimination  against  persons  of  homosexual  orientation  (or  indeed  of 
heterosexual orientation) because of a belief, however sincerely held, and however based on the 
biblical text, would be to do just that. … 

Mr and Mrs Bull are, of course, free to manifest their religion in many other ways. They do this by 
the symbolism of their stationery and various decorative items in the hotel, by the provision of 
bibles and gospel tracts, and by the use of their premises by local churches. … They are also free 
to continue to deny double-bedded rooms to same sex and unmarried couples, provided that they 
also deny them to married couples.’68

Concluding remarks

Neither the ECtHR nor national courts deemed the requirement to provide public goods and services in 
a non-discriminatory manner to be an unjustified interference with religious freedom. Furthermore, the 
interference of the national authorities was justified by the courts, given the legitimate aim of combating 
discrimination and protecting the rights of other persons. The status of conscientious objector was not 
recognised in any of the cases in which religiously-motivated conduct – which did not amount to an act 
of religious practice – took the form of denial of public goods or services and this led to the interference 
of the state in the form of penalising the discrimination. As noticed by Donald and Howard: 

‘it has never been accepted by the ECtHR or any other international human rights institution that 
an objection to providing goods or services to same-sex couples can be seen as comparable to 
conscientious objection to either military service or abortion.’69 

Though currently still in the form of a proposal under EU law, the prohibition of discrimination in access 
to goods and services, including discrimination on grounds of sexual orientation, would probably benefit 
from the same type of enhanced scrutiny with a focus on the proportionality of the measures taken. 
Accommodating the behaviour or the expression motivated or inspired by religion or belief, ‘which is not 
an act of practice of a religion in a generally recognised form,’70 is not only unprotected by Article 9 but 
it would effectively establish a right to discriminate, as suggested by the British Supreme Court in Bull & 
Bull v Hall & Preddy. In her reasoning, Lady Hale also touched upon an important aspect: that the impact 
of the denial of public goods or services is reflected not only on the individual victims of discrimination, 
as the harm caused through the infringement of equality and dignity affects entire communities:

‘Homosexuals  can  enjoy  the  same  freedom  and  the  same  relationships  as  any  others.  But  we 
should not underestimate the continuing legacy of those centuries of discrimination, persecution 
even, which is still going on in many parts of the world. It is no doubt for that reason that Strasbourg 
requires “very weighty reasons” to justify discrimination on grounds of sexual orientation. It is for 

67  UK Supreme Court [2013] Bull & Bull v Hall & Preddy UKSC 73 para. 34 available here: https://www.supremecourt.uk/cases/

docs/uksc-2012-0065-judgment.pdf.

68  UK Supreme Court [2013] Bull & Bull v Hall & Preddy UKSC 73 para. 37 and 39 available here: https://www.supremecourt.uk/

69 

cases/docs/uksc-2012-0065-judgment.pdf.
Alice Donald and Erica Howard, ‘The right to freedom of religion or belief and its intersection with other rights’, a research 
paper for ILGA-Europe, January 2015 available at: https://www.ilga-europe.org/sites/default/files/Attachments/the_right_
to_freedom_of_religion_or_belief_and_its_intersection_with_other_rights__0.pdf.

70  Observations of the Government of the United Kingdom in Ladele and McFarlane v UK, 14.10.2011.

42

European equality law review – Issue 1 / 2019 that reason that we should be slow to accept that prohibiting hotel keepers from discriminating 
against homosexuals is a disproportionate limitation on their right to manifest their religion.’71

In 1789, the French Déclaration des droits de l’homme et du citoyen stated ‘La liberté consiste à pouvoir 
faire tout ce qui ne nuit pas à autrui.’72 Those exercising religious freedom as a fundamental right are 
entitled to full protection. However, the right to manifest religious freedom is limited to the obligation not 
to infringe the rights of others, their equality and dignity, in particular when making a voluntary choice 
of entering into the commercial sphere and providing public goods and services. Religious freedom does 
not protect action based on religious beliefs in a way that is detrimental to others, by discriminating 
against them or causing harm in other ways, by trying to impose our own beliefs on others. There are no 
exemptions in international law for individuals invoking religious beliefs in order to discriminate and no 
duty to ensure accommodation of such beliefs is envisaged – accommodation is reasonable only when 
it does not result in disproportionate harm or in perpetuating existing prejudice.73 

The balancing exercise which must be performed by courts in order to ensure a fair balance between 
the competing fundamental rights of religious freedom and non-discrimination will continue to be one 
of the most challenging areas of human rights law, and it is prone to controversies and attempts to 
misrepresent  or misinterpret existing standards,  given  that no matter what legal  or  policy  solution  is 
chosen, one or all of the parties – as well as the social fabric – will be harmed. The limits to expressing 
one’s own religion and conscience continues to be established in accordance with the negative effects that 
such an expression could have on the protection of other individuals’ dignity, rights and freedoms. The 
denial of public services or goods on grounds of sexual orientation, gender identity, gender, or pregnancy 
status, disguised under the colours of exercising religious freedom, amounts to unequal treatment and 
is not benefiting of protection as religious freedom.

71  UK Supreme Court [2013] Bull & Bull v Hall & Preddy UKSC 73 para. 53 available here: https://www.supremecourt.uk/cases/

72 
73 

docs/uksc-2012-0065-judgment.pdf.
‘Freedom is to be able to do anything that does not harm others.’
INCLO, ‘Drawing the Line – Tackling tensions between religious freedom and equality’, 2015, available at:  
https://ccla.org/cclanewsite/wp-content/uploads/2015/09/INCLO-Report-Drawing-the-Line-EQ-vs-FoR.pdf. 

43

Matters of individual conscience or non-discriminatory access to public services and goods?Protection from victimisation in the 
workplace: Comparative EU-Icelandic 
perspectives

Herdís Kjerulf Thorgeirsdóttir*

1  Introduction

‘You have enemies? Good. That means you’ve stood up for something, sometime in your life.’
Winston Churchill

In a well-known case on victimisation in the UK, Nagarajan v London Regional Transport, Judge Lord 
Steyn stated, ‘[t]he victimisation of those who complain of discrimination under the equality legislation 
should be treated as seriously as the discrimination itself’.1 He furthermore added that in ‘every case’ the 
crucial question is ‘why the complainant received unfavourable treatment’.2 

The  following  account  of  the  victimisation  of  a  woman  who  filed  a  complaint  against  her  colleague 
demonstrates  what  is  at  stake:  a  lecturer  in  social  sciences  in  one  of  Britain’s  leading  universities 
described entering ‘a Kafkaesque nightmare’ after submitting a formal bullying (harassment) complaint 
against a colleague. It culminated in her being pushed to resign and sign a confidentiality agreement in 
exchange for a financial settlement. As her family’s primary earner, she felt forced to comply, and she 
was  escorted  out  of  her  workplace  of  many  years  by  a  security  guard.  ‘They  legally  gagged  me  and 
threatened me’, she said. ‘I lost my job, our entire family income and nearly my sanity. There are silenced 
victims like me all over the country trying to rebuild our shattered lives while the perpetrators carry on 
building their careers.’3

It amounts to victimisation if an employer retaliates against an employee’s complaint or intention to 
seek redress.4 Such retaliation can take the form of a wide range of unfair treatment involving bullying 
from co-workers in a competitive working environment. Therefore, many victims are reluctant to bring a 
complaint for fear of victimisation; they cannot trust their employer to act and ensure an honest outcome 

* 

1 

2 
3 

4 

Herdís Kjerulf Thorgeirsdóttir is an attorney at law in Reykjavík. She was appointed professor at the Faculty of Law of 
Bifrost University in 2004. She is doctor of laws (Dr. Juris) from the Faculty of Law at Lund University in Sweden. She has 
a Master of Arts in Law and Diplomacy (MALD) from the Fletcher School of Law at Tufts University in Boston. She is the 
First Vice President of the Council of Europe Venice Commission (European Commission for Democracy through Law) and 
former President of the European Women Lawyers’ Association (EWLA).
Lord Steyn in UK House of Lords, Nagarajan v London Regional Transport (1999) 4 All ER 65; Connolly, M. (2017), ‘Statutory 
Interpretation, Victimisation under Equality Law, and Its “On–Off’ Relationship with Contempt of Court’, 38 (3) Stanford Law 
Review, vol. 38, issue 3. 
Hepple, B. (2014), Equality: The Legal Framework, Hart Publishing, ftn. 47. 
Devlin, H. and Marsh S., Academics: Hundreds of academics at top UK universities accused of bullying, The Guardian, 
28 September, 2018 (https://www.theguardian.com/education/2018/sep/28/academics-uk-universities-accused-bullying-
students-colleagues.
Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men 
and women in matters of employment and occupation (recast), OJ L 204, 26.7.2006, p. 23-36, Article 24 and respective 
provisions in national laws; Icelandic Gender Equality Act No. 10/2008, Article 27. 

44

 
and fear retaliation.5 Victimisation is not only caused by the direct actions of management – it may also 
be part of the workplace culture whereby those who have fallen out of favour with management will be 
harassed. This is what I term ‘victimisation through harassment’ (see below).

Protection against victimisation is part of strengthening the rights of employees on the labour market. 
This article will question the strength of the EU legal framework and its implementation into Icelandic 
domestic law in order to address the many forms of victimisation that occur in the aftermath of making 
a complaint. The unfair treatment that prevents victims out of fear and powerlessness from seeking any 
kind of redress6 stands in the way of the full realisation of the basic human rights of gender equality 
(non-discrimination) and justice. It must therefore be questioned whether the EU legal framework in the 
area of gender equality offers adequate protection against such victimisation in the workplace.

The  focus  here  lies  on  the  gender  equality  dimension  and  the  forms  of  victimisation  subject  to  such 
legislation within the EU gender equality framework, along with the Icelandic legal perspective where 
relevant. At the outset, it is important to stress that aside from the legal framework, there is a shortage 
of case law on victimisation from the Court of Justice of the European Union (CJEU) and none by Icelandic 
courts,  except  in  relation  to  harassment  cases.  Therefore,  comparative  materials,  especially  case  law 
from  other  jurisdictions,  may  be  used  where  pertinent  to  show  what  relevant  standards  could  help 
interpret the EU provisions.

2  Factors contributing to victimisation

When scrutinising the phenomenon of victimisation, it is important to acknowledge the obstacles that 
those whose rights have been violated face when seeking remedies or attempting to access justice. It is 
one thing to face discrimination and another to refuse to accept it – with the knowledge that it will entail 
a fight and possibly a greater sacrifice than that caused by the initial, allegedly unlawful act.

2.1  Fear of retaliation

Fear  of  victimisation  appears  to  be  a  major  deterrent  against  complaining  of  discrimination.  The  US 
Supreme Court stated in a case of victimisation that ‘fear of retaliation is the leading reason why people 
stay silent instead of voicing their concerns about bias and discrimination’.7 Self-censorship occurs when 
people fear the consequences of speaking up, and it is what John Stuart Mill termed ‘mental slavery.8 
The employee who has already suffered discrimination or other illegal conduct in the workplace may, 
out of fear of the anticipated consequences, choose to do nothing. In this sense the victim is thrust into 
acquiescence, as the one who is silent is assumed to have agreed (qui tacet consentire videtur).

The same goes for a third party that might be able to provide information in support of the victim but 
does not do so out of fear for the consequences. Michael Connolly, who has focused on the problem of 

5 

6 

7 

8 

UK House of Commons, Women and Equalities Committee (2018), Sexual Harassment in the Workplace, Fifth Report of 
Session 2017-2019, available at: https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/725.pdf.
The findings presented by Fernando, D., and Prasad, A. (2018) in ‘Sex-based harassment and organizational silencing: How 
women are led to reluctant acquiescence in academia’, Human Relations reveal that organisational silence is the product 
of various third party actors (for instance line managers, HR, and colleagues) who mobilise a myriad of discourses to 
persuade victims not to voice their discontent. The authors develop the concept of ‘reluctant acquiescence’ to explain a 
victim’s response to organisational silencing. In terms of its contributions to the extant literature, this article: (i) moves 
away from explanations of sex-based harassment that focus solely (or predominately) on the actions of individual 
perpetrators; and (ii) shows how reluctant acquiescence leads to maintaining the status quo in the organisation. 
  US Supreme Court, Crawford v Metropolitan Government of Nashville 129 S Ct 846, 852 (2007), citing Brake, D. (2005), 

’Retaliation’ Minnesota Law Review vol. 90, 18, at p. 20. This case centred around those who complained of discrimination 
against others rather than passive friends, relatives, or associates of the complainant. See also US Civil Rights Act 1964, 
Title VII, Section 704 (42 USC para.2000e-3).
Thorgeirsdóttir, H. (2005), Journalism Worthy of the Name: the Affirmative Side of Article 10 of the ECHR, Kluwer Law 
International, p. 285; MacKinnon, C. (1993), Only Words, Harvard University Press, p. 77.

45

Protection from victimisation in the workplace: Comparative EU-Icelandic perspectivesvictimising third parties, points to the US Civil Rights Act from 1964 that outlaws less favourable treatment 
of a worker ‘because he has’ opposed discrimination or participated in discrimination proceedings.9 In 
a  case  that  came  before  the  US  Supreme  Court,  a  large  company  fired  a  worker  who  subsequently 
alleged  this  was  retaliation  against  his  fiancée  who  had  previously  filed  a  charge  of  discrimination. 
The Supreme Court held that the worker who was fired was entitled to sue ‘as a person aggrieved’, as 
‘injuring him was the employer’s intended means of punishing her’.10 The CJEU in Coleman – a case that 
concerned a mother working as a secretary for a law firm who accused her of using her disabled child to 
abusively request working time arrangements11 – dealt with the question of whether the discrimination 
policy  under  the  Employment  Equality  Framework  Directive  2000/78  covered  individuals  who  suffer 
discrimination due to their affiliation with a disabled person. The CJEU ruled in favour of the mother, 
stating that the purpose of the Directive 2000/78 is to combat all forms of discrimination on grounds of 
disability. This landmark decision was perceived as giving third parties, in this case a caretaking mother, 
more rights in the workplace.

It is foreseeable that complaining about the conduct of one’s employer or superior(s) can have negative 
consequences for an employee who may feel that they are ‘biting the hand that feeds them’ by making 
such  a  complaint.  Institutions,  business  organisations,  or  any  employer  might  consider  a  complaining 
employee an ungrateful nuisance. Although it may require experience to know for sure, most employees 
are aware of the fact that complaining about an employer may not only affect their job but also kill their 
career. It is a challenging lesson to learn, but finding a new job after being demoted or dismissed may 
prove to be difficult – even though the dismissal was wrongful, illegitimate, and unjust. This is the reason 
why many employees would rather bite their tongue than the hand that feeds them.12

2.2  Stigmatisation and the risk of dismissal

Victimisation  can  be  described  as  the  dark  side  of  working  life.  An  atmosphere  of  fear  breeds  more 
intimidation and creates a hostile working environment, making it difficult for employees to do their work. 
Surveys have shown that complainants’ fears of victimisation or retaliation acts as a barrier to seeking 
redress or accessing justice. These fears appear particularly problematic within the workplace of small, 
professional  communities  where  co-workers  have  hierarchical  and  often  close  relationships  with  the 
discriminating party.13 

For  instance,  the  highly  competitive  and  hierarchical  environment  associated  with  academia  is  well-
known as a fertile breeding ground for bullying behavior, not least gender-based harassment. Recent 
studies in the US demonstrate how bullying (which can fall under the rubric of gender-based harassment) 
is just as common as sexual harassment, particularly for women and ethnic minorities. These studies 
illustrate that for both genders, 38 % of workers witness or experience bullying during their careers and 
that for every bully caught, ten times as many victims lose their jobs through transfers, redundancies, 
terminations, or quitting.14 Adding high internal competition to situations where co-workers have become 
vulnerable due to attempts to obtain redress for an unjust situation with superiors increases the likelihood 

9 

Connolly, M. (2010), ‘Victimising third parties: the equality directives, the European Convention on Human Rights, and EU 
general principles’, European Law Review, vol. 35, issue 6, pp. 822-836, referring to US Civil Rights Act 1964, Title VII, Section 
704 (42 USC para.2000e-3). 

10  US Supreme Court, Thompson v North American Stainless 131 S.Ct. 863 (2011). 
11 
12 

CJEU 17 July 2008, S. Coleman v Attridge Law, case C-303/06.
See for instance a recent news story on the alleged victimisation of a woman in India who accused a judge of the highest 
court in the country of sexual harassment and lost her job and so did her husband and numerous relatives:  
https://www.theguardian.com/world/2019/apr/20/indias-top-judge-denies-victimising-worker-over-alleged-harassment.
Fundamental Rights Agency (2010), Access to Justice in Europe: an overview of challenges and opportunities, available at: 
https://fra.europa.eu/sites/default/files/fra_uploads/1520-report-access-to-justice_EN.pdf. 
Academics Anonymous Universities, ’We need bigger conversation about bullying in academia’, The Guardian, 26 January 
2018 (https://www.theguardian.com/higher-education-network/2018/jan/26/we-need-a-bigger-conversation-about-
bullying-in-academia; https://www.workplacebullying.org/wbiresearch/wbi-2017-survey/.

13 

14 

46

European equality law review – Issue 1 / 2019 of victimisation.15 Another survey in the UK shows that hundreds of academics have been accused of 
bullying students and colleagues in the past five years, prompting concerns that a climate of harassment 
and intimidation is thriving in top British universities.16 These studies indicate that workplace harassment 
and victimisation through such conduct is endemic, and that attempts by victims to stop such conduct 
might lead to a loss of economic opportunity or even dismissal.

In organisational cultures and professional environments characterized by strong hierarchies, harassing a 
co-worker might be employed by some as a strategy to seek professional advancement. Bullying conduct 
most cited within academic contexts include threats to professional status and obstructive behaviours 
designed to inhibit competing co-workers from achieving their goals.17 Since professional networks in 
some work environments, for instance academia, are extremely important; threats to one’s reputation 
can become a tool for victimisation, and any stigma could thus negatively influence job opportunities and 
a victim’s professional life.18 As pointed out by Michael Connolly, ‘any stigma associated with dismissal 
is an aggravating factor – it sends a signal to prospective employers that the victim was “so little valued 
to  be  expendable”’.19  The  stigma  of  being  dismissed  from  any  high  level  organisations  is  a  terrifying 
prospect for many who have spent a bulk of their lifetime to obtain high academic degrees or sacrificed 
a lot getting there. Not surprisingly many will stop before stepping over the threshold to seek redress.

2.3  Women not part of ‘old-boy’ networks

While the principle of gender equality applies to both sexes as a basic human right, victimisation within 
the workplace is more likely to affect women than men.20 Women more often do not enjoy the same 
support  from  colleagues  as  men  and  are  therefore  in  a  weaker  position  to  defend  themselves  from 
abuse of power by the wrongdoer.21 Women furthermore tend to occupy lower and medium level posts 
in industries in  which only a few women hold  positions  on  the  highest  managerial  level,  for  instance 
in  political  and  economic  sectors.22  It  also  appears  to  be  the  prevailing  view  that  there  is  less  scope 
for women in higher positions than men, and women who do reach the higher echelons are frequently 
regarded as the token exceptions. As such, women often have limited access to the networks that men 
in higher ranks of hierarchies form within organisations – the so-called ‘old-boy’ networks.23 A recent 
study shows that family responsibilities and other societal barriers often prevent female workers from 
joining male-dominated networks that offer professional benefits.24 This situation could partly account 
for gender inequality in the workplace, because professional networks that are formed by and composed 

15  Workplace Bullying Institute, US Workplace Bullying Survey 2044, https://www.workplacebullying.org/wbiresearch/wbi-

2014-us-survey/; https://careertrend.com/file-bully-complaint-losing-job-9421.html.

16  Devlin, H. and Marsh, S. Academics: Hundreds of academics at top UK universities accused of bullying, https://www.
theguardian.com/education/2018/sep/28/academics-uk-universities-accused-bullying-students-colleagues.

19 

20 

18 

17  McKay, R. et al. (2008), ‘Workplace Bullying in Academia: A Canadian Study’, Employee Responsibilities and Rights Journal, 
vol. 20, issue 2, pp. 77-100. See also: Farley, S. and Sprig, C. ‘Culture of Cruelty: Why bullying thrives in higher education’, 
The Guardian, 3 November 2014, available at: https://www.theguardian.com/higher-education-network/blog/2014/
nov/03/why-bullying-thrives-higher-education.
Connolly, M. (2010), ‘Victimising third parties: the equality directives, the European Convention on Human Rights, and 
EU general principles’, European Law Review, vol. 35, issue 6, pp. 822-836. 
Connolly, M. (2010), ‘Victimising third parties: the equality directives, the European Convention on Human Rights, and 
EU general principles’, European Law Review, vol. 35, issue 6, pp. 822-836. 
European Foundation for the Improvement of Living and Working Conditions (Eurofound) (2013), Physical and 
Psychological Violence at the Workplace, Dublin, 2013; Lopez, S.H., Hodson, R., and Roscigno, V.J., ‘Power, status, and abuse 
at work: General and sexual harassment compared’, The Sociological Quarterly, vol. 50, 2009, pp. 2-27; Meloy, M. L. and 
Miller, S. (2019), The Victimisation of Women: Law, Policies and Politics, Oxford University Press.
See also: Einersen, S. et al., ‘The Concept of Bullying and Harassment at Work: The European Tradition’ in: Einersen, S. et al. 
(eds.) (2010), Bullying and harassment in the workplace: developments in theory, research and practice, CRC Press, 2nd edition, 
pp. 3-40. 
EUR-LEX (2015), Gender balance in business leadership, available at: https://eur-lex.europa.eu/legal-content/EN/
TXT/?uri=legissum:1710_2. 
Klaile, A. (2013), ‘Why are so few women promoted into top management positions?’, Department of Economics, Hanken 
School of Economics, Helsinki, available at: https://kauppakamari.fi/wp-content/uploads/2014/10/annaklaile-why-are-so-
few-women.pdf.
EUR-LEX (2015), Gender balance in business leadership. See also: Nikolaou, A. (2017), ‘Barriers and Biases: A case study of 
women’s experiences of underrepresentation at senior management levels’, University of Gothenburg (Strategic Human 

22 

21 

24 

23 

47

Protection from victimisation in the workplace: Comparative EU-Icelandic perspectivesof men tend to offer important career advantages, such as information about professional opportunities, 
technical knowledge, and strategic insight. The same study also shows that self-doubt, along with limited 
faith in one’s ability to make valuable contributions to male-dominated networks, can hold women back 
from seeking to join those circles.25 

Women face harsher responses than men when seeking remedies after receiving wrongful treatment 
when responding assertively and attempting to defend themselves. Women are also often in less powerful 
roles than men and may subsequently enjoy less support from colleagues or male peers to fight back. 
Women may also be regarded as intruders by co-workers of both sexes if they are manifestly ambitious, 
while such an attribute is generally accepted for men. The risk of being victimised thus appears much 
higher for women.26 

3  Victimisation through harassment

The concepts of victimsation and harassment have quite distinct meanings in EU gender equality law 
(see below) and various gender equality acts. In everyday language the concepts are sometimes used 
interchangeably, perhaps because employees who file complaints against their employer for any kind of 
discrimination are often punished with harassment. Women are overwhelmingly the victims of sexual 
harassment,  where  they  are  objectified  and  belittled.27  Women  are  also  more  likely  to  be  victims  of 
gender-based  harassment  which  is  not  sexual  in  nature  but  linked  to  gender  and  other  factors  (age, 
status etc.) Victimisation can and often does take the form of harassment, involving hostile behaviour 
towards an employee who has openly complained about discrimination28 in the workplace or who has 
assisted a colleague with a previous harassment concern.29

3.1  Female socialisation and victimisation

Victimisation  through  harassment  can  fall  under  the  scope  of  gender  discrimination;  even  though  it 
is devoid of sexual conduct, what counts is that the victim is usually in a less powerful position than 
the aggressor(s). It has also been argued that there is a relationship between female socialisation and 
victimisation, as gender-based psychological underpinnings often indicate that women will be ‘nice’ in 
tense and uncomfortable situations.30 For the same reason, many women will also refrain from provoking 
their colleagues. Self-blame is characteristic of victimisation, especially in cases where the original cause 
is sexual harassment. Although it goes without saying that victims of discrimination within the workplace 

Resource Management and Labour Relations), available at: https://pdfs.semanticscholar.org/4b26/890abc142265ecc195fb
7a7ddc78eb6600ae.pdf.

25  Gewin, V. (2018), ‘Women can benefit from female-led networks’, Nature: International Journal of Science, available 
at: https://www.nature.com/articles/d41586-018-07878-w; referring to E. Greguletz et al. (2018) ‘Why women build 
less effective networks than men: The role of structural exclusion and personal hesitation’, Human Relations, available 
at: https://doi.org/10.1177/0018726718804303. 
Einersen, S. et al. (eds.) (2010), Bullying and harassment in the workplace: developments in theory, research and practice, CRC 
Press, 2nd edition. 

26 

27  UK House of Commons, Women and Equalities Committee (2018), Sexual Harassment in the Workplace referring to: Close 

the Gap, written submission (http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/
women-and-equalities-committee/sexual-harassment-in-the-workplace/written/80301.html); 38 Degrees, written 
submission (http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/women-and-
equalities-committee/sexual-harassment-in-the-workplace/written/80195.html); ComRes, BBC: Sexual harassment in the 
work place 2017, survey November 2017 (https://www.comresglobal.com/polls/bbc-sexual-harassment-in-the-work-
place-2017/); ComRes, BBC Radio 5 Live: Sexual harassment in the workplace 2017, survey October 2017 (https://www.
comresglobal.com/polls/bbc-radio-5live-sexual-harassment-in-the-workplace-survey/); Trades Union Congress (TUC), Still 
just a bit of banter? Sexual harassment in the workplace in 2016, August 2016 (https://www.tuc.org.uk/sites/default/files/
SexualHarassmentreport2016.pdf ).
Iceland Supreme Court, case no. H 267/2011.
https://damianmccarthy.com/law/bullying-and-harassment/.

28 
29 
30  Ubelacker, S. (2016), ‘Experts say socialisation can affect how women deal with sexual assault’, CTV News Atlantic, The 

Canadian Press, 11 February 11 2016, available at: https://atlantic.ctvnews.ca/experts-say-socialization-can-affect-how-
women-deal-with-sexual-assault-1.2773507. 

48

European equality law review – Issue 1 / 2019 are not responsible for the discriminatory conduct, the act of denying or challenging that it occurred or 
is occurring fuels the feeling of self-blame or self-victimisation, which increases the vulnerability of the 
victim.31

Gender-based victimisation through harassment can also be perpetrated by the same sex; for instance, 
where women harass women, even for being assertive. There are certain traits that characterise both the 
harassment and victimisation of an employee who stays in the workplace and is punished with repetitive, 
vexatious conduct. This can affect the dignity, self-esteem, and psychological integrity of the victim and 
can create a hostile work environment.32

3.2  The low number of complaints and culture of silence

By clarifying what amounts to sexual harassment, the path-breaking #MeToo movement has indirectly 
shed  light  on  the  concept  of  victimisation,  as  it  so  often  takes  the  form  of  harassment.  The  #MeToo 
movement raised the issue of sexual harassment in the form of victimisation to the forefront of public 
concern, calling attention to what constitutes sexual harassment and the trauma experienced by victims 
of such conduct. Victims fear retaliation and the damage that could be done to their professional life.33 
While  there  is  widespread  knowledge  amongst  women  about  workplace  sexual  harassment,  there  is 
very  little  awareness  at  the  most  senior  levels  of  employers  about  the  extent  of  sexual  harassment 
in  their  organisations.  This  lack  of  awareness  is,  arguably,  in  part  a  symptom  of  the  long-standing 
underrepresentation of women in leadership positions.34

The EU Ombudsman, Emily O’Reilly, wrote recently in relation to findings of her work that: 

‘... all EU institutions and agencies have anti-harassment policies in place but the main issue we 
identified is the low number of complaints being filed. Underreporting suggests that the ‘old’ culture 
of silence still lingers. There is not yet a fully-shared acceptance of what constitutes harassment 
and consequently no shared outrage when it happens. At worst, the victim can be deemed part of 
the problem. The low number of cases being reported is a pity but hardly surprising. Harassment 
is  not  exactly  like  having  your  handbag  stolen.  It  isn’t  neatly  defined,  it  encourages  others  to 
evaluate you as a likely or unlikely victim of harassment, it risks further sexualising you in cases 
of sexual abuse, and there is the risk of being branded as trouble, as difficult, with the inevitable 
consequence for one’s career.’35

The EU Ombudsman sums up the silencing impact and fear of victimisation when it occurs in relation to 
harassment – in this case sexual harassment – with the imminent stigma or smear campaign to which 
an employee is typically subjected. They are labelled a troublemaker, ostracised by co-workers, removed 
of their tasks and responsibilities, and finally dismissed – if they had not already fled the workplace.

31  Making victims feel guilty: UK House of Lords, St Helens Metropolitan Borough Council v Derbyshire (2007] IRLR 540 

(Advisory Bulletin 528). The House of Lords held that two letters sent to equal pay claimants by their employer warning 
that some of their colleagues could be made redundant if their claims were successful amounted to victimisation under 
the UK Sex Discrimination Act. 
Tolhurst H. et al. (2003), ‘Rural general practitioner apprehension about work related violence in Australia’, Australia Journal 
of Rural Health vol. 11, pp. 237–241; Lin Y.H. and Liu H.E. (2005), ‘The impact of workplace violence on nurses in South 
Taiwan’, International Journal of Nursing Students, vol. 42, pp. 773-778.

32 

33  Description of the now famous landmark testimony of professor Anita Hill on sexual harassment, during the hearings on 
the appointment of Clarence Thomas to the US Supreme Court https://www.youtube.com/watch?v=4oPnd911FcM. 

34  UK House of Commons, Women and Equalities Committee (2018), Sexual Harassment in the Workplace, Fifth Report of 

Session 2017-2019, available at: https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/725.pdf.
35  O’Reilly, E. (2019), ‘Me Too turning the tide on abuse of power’ (Opinion), Parliament Magazine, 7 February 2019. The EU 

Ombudsman is an independent and impartial body that holds the EU’s institutions and bodies to account, as well as 
promoting good administration. https://www.theparliamentmagazine.eu/articles/opinion/metoo-turning-tide-abuse-power.

49

Protection from victimisation in the workplace: Comparative EU-Icelandic perspectives4  A workplace stresser dealt with from an equality perspective

When  it  takes  the  form  of  retaliation  against  an  employee,  victimisation  has  consequences  for  the 
entire  workplace  –  absenteeism  and  job  turnover  will  increase,  whereas  organisational  commitment, 
performance, and morale will decrease.36 This may lead to a vicious cycle in which female employees 
quit their jobs or are dismissed. If the victimisation takes the form of harassment it can result in various 
health problems, amongst them mental illness and cardiovascular diseases due to prolonged stress.37

4.1  Health and safety regulation

The problem of victimisation can be addressed by means of two routes of intervention: either through 
health  and  safety  legislation  that  addresses  it  as  a  psychosocial  risk,  or  through  equality  and  anti-
discrimination legislation. The Administration of Occupational Health and Safety in Iceland is the body 
that  oversees  the  implementation  of  occupational  health  and  safety  and  regulations  on  measures 
against bullying, sexual harassment, gender-based harassment, and violence in the workplace. It does 
not, however, decide whether certain behaviours are considered sexual or gender-based harassment or 
violence; its role is to ensure that employers fulfil their obligations under applicable regulations.

Regulation No. 1009/2015,38 on the basis of the Icelandic Act on Occupational Safety and Health in the 
Workplace (No. 46/1980), was issued in November 2015 and entails measures against harassment in the 
workplace (not victimisation per se, but sexual harassment, gender-based harassment, and violence).39 
All employers are obliged to establish measures against the above threats and subsequent reactions. 
They are under a duty to assess what triggers harassing behaviour, considering factors such as mental 
and  social  factors,  the  age  of  employees,  gender  ratio,  differences  in  cultural  backgrounds,  working 
hours, and stress.40

4.2  Avoiding depoliticising victimisation

Dealing with victimisation primarily under health and safety legislation risks its depoliticisation, divorcing 
it from the wider issue of gender (in)equality. Although victimisation, not least through harassment, is an 
attack on the dignity of the individual, it is still first and foremost addressed as discriminatory conduct 
under laws that prohibit gender-based discrimination. Proclaiming this as a dignity problem may, in the 
same manner as labelling it a health problem, depoliticise the issue.41 The risk is that it emphasises the 
dignity of the targeted individual rather than how victimisation stands in the way of equal opportunities 
in  competitive  job  markets.42  The  approach  of  gender  equality  to  victimisation  does  not  isolate  the 

36  Osh Wiki Network Knowledge, ‘Sexual harassment and victimisation: What happens in the workplace?’, available at:  

37 

38 

39 

40 
41 
42 

https://oshwiki.eu/wiki/Sexual_harassment_and_victimisation:_what_happens_in_the_workplace. 
Simon, H. B., Harvard Health Publishing, Harvard Medical School, ‘Women, work, stress and heart disease: 5 ways to protect 
yourself’, available at: https://www.health.harvard.edu/healthbeat/women-work-stress-and-heart-disease-5-ways-to-
protect-yourself.
Icelandic Administration for Occupational Safety and Health (homepage), ‘Responses to bullying, sexual harassment, 
gender-based harassment and violence’ (Viðbrögð við einelti, kynferðislegri áreitni, kynbundinni áreitni og ofbeldi), available 
at: https://www.vinnueftirlit.is/vinnuvernd/adbunadur/einelti-areitni-ofbeldi/. See also: https://www.vinnueftirlit.is/
media/sem-heyra-undir-vinnuvernd/B_nr_1009_2015.pdf.
The directives implemented in the Act on Occupational Safety and Health are the following: Council Directive 89/391/EC on 
the introduction of measures to encourage improvements in the safety and health of workers at work, OJ L 183, 29.6.1989, 
p. 1-8; Council Directive 93/104/EC concerning certain aspects of the organization of working time, OJ L 307, 13.12.1993, 
p. 18-24 repealed by Council Directive 2003/88/EC concerning certain aspects of the organization of working time, OJ L 299, 
18.11.2003, p. 9-19; and Council Directive 2000/34/EC concerning certain aspects of the organisation of working time to 
cover sectors and activities excluded from that Directive, OJ L 195, 1.8.2000, p. 41-45. 
https://www.stjornarradid.is/verkefni/allar-frettir/frett/2015/11/06/Ny-reglugerdgegn-einelti-areitni-og-ofbeldi-a-vinnustodum/.
Abrams, K. (1998), ‘The New Jurisprudence of Sexual Harassment’ Cornell Law Review, vol. 83, 1169. 
As Susanne Baer (1995) discussed in ‘Worde oder Gleichheit?: Zur angemessenen grundrechtiichen Konzeption von Recht 
gegen Diskriminierung am Beispiel sexueller Beilistigung am Arbeitsplatz in der Bundesrepublik Deutschland und den 
USA’ (‘Dignity or Equality: On the appropriate fundamental conception of law against discrimination, using the example of 
sexual harassment in the workplace’), Schriften zur Gleichstellung der Frau, vol. 13. 

50

European equality law review – Issue 1 / 2019 bullying  behaviour  from  the  economy  of  the  workplace,  as  it  clearly  recognises  that  women  may  be 
disproportionately  affected  when  victimised.43  Discrimination  prevents  equal  opportunities  and  has 
serious consequences for livelihoods and careers.44 It is therefore important to scrutinise victimisation an 
anti-discrimination perspective, with the aim to contribute to eradicating the social structures45 that have 
so far disempowered women and question whether the EU legal framework on gender equality offers 
adequate protection against victimisation. 

5  EU legal framework prohibiting victimisation

The  EU  Equal  Treatment  Directive  from  1976  consolidated  the  rights  of  men  and  women  to  equal 
treatment in employment.46 Article 7 provided that ‘Member States shall take the necessary measures to 
protect employees against dismissal by the employer as a reaction to a complaint within the undertaking 
or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment’.

Today, the so-called Recast Directive is the most important instrument in the EU acquis and the parent 
directive  of  equality  legislation.47  It  has  brought  together  older  directives  (among  the  1976  Equal 
Treatment Directive) in a single text with the purpose to simplify the abundant legislation and to facilitate 
the better regulation of gender equality in employment.48 The Recast Directive requires Member States 
to prohibit direct and indirect sex discrimination, harassment, and sexual harassment in pay and other 
working conditions, (access to) employment, and in occupational social security schemes; and to provide 
adequate judicial protection against victimisation.49 It states in its Preamble:50

‘Having regard to the fundamental nature of the right to effective legal protection, it is appropriate 
to ensure that workers continue to enjoy such protection even after the relationship giving rise 
to an alleged breach of the principle of equal treatment has ended. An employee defending or 
giving  evidence  on  behalf  of  a  person  protected  under  this  Directive  should  be  entitled  to  the 
same protection.’

The obligations regarding victimisation, provided for in Article 24 of the Recast Directive, are formulated 
in more restrictive terms than the above Preamble, which explicitly mentions the need to also protect a 
third party, for instance an employee that defends or gives evidence on behalf of a co-worker. Article 24 
of the Recast Directive stipulates:

‘Member States shall introduce into their national legal systems such measures as are necessary 
to protect employees, including those who are employees’ representatives provided for by national 

43  Whitman, J. Q. and Friedman, G. S. (2003), ‘The European Transformation of Harassment Law’, Faculty Scholarship Series, vol. 

647, available at: https://digitalcommons.law.yale.edu/fss_papers/647. 
Batty, D., Wealeand, S. and Bannock, C. (2017), ‘Sexual harassment at “epidemic levels” in UK universities’, The Guardian, 
5 March 2017, available at: https://www.theguardian.com/education/2017/mar/05/students-staff-uk-universities-sexual-
harassment-epidemic.
The findings presented by Fernando, D., and Prasad, A. (2018) in ‘Sex-based harassment and organizational silencing: How 
women are led to reluctant acquiescence in academia’, Human Relations reveal that organisational silence is the product 
of various third-party actors (for instance line managers, HR, and colleagues) who mobilise a myriad of discourses to 
persuade victims not to voice their discontent. The authors develop the concept of ‘reluctant acquiescence’ to explain a 
victim’s response to organisational silencing. In terms of its contributions to the extant literature, this article: (i) moves 
away from explanations of sex-based harassment that focus solely (or predominately) on the actions of individual 
perpetrators; and (ii) shows how reluctant acquiescence leads to maintaining the status quo in the organisation.  
Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards 
access to employment, vocational training and promotion, and working conditions, OJ L 39, 14.2.1976, p. 40-42. 
Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men 
and women in matters of employment and occupation (recast), OJ L 204, 26.7.2006, p. 23-36. 
Brzezińska, A. (2009), ‘Gender Equality in the Case Law of the European Court of Justice’, Institute for European Studies 
working paper 2/2009, available at: http://aei.pitt.edu/60826/1/2009.2.pdf.
Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men 
and women in matters of employment and occupation (recast), OJ L 204, 26.7.2006, p. 23-36, Article 24. 
Recital 34.

44 

45 

46 

47 

48 

49 

50 

51

Protection from victimisation in the workplace: Comparative EU-Icelandic perspectiveslaws and/or practices, against dismissal or other adverse treatment by the employer as a reaction 
to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance 
with the principle of equal treatment.’

Interestingly, the first CJEU judgment on victimisation, rendered on 20 June 2019, clarified the breath 
of the scope of protection afforded by Article 24.51 This decision arose from a request for a preliminary 
ruling from the Labour Court in Belgium lodged on 19 June 2018 by Jamina Hakelbracht, Tine Vandenbon 
and the Insitute of Equality for Women and Men in Brussels against WTG Retail BVBA. Ms. Hakelbracht, 
the applicant, had been successfully interviewed by a manager of one of WTG Retail’s licensed stores, 
Ms. Vandenbon. The applicant had informed the manager that she was three months pregnant during 
the interview, and the manager had decided to hire her and transmitted the information to the company, 
WTG  Retail.  However,  the  company  informed  the  manager  that  it  did  not  want  to  hire  the  applicant 
because of her pregnancy, to which the manager replied that such a decision would be unlawful. As the 
manager informed the applicant that the company confirmed its decision not to hire her, the applicant 
lodged a complaint of sex discrimination in relation to her pregnancy. The manager was subsequently 
made redundant by the company, because she was accused to have triggered the complaint lodged by 
the applicant. The manager subsequently decided to seek redress for being subjected to retaliation by the 
company. In this context, the question posed by the Belgian court to the CJEU is whether Article 24 of the 
Recast Directive can be interpreted as precluding national legislation that only affords protection against 
retaliation and victimisation to persons who act as witnesses and, in the context of the investigation of a 
complaint, present signed and dated documents related to a witness statement.52 Instead, in the view of 
the Belgian court, Article 24 provides a wider protection, which ‘should not, in its view, be limited solely to 
official witnesses, but should also extend to persons who defend or support the person who has lodged a 
complaint of discrimination’.53 The Court of Justice confirmed this broad interpretation and clarified that 
the protection against victimisation also applies to ‘employees who have informally supported the person 
who has been discriminated against’.54

The Recast Directive goes further than the older Employment Equality Directive,55 which did not expressly 
outlaw victimisation (see below for how the CJEU solved that problem in the case of Coote v Granada), 
save  for  instances  of  dismissal.  Beyond  employment,  victimisation  is  also  prohibited  in  the  areas  of 
the  access  to,  and  supply  of,  goods  and  services  by  Article  10  of  Directive  2004/113/EC,  and  in  the 
area of work-life balance by Article 14 of the newly adopted Directive on work-life balance for parents 
and carers.56 However, existing provisions have been criticised for the ambivalence of the phrase ‘other 
adverse treatment by the employer’, which may be described as too hands-off regarding the employer’s 
responsibility  and  insufficiently  comprehensive  as  compared  to,  for  instance,  the  parallel  Icelandic 
provision (see below).57

6  The Icelandic legal perspective on victimisation

The  prohibition  against  victimisation  was  first  introduced  by  gender  equality  legislation  through  Act 
No. 96/2000, which has since been replaced by Act No. 10/2008 (‘GEA’ hereinafter). The new Act gives 

51 
52 
53 
54 
55 

56 

CJEU Tine Vandenbon and Others v WTG Retail BVBA, 20 June 2019, case C404/18.
CJEU Tine Vandenbon and Others v WTG Retail BVBA, 20 June 2019, case C404/18, at Paragraphs 10-22.
CJEU Tine Vandenbon and Others v WTG Retail BVBA, 20 June 2019, case C 404/18, at Paragraphs 10-22.
CJEU Tine Vandenbon and Others v WTG Retail BVBA, 20 June 2019, case C404/18, at Paragraph 36.
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment 
and occupation, OJ L 303, 2.12.2000, p. 16-22.
See European Parliament legislative resolution of 4 April 2019 on the proposal for a directive of the European 
Parliament and of the Council on work-life balance for parents and carers and repealing Council Directive 2010/18/EU 
(COM(2017)0253 – C8-0137/2017 – 2017/0085(COD)).

57  However, other directives on gender equality also address ‘victimisation’ in other areas. See e.g. Directive 2004/113 on the 
access to goods and services (Article 10) and the new Directive on work-life balance for parents and carers (Article 14).

52

European equality law review – Issue 1 / 2019 effect to Directive 2006/54/EC on equal treatment in employment and occupation as well as Directive 
2004/113/EC on equal treatment in access to and supply of goods and services.58

Protection against victimisation is found in Article 27 of the GEA, which prohibits dismissal and injustice 
in connection with a complaint or demand for redress, stating: 

‘Employers may not dismiss employees for demanding redress on the basis of this Act. Furthermore, 
employers shall ensure that employees are not subjected to injustice in their work, e.g. as regards 
job  security,  terms  of  employment  or  performance  assessment,  on  the  grounds  of  having 
submitted a complaint or provided information regarding gender-based or sexual harassment or 
sexual discrimination. If a likelihood is adduced that this provision has been violated, the employer 
shall demonstrate that the dismissal, or alleged injustice, is not based on the employee’s demand 
for redress, complaint or provision of information regarding gender-based or sexual harassment 
or sexual discrimination. This shall not apply if the dismissal takes place more than one year after 
the employee made his/her demand for redress under this Act.’

The prior gender equality law – Article 25 of Act No. 96/200 – prohibited only dismissal of an employee 
in connection with a complaint or demand for address.59 

Article 27 of the GEA also awards broader protection for a third party that provides information in a case 
on sexual harassment or gender discrimination, although the Hakelbracht case has now clarified that 
the protection against victimisation afforded by the Recast Directive also extends to third parties, i.e. an 
employee who submits evidence on behalf of another employee complaining of discrimination, and thus 
in this regard aligns with the GEA.

However,  the  GEA  still  exceeds  the  protection  of  the  Recast  Directive  by  imposing  on  employers  the 
positive obligation to ‘ensure’ a safe working environment for individuals who may complain. It is a more 
comprehensive  protection  than  the  hands-off  approach  in  the  Recast  Directive,  which  only  prohibits 
employers  from  treating  employees  (who  complained)  unfairly.  However,  the  rules  on  the  reversal  of 
the burden of proof in Article 19 of the Recast Directive place responsibility on the employer to prove 
no misconduct occurred. Finally, Article 30 of the GEA prohibits any person from waiving the rights set 
forth in law.

The Icelandic legal framework formally guarantees that everyone is entitled to a working environment 
characterised  by  mutual  respect  in  communication  and  protection  against  gender-based,  sexual 
harassment,  and  other  forms  of  violence  in  the  workplace.  The  GEA  rests  on  fundamental  laws  that 
afford strong protection to gender equality. For instance, Article 65 of the Constitution provides in its 
first paragraph that everyone shall be equal before the law and enjoy basic human rights irrespective 
of  gender,  religion,  opinions,  national  origin,  race,  colour,  property,  birth  or  other  status.  The  second 
paragraph reiterates that men and women shall enjoy equal rights in all respects.

58 

59 

See Article 34 of the GEA, Act No. 10/2008. This Act gives effect to Directive 2006/54/EC of the European Parliament and 
of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men 
and women in matters of employment and occupation, to which reference is made in Annex XVIII of the Agreement on 
the European Economic Area as amended by the Decision of the EEA Joint Committee No. 33/2008. In addition, this Act 
gives effect to Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the 
principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing 
Council Directive 86/613/EEC, to which reference is made in Annex XVIII of the Agreement on the European Economic 
Area as amended by the Decision of the EEA Joint Committee No. 84/2011.] 1) [This Act gives effect to Directive 2004/113/
EC of the Council, on implementing the principle of equal treatment between women and men regarding access to and 
supply of goods and services, referred to in Annex XVIII to the EEA Agreement as amended by decision of the EEA Joint 
Committee No. 147/2009.] 2) – Act No. 62/2014, Article 6. 2) Act No. 79/2015, Article 2. 
Alþingi homepage, available at: https://www.althingi.is/altext/125/s/0373.html. 

53

Protection from victimisation in the workplace: Comparative EU-Icelandic perspectivesThe objective of the GEA is to create and maintain equal rights and opportunities for women and men, 
and in so doing equalise the status of both genders in all spheres of society.60 Apart from the explicit 
protection from victimisation in Article 27, Article 24 establishes a general prohibition of discrimination, 
stating: 

‘All  forms  of  discrimination,  direct  or  indirect,  on  grounds  of  gender,  are  prohibited.  Giving 
instructions to discriminate on grounds of gender also constitutes discrimination under this Act. 
Furthermore, gender-based harassment or sexual harassment constitute discrimination under this 
Act, as does all unfavourable treatment of an individual that may be attributed to the fact that 
the individual has rejected gender-based harassment or sexual harassment, or has submitted to it

However, affirmative action shall not be regarded as being contrary to this Act. The same shall 
apply  if  there  are  valid  reasons  to  support  employing  an  individual  of  a  particular  gender  in 
view of objective factors relating to the job. Special consideration to women in connection with 
pregnancy and childbirth shall not be regarded as discrimination.’ 

The above provision clarifies the prohibition of victimisation in the first paragraph by providing that ‘all 
unfavourable treatment’ suffered as a result of an individual rejecting sex-based harassment constitutes 
discrimination. Subsequently, Paragraph 2 provides scope for affirmative action to further protect against 
discrimination.  This  provision  thus  constitutes  a  general  preventative  measure  against  victimisation, 
consistent with the Recast Directive that requires Member States to establish appropriate procedures 
for the effective implementation of equal treatment. Article 22 of the GEA provides that employers shall 
take special measures to protect employees from any kind of sex-based harassment, which is relevant 
to  victimisation  insofar  as  the  punishment  for  complaining  (often)  takes  the  form  of  harassment,  as 
discussed above.

7  Case law on victimisation

Very little case law exists on victimisation; the CJEU has examined the issue only a few times, and just 
one case has come before the Supreme Court in Iceland, where the facts revealed victimisation in the 
wake of sexual harassment, and the employer was acquitted.61

7.1  CJEU: Effective judicial protection for victims 

The CJEU case law on victimisation is scarce. Until Hakelbracht, the problem had only been brought to the 
attention of the Court in a few instances. The root of the Court’s approach to victimisation in the Recast 
Directive (as well as in the Race Directive 2000/43/EC and the Framework Directive 2000/78/EC)62 can 
be traced to the case of Coote v Granada.63 

In Coote, the employer had refused to provide a reference after the claimant, Ms. Coote, had left the 
company.  She  had  previously  pursued  a  claim  for  sex  discrimination,  alleging  that  her  employer’s 
dismissal of her had been motivated by her pregnancy; the claim was later settled. Ms. Coote argued 
that after her dismissal her former employer had victimised her by refusing to provide any reference 
regarding her employment that would assist her in obtaining an alternative job. 

60 

The Icelandic Ministry of Welfare is responsible for enforcing the Act. The Centre for Gender Equality is an independent 
institution operating under the auspices of the Ministry, which supervises the implementation of the Act, provides advice, 
public education, and information concerning gender equality.
61 
Supreme Court judgment H 267/2011; See also Gender Complaints Committee case no. 10/2002, A v D., 13 June 2003.
62    Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment 

and occupation, OJ L 303, 2.12.2000, p. 16-22, Article 11.

63    CJEU Coote v Granada Hospitality Ltd, 22 September 1998, case C-185/97. 

54

European equality law review – Issue 1 / 2019 After the initial proceedings were over, Ms. Coote again brought an action against him for victimisation. 
As there was no explicit provision protecting against victimisation in the (then prevailing) gender equality 
Directive  76/207/EEC,  she  based  her  case  on  Article  6,  which  provided  that  Member  States  should 
‘introduce into their national legal systems such measures as are necessary to enable all persons who 
consider themselves wronged by failure to apply to them the principle of equal treatment (…) to pursue 
their claims by judicial process (…)’. 

The CJEU held that the state has a duty to protect workers against retaliation after employment has been 
terminated by employers against whom a claim for sex discrimination had been successful. Victimisation 
included the failure to provide proper reference to a former employee, according to the CJEU and referring 
to Directive 76/207/EEC, and it was irrelevant whether the reference was refused during the period of 
employment  or  after  its  termination,  or  whether  the  employer  decided  on  the  refusal  before  or  after 
the termination of the period of employment. The CJEU pointed to Article 6 of Directive 76/207/EC on 
effective judicial control providing that if there were no legal remedies against victimisation, the fear 
of an employer’s retaliation might deter workers who considered themselves victims of discrimination 
from pursuing their claims, and would consequently seriously jeopardise the implementation of the aims 
pursued by the Directive.64

In  Helen  Marshall  v  Southampton  (1993),  the  CJEU  in  its  judgment  built  upon  Article  6  of  Directive 
76/207/EC to provide access to a full remedy. Following the judgment in Marshall (No. 1) from 198665 
– in which the CJEU held that Marshall could rely on Directive 76/207 against her public employer to 
challenge the termination of her employment at age 62, while men could continue to work until age 65 – 
the case was remitted to the national court to assess compensation. The amount the Industrial Tribunal 
assessed was much higher than the maximum amount permitted under the UK Sex Discrimination Act 
of 1975. The CJEU held that the fixing of an upper limit, as in this case, could not by definition constitute 
proper  implementation  of  Article  6  of  the  Directive.  By  fixing  a  limit,  the  amount  of  compensation 
is  restricted  a  priori  to  a  level  that  is  not  necessarily  consistent  with  the  requirement  to  ensure  real 
equality of opportunity through adequate reparation for the loss and damage sustained as a result of a 
discriminatory dismissal. Compensation may not be limited a priori, and a person who has been injured 
as a result of discriminatory dismissal must be able to rely upon Article 6 of the Directive against an 
authority of the State acting in its capacity as an employer, to set aside a national provision that imposes 
limits on the amount of compensation recoverable by way of reparation.66 The payment of compensation 
must be effective, proportionate and dissuasive to the damage suffered, as requiredy Article 18 of the 
Recast Directive. The fixing of a prior upper limit cannot restrict such compensation, as Article 18 of the 
Recast Directive clarifies.

Finally, in the case of Francovich,67 the CJEU established that the EU could be liable to pay compensation 
to individuals who suffered loss due to a Member State’s failure to transpose an EU directive into national 
law.  The  CJEU  in  this  judgment  laid  the  ground  for  further  development  of  the  principle  of  effective 
judicial protection to include a new cause of action.68 

64 
65 

66 
67 
68 

CJEU Coote v Granada Hospitality Ltd, 22 September 1998, case C-185/97. 
CJEU M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching), 26 February 1986, case 
C-152/84.
Craig, P. and de Burca, G. (1997), EC Law: Text, Cases & Materials, Oxford University Press.
Case C-6/90 Francovich Italian Republic [1991] E.C.R. 1-05357.
Connolly, M. (2011), ‘The Chilling Effect and the Most Ancient Form of Vengeance: Discrimination and Victimising Third 
Parties’, Internationnal Journal of Discrimination and Law, vol. 11, 123. See also Drake, S. (2006), ‘Scope of Courage and 
the principle of ‘individual liability for damages: further development of the principle of effective judicial protection by 
the Court of Justice’, European Law Review, vol. 31, issue 6, 841-864; Szyszczak, E. (1992), ‘European Community Law: New 
Remedies, New Directions’ vol. 55, issue 5, Modern Law Review, vol. 84, 690-697; Fitzpatrick, B. and Szyszczak, E. ‘Remedies 
and Effective Judicial Protection in Community Law’ (1994), Modern Law Review, vol. 57, issue 3, 434-441. When the 
European Court of Justice gave judgment in Francovich it was hailed as a triumph, not necessarily for its erudite reasoning, 
but because it allowed an individual to claim damages from a Member State for its failure to comply with Community law 
obligations, thus providing a method of redress where none previously existed. Although the scope of the remedy was 
unclear and appeared superficially limited to the facts of the case, it represents the final element necessary to establish a 
coherent doctrine for the effective protection of an individual’s Community law rights.

55

Protection from victimisation in the workplace: Comparative EU-Icelandic perspectivesIn addition to the principle of effective judicial protection, the recent Hakelbracht case clarified the scope 
of Article 24 of the Recast Directive,69 providing that the protection against victimisation broadly extends 
to third party employees who support a victim of discrimination in the workplace.

7.2  Icelandic Supreme Court case on victimisation

The Icelandic Supreme Court has only addressed the issue once, where in 2012 it overturned the district 
court’s verdict that had found in favour of the claimant in a case of sexual harassment and subsequent 
victimisation.70

The  claimant,  a  young  woman,  A,  initiated  legal  proceedings  in  May  2010  against  the  respondent 
company, B. A subsequently claimed unpaid wages and non-pecuniary damages for victimisation and 
sexual harassment by her boss, E, an employee of the respondent company. The claimant argued that 
the reaction of the respondent against her allegations of sexual harassment were not in accordance with 
the gravity of her boss’s conduct, and that the terms of her employment were changed so that she could 
no longer perform her job.

The  complaint  of  sexual  harassment  complaint  preceded  the  alleged  victimisation  and  concerned  an 
overnight working trip to a summer house in the spring of 2010, which was attended by A’s boss and a 
colleague, and where the aim was to clarify certain tasks and introduce new responsibilities for A. During 
the trip, A felt sexually harassed when repeatedly asked to join her naked boss and co-worker in a hot 
tub. Later during the night her boss tried to enter her room, which she could not lock, so she had placed 
a suitcase in front of her door to hinder access. After A complained to the respondent company, her boss 
was reprimanded and an agreement was made to change her employment terms so that the alleged 
harasser would no longer be her boss. The respondent company paid for A’s visits in the following months 
to see a psychologist and a medical doctor. The situation at the workplace did not, however, improve, and 
A claimed that her former boss was negatively interfering with her work. Despite this, the respondent 
company declared the case closed five months after the incident. The respondent referred to two lawyers’ 
statements (one of them the company’s lawyer), proclaiming that no sexual harassment had occurred 
during the overnight trip to the summerhouse. The initial reaction of the company to reprimand A’s boss 
and draw up an agreement to protect the alleged victim from further communication with her ‘harasser’ 
in the workplace was apparently not fully respected.

After ongoing communications between A’s lawyer and the respondent company, A left the workplace in 
the autumn of 2010 with a physician’s certificate that she was not capable of continuing. The note of 
A’s psychologist during court proceedings confirmed that A was a victim of sexual harassment, which 
can have longstanding consequences ‘especially if the reaction by the employer is such as was the case 
here’. Her physician’s sick note confirmed A’s illness due to the previous conduct and her victimisation, 
and the district court’s judgment awarded A pecuniary damage for victimisation on the basis of the Tort 
Damages Act.71 

The respondent company appealed to the Supreme Court, which overturned the judgment and held that 
the  behaviour  of  A’s  boss  did  not  fit  the  definition  of  sexual  harassment  in  the  GEA,  ‘as  more  would 
have been needed’. The GEA defines sexual harassment in Article 2 as ‘[a]ny type of sexual behaviour 
which is unwelcome to the person affected by it and is intended to impair the self-respect of the person 
concerned,  or  which  has  this  effect,  particularly  when  the  behaviour  results  in  a  threatening,  hostile, 
degrading, humiliating or insulting situation’. 

69 
70 
71 

CJEU Tine Vandenbon and Others v WTG Retail BVBA, 20 June 2019, case C404/18.
Icelandic Supreme Court case no. H 267/2011, judgment 16 February 2012.
Iceland, Tort Damages Act No. 50/1993, Article 26.

56

European equality law review – Issue 1 / 2019 The Supreme Court held that it had not been proven that A had been victimised, i.e. unjustly treated with 
regard to her job security and terms as defined in Article 27 (2) of the GEA and that her argument of 
receiving wages after she left the appellant company was not convincing, hence the respondent company 
was acquitted of her claims.72

7.3  Comparative analytical assessment

The competences of Icelandic courts and the Court of Justice of the EU differ significantly. The former 
apply Icelandic law to individual situations, whereas the CJEU checks the transposition of EU law into 
national legislation. The CJEU adjudicates on the proceedings against Member States or institutions that 
have not fulfilled their obligations under EU law. In 1991, in the case of Francovich, the Court developed 
a fundamental concept: the liability of a Member State towards individuals for damage it caused to them 
due to its failure to transpose a directive into national law, or to do so in good time. Iceland, as an EEA 
country, is within the jurisdiction of the European Free Trade Association Court which has an obligation 
to pay due account to the principles established by the relevant rulings of the CJEU. Given the fact that 
the CJEU has shown itself to be a very important actor — in some instances a driving force — in various 
judgments relating to discrimination in the workplace, it is interesting to compare the approaches of the 
CJEU and the Icelandic Supreme Court to victimisation. This comparison is detailed below.

The principle of effective judicial protection in the wake of victimisation has certainly been strengthened 
with the above CJEU case law. The judgment in Coote confirmed the prohibition of victimisation and that 
employees claiming sex discrimination are protected against victimisation whether during employment 
or post-termination. A former employee who is given a bad reference for having brought a claim could 
argue for legal protection as a means of effective enforcement of EU law. The principle developed in 
Coote regarding post employment reference can also be taken to mean that the employer has a duty 
to  protect  the  employee  in  the  wake  of  dismissal  and  ensure  that  the  employee  is  not  stigmatised 
for having made a lawful complaint. The Marshall case provided access to full remedy and finally the 
Francovich judgment endorsed that that a Member State could be liable to an individual for failing to 
implement a directive, thus denying the individual an effective remedy under EC law.

In the only case of victimisation that has come before the Supreme Court in Iceland, the victim was let 
down. The Supreme Court overturned a district court judgment and acquitted the respondent company 
(her employer), and the victim left her job without recognition of the victimisation she allegedly suffered 
on  top  of  the  sexual  harassment  that  triggered  her  case  and  which  the  Supreme  Court  also  refused 
to recognise. The victim, A, had argued that the reaction of her employer to her allegations of sexual 
harassment and victimisation had not been in accordance with the gravity of her boss’s conduct. The Court 
unfortunately did not share this assessment, despite A’s psychologist providing a note, presented during 
court proceedings, confirming that A was a victim of sexual harassment, which can have longstanding 
consequences ‘especially if the reaction by the employer is such as was the case here’. Furthermore, a 
physician’s sick note also confirmed that the previous conduct of A’s boss and of her victimisation was 

72 

In the wake of the above judgment, the individual accused of sexual harassment was dismissed by the company that 
was aquitted of victimising the woman after she complained of sexual harassment. The company claimed that the media 
coverage after the initial district court judgment confirming sexual harassment and victimisation of the woman in 2011 
was one of the reasons leading to dismissing the employee, her former boss. He, the boss, initiated legal proceedings 
against his former employer company claiming that his dismissal was illegitimate. The district court did not confirm 
his claim, maintaining that the employer was entitled to some discretion not least with respect to the inappropriate 
conduct leading to the original court case and the employee’s subsequent dismissal. The company was acquitted, and the 
employee appealed to the Supreme Court. In its judgment in 2014, the Supreme Court (case no. H 326/2014) overturned 
the lower court’s judgment, awarding the appellate (the boss) non-pecuniary damages for the way his dismissal had 
arisen, referring to an agreement made after the woman’s initial sexual harassment claim against him that the Supreme 
Court, both in this case and the one above, held he had kept. The woman had always maintained that he had continued 
harassing her after the agreement was made in April 2010. It does appear that a man who claims to have been unfairly 
treated enjoys more sympathy in court than a woman. Ultimately, it was the boss who sat fully unclothed in front of his 
employee and who attempted to enter, unvited, the room of another of his employees who received damages, while the 
woman whose room he tried to enter felt victimised without her previous job and received no damages.

57

Protection from victimisation in the workplace: Comparative EU-Icelandic perspectivesresponsible for her illness. The judgment was rendered shortly after the adoption of a new gender equality 
act with strong and elaborate prohibition against both sexual harassment and victimisation. However, 
despite the new law imposing on employers the duty to ensure justice in the wake of complaints, A was 
left without effective judicial protection. The Court did not treat victimisation as seriously as it should 
have. Finally, this 2012 judgment deters potential claimants from commencing legal proceedings, as the 
cost will likely outweigh any benefit. Had the Icelandic Supreme Court considered the serious aspect of 
victimisation, it might have stretched the protection to new heights.

8   Closing remarks: the need for broader understanding of 

victimisation through harassment 

The principle of effective judicial protection in the wake of victimisation has undoubtedly been strengthened 
through the CJEU case law discussed above, even to the extent to entrench the duty of the employer to 
protect an employee in the wake of dismissal. The requirement to provide post-employment reference 
(Coote) may mutatis mutandis be understood as entailing an obligation of the employer to protect the 
employee from the stigma of dismissal. The Icelandic Supreme Court case did not, however, live up to 
the standards of effective judicial protection when it overturned a district court’s judgment that awarded 
the claimant damages for victimisation. By overturning the decision, the Supreme Court has missed an 
opportunity to ensure that future victims are not subjected to injustice in the wake of their complaints.

The Icelandic victimisation provision in the GEA goes further than the EU Recast Directive by imposing 
on the employer the positive obligation to ‘ensure’ a safe working environment, where employees are 
not ‘subjected to injustice in their work as regards job security, terms of employment or performance 
assessment on the grounds of having submitted complaints’. It is a more comprehensive protection than 
the  hands-off  approach  of  the  Recast  Directive,  which  only  requires  that  measures  must  be  adopted 
as are necessary to protect employees against dismissal or other adverse treatment by the employer 
as a reaction to a complaint within the enterprise. The broad interpretation of Article 24 of the Recast 
Directive by the CJEU in the recent Hakelbracht case is, however, a positive development, as it clarifies 
that employees who support victims of discrimination in the workplace are protected from victimisation, 
irrespective of their status as formal witnesses.73 This case aligns the protection afforded by EU law with 
that which is offered by the Icelandic GEA.

Yet,  despite  the  stronger  wording  in  the  Icelandic  victimisation  provision,  the  scope  of  victimisation 
remains  unclear  with  almost  negligible  case  law  to  further  define  it.  The  judgment  of  the  Icelandic 
Supreme Court in 2012 discussed above will deter, and probably aleady has deterred, alleged victims 
from embarking on an uncertain journey – although dismissal may be seen as a clear-cut retaliation by 
the employer, victimisation through harassment remains unexplored territory. Victimisation is undeniably 
a tricky phenomenon, in particular when it takes the form of harassment or bullying with the impact of 
silencing the victim instead of compelling her/him to take legal action. Had the Icelandic Supreme Court 
considered the serious aspect of victimisation it could have stretched the protection into new dimensions, 
never to go back to the old ones.

The hithereto lack of complaints and case law both before the CJEU and in Iceland is an indicator that 
severity of victimisation is not fully recognised. There is a significant gap between the formal protection of 
the Icelandic gender equality legislation and the case law – victimisation through harassment is as much 
a part of the Icelandic workplace fabric as anywhere else. The silence that surrounds this phenomenon 
the phenomena may even indicate that the situation is worse than elsewhere – not least in light of the 
proximity in professional circles. This is a problem that grows in the pall of fear and secrecy. Victimisation 
through harassment or bullying is a pervasive problem, even a workplace epidemic, that deserves more 
attention. The stigma of being labelled a troublemaker is a serious deterrent for an individual seeking 

73 

CJEU Tine Vandenbon and Others v WTG Retail BVBA, 20 June 2019, case C404/18.

58

European equality law review – Issue 1 / 2019 redress for wrongs that occurred in the workplace. Any employee will contemplate whether to complain 
to correct a bad situation or otherwise risk their career by sending out a signal of being undervalued 
and easily dispensable. The reality of this chilling effect is why victimisation remains such an invisible, 
oppressive injustice. In a competitive job market, the threat of victimisation may become the strongest 
tool for employers who do not care about principles of gender equality, or who are perhaps unconcerned 
with  the  future  of  the  respective  organisation.  The  threat  of  victimisation  is  also  a  potential  tool  for 
‘bullying’  colleagues  who  may,  in  some  cases,  be  acting  upon  a  company-wide  decision  to  expel  an 
employee, despite their (more than) adequate job performance. There are silenced victims everywhere 
trying to rebuild their shattered lives, whilst the perpetrators continue building their careers.

Given the serious consequences of dismissal or harmed reputation due to victimisation, the possibility 
of  restoration  to  the  original  status  in  cases  where  courts  find  in  favour  of  claimants  ought  to  be 
contemplated.74  Damages  only  go  so  far,  and  if  a  court  recognises  that  a  dismissal  was  retaliatory 
and thus illegitimate, it ought to be able to impose reinstatement of the employee who suffered such 
retaliation. 

The  grey  area  of  ‘other  adverse  treatment  by  the  employer’  provided  for  in  the  EU  Recast  Directive 
still  remains  problematic,  and  it  is  questioned  whether  the  above  term  is  sufficiently  comprehensive. 
Victimisation  is  probably  one  of  the  most  difficult  manifestations  of  gender  discrimination  to  prove, 
even  though  the  burden  of  proof  that  the  alleged  injustice  is  not  based  on  the  employee’s  demand 
for  redress  lies  with  the  alleged  discriminator.  Employees  who  have  a  compelling  case  against  their 
employer must not be priced out of justice; there must be a deterrent for employers who tend to victimise 
their employees in the wake of complaints or who do not respond in accordance with the gravity of a 
given situation. It is the employer’s responsibility to prevent a toxic workplace culture, where two root 
causes are the old culture of silence and employees’ fear of victimisation. Shared acceptance of what 
constitutes victimisation through harassment and consequently a shared condemnation when it occurs 
is the first step to understand and tackle this problem.

74 

The Supreme Court in Iceland in case no. H 374/1999 held that an unlawful dismissal (public limited company) amounted to 
defamation for the individual dismissed. Article 26 of the Icelandic Tort Damages Act No. 50/1993 provides for non-pecuniary 
damages for defamation.

59

Protection from victimisation in the workplace: Comparative EU-Icelandic perspectivesEuropean case law update

This  section  provides  an  overview  of  the  main  latest 
developments in gender equality and non-discrimination 
cases pending or decided by the Court of Justice of the 
EU and the European Court of Human Rights, from 1 July 
to 31 December 2018.

Religion  
or belief

Court of Justice of the European Union

REFERENCES FOR PRELIMINARY RULINGS – ADVOCATE GENERAL OPINIONS

Case C-193/17, Cresco Investigation GmbH v Markus Achatzi, Opinion of Advocate 
General Bobek delivered on 25 July 2018, ECLI:EU:C:2018:614

The request for a preliminary ruling was submitted by the Supreme Court of Austria and concerned the 
interpretation  of  the  Employment  Equality  Directive  regarding  religious  holidays  in  employment.  The 
case before the referring court concerned a provision of Austrian law which stipulates that Good Friday 
is a (paid) public holiday for members of four specific churches only and that only the members of those 
churches are entitled to double pay if they do work on that day. The claimant does not belong to any 
of the four churches covered by this provision and sued his employer when he did not receive double 
pay for working on Good Friday in 2015. The referring court enquired whether the relevant provision of 
national law amounted to discrimination on the ground of religion or belief, whether the measure could 
be justified with regard to the protection of rights and freedoms of others or whether it could amount to 
‘positive action’, but also invited the Court to be quite specific regarding the direct consequences of any 
incompatibility with the Directive. In this regard, the Advocate General (AG) underlined the importance 
of determining exactly which provision of EU law imposes exactly which consequence, considering that 
the referring court had invoked not only the Directive but also Article 21 of the Charter of Fundamental 
Rights. 

Having rejected the arguments invoked by the Italian and Polish governments to the effect that the Court 
would not be competent to reply to the questions referred or that the subject matter would fall outside 
the EU’s jurisdiction, AG Bobek went on to examine the substance of the questions referred. 

The AG noted firstly that it was fairly obvious that the national provision at hand caused less favourable 
treatment on the ground of religion, while the issue of finding the right comparator was more complex 
and required further analysis. In this regard, he noted that all parties proposed to compare the same 
groups, namely members of the four churches, on the one hand, and the Applicant ‘as someone who is 
not a member of any of the four churches’ on the other. Noting, however, that the alleged discrimination 
in this case originated not from the employer but from legislative provisions and that the Court is invited 
to assess the compatibility of those provisions with EU law, the AG concluded that the correct comparison 
is between groups defined in legislation rather than specific individuals. 

Noting  that  the  benefit  concerned  in  the  present  case  must  be  ‘the  indemnity’  (i.e.  the  double  pay 
received by members of the four churches if they do work on Good Friday), the AG concluded that the 
correct  comparator  must  be  employees  who  work  on  Good  Friday  and  ‘who  are  being  distinguished 
from other employees on the basis of religion in relation to remuneration for that day’. In this regard, 
the AG concluded that all employees working on Good Friday, irrespective of their religious beliefs, are 
in  a  comparable  –  albeit  not  identical  –  situation  with  regard  to  the  indemnity  payment.  The  logical 
consequence of this conclusion is that the claimant before the referring court had indeed been treated 
less favourably than employees who received double pay when working on Good Friday. The AG thus 
invited the Court to respond to the first question of the referring court that the national provision at hand 
is precluded by Article 21 of the Charter read in conjunction with the Directive. 

The second question referred sought to determine whether the discriminatory measure of national law 
can be justified either under Article 52(1) of the Charter or under Article 2(5) of the Directive. Despite 

62

EUROPEAN EQUALITY LAW REVIEW – ISSUE 1 / 2019 some formal differences, both provisions refer to the ‘protection of the rights and freedoms of others’, 
both must be interpreted restrictively, and both are subject to a test of proportionality. The AG concluded 
that neither of the two provisions could be applied to justify the national measure at hand, notably due 
to its selective nature (granting the indemnity to only the members of four specific churches when they 
work on Good Friday but not providing the same benefit to other religious groups whose specific days of 
worship are not covered by the national calendar of public holidays). The selective nature of the measure 
implied that it would not appear to fulfil the appropriateness criterion with regard to the protection of the 
rights and freedoms of ‘others’. Furthermore, the AG noted in this regard that, ‘It is difficult to see how 
being paid double one’s wages for not worshipping on Good Friday is appropriate for achieving the aim 
of protecting the (even selectively awarded) freedom of religion and worship’. For the same reasons, the 
AG concluded that the national provision at hand cannot be found to constitute a measure of ‘positive 
action’, thus responding to the referring court’s third question.

Finally, examining possibly the most complex issue raised by the referring court, the AG went on to discuss 
the appropriate remedies for the discriminatory situation, in particular between private parties. Noting 
in this regard that an interpretation of national law that would conform to the Directive is not possible, 
the AG cited the Court’s judgment in Egenberger to state that individuals may invoke Article 21(1) of 
the Charter in combination with the Directive, in the context of a dispute with (an)other individual(s), 
to  have  the  court  ‘set  aside’  or  ‘disapply’  a  conflicting  provision  of  national  law.  However,  instead  of 
recognising the horizontal direct effect of the Charter provision (with all its potential consequences in 
horizontal relationships), the AG went on to recommend that the Court focus on the issue of remedies. In 
this regard, the AG invited the Court to provide guidance as to what is implied by the right to an effective 
remedy in a case such as this one. The direct question of the referring court in this regard referred to the 
possible solutions of ‘levelling up’ and ‘levelling down’, i.e. making Good Friday a paid public holiday for 
all or for no-one. However, the AG noted in this regard that neither solution would be satisfactory in this 
case, notably when considering the source of the discrimination (legislation) and thus concluded that the 
finding of the Court should instead be based on its case law related to effective remedies. 

Regarding the final question of who should provide the remedy to ensure its effectiveness, the AG noted 
two options: the employer or the State. Considering in this regard that the employer was neither the 
source of the discrimination, nor benefited from it, and was not at fault in any way by simply applying 
binding  national  legislation,  the  AG  concluded  that  EU  law  does  not  require  that  there  be  a  remedy 
against the employer in a case such as the one at hand. Instead, effective judicial protection should, in 
the opinion of the AG, take the form of an action for damages against the State. This conclusion is further 
supported by the previous interim conclusion that the framework of comparability is one of groups, not 
individuals.  Indeed,  if  an  individual  victim  of  the  discriminatory  provision  were  to  take  action  against 
their employer without having any colleague who had benefited from favourable treatment (because 
of being a member of one of the four churches), how could that employer possibly be found to have 
discriminated? 

Case C-378/17, Minister for Justice and Equality, Commissioner of An Garda Síochána 
v Workplace Relations Commission, Opinion of Advocate General Wahl delivered on 
11 September 2018, ECLI:EU:C:2018:698

The reference for a preliminary ruling was submitted by the Supreme Court of Ireland and sought to 
determine whether a national equality body established by law in order to ensure enforcement of EU 
non-discrimination law must be able to disapply a rule of national law that is contrary to EU law. The 
initial  case  before  the  referring  court  had  been  brought  before  the  (then)  Equality  Tribunal  (replaced 
in 2015 by the Workplace Relations Commission) by three applicants who had been rejected from the 
recruitment procedure for new police officers as they were above the maximum age for recruitment laid 
down by national law. 

All 
grounds

63

European case law updateWhile the Minister for Justice and Equality (respondent) had argued that only courts established under 
the Constitution of Ireland had jurisdiction to disapply – if necessary – a provision of national law, the 
Equality  Tribunal  had  decided  that  it  would  proceed  to  consider  the  complaints,  examining  the  issue 
of jurisdiction together with the complaints. The Minister then brought an action before the High Court 
which issued an order prohibiting the Equality Tribunal from ruling on the relevant complaints, stating 
that the power to adopt legally binding decisions that national law is contrary to EU law was expressly 
reserved to the High Court under the Constitution. The Equality Tribunal appealed against that order to 
the Supreme Court which referred the case for a preliminary ruling to the Court of Justice of the EU.

The referring court noted that under national law the jurisdiction to hear cases relating to equality in 
employment is shared between the Equality Tribunal (now the Workplace Relations Commission) on the 
one hand and the High Court – in the limited cases where it may be required to disapply provisions of 
national law that conflict with EU law – on the other. The referring court further held that such a division 
of jurisdiction appears to comply with the principles of equivalence and effectiveness. The Workplace 
Relations Commission argued, however, that it must have all the powers necessary to fulfil its general 
obligation which is to ensure compliance with national and EU law relating to equality in employment. 

In  his  introductory  remarks,  before  embarking  on  his  analysis  of  the  case  and  the  question  referred, 
Advocate  General  Wahl  framed  the  issue  at  stake  as  being  related  to  the  ‘procedural  autonomy’  of 
Member States and asked to what extent the principle of primacy of EU law circumscribes the possibility 
for  Member  States  to  apply  their  constitutional  rules  concerning  the  attribution  of  jurisdiction  in  a 
particular field. His conclusion is therefore perhaps not entirely surprising.1 Indeed, the Opinion analysed 
the interplay between the principle of primacy of EU law and the procedural autonomy of Member States, 
citing the Simmenthal judgment to recall that national courts have an obligation to disapply national 
law conflicting with EU law. AG Wahl further referred to more recent judgments in the cases of Costanzo 
and CIF respectively to note that the obligation to disapply conflicting national law not only applies to 
courts but also to administrative authorities on the national level. However, the AG concluded, ‘It must 
be emphasised that, in accordance with the dictum of the Court in Simmenthal, such an obligation exists 
only where the organ in question is acting within the limits of the jurisdiction conferred upon it (as a 
matter of national law)’ (para. 54).

At this stage, the AG rejected the approach taken, notably, by the European Commission and the Workplace 
Relations Commission itself, amounting to the conclusion that the Workplace Relations Commission must 
be able to disapply the provisions of national law which it deems contrary to the Employment Equality 
Directive. In fact, AG Wahl concluded that the rule of jurisdiction at issue in the main proceedings does 
not call into question the primacy of EU law, nor, by extension, the full effectiveness of EU law, but rather 
that the case was about, ‘whether EU law mandates which judicial body ought to have jurisdiction to 
deal with a particular category of case’ (paras. 62-63). The AG then noted that in his view the case law 
of the Court did not seek to interfere with the attribution of jurisdiction over cases between courts or 
administrative bodies. Indeed, he held that Member States enjoy procedural autonomy in this regard as 
long as the principles of equivalence and effectiveness are complied with – as the referring court found 
them to be in the present case. Drawing an interim conclusion at this stage, the AG noted that bodies 
such as the Workplace Relations Commission may not be best suited to adjudicate all types of disputes, 
including  in  particular,  ‘those  raising  important  questions  of  principle  with  broader  legal  implications’ 
(para. 88). 

The AG then examined relatively briefly whether the principles of equivalence and effectiveness were 
complied with in this case, coming to the same conclusion as the referring court in this regard; namely 
that the division of jurisdiction at stake did not infringe the relevant principles of EU law. 

1 

However, in its judgment dated 4 December 2018 the Court of Justice did not follow the same line of reasoning but 
approached the issue from a different angle. For a summary of the judgment, see below p. 70.

64

EUROPEAN EQUALITY LAW REVIEW – ISSUE 1 / 2019 Case C-457/17, Heiko Jonny Maniero v Studienstiftung des deutschen Volkes eV, Opinion 
of Advocate General Sharpston delivered on 11 September 2018, ECLI:EU:C:2018:697

The request for a preliminary ruling was submitted by the German Federal Court of Justice and concerned 
the interpretation of the Racial Equality Directive. The complaint before the referring court was brought 
by an Italian national, born and residing in Germany, who had obtained a Bachelor of Laws in Armenia 
and then wished to apply for a scholarship with the German Academic Scholarship Foundation. While the 
scholarship was reserved for students having passed the First State Law Examination in Germany, the 
claimant argued that his degree obtained in Armenia was equivalent to that examination and that the 
refusal of an application on this basis could amount to discrimination on the ground of ethnic or social 
origin. The claimant’s action and subsequent appeal were both dismissed, following which he introduced 
an appeal on a point of law before the referring court. 

Racial or 
ethnic origin

The questions referred concerned whether the award of scholarships intended to promote projects for 
research  and  studies  abroad  by  a  registered  association  falls  within  the  scope  of  Article  3(1)(g)  of 
Directive 2000/43 as being related to ‘education’.2

Having recalled that ‘education’, for the purposes of the Directive, is an autonomous concept of EU law 
which must be interpreted in a uniform manner across the EU, the AG went on to note that the usual 
meaning of the term refers to an intellectual process and that it is not apparent that it would necessarily 
cover the award of scholarships. She thus went on to examine the context and objective of the relevant 
provisions, recalling that, ‘In the light of the objective of Directive 2000/43 and the nature of the rights 
which it seeks to safeguard, its scope cannot be defined restrictively’ (para. 28) and that this applies to 
the terms defining its material scope. 

While the award of scholarships does not form part of the ‘intellectual process’ itself, it does concern 
access to education which, in the opinion of the AG, is an essential component of education itself, in 
particular  in  the  context  of  a  legal  instrument  combating  discrimination.  Indeed,  to  separate  the  two 
would, ‘denude the directive of its purpose to combat discrimination related to education’ (para. 32). The 
AG further held – by looking briefly beyond the specific scope of non-discrimination law and examining 
other  areas  of  EU  law  –  that  financing  is  an  essential  aspect  of  access  to  education.  Finally,  the  AG 
rejected  an  argument  invoked  by  the  respondent  before  the  referring  court  as  well  as  the  German 
government concerning the legislative history of the Directive and, more specifically, the removal from 
the final text of an explanation that the scope of education was to include, ‘grants and scholarships, while 
fully respecting the responsibility of the Member States for the content of teaching and the organisation 
of education systems and their cultural and linguistic diversity’. In this regard, the AG underlined that 
the deletion simplifies the wording of the provision without changing its scope and that it may well have 
been designed to ensure a broad definition of ‘education’.

AG Sharpston thus concluded that, ‘The term ‘education’ in the context of Directive 2000/43 must be 
interpreted broadly and that it includes aspects that are related to access to education, such as financing 
by means of scholarships’, while specifying that there must be a genuine link between the financing and 
education, which it is for the national court to verify.

2 

In the event that the Court would respond in the affirmative to this question, the referring court had submitted additional 
questions. However, upon the explicit request of the Court, the Advocate General limited her Opinion to the first question 
referred. For a summary of the judgment of the Court, see below, p. 69.

65

European case law updateReligion  
or belief

REFERENCES FOR PRELIMINARY RULINGS – JUDGMENTS

Case C-68/17, IR v JQ, Grand Chamber judgment of 11 September 2018, 
ECLI:EU:C:2018:696 

The  request  for  a  preliminary  ruling  concerned  the  interpretation  of  Article  4(2)  of  the  Employment 
Equality  Directive  which  provides  an  exception  to  the  prohibition  of  discrimination  on  the  ground  of 
religion  or  belief  for  employers  with  a  religious  ethos.  The  respondent  before  the  referring  court  is  a 
German private limited company owned by the Catholic Church with the principal mission of operating 
hospitals. The claimant is a medical doctor of the Roman Catholic faith who was employed as head of 
the  department  of  internal  medicine.  He  was  divorced  from  his  previous  wife  and  was  subsequently 
dismissed  when  he  remarried  although  his  previous  marriage  had  not  been  annulled.  The  claimant’s 
employment contract was regulated by the basic regulations on employment relationships in the service 
of  the  Church  which  make  reference  to  canon  law  in  relation  to  employees  of  the  Roman  Catholic 
faith. However, the relevant regulations stipulate that an individual occupying the same position as the 
claimant who remarried under the same circumstances as the claimant would not have been dismissed 
if he or she had not been of the Roman Catholic faith, as provisions of canon law would not be applicable 
to them. The claimant thus held that he had been discriminated against on the ground of his religious 
beliefs. The employer, on the other hand, argued that by entering into a marriage that was invalid under 
canon law, the claimant had clearly infringed his duty of ‘good faith and loyalty’ to the employer’s ethos, 
as foreseen by his employment contract. 

The referring court considered that the outcome of the dispute would depend on the interpretation of 
Paragraph 9(2) of the German General Law on Equal Treatment which stipulates notably that nothing 
prevents religious communities3 from requiring their employees to, ‘act in good faith and with loyalty in 
accordance with [the] self-perception [of the religious community]’. This provision must be interpreted 
in accordance with EU law and more specifically with Article 4(2) of the Directive. The principal question 
referred concerned a difference of treatment directly based on religion between those employees who 
share the religious ethos of the employer and those who do not, when it comes to their duty to act in 
good faith and with loyalty to that ethos. 

For the purpose of defining the scope ratione personae of Article 4(2), the Court first recalled that the 
specific exception it foresees only applies to churches and other public or private organisations, ‘the ethos 
of which is based on religion or belief’ and that it is limited to the occupational activities of individuals 
working for such organisations. Referring to its previous judgment in the case of Egenberger,4 the Court 
then underlined the importance of effective judicial review being available to ascertain that the criteria 
set  out  in  Article  4(2)  are  satisfied  in  a  particular  situation  where  the  duty  to  act  in  good  faith  and 
with loyalty to an employer with a religious ethos is invoked. The Court then noted that a difference of 
treatment in respect of the said duty which is based solely on the faith of the employees, must comply, 
inter alia, with the criteria set out in the first subparagraph of Article 4(2) of the Directive. As such, the 
Court held that:

‘A church or other public or private organisation the ethos of which is based on religion or belief can treat 
its employees in managerial positions differently, as regards the requirement to act in good faith and 
with loyalty to that ethos, depending on their affiliation to a particular religion or adherence to the belief 
of  that  church  or  other  organisation  only  if,  bearing  in  mind  the  nature  of  the  occupational  activities 
concerned or the context in which they are carried out, the religion or belief is a genuine, legitimate and 
justified occupational requirement in the light of that ethos.’ (para. 55, emphasis added)

3 

4 

The provision refers to, ‘religious communities, institutions affiliated to them, regardless of their legal form, or associations 
that devote themselves to the communal nurture of a religion or belief’.
CJEU, Judgment of 17 April 2018, Egenberger, C 414/16, EU:C:2018:257. See also European equality law review, Issue 
2018/2, pp 98-99. 

66

EUROPEAN EQUALITY LAW REVIEW – ISSUE 1 / 2019 By way of providing guidance to the referring court – which has sole jurisdiction to give judgment in 
the case before it – the Court noted that adherence to the, ‘sacred and indissoluble nature of religious 
marriage’ does not appear to be necessary for the promotion of the respondent’s ethos. In this regard, 
the Court considered in particular the nature of the occupational activities carried out by the claimant 
and the fact that similar positions to that of the claimant were entrusted to employees who were not of 
the Roman Catholic faith and, consequently, not subject to the same duty of loyalty to the respondent’s 
ethos. 

In response to a subsidiary question referred, the Court held, finally, that if the referring court were to 
find that the national provision at hand cannot be interpreted in a way that is consistent with Article 
4(2)  of  the  Directive,  it  would  be,  ‘under  an  obligation  to  provide,  within  the  limits  of  its  jurisdiction, 
the legal protection which individuals derive from EU law and to ensure the full effectiveness of that 
law,  disapplying  if  need  be  any  provision  of  national  legislation  contrary  to  the  principle  prohibiting 
discrimination on grounds of religion or belief’ (para. 68). In this regard, the scope ratione temporis of 
the Charter of Fundamental Rights and its Article 21 was irrelevant, considering that the prohibition of 
all discrimination on grounds of religion  or  belief is, ‘a mandatory general  principle  of  EU  law  and  is 
sufficient in itself to confer on individuals a right that they may actually rely on in disputes between them 
in a field covered by EU law’ (para 69).

Case C-41/17, Isabel González Castro v Mutua Umivale and Others, Judgment of 
19 September 2018, EU:C:2018:736

This preliminary reference was made by the Tribunal Superior de Justicia de Galicia (High Court of Justice 
of Galicia) in Spain, which enquired about the interpretation of ‘night work’ in the context of the protection 
of pregnant workers. The question concerned both the measures to encourage improvements in health 
and safety at work for pregnant workers and workers who have recently given birth or are breastfeeding 
laid down in Directive 92/85/EEC and the rules on the burden of proof in cases of sex discrimination, as 
set out by Directive 2006/54/EC.

Gender

In this case, Ms González Castro was employed as a security guard with a Spanish company and worked 
following a variable rotating pattern of eight-hour shifts during which she was sometimes alone and 
which were in part performed at night. Subsequent to the birth of her son, she applied for a medical 
certificate indicating the existence of a risk to breastfeeding posed by her work, in order to obtain leave 
and  an  allowance  in  respect  of  risk  during  breastfeeding.  Despite  the  absence  of  ‘evidence  that  the 
workplace ha[d] anywhere suitable for breastfeeding or, as the case may be, for expressing breast milk’ 
and the possibility that the applicant, as part of her work, might have to, ‘respond to emergencies, such 
as criminal behaviour, fire and other incidents of that kind’ (para. 35), her application for the medical 
certificate was rejected by the mutual insurer responsible for the risk assessment procedure. The insurer 
denied the existence of any risk to the applicant’s health or safety, resulting in her inability to access the 
breastfeeding leave and allowance.

The  referring  court  first  sought  clarification  of  the  meaning  of  ‘night  work’  as  set  out  in  Article  7  of 
Directive 92/85, asking the CJEU whether it also covers workers who do not perform all of their work but 
only some of their shifts at night. Secondly, the referring court asked the CJEU whether the rules on the 
reversal of the burden of proof laid down in Article 19(1) of Directive 2006/54 should be applied to the 
case, with the consequence that the employer would have to prove that the risk assessment procedure 
was  properly  conducted  and  that  Ms  González  Castro’s  work  did  not  pose  any  risk  to  her  health  or 
safety in relation to breastfeeding (para. 36 and 37(2)). In the event that the existence of a risk to the 
applicant’s health and safety in relation to breastfeeding were to be confirmed, the referring court asked 
the CJEU whether the refusal to grant leave should be regarded as direct or indirect discrimination (para. 
37(3)). Finally, the referring court asked the CJEU whether it is for the employee, in order to be granted 

67

European case law updateDisability

Age

the leave, to show that her working hours and/or conditions cannot be adjusted and that she cannot be 
moved to another job, or if this is for the employer to demonstrate (para. 37(4)).

The CJEU first clarified that a worker whose work shifts are partly performed at night must be regarded 
as a night worker and is covered under Article 7 of Directive 92/85/EC, which provides that pregnant and 
breastfeeding women, as well as women who have recently given birth, should not be obliged to do night 
work when it poses a risk to their health and safety. Responding to the remainder of the referring court’s 
questions, the CJEU then recalled that an employer must, ‘adjust the working conditions of a worker or 
move her to another job’ if her work poses risks to her health and safety in relation to breastfeeding 
(para. 56). If that cannot be done, the worker must be entitled to breastfeeding leave. 

The CJEU recalled that, following Oteros Ramos, failure to properly assess such risks in accordance with 
Article 4(1) of Directive 92/84 must be regarded as direct discrimination on grounds of sex under Article 
2(2)(c) of Directive 2006/54/EC.5 Following AG Sharpston’s opinion,6 the CJEU considered from the file of 
the case that the applicant’s employer did not conduct a specific risk assessment taking into account the 
individual situation of the worker, who was therefore discriminated against (para. 80). This establishes a 
presumption of direct discrimination on grounds of sex, which it is for the employer to rebut by showing 
that a specific risk assessment was conducted. In the absence of such evidence, the CJEU considers that 
the applicant has been discriminated against on grounds of her sex.

Case C-312/17, Surjit Singh Bedi v Bundesrepublik Deutschland, Bundesrepublik 
Deutschland in Prozessstandschaft für das Vereinigte Königreich von Großbritannien und 
Nordirland, Judgment of 19 September 2018, ECLI:EU:C:2018:734

The  request  for  a  preliminary  ruling  was  submitted  by  the  Higher  Labour  Court  of  Hamm  (Germany) 
and  concerned  the  interpretation  of  Article  2(2)  of  the  Employment  Equality  Directive.  The  claimant 
before the referring court is recognised as having a severe disability and was employed as a security 
guard by the United Kingdom armed forces stationed in Germany. When the UK army base at which he 
was employed closed, he was made redundant and received, as per his employment contract and the 
applicable collective agreement, so-called bridging assistance with the aim of ensuring him a reasonable 
means of subsistence until he would be entitled to a retirement pension under the statutory pension 
scheme.  However,  the  bridging  assistance  payments  ended  when  the  claimant  became  entitled  to 
early payment of a retirement pension for severely disabled people. As a result of losing the bridging 
assistance, his monthly income decreased significantly, which caused him to bring an action before the 
German Labour Courts. 

The referring court is uncertain about the compatibility with the Employment Equality Directive of the 
national  provision  which  stipulates  that  the  right  to  bridging  assistance  is  lost  when  the  individual 
becomes entitled to an early retirement pension for severely disabled people. 

After having found that the bridging assistance must be considered to constitute ‘pay’ in the meaning 
of Article 157(2) TFEU, the Court concluded that the national provision at hand falls within the scope of 
the Directive. It further examined whether the provision amounted to discrimination on the ground of 
disability, finding firstly that there could be no direct discrimination as it was not only severely disabled 
people who were entitled to an early pension and thereby lost their entitlement to bridging assistance. 
With  regard  to  indirect  discrimination,  the  Court  then  noted  that  a  non-disabled  person  in  a  similar 
situation to that of the claimant would be entitled to a retirement pension between one and three years 
later than the claimant and would thereby receive the bridging assistance during that time. The income 

5 
6 

C-531/15 Elda Otero Ramos v Servicio Galego de Saúde and Instituto Nacional de la Seguridad Social EU:C:2017:789.
C-41/17 Isabel González Castro v Mutua Umivale Prosegur España SL Instituto Nacional de la Seguridad Social (INSS), 
Opinion of AG Sharpston, delivered on 26 April 2018, EU:C:2018:289. See also European equality law review, Issue 2018/2, 
p. 94. 

68

EUROPEAN EQUALITY LAW REVIEW – ISSUE 1 / 2019 of such a person would thus be higher than that of the claimant during that period of time and it is thus 
apparent that the national provision at hand is liable to place severely disabled people at a disadvantage 
and to cause a difference in treatment which is indirectly based on disability. 

To examine whether the difference in treatment can pass the justification test foreseen by Article 2(2)
b(i) of the Directive, the Court then recalled its judgment in the case of Odar from 2012, noting that, 
‘providing compensation for the future of workers who have been made redundant and facilitating their 
reintegration into employment, whilst taking account of the need to achieve a fair distribution of limited 
financial resources, can be deemed legitimate aims within the meaning of [the Directive]’ (para. 61). In 
those circumstances, the Court went on to accept that, ‘those aims must in principle be held to be capable 
of justifying ‘objectively and reasonably’ a difference in treatment on grounds of disability’. The Court 
finally examined the proportionality of the national provision, responding firstly to the argument invoked 
by the German government claiming that social partners, in respect of collective agreements, are not 
required to choose the most equal, reasonable or appropriate solution. In this regard, the Court recalled 
that  social  partners  must,  when  adopting  measures  that  come  within  the  scope  of  the  Employment 
Equality Directive, comply with that Directive. Underlining how the social partners in this instance had 
failed to have regard to the specific needs of severely disabled workers, the Court concluded that the 
national provision in question, ‘has an excessive adverse effect on the legitimate interests of severely 
disabled workers and therefore goes beyond what is necessary to achieve the social policy aims pursued 
by the German social partners’ (para. 77). The measure is thus found to amount to unjustified indirect 
discrimination on the ground of disability.

Case C-457/17, Heiko Jonny Maniero v Studienstiftung des deutschen Volkes eV, 
Judgment of 15 November 2018, ECLI:EU:C:2018:912

The request for a preliminary ruling was submitted by the German Federal Court of Justice and sought 
to  determine  whether  a  private  foundation  providing  a  scholarship  only  for  students  having  passed  a 
specific German examination discriminated against students with equivalent diplomas from other (non-EU) 
countries, in violation of the Racial Equality Directive which prohibits discrimination on the ground of racial 
or ethnic origin in the field of, inter alia, education.7 

Racial or 
ethnic origin

The  questions  referred  concerned,  essentially,  whether  the  award  of  scholarships  forms  part  of  the 
concept of ‘education’ within the meaning of the Directive and, if so, whether the exclusion from such 
a scholarship of students who have not passed a specific examination under national law amounts to 
indirect discrimination prohibited by the Directive where the student is an EU citizen with full command 
of the national language who could have studied in the country and passed the relevant examination but 
who, instead, studied and obtained their diploma in a third country. The Court requested the Advocate 
General to limit her analysis to the first question. 

In  its  relatively  short  and  straightforward  decision,  the  Court  referred  repeatedly  to  the  Opinion  of 
Advocate General Sharpston, which it followed on all accounts with regard to the first question referred. It 
thus concluded without difficulty that the award by a private foundation of scholarships destined to fund 
studies or research abroad falls within the concept of ‘education’ within the meaning of the Directive, 
as long as there is a sufficiently direct link between the financing and the actual educational activities. 

Regarding the second question referred, the Court recalled its finding from the CHEZ and Jyske Finans 
rulings, that indirect discrimination can be found only if the relevant measure is capable of causing a 
disadvantage to a specific racial or ethnic group. The Court noted in this regard that nothing in the case at 

7 

For a brief summary of the case before the referring court and of the Opinion of the Advocate General, please see above, 
p. 65.

69

European case law updatehand indicated such a disadvantage to a particular group and thus concluded quite briefly that no indirect 
discrimination had taken place. 

Case C-378/17, Minister for Justice and Equality, Commissioner of An Garda Síochána 
v Workplace Relations Commission, Grand Chamber judgment of 4 December 2018, 
ECLI:EU:C:2018:979

The reference for a preliminary ruling was submitted by the Supreme Court of Ireland and sought to 
determine whether a national equality body established by law in order to ensure enforcement of EU 
non-discrimination law must be able to disapply a rule of national law that is contrary to EU law.8 

All grounds

The referring court underlined that under national law the jurisdiction to hear cases relating to equality 
in employment is shared between the Workplace Relations Commission and the High Court (in the limited 
cases where it may be required to disapply provisions of national law that conflict with EU law) and that 
such a division of jurisdiction appears to comply with the principles of equivalence and effectiveness. The 
Workplace Relations Commission argued, however, that it must have all the powers necessary to fulfil its 
general obligation to ensure that national and EU law relating to equality in employment are complied 
with. 

In  its  ruling,  the  Grand  Chamber  departed  from  the  Opinion  of  Advocate  General  Wahl  and  adopted 
a different approach to the case based on the principle of primacy of EU law. The Court thus recalled 
that this fundamental principle ‘requires not only the courts but all the bodies of the Member States to 
give full effect to EU rules’ (para. 39, emphasis added), thereby imposing upon them a duty to disapply 
national legislation that is contrary to EU law. Instead of examining, as the referring Court as well as the 
Advocate General had done, whether the division of jurisdiction in national law complied or not with the 
principles of equivalence and effectiveness, the Court focused on the role and nature of the Workplace 
Relations Commission as such. It thus underlined that it would be contradictory if an individual were able 
to rely on the provisions of EU equality law in employment before the Workplace Relations Commission, 
but that body were under no obligation to actually apply those provisions in the sense of refraining from 
applying national provisions which conflict with them. Furthermore, the Court noted that the Workplace 
Relations Commission must be considered to be a ‘court or tribunal’ which may refer questions for a 
preliminary ruling to the Court9 and which would in such cases be bound by the judgment of the Court 
and be obliged to disapply conflicting provisions of national law, if necessary. The Court thus concluded 
that  the  provisions  of  the  Employment  Equality  Directive  which  the  Workplace  Relations  Commission 
was set up to apply would be rendered less effective if that body were unable to disapply conflicting 
provisions of national law. 

Consequently, the Grand Chamber ruled that, ‘EU law, in particular the principle of primacy of EU law, 
must be interpreted as precluding national legislation, such as that at issue in the main proceedings, 
under which a national body established by law in order to ensure enforcement of EU law in a particular 
area lacks jurisdiction to decide to disapply a rule of national law that is contrary to EU law’. 

8 

9 

For a brief summary of the case before the referring court and of the Opinion of the Advocate General, please see above, 
p. 64.
The Court referred in this regard to its judgment of 18 March 2014 in the case of Z., C-363/12, EU:C:2014:159, delivered 
before the institutional reform which replaced the previous Equality Tribunal with the current Workplace Relations 
Commission. 

70

EUROPEAN EQUALITY LAW REVIEW – ISSUE 1 / 2019 European Court of Human Rights

Case of S.V. v Italy, Application No. 55216/08, Judgment of 11 October 2018

In this case, the applicant challenged a refusal from the Italian state authorities to change her legally 
registered forename to make it correspond to her gender identity. The applicant was registered as male 
at birth but subsequently identified, lived, appeared and presented herself as a woman for many years. 
She  was  known  in  her  professional  circle  under  a  female  forename  and  appeared  as  female  on  her 
identity  card  picture.  After  starting  her  gender  transition  process,  she  sought  authorisation  from  an 
Italian court to undergo gender reassignment surgery, which was granted to her. 

Gender

Contemporaneously, the applicant applied for a change of her male forename on her identification papers 
in order to have her female forename legally recognised on official documents. However, the prefecture 
refused to change her forename as long as no court had confirmed the gender reassignment surgery, in 
accordance with Italian Law no. 164 of 1982. The applicant therefore had to wait two and a half years 
for her forename to be changed on her identity papers, until surgery had been performed and confirmed 
by a judicial ruling. Her challenge before the Strasbourg court concerned a violation of her right to respect 
for private life under Article 8 of the European Convention on Human Rights (ECHR) in conjunction with 
the right not to be discriminated against under Article 14 ECHR.

Notable in this case are the third-party interventions of two NGOs in support of the Italian government, 
the  Alliance  Defending  Freedom,  a  US  Christian  advocacy  organisation,  and  Unione  Giuristi  Cattolici 
Italiani, an association of Italian Catholic lawyers.

The European Court of Human Rights (ECtHR) first confirmed that the claim was a matter falling within the 
scope of the right to private life under Article 8 ECHR. It recalled that, in relation to questions regarding the 
right to gender identity, a restricted margin of appreciation applies to State parties (para. 62). Balancing out 
the general public interest and the applicant’s private interest that her forename corresponds to her gender 
identity, the Court questioned the proportionate nature of the decision of the Italian administration not to 
change the applicant’s forename before judicial confirmation that her gender reassignment surgery had 
been completed. In so doing, the Strasbourg court considered that the Italian state authorities interpreted 
Law  No.  164  of  1982  in  a  restrictive  and  formal  manner  without  taking  into  account  the  applicant’s 
specific situation, in particular the fact that her social identity and appearance had been female for many 
years. The ECtHR considered that the applicant had to wait for an ‘unreasonable’ period of time for her 
forename to be changed, an ‘abnormal’ situation causing her ‘feelings of vulnerability, humiliation and 
anxiety’.10 Therefore, the ECtHR recognised that Italy disrespected its positive obligation to guarantee the 
right to private life under Article 8 ECHR.

Despite referring to the Recommendation CM/Rec(2010)5 of the Committee of Ministers to State parties 
on measures to combat discrimination on grounds of sexual orientation or gender identity (para. 73), the 
Court declared that it was not necessary to examine the applicant’s claim of discrimination under Article 
14 given the findings related to Article 8. 

10 

See para. 72 (author’s translation, decision only available in French).

71

European case law update 
Case of Lakatošová and Lakatoš v Slovakia, Application No. 655/16, Judgment of 
11 December 2018

Racial or 
ethnic origin

The  case  was  brought  by  two  applicants  (husband  and  wife)  of  Roma  origin  who  claimed  that  the 
national authorities had failed to effectively investigate the (alleged) racial overtones of the violent crime 
committed against them and their family. They also challenged the lack of reasoning in the sentencing 
judgment, making it impossible to demonstrate any accountability for the racist motive for the crime. 
They relied on Articles 2 and 14 of the Convention. 

The facts of the case were related to an attack by an off-duty police officer who entered the garden of 
the applicants’ family home and started shooting at the people who were there. Three of the applicants’ 
close family members were killed while they themselves were severely injured. During questioning by 
police, the gunman mentioned on several occasions that he had wanted to ‘deal with’ the situation of 
the ‘unintegrated Roma’ living in the town, and the experts who were called upon to examine his mental 
state noted ‘anger, rage and hatred’ concerning ‘those of the Roma minority’, although they were unable 
to ‘unequivocally’ determine a racial motive for the violent crime. 

However, the bill of indictment filed by the prosecutor did not indicate any racial motivation or mention 
the ethnicity of the victims in any way. Furthermore, due to the fact that both the accused, his lawyer 
and  the  prosecutor  had  waived  their  right  to  appeal,  the  final  sentencing  judgment  did  not  contain 
any  legal  reasoning.  The  accused  was  sentenced  to  nine  years’  imprisonment,  but  the  sentence  was 
exceptionally reduced due to his diminished soundness of mind. He was ordered to undergo protective 
psychological treatment in an institution, together with protective supervision amounting to three years. 
In their capacity as civil parties, the applicants were unable to appeal and they were referred to the civil 
courts regarding their claims of compensation for damages. 

The Court concluded that the prosecuting authorities had, ‘failed to examine a possible racist motive in 
the face of powerful racist indicators and in particular failed to give any reasons whatsoever whether 
the  attack  (…)  had  or  had  not  been  motivated  by  racial  hatred’.  The  authorities’  actions  were  thus 
inadequate, ‘to an extent that is irreconcilable with the State’s obligation in this field to conduct vigorous 
investigations, having regard to the need to continuously reassert society’s condemnation of racism in 
order to maintain the confidence of minorities in the ability of the authorities to protect them from the 
threat of racist violence’ (para 96). The Court thus found that there had been a violation of Article 14, 
read in conjunction with Article 2 of the Convention. 

Case of Molla Sali v Greece, Application No. 20452/14, Grand Chamber judgment of 
19 December 2018

Religion  
or belief

With this judgment, the Grand Chamber provided its first finding of discrimination by association, although 
it  could  be  argued  (and  was  by  the  concurring  judge  Mitis)  that  the  religious  beliefs  of  the  applicant 
herself could also have been considered. 

The  applicant’s  case  concerned  the  inheritance  rights  to  the  property  of  her  deceased  husband,  who 
was a member of the Muslim community of Thrace in eastern Greece.11 A few years before he died, the 
applicant’s husband had drawn up a public will in accordance with the Greek Civil Code, bequeathing 
his entire estate to his wife. The legality of this will was later challenged by the deceased’s two sisters, 
who claimed that their brother’s inheritance rights were subject to Sharia law and to the jurisdiction of 
the mufti rather than the provisions of the Civil Code, according to which the will had been drawn up. 

11 

The protection of the religious distinctiveness of Greek Muslims in Thrace is based on three international treaties: the 
Treaty of Athens of 14 November 1913, the Treaty of Sèvres of 10 August 1920 and the Lausanne Peace Treaty of 
24 July 1923. They foresee, under certain conditions, the applicability of Islamic religious law (Sharia law) to relationships 
between Muslims in matters of family law. 

72

EUROPEAN EQUALITY LAW REVIEW – ISSUE 1 / 2019 While the first instance and appeal courts dismissed the deceased’s sisters’ claim, the Court of Cassation 
upheld  it  and  remitted  the  case  back  to  the  court  of  appeal.  Following  the  decision  of  the  Court  of 
Cassation, the court of appeal held that the relevant legislative provisions had been intended to protect 
the Muslim community of Thrace, constituted a special body of law and did not breach the principle of 
equality or the right of access to a court (as invoked by the applicant). The applicant appealed on points 
of law, but her appeal was dismissed by the Court of Cassation and as a consequence she was deprived 
of three-quarters of the property bequeathed to her. 

The  Court  first  recalled  that  in  cases  such  as  this,  ‘the  relevant  test  is  whether,  but  for  the  alleged 
discrimination,  the  applicant  would  have  had  a  right,  enforceable  under  domestic  law,  in  respect  of 
the asset in question’ (para 127). Noting in this regard that the applicant had accepted her husband’s 
estate in application of the will and registered the property and that the domestic courts of first and 
second instance had validated the will, the Court concluded that the applicant would have inherited her 
husband’s entire estate on the basis of the will, had the testator not been of the Muslim faith. Thus, 
the applicant’s proprietary rights fell within the ambit of Article 1 of Protocol No. 1 (right to respect for 
property) which was sufficient to render Article 14 (non-discrimination) applicable as well. 

Examining  the  comparator  element,  the  Court  then  noted  that  the  applicant,  ‘as  the  beneficiary  of  a 
will made in accordance with the Civil Code by a testator of Muslim faith, was in a relevantly similar 
situation  to  that  of  a  beneficiary  of  a  will  made  in  accordance  with  the  Civil  Code  by  a  non-Muslim 
testator’.12 The Court further concluded that the applicant was thus treated differently, ‘on the basis of 
‘other status’, namely the testator’s religion’ (para. 141). Finally, with regard to the objective justification 
of the difference in treatment, the Court recognised that Greece is bound by its international obligations 
concerning the protection of the Thrace Muslim minority (invoked by the State Party) but did not find that 
the impugned measure was proportionate to the aim of ensuring the protection of that minority. 

Since the 1960s, the approach of the Greek Court of Cassation to inheritance cases involving members 
of the Muslim minority had been that such cases should be governed by Sharia law, on the basis of the 
1913 Treaty of Athens and national legislation enacted pursuant to that treaty. The Court noted that 
the effect of this approach was that notarised wills drawn up by Greek nationals of Muslim faith were 
devoid of legal effect and then provided a relatively long list of reasons why this was not justifiable. 
Most importantly, perhaps, the Court stated that the State cannot, ‘take on the role of guarantor of the 
minority identity of a specific population group to the detriment of the right of that group’s members 
to choose not to belong to it or not to follow its practices and rules’ (para. 156, emphasis added). In 
this regard, the Court found that, ‘[r]efusing members of a religious minority the right to voluntarily opt 
for and benefit from ordinary law amounts not only to discriminatory treatment but also to a breach 
of a right of cardinal importance in the field of protection of minorities, that is to say the right to free 
self-identification’ (para. 157). Noting finally that Greece was the only country to apply Sharia law to its 
citizens against their wishes, the Court concluded that the difference in treatment of the applicant on 
the basis of her late husband’s religious beliefs had no objective and reasonable justification. It found a 
violation of Article 14 read in conjunction with Article 1 of Protocol No. 1. 

12 

In the opinion of the concurring judge Mitis, the religious beliefs of the applicant herself should also have been considered 
– in addition to those of her husband – notably due to the concern raised by a number of international organisations 
regarding the situation of Muslim women and children in Western Thrace. The Grand Chamber appears, however, to have 
made a point of refraining from mentioning in any way the fact that the applicant was herself of the Muslim faith. 

73

European case law updateKey developments 
at national level in 
legislation, case law  
and policy

This  section  provides  an  overview  of  the  main 
recent  developments  in  gender  equality  and  non-
discrimination  law  (including  case  law)  and  policy 
at  the  national  level  in  the  28  EU  Member  States, 
Albania, Iceland, Liechtenstein, Montenegro, Republic 
of North Macedonia, Norway, Serbia and Turkey, from 
1 July to 31 December 2018.

AL

Albania 

LEGISLATIVE DEVELOPMENT

Legal developments in compliance with the Istanbul Convention

Gender

During  the  second  half  of  2018  several  laws  were  adopted  in  Albania  aimed  at  addressing  gender 
equality and gender-related violence. 

On 23 July 2018, the Albanian Assembly adopted Law no 47/2018, amending law no. 9669 on ‘Measures 
against  violence  in  family  relations’.1  The  specific  definitions  and  concepts  provided  by  this  new  law 
are in compliance with the 2011 Council of Europe Convention on preventing and combating violence 
against  women  and  domestic  violence  (Istanbul  Convention).  The  aims  of  this  legal  amendment  are: 
the prevention and reduction of cases of domestic violence; increasing the efficiency and cooperation of 
responsible institutions; increasing the participation of perpetrators in specific rehabilitation services; and 
increasing judicial support for victims of domestic violence. 

New provisions of interest are those related to issuing a Preliminary Immediate Protection Order. This 
court  order2  is  issued  within  48  hours  after  the  complaint  before  a  domestic  violence  case  is  even 
registered, and contains immediate measures to protect the victim of domestic violence until the court 
issues the final Protection Order. Other new provisions of interest are the presence and participation of a 
psychologist in cases of domestic violence and the preparation of a report by the psychologist when the 
case is submitted to the police. The amendment was prepared with the support of international actors, 
the United Nations Development Programme Albania and through wide consultations with institutions 
and civil society. Such legal amendments were highly necessary considering the situation of domestic 
violence in the country and the eminent need to address such cases effectively. 

Following the above-mentioned legal amendment, on 27 November 2018, the Minister of Health and 
Social  Protection  adopted  Instruction  No.  816,  on  ‘The  approval  of  service  provision  standards  and 
functioning of crisis management centres for cases of sexual violence’. Now that standards for crisis 
management centres for sexual violence are regulated, the possibility is opened up for such centres to be 
established. Two other acts, implementing Law no 47/2018, are currently in the process of being drafted.

The Albanian Parliament also adopted Law No.22 /2018 on social housing,3 which is considered a further 
step  to  meeting  the  standards  of  the  Istanbul  Convention.4  The  law  has  expanded  and  strengthened 
support, among other things, for victims of domestic violence, victims of trafficking and potential victims 
of trafficking and for social housing programmes.

Online sources:
https://qbz.gov.al/eli/ligj/2006/12/18/9669/3257bc3f-964e-4d84-aca0-57122d81f986 
https://qbz.gov.al/eli/fz/2018/79/63abe2a7-88f8-4978-912b-681593b9e996;q=strehim%20social%20
22%2F2018

1 

2 

3 
4 

Albania, Changes and additions to law no. 9669, of 18 December 2006, ‘Measures against violence in family relations’, 
amended (Për disa shtesa dhe ndryshime në ligjin nr. 9669, datë 18.12.2006, ‘Për masa ndaj dhunës në marrëdhëniet familjare’,  
i ndryshuar). See Official Journal: https://qbz.gov.al/eli/fz/2006/150/6e92777f-ca6c-4c80-84c1-fc5aa8284d00.
The Immediate Protection Order thus provides immediate protection to victims of domestic violence, even before the 
Court issues the Protection Order. As per the law, the Protection Order is issued through a court decision within 15 days 
upon registration of the lawsuit. Thus, the Immediate Protection Order fills in the gap of protection to victims until the 
Protection Order is issued.
See Albanian Official Journal: https://qbz.gov.al/eli/fz/2018/79/63abe2a7-88f8-4978-912b-681593b9e996.
See the opinion of Albanian non-governmental organisation, Qendra për Nisma Ligjore Qytetare, at: http://www.qag-al.org/ 
publikime/ligji_strehimi.pdf.

76

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Other  
ground

BE

Gender

CASE LAW

Administrative Court confirms equality body decision on discrimination against convicted 
or detained persons in the field of employment

The  General  Directorate  of  Prisons  had  brought  an  action  before  the  Administrative  Court  of  Tirana, 
challenging a decision5 of the Commissioner for Protection from Discrimination (national equality body) 
regarding discrimination against convicted or detained people due to their social status, in the field of 
employment.  The  issue  concerned  the  practice  within  some  penitentiary  institutions  of  remunerating 
the work performed by those detained through reductions to their punishment. This practice was based 
on an old Presidential Decree which had never been explicitly abrogated, although it was contrary to 
subsequent legislation. While the General Prosecutor had objected to this practice since 2004, it had 
continued in some institutions, causing a difference in treatment among detained and convicted people 
but also between these people and any other person employed outside the penitentiary institutions in 
accordance with the Labour Code. 

The national equality body had found that this practice amounted to discrimination on the ground of 
social  status  and  the  Administrative  Court  of  Tirana  upheld  this  finding  and  rejected  the  arguments 
invoked by the General Directorate of Prisons.6 The Court confirmed thus that the working conditions of 
convicted or detained people should be similar to those in the rest of society and defined by the Labour 
Code and that their salary cannot be lower than the minimum wage. 

Before the Court, the General Directorate of Prisons expressed their willingness to take into consideration 
the recommendations of the equality body, the Albanian Helsinki Committee and the People’s Advocate 
(Ombudsman) during the drafting process of the forthcoming Decision of the Council of Ministers ‘On 
promotion and reward for work of prisoners’.

Belgium 

LEGISLATIVE DEVELOPMENT

Amendments to adoption leave 

Under Article 30 of the Employment Contracts Act of 3 July 1978, any employee who adopts a child is 
entitled to leave of six weeks if the child is under the age of three years and four weeks if the child has 
reached the age of three and is less than eight years old. The Act of 6 September 20187 considerably 
improved these provisions, as of 1 January 2019. 

The basic duration of the leave period is now six weeks for any adopting employee, whatever the child’s 
age provided he or she is a minor (under 18). To this basic duration of six (or in the case of an adopting 
couple six plus six weeks, i.e. a total of 12 weeks), an additional week is added as of 1 January 2019. This 
prolongation will additionally be increased by one week every two years to reach a total of five weeks 
as of 1 January 2027. This supplement is to be shared between the two partners in the couple. Where 
applicable, another supplement of two weeks for each parent is added in the case of the simultaneous 
adoption of more than one child. 

5 
6 
7 

Albania, Commissioner for Protection of Discrimination, Decision No. 100/5.04.2018.
Albania, First Instance Administrative Court of Tirana, Decision No. 4172/19.11.2018.
Belgium, Federal Act of 6.09.2018, Law amending existing measures aimed to strengthen adoption leave and establish a 
foster parental leave (Loi modifiant la réglementation en vue de renforcer le congé d’adoption et d’instaurer le congé parental 
d’accueil, M.B./B.S). Published in the Moniteur Belge/Belgisch Staatsblad of 26.09.2018, p. 73774.

77

Key developments at national level in legislation, case law and policy 
During  the  leave  period,  no  remuneration  is  paid  by  the  employer  after  the  first  three  days,  but  the 
Healthcare and Sickness Insurance Scheme provides a benefit equal to 82 % of normal remuneration up 
to a ceiling of EUR 101.79 per day as of 1 January 2019. 

However, the generous reform summarised above has the surprising effect that, as of 1 January 2019, 
adoptive parents will be in a more  privileged position in terms  of the  duration of  leave  compared to 
employees who are pregnant or have given birth. Maternity leave (15 weeks, which may be extended 
up to 20 weeks under certain circumstances) gives the right to a social benefit equal to 82 % of normal 
remuneration (with no ceiling) during the first 30 days and 75 % (with the ceiling mentioned above) for 
the remainder of the leave. 

The Council of Equal Opportunity for Men and Women, an advisory body with the federal government, 
which in repeated opinions recommended that the rate of 82 % be maintained during the whole maternity 
leave, immediately questioned the competent minister about this difference in treatment. 

Online source:
http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=2018090612&table_
name=loi 

CASE LAW

Burkini ban in swimming pools

Religion  
or belief

On 5 July 2018, the Tribunal of Ghent ruled in two first instance judgments that the ban on ‘burkinis’ 
(body-covering  swimwear)  in  two  municipal  swimming  pools  was  unlawful.8  Relying  on  the  case  law 
of  the  European  Court  of  Human  Rights,  the  judge  stressed  that  it  was  not  the  role  of  the  court  to 
discuss  whether  the  Muslim  faith  imposes  the  wearing  of  such  clothing  or  not,  nor  to  consider  the 
legitimacy of such a practice. Regarding the issue of discrimination, the Tribunal ruled that the ‘burkini 
ban’  does  not  amount  to  direct  discrimination  since  it  stems  from  the  general  internal  rules  of  the 
swimming pool which require the wearing of a swimsuit to access the pool. However, the ban did amount 
to indirect discrimination against Muslim women wishing to wear a burkini for religious reasons. Although 
a requirement of neutrality can be imposed upon the providers of public services, the same may not 
be required of the users of these services. According to the Tribunal, the bans could not be justified on 
grounds of security or hygiene as invoked by the respondents, in particular when considering the opinion 
of a regional health agency. The bans were therefore unlawful and the claimants were entitled to receive 
compensation for moral damages. 

Denial of reasonable accommodation in nursery school for a pupil with Down’s Syndrome

Disability

A pupil with Down’s syndrome who had completed his first year at a nursery school was prevented from 
re-enrolling in the same school for a second year. The school officials carried out an informal enquiry 
among the teachers and teaching assistants to find who was ready to welcome him into their classroom 
and to provide suitable support. When no teacher responded positively, the school asked the parents to 
look for another school. Due to the seemingly discriminatory treatment, the equality body UNIA decided 
to bring the case to court.

On 7 November 2018, the Court of First Instance of Antwerp found that refusing to enrol the child under 
these  circumstances  was  a  denial  of  reasonable  accommodation  which  amounted  to  discrimination 
within the meaning of the Flemish Decree of 10 June 2008 on equal opportunities and equal treatment. 

8 

Belgium, First Instance Court of East Flanders (Ghent department), Case No. 2018/8813, Piscine Van Eyck and Case 
No. 2018/8812, Piscine Merelbeke.

78

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019  
 
According to the Court, the school did not demonstrate how the required accommodation was unreasonable, 
nor did it attempt to find any accommodation that could have been put in place. Instead, it focused on 
what the child was unable to do and on the problems faced by the teachers. The judge confirmed that 
specialised education for disabled students must remain the exception and concluded that all necessary 
adjustments  are  in  principle  reasonable  until  their  disproportionate  nature  is  established.  The  Court 
ordered the school to pay EUR 650 in damages for moral prejudice.

Online source: 
https://www.unia.be/fr/jurisprudence-alternatives/jurisprudence/tribunal-premiere-instance-anvers-7-
novembre-2018 

Bulgaria  

LEGISLATIVE DEVELOPMENT

BG

New rights-based legislation replaces the Integration of Persons with Disabilities Act

On 18 December 2018, Parliament adopted a new law governing the rights of persons with disabilities 
in line with the UN Convention on the Rights of Persons with Disabilities (CRPD). The new Persons with 
Disabilities Act (PDA) is one of several disability-related laws adopted in December 2018 and will enter 
into force on 1 January 2019, although certain individual provisions have later entry-into-force dates. 
The language of the PDA is rights-based and it aims to guarantee people with disabilities full and equal 
enjoyment of rights and dignity, while making their social inclusion possible and supporting them and their 
families. The law is explicitly based on the principles of equal treatment based on an individual approach 
and an individual assessment of needs, as well as personal choice and independence, accessibility and 
full participation. 

Disability

The PDA repeals and replaces the previous Integration of Persons with Disabilities Act (IPDA) and provides 
new  definitions  of  a  range  of  relevant  concepts  such  as  ‘persons  with  disabilities’  and  ‘reasonable 
accommodation’. For instance, persons with disabilities are defined as ‘persons with а physical, mental, 
intellectual and sensory insufficiency, which in interaction with the environment may hinder their full and 
effective participation in social life’. While the new definitions are closer to the language of Article 1 of 
the CRPD compared to those in the repealed IPDA, the definition of long-term disability still unfortunately 
retains the medical approach to disability.9 

Among  many  other  measures  of  positive  action  in  the  field  of  employment,  the  PDA  introduces 
employment quotas requiring employers with 50 to 99 employees to employ at least one person with a 
long-term disability. Employers with more than 100 employees must ensure that at least 2 % of their 
employees are people with long-term disabilities. In case of non-compliance, employers are subject to 
fines of up to BGN 5 000 (EUR 2 500), which are doubled in cases of repeat violations. 

For the purpose of providing reasonable accommodation to disabled employees, employers are eligible 
for  public  funding  awarded  by  the  Agency  for  Persons  with  Disabilities  in  addition  to  various  other 
economic  stimuli  and  reliefs  linked  to  employing  people  with  disabilities.  Furthermore,  the  new  law 
defines  and  governs  specialised  enterprises  and  cooperatives  of  people  with  disabilities,  which  are 
entitled to subsidies and tax/ social security reliefs, as well as protected employment centres designed 
to provide employment for people with multiple long-term disabilities. 

9 

The PDA defines ‘persons with long-term disabilities’ as ‘persons with а long-term physical, mental, intellectual or sensory 
insufficiency, which in interaction with the environment may hinder their full and effective participation in social life, and 
who were medically certified as having a degree of disability of 50 percent or more’.

79

Key developments at national level in legislation, case law and policyThe PDA provides for support interventions in a wide variety of fields, including healthcare, education, 
employment,  housing,  information  and  justice.  It  envisages  rehabilitation,  social  services,  labour 
support,  accessible  information,  reasonable  accommodation,  access  to  justice  and  legal  defence, 
personal  assistance  and  personal  mobility,  and  more.  The  law  foresees  the  creation  of  a  Monitoring 
Council comprising nine members, to observe and report on compliance with the UN CRPD. It includes 
representatives of the Ombudsman, the Protection Against Discrimination Commission, organisations of 
and for people with disabilities and academia. In addition, a National Council for Persons with Disabilities 
is to be created within the Council of Ministers and will have a consultative role. Its members represent 
the state, organisations of and for people with disabilities, employees’ and employers’ organisations and 
municipalities. It will be a vehicle for cooperation and coordination in formulating disability rights policy 
and will give opinions on draft legislation, strategic programming and plans. 

Finally, the Agency for Persons with Disabilities is to create and maintain a database on people with 
disabilities, including a personal profile for every individual, reflecting their health, educational and socio-
economic status, social inclusion possibilities, demographics and other aspects. The data is to be used 
for policy-formulation. 

As opposed to the repealed IPDA, the new law does not ban or define any forms of discrimination. The 
previous unnecessary overlap and confusion between the IPDA and the Protection Against Discrimination 
Act (PADA) have thus been abolished. 

Online source: 
www.lex.bg/bg/laws/ldoc/2137189213

CASE LAW

National courts confirm equality body finding of discrimination

Disability

In July 2018, it was publicly reported that a ruling by the equality body dated June 201610 had entered 
into force after being confirmed by the courts. The case concerned a mobile network company which 
required clients to visit their offices in person in order to conclude a contract. 

The complainant wished to conclude a contract with the company but was unable to visit their offices 
in  person  due  to  mobility  issues,  and  therefore  authorised  her  son  to  represent  her  for  this  purpose. 
Although a public notary verified her power of attorney, the company declined to conclude the contract 
with the complainant’s representative, on the basis of their general terms and conditions which required 
prospective clients to visit the offices in person. In the proceedings, the company argued that their policy 
did not target people with disabilities and that they were entitled to fix their own terms and conditions. 
They further claimed that the complainant should have disclosed her condition. 

The equality body found that the impugned policy, while applicable to all, by its nature put people with 
disabilities at a disadvantage, for which the company had failed to present any justification. As such, it 
amounted to unjustified indirect discrimination. The equality body held that the company’s demand for the 
complainant to disclose her condition was at odds with the principles of dignity, choice and independence 
for people with disabilities under the UN Convention on the Rights of Persons with Disabilities. The body 
ordered  the  company  to  immediately  discontinue  their  practice  of  requiring  in-person  conclusion  of 
contracts, to change their terms in that respect and to pay a fine of BGN 2 500 (EUR 1 250). Following 

10 

Bulgaria, Protection Against Discrimination Commission, Decision No. 234 of 15 June 2016. 

80

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 appeals by the respondent company, the decision of the equality body was confirmed by two judicial 
instances.11

Roma awarded court compensation for discriminatory criminal trial

In June 2018, the Supreme Court of Cassation refused to admit in appeal (thereby making it final) a 
ruling by the Plovdiv Appellate Court in a compensation case brought by a Roma woman against the 
Plovdiv District Court and the Plovdiv Regional Court.12 The latter two courts discriminated against the 
claimant  in  her  criminal  trial  by  sentencing  her  to  effective  imprisonment  (as  opposed  to  probation), 
explicitly reasoning that this was necessary due to ‘a feeling of impunity among minority groups’. In 2010, 
the ECtHR, in its judgment in the case,13 found that this race-based refusal to suspend the applicant’s 
sentence constituted discrimination. 

Racial or 
ethnic origin

Further to the ECtHR’s judgment, the criminal case against the applicant was reopened at the national 
level and her sentence substituted for a suspended one. She consequently filed a compensation claim 
against the courts for discriminating against her and was awarded BGN 5 000 (EUR 2 500) for almost 
two years of discriminatory imprisonment. (She had claimed BGN 80 000.)

Online source: 
https://news.lex.bg/%D0%B4%D0%B2%D0%B5-%D1%81%D1%8A%D0%B4%D0%B8%D0%BB%D0
%B8%D1%89%D0%B0-%D1%89%D0%B5-%D0%BF%D0%BB%D0%B0%D1%89%D0%B0%D1%82-
%D0%B7%D0%B0-%D0%B4%D0%B8%D1%81%D0%BA%D1%80%D0%B8%D0%BC%D0%B8%D0%B
D%D0%B0%D1%86/ 

Croatia 

POLICY AND OTHER RELEVANT DEVELOPMENTS

Absence of a new national gender equality policy

HR

Gender

Three  years  after  the  end  of  the  period  of  validity  of  the  previous  National  Gender  Equality  Policy 
(2011  to  2015),  the  new  Policy  has  still  not  yet  been  published.  The  Government’s  Office  for  Gender 
Equality is in charge of coordinating the work for the preparation of the new Policy and the only official 
explanation  as  to  why  the  new  Policy  has  still  not  been  prepared  is  that  the  process  of  forming  the 
working  group  and  including  various  stakeholders  (non-governmental  organisations)  took  longer  than 
anticipated. Meanwhile, Croatia is left without a coherent strategic policy document for the promotion 
of gender equality. The only existing policy guidelines in the field of gender equality are included in the 
Government’s Programme for the Mandate 2016 to 2020, which identifies two specific priorities for the 
Government. 

The first priority is gender equality in the labour market, political and public life. This includes adopting 
positive action measures to support women in the field of politics and economics, promoting women as 
entrepreneurs and encouraging the (re-)integration of women into the labour market, as well supporting 
work-life  balance.  The  second  priority  is  the  protection  of  victims  of  domestic  violence.  This  includes 
improving the system of protection against domestic violence, increasing the number of shelters, as well 

11 

12 
13 

Bulgaria, Supreme Administrative Court, Decision No. 6072 of 10 May 2018; Sofia City Administrative Court,  
case No. 7231/ 2016.
Bulgaria, Supreme Court of Cassation, Ruling No. 478 of 18.06.2018 in civil case No. 462/ 2018. 
European Court of Human Rights, Case of Paraskeva Todorova v Bulgaria, Application No. 37193/07.

81

Key developments at national level in legislation, case law and policyas facilitating legal and financial aid. However, there are no clearly identifiable entities in charge of the 
above-mentioned measures, nor deadlines for their implementation. 

The drafting of the Fifth National Policy for the Promotion of Gender Equality started with the formation 
of the Working Group in 2015. However, due to a political and governmental crisis throughout 2016 and 
the first half of 2017, the composition of the Working Group changed several times and the work is still 
in progress. Given the delay, it was decided that the Fifth National Policy will cover the period from 2017 
to 2020, instead of the previously planned period of 2016. However, at the end of 2018, there was still 
no policy or any public consultation about the priorities for its drafting. 

Online source: 
Programme of the Government of the Republic of Croatia for the mandate 2016 to 2020: https://vlada.
gov.hr/UserDocsImages//ZPPI/Dokumenti%20Vlada//Program_Vlada_RH_2016_2020.pdf

Results of the twinning project ‘Support for Gender Equality’

The objective of the twinning project was to enhance the coordinated implementation, monitoring and 
evaluation of gender equality principles, as well as to increase public awareness and trust in protection 
from  gender-based  discrimination.  Its  aim  was  also  to  strengthen  the  institutional  mechanisms  for 
gender equality and efficiency of the judiciary in the area of gender-based discrimination. As part of the 
project, five manuals were prepared: a Gender Mainstreaming Manual for judges and legal practitioners, a 
Gender Mainstreaming Manual for political decision-makers, a Gender Mainstreaming Manual for Gender 
Equality Coordinators in state administration bodies, a Gender Mainstreaming Manual for Town, Municipal 
and County Commissions for Gender Equality, and a Gender Mainstreaming Manual for employees of the 
Office  for  Gender  Equality.  Each  manual  contains  targeted  practical  advice  and  case-study  examples 
on  the  application  of  gender  equality  principles  and  EU  and  Croatian  gender  equality  legislation.  The 
manuals were published in print, but since 2018 they are also easily accessible online on the website of 
the Office for Gender Equality (in Croatian and English). 

Online source:
Office for Gender Equality: https://ravnopravnost.gov.hr/twinning-projekt-podrska-ravnopravnosti-spolova/ 
2878

Cyprus 

CASE LAW

Family appeal court decision on the jurisdiction of the courts to try disputes between 
members of the Turkish Community

Τhe  appellant  and  the  respondent  are  both  Cypriot  citizens  and  members  of  the  Turkish  Community. 
They were previously married and residing in the area controlled by the Republic of Cyprus (the south), 
but when they separated the wife applied to the family court to resolve their property differences. At 
first instance, the family court decided that it had no jurisdiction to try the case, citing Article 152(2) 
of  the  Constitution  which  provides  that  civil  disputes  relating  to  personal  status  are  matters  for  the 
Communal Courts of each Community. Although the Greek Communal Court was abolished in 1965 and 
its jurisdiction was transferred to the District Court,14 no equivalent provision was made for the Turkish 

14 

Cyprus, Law on the transfer of the exercise of jurisdiction of the Greek Communal Chamber and on the Ministry of 
Education of 1965, N. 12/1965 (Ο περί Μεταβιβάσεως της Ασκήσεως των Αρμοδιοτήτων της Ελληνικής Κοινοτικής Συνελεύσεως 

82

Gender

CY

Racial or 
ethnic origin

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019  
Communal  Court.  In  2003,  the  jurisdiction  of  the  abolished  Turkish  Communal  Court  was  transferred 
to the District Court, but only in matters relating to ‘marital disputes’,15 which the family court did not 
consider included property disputes. The appellant filed an appeal arguing that the failure of the court 
to try her claim infringed Articles 13 and 14 of the ECHR (right to an effective remedy and prohibition of 
discrimination). 

The appeal was rejected. The Appeal Court concluded that the Turkish Communal Courts have not been 
officially dissolved and that the legal gap cannot be remedied through a court decision but only through 
a legislative act. The appellant’s references to ECHR Articles 13 and 14 were not considered,16 despite 
the fact that Cyprus has been found by the ECtHR to violate Article 14 in another case where the country 
had failed to regulate the access of Turkish Cypriots to other public services.17 The ECtHR has in fact 
repeatedly  ruled  that  the  sensitive  nature  of  peace  processes  or  post-conflict  arrangements  do  not 
justify differential treatment on the ground of ethnic origin.18 

Online source: 
www.cylaw.org/cgi-bin/open.pl?file=apofaseis/aad/meros_1/2018/1-201809-38-15fam-anony.htm& 
qstring=%E4%E9%E1%EA%F1%E9%F3%2A%20and%202018

Supreme Court reverses trial court decision about the legality of an age restriction in a 
disability welfare scheme

The claimant filed a judicial review application seeking to reverse a decision of the Ministry of Finance 
that had rejected his application for a grant under a scheme which funds the acquisition of a car for 
people with disabilities. The rejection was motivated by the fact that he had turned 70 which was the age 
limit foreseen in the scheme. At first instance, the trial court upheld his claim, ruling that his exclusion 
from  the  scheme  amounted  to  unlawful  discrimination.  The  Republic  appealed  the  trial  court  ruling 
arguing that the claimant had not been treated less favourably than other people of his age under the 
same circumstances.

On  4  October  2018,  the  Supreme  Court  concluded  that  equality  is  infringed  only  if  the  differential 
treatment does not rely on an ‘objective and reasonable discrimination’ and that differential treatment 
must be examined in connection with the aim it serves and the realities on the ground at any given time. 
The age limit of 70 was found not to infringe the equality provision of the Constitution, as the ‘essential 
nature of things’ in the given case justified the imposition of reasonable discrimination premised upon 
objective criteria applied to all affected people without exception. Removing the age restriction in the 
scheme was likely to lead to an uncontrollable and sharp increase in the number of eligible people which 
would  render  the  scheme  economically  unsustainable,  given  the  state  of  public  finances.  The  Court 
further concluded that the case at hand fell outside the scope of the laws transposing the equality acquis 
which had been invoked by the claimant, since there was no act of discrimination prohibited by law or any 
violation of the equal treatment principle so as to trigger the application of these laws.

According  to  the  Court’s  interpretation,  differential  treatment  based  on  age  may  be  lawful  if  it  is 
reasonable and based on objective criteria, which include the state of public finances. If other people 
bearing the same characteristics as the claimant (including the claimant’s age) are or would be treated 

και περί Υπουργείου Παιδείας Νόμος του 1965 (12/1965), available at www.cylaw.org/nomoi/enop/non-ind/1965_1_12/
index.html.
Cyprus, Law providing for the application of the marriage law of 2003 to the members of the Turkish Community,  
Ν. 120(I)/2003 (Νόμος που προνοεί για την προσωρινή εφαρμογήη του Περι Γαμου Νόμου του 2003 και σε μέλη της Τουρκικής 
κοινότητας), available at www.cylaw.org/nomoi/arith/2003_1_120.pdf. 
Cyprus, Family Court, Appeal Jurisdiction, G.M. v H.V. and L.A. (2018), Appeal No. 38/2015, judgment delivered on 
10.09.2018.
European Court of Human Rights, Aziz v Cyprus (Application no. 69949/01), 22.06.2004.
European Court of Human Rights, Sedjic and Finci v Bosnia and Herzegovina (Applications nos. 27996/06 and 34836/06); 
European Court of Human Rights, Dokic v Bosnia and Herzegovina (Application No. 6518/04), 27.05.2010.

15 

16 

17 
18 

83

Age

Disability

Key developments at national level in legislation, case law and policyDisability

equally,  then  no  prohibited  discrimination  has  occurred.  At  this  stage  of  the  judicial  examination,  the 
equality  legislation  which  draws  on  the  acquis  did  not  come  into  play  and  therefore  could  not  affect 
the Court’s reasoning. Since this examination led to the conclusion that the differential treatment was 
reasonable, the conclusion is that it is not prohibited by law. This conclusion places the act complained 
of outside the scope of the equality legislation. 

The Court allowed the appeal of the Republic and reversed the trial court decision, essentially rejecting 
the  claimant’s  argument  that  the  age  limit  in  the  disability  scheme  was  discriminatory.  The  decision 
established  that  the  constitutional  equality  provision  does  not  prohibit  ‘reasonable  discrimination’ 
premised  upon  an  objective  assessment  of  essentially  different  real  situations  based  on  the  public 
interest.19

Online source: 
www.cylaw.org/cgi-bin/open.pl?file=apofaseis/aad/meros_3/2018/3-201810-190-12-3anony.htm& 
qstring=%E4%E9%E1%EA%F1%E9%F3%2A 

The independent mechanism for the implementation of the CRPD delivers two conflicting 
decisions on complaints for disability discrimination in education

The first case concerned a child with ADHD and the failure of the Ministry of Education and of the school 
to promptly diagnose his disorder, resulting in the child being labelled ‘naughty’ and regularly blamed 
for every problem in the classroom. Even after being diagnosed with ADHD, the student did not receive 
adequate support. At the end of the school year 2016-2017 the school decided that the student should 
repeat the same grade, without the right to take the end-of-term exam, because of too many absences, 
in line with school policy. The absences were the result of the student being late and sometimes leaving 
the classroom without permission. The educational psychologist confirmed that the student’s fragmented 
class attendance was a symptom of his ADHD and recommended that his disorder be taken into account 
when assessing his performance. Although the school policy foresees the possibility to make an exception 
in cases where the absences are justified as a result of a health issue, the school did not do so. 

The Ombudsman decided in October 2018 that the school ought to have used their discretion to avoid the 
sanction, noting that treating unequal things in the same manner amounts to discrimination. The report 
concluded that the school’s decision ignored the student’s disorder and as such was disproportionate. 
The report added, however, that the decision could serve merely as moral justification for the student 
and his family; it was issued more than a year after the complaint was received. The report described 
the new regulations issued in 2017 regarding the operation of secondary education schools, pointing out 
that, although there is no explicit provision in the regulations about disability and the duty to safeguard 
full enjoyment of rights by children with disabilities, the Ministry of Education is in any case under a 
duty to ensure that the regulations are interpreted and implemented in light of the CRPD. The report 
recommended the Ministry to provide training for teachers on the special behavioural issues emanating 
from  mental  health  conditions  and  to  adjust  teaching  methods  and  systemic  procedures,  removing 
barriers  which  impede  effective  access  and  promoting  integration  of  students  at  risk  of  exclusion  or 
marginalisation.20

The second case concerned the refusal of a private kindergarten to enrol a child with Down’s syndrome. 
The parents of the child complained that the kindergarten’s principal had sought to justify his refusal 
by claiming that the child was overweight and unable to walk and would therefore require an escort 

19 

20 

Cyprus, Supreme Court, Appeal Jurisdiction, Republic of Cyprus through the Finance Ministry v Lakatamites, Review Appeal 
No. 190/2012, 4.10.2018.
Report of the independent mechanism for protection and monitoring of the UN Convention on the Rights of Persons with 
Disabilities on the decision not to allow a student with ADHD to advance to the next grade due to incomplete attendance 
as a result of unjustified absences, Ref. SAA 86/2017, 30.10.2018.

84

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 which the school was unable to provide. The parents rejected these allegations, stating that their child 
was  in  fact  walking  and  running  when  they  visited  the  kindergarten  and  did  not  require  any  special 
accommodation. They argued that the refusal was based on prejudice against children with disabilities 
and infringed the principle of equal treatment. 

The Ombudsman concluded that the legal framework regulating the operation of kindergartens does not 
include any provision regarding the equal treatment of children with disabilities and does not implement 
the relevant provisions of the UN CRPD. Due to the gaps in the legal framework, the Ombudsman decided 
not to issue an order imposing any sanctions.21

Online sources: 
www.ombudsman.gov.cy/ombudsman/ombudsman.nsf/All/C68178ADB3C514E4C2258345002BA7F3/ 
$file/saa126_2017.pdf?OpenElement
http://www.ombudsman.gov.cy/Ombudsman/Ombudsman.nsf/All/90CEC4825B2AC4DFC225833800244
A40/$file/86_.pdf?OpenElement

POLICY AND OTHER RELEVANT DEVELOPMENTS

Code of conduct for the prevention of sexual harassment in employment in the public 
sector

On  18  July  2018,  the  Ombudsperson  presented  a  code  of  conduct  to  prevent  and  deal  with  sexual 
harassment within the civil service. 

The  code  provides  practical  guidance  to  employers  and  employees  aiming  at  securing  appropriate 
procedures  to  deal  with  sexual  harassment  and  harassment  incidents,  through  prevention  but  also 
through  sanctions.  The  code  of  conduct  provides  definitions  of  what  constitutes  harassment,  sexual 
harassment, unwanted behaviour and behaviour of a sexual nature and provides a list of misconceptions 
and stereotypes about harassment 

Gender

It provides useful advice and instructions for employees and their employers in order to facilitate effective 
prevention and a strong response to sexual harassment and harassment in the field of employment. The 
text will also be a guide for the government, as the employer, to take immediate measures to avert acts 
– isolated or repeated – that constitute harassment, sexual harassment and victimisation of those who 
may report such behaviour. The document lists the responsibilities of each authority, including measures 
for prevention and dealing with such behaviour and providing support to the victim. The code stresses 
the importance of discretion with which reported cases must be dealt. 

The Ombudsperson stated that each supervisor, each competent authority and the public administration 
in  general  must  know  that  harassment  and  sexual  harassment  in  the  workplace  constitutes  gender 
discrimination which is forbidden by law and employers have the legal responsibility to ensure a safe, 
dignified, healthy and friendly working environment. She further stated that if employers do not take 
action, they will be held jointly responsible with the perpetrator for any harassment. The current code of 
conduct was developed for the civil service, but a code is also being drafted for the private sector.

Online source:
http://www.ombudsman.gov.cy/Ombudsman/ombudsman.nsf/All/2348CE8BA625D720C2257E8100 
412689?OpenDocument 

21 

Report of the independent mechanism for protection and monitoring of the UN Convention on the Rights of Persons 
with Disabilities regarding the integration of children with disabilities in child care centres and kindergartens, File No. SAA 
126/2017, 12.11.2018.

85

Key developments at national level in legislation, case law and policy 
DK

Denmark 

LEGISLATIVE DEVELOPMENTS

New laws to prevent and dismantle ghettos and parallel societies in Denmark

Racial or 
ethnic origin

In May 2018, the Danish government entered into six political agreements with various parties in the 
Parliament, based on the government’s strategy, ‘A Denmark without parallel societies – No ghettos by 
2030’.22 In October 2018, the government put forward a number of legislative bills to implement the 
agreements which included plans to prevent and dismantle so-called ghettos and parallel societies in 
Denmark. By the time of writing, all but one of the bills have been adopted.

The new legislation defines ‘marginalised residential areas’ according to a number of criteria including 
level of income, number of convicted individuals, level of education and unemployment rate. ‘Ghettos’ 
are furthermore defined as marginalised areas where the share of immigrants and their descendants 
from third countries exceeds 50 %. The legislation includes the following measures:

 – Mandatory daycare education for any child over the age of one who lives in a marginalised residential 
area  and  who  is  not  enrolled  in  a  daycare  centre.  The  25  hours  a  week  daycare  education  must 
include the Danish language as well as Danish traditions, norms and values.23

 – Redistribution of young children at daycare centres to ensure that no more than 30 % of children in 

a daycare centre come from a marginalised residential area.24 

 – Prohibition for housing associations in marginalised residential areas to allocate housing to applicants 

who receive public integration benefits.25

 – Authorisation for the police to designate a defined geographical area as a ‘strict penalty zone’, if it is 
characterised by an extraordinary crime situation that creates insecurity for people living in the area. 
The penalties for certain crimes committed in such zones are doubled, including violence, fighting in 
public, vandalism, arson, theft and robbery and drug dealing.26

 – Proposal to establish mandatory Danish language tests in schools with a high percentage of students 
coming from marginalised residential areas. Passing the language test will be a requirement for the 
student’s promotion to the next class.27

See: www.regeringen.dk/nyheder/ghettoudspil.

22 
23  Denmark, Bill No. L 7 (L 7 Forslag til lov om ændring af dagtilbudsloven og lov om en børne- og ungeydelse) of 3.10.2018, 

adopted on 13.12.2018: https://www.ft.dk/samling/20181/lovforslag/l7/index.htm. See Act No. 1529 of 18.12.2018, which 
entered into force on 01.07.2019. Act No. 1529 was incorporated into Consolidated Act No. 176 of 26.02.2019. 

24  Denmark, Bill No. L 6 (L 6 Forslag til lov om ændring af dagtilbudsloven) of 3.10.2018, adopted on 13.12.2018: www.ft.dk/

25 

samling/20181/lovforslag/l6/index.htm. See Act No. 1528 of 18.12.2018, which entered into force on 01.01.2019. Act No. 
1528 was incorporated into Consolidated Act No. 176 of 26.02.2019.
The same prohibition is thought to apply if family members of the housing applicant are in receipt of public integration 
benefits. Bill No. L 38 (L 38 Forslag til lov om ændring af lov om almene boliger m.v., lov om leje af almene boliger og lov 
om leje) of 3.10.2018, adopted on 22.11.2018: www.ft.dk/samling/20181/lovforslag/l38/index.htm. See Act No. 1322 of 
27.11.2018 entering into force on 01.07.2019. More than 90 % of individuals receiving public integration benefits have 
an ethnic minority background and are not Danish citizens. See Ministry of Foreigners and Integration: http://uim.dk/
nyheder/integration-i-tal/integration-i-tal-nr-4-4-januar-2017/hvem-er-integrationsydelsesmodtagerne.

26  Denmark, Bill No. L 22 B (L 22 Forslag til lov om ændring af straffeloven, pasloven og lov om politiets virksomhed), adopted 
on 4.12.2018. For the original bill including preparatory works, see L22: https://www.ft.dk/samling/20181/lovforslag/l22/
index.htm. See Act No. 1543 of 18.12.2018, which entered into force on 01.01.2019.

27  Denmark, Bill No. L 60 (Forslag til Lov om ændring af lov om folkeskolen, lov om institutioner for almengymnasiale 

uddannelser og almen voksenuddannelse m.v., lov om institutioner for erhvervsrettet uddannelse og forskellige andre love) of 
4.10.2018. See: https://www.retsinformation.dk/Forms/R0710.aspx?id=203372. See Act No. 278 of 26.03.2019. According 
to section 5 of the Act, the Minister of Education will decide on the date of entry into force.

86

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 The  new  legislation  primarily  affects  ethnic  minorities.  The  various  acts  raise  legitimate  questions  of 
possible illegal indirect discrimination because of ethnic origin within the areas of housing, education 
and social services.28 

New legislation requires individuals to shake hands with a Danish official to obtain 
citizenship

Religion 
or belief

On 29 June 2018, the Danish government entered into a political agreement with the Danish People’s 
Party  and  the  Social  Democratic  Party  regarding  naturalisation.  The  parties  agreed  that,  in  addition 
to  passing  a  naturalisation  test  and  fulfilling  a  number  of  financial  and  residential  requirements,  the 
obtaining of Danish citizenship should be determined by participation in a municipal ceremony. 

On 20 December 2018, Parliament adopted Bill No. L80, imposing new requirements for naturalisation, 
including passing a test and fulfilling a number of financial and residential requirements. In addition, the 
new rules require that an individual who has been awarded Danish citizenship by law must in addition 
take part in a ceremony in their local municipality. At the ceremony, the individual is required to sign 
a document to demonstrate that they will respect Danish laws and values, and to behave respectfully 
towards  the  mayor  or  other  public  authority  representatives.  According  to  the  preparatory  works  of 
the Bill, ‘respectful behaviour’ is considered to include shaking the hand of the mayor or other public 
authority representatives, ‘without gloves, palm against palm’.29 If an individual does not live up to these 
ceremonial requirements, he or she will lose the right to become a Danish citizen. 

A minority of Jews and Muslims in Denmark believe that it is against their religion to shake hands with 
a representative of the public authorities, in particular if the representative is of the opposite gender. For 
those participants at the naturalisation ceremonies who have such beliefs, the gender of the individual 
mayor or public authority representative will in all probability determine whether or not they will obtain 
Danish  citizenship.  On  this  basis,  the  handshake  requirement  may  constitute  indirect  discrimination 
because of religion.30

Online source: 
https://www.ft.dk/samling/20181/lovforslag/L80/index.htm

Estonia 

LEGISLATIVE DEVELOPMENT

Legal amendments to reduce the gender pay gap

In 2017-2018, the Ministry of Social Affairs developed a draft amendment to the Gender Equality Act 
and other related acts31 with the aim of reducing the gender pay gap.32 The Government submitted the 

See https://menneskeret.dk/monitorering/hoeringssvar for hearing statements from the Danish Institute for Human Rights.

28 
29  Denmark, Bill No. L80 (L 80 Forslag til lov om ændring af lov om dansk indfødsret og lov om danskuddannelse til voksne 

30 
31 

32 

udlændinge m.fl) of 25.10.2018, section 2.2.2. page 5.
See https://menneskeret.dk/monitorering/hoeringssvar for hearing statement from the Danish Institute for Human Rights.
Estonia, Bill on Amendments to the Gender Equality Act and Other Related Acts Amendment Act 683 SE (Soolise 
võrdõiguslikkuse seaduse muutmise ja sellega seonduvalt teiste seaduste muutmise seadus 683 SE), available at: https://www.
riigikogu.ee/tegevus/eelnoud/eelnou/920bb10b-1e71-48fa-896d-c8f2c473867a/Soolise%20v%C3%B5rd%C3%B5iguslik 
kuse%20seaduse%20muutmise%20ja%20sellega.
See also: ERR (2018), Estonia to target gender pay gap in public sector, News, 10 February 2018, https://news.err.ee/ 
682168/estonia-to-target-gender-pay-gap-in-public-sector.

87

EE

Gender

Key developments at national level in legislation, case law and policydraft Gender Equality Act to the Parliament on 24 August 2018, but the draft law got stuck at the Legal 
Affairs Committee after receiving strong criticism and was not sent for the second and third reading. 

The draft’s main objective was to provide public sector employers with the necessary tools to effectively 
analyse the difference in pay of women and men. The proposed law suggested establishing a compliance 
centre for equal pay with the Labour Inspectorate. The compliance centre’s task would be to supervise 
public  sector  employers  to  ensure  compliance  with  the  principle  of  equal  pay  for  equal  work  and  to 
conduct wage audits with public sector employers with 10 or more employees in case of doubt. It also 
stipulated that if objective reasons for the pay gap were to be found, an action plan should be developed 
by the employer to tackle the discrepancies in pay. 

Despite  the  fact  that  the  draft  was  supported  by  several  feminist  organisations  and  by  the  Equality 
Policies Department of the Ministry of Social Affairs, it was also opposed by a number of organisations and 
institutions (e.g. Estonian Women’s Roundtable, the Gender Equality and Equal Treatment Commissioner 
and the Estonian Chamber of Commerce). Arguments against the draft related to the sector selection 
(questioning its application to the public sector only), the increased administrative burden (employers 
with  10  or  more  employees  were  targeted),  the  poor  use  of  existing  institutions  (i.e.  gender  equality 
bodies and agencies) and an overall questioning of the necessity of establishing yet another institution in 
the form of the compliance centre. The Legal Affairs Committee did not send the draft law to the plenary 
sittings due to pressure exerted by conservative forces. 

Online source:
https://www.riigikogu.ee/tegevus/eelnoud/eelnou/920bb10b-1e71-48fa-896d-c8f2c473867a/
Soolise%20võrdõiguslikkuse%20seaduse%20muutmise%20ja%20sellega

CASE LAW

Police investigation of sexual harassment cases

Gender

With the adoption of Article 153.1 of the Penal Code on 6 July 2017, sexual harassment is defined as an 
intentional physical act of a sexual nature against the will of another person with degrading objectives.33 
The act is considered a misdemeanour and extra-judicial proceedings in cases of sexual harassment are 
to be conducted by the Police and Border Guard Board. Sexual harassment is punishable by a fine of up 
to 300 fine units (EUR 1 200) or by detention. 

In the spring of 2018, several women reported to the media that they had been subjected to sexual 
harassment by a healer and astrologist named Igor Mang. Despite the numerous accusations broadcast 
by the media, only one complaint of sexual harassment against Igor Mang was officially filed with the 
police,  who  convicted  him  of  sexual  harassment  and  charged  a  fine  of  EUR  96.34  On  18  July  2018, 
following the extra-judicial proceedings by the Police and Border Guard Board, the decision in the Mang 
case  was  broadcast  on  the  news.  Public  discussions  followed  regarding  the  (low)  amount  of  the  fine 
imposed  on  the  perpetrator.  The  police  stated  that  the  purpose  of  the  fine  was  above  all  to  prevent 
subsequent offences.35 

The case received wide media coverage and triggered a public debate raising general awareness about 
sexual  harassment.  This  case  illustrates  that  in  practice  only  a  few  cases  of  sexual  harassment  are 
reported to the police, whilst media reports show that in fact it occurs on a much larger scale in Estonia. 

33 
34 

35 

Estonia, Article 153.1 of the Penal Code, 6.07.2017, available at: https://www.riigiteataja.ee/en/eli/509072018004/consolide.
https://www.delfi.ee/news/paevauudised/eesti/politsei-pole-ahistamisskandaali-sattunud-igor-mangi-suhtes-uusi-
avaldusi-saanud?id=82091785. 
https://www.err.ee/847528/politsei-mangi-juhtumist-trahvi-eesmark-on-ennekoike-ara-hoida-jargnevad-suuteod.

88

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 The Mang case also demonstrates that sanctions for sexual harassment are not effectively applied in 
Estonia and are thus unlikely to foster changes in the future. 

Online source:
https://www.err.ee/830003/pealtnagija-mitu-naist-suudistavad-igor-mangi-seksuaalses-ahistamises

Finland 

CASE LAW

Multiple discrimination in assessing creditworthiness

The Non-Discrimination Ombudsman requested the National Non-Discrimination and Equality Tribunal to 
investigate whether a credit institution company had discriminated against an individual by refusing to 
grant credit to them, based on personal characteristics including gender and age.

The victim had applied for credit in order to purchase building supplies online. The credit was instantly 
denied based on the scoring system of the credit institution company which based its scoring among 
other things on the applicant’s language, gender, age and place of residence. The system had checked 
that  the  victim  did  not  have  payment  defaults  but  no  individual  assessment  of  the  payment  ability 
(such as income or other debts) was made. Had the victim been female, older, had Swedish as his first 
language instead of Finnish or had he lived in a different location he would have been granted credit.

The Non-Discrimination Act prohibits discrimination e.g. on grounds of age, language and other personal 
characteristics when providing goods and services. The Tribunal considered the treatment of the credit 
applicant to be multiple, direct discrimination on grounds of gender, language, age and residence. 

The Tribunal prohibited the credit institution company from continuing its practice, against anyone, and 
imposed a conditional fine of EUR 100 000 to enforce its prohibitive decision. The decision is final as it 
was not appealed against.36 

Online source: 
https://www.yvtltk.fi/material/attachments/ytaltk/tapausselosteet/45LI2c6dD/YVTltk-tapausseloste-
_21.3.2018-luotto-moniperusteinen_syrjinta-S-en_2.pdf

FI

Gender

Age

Police stop and search found to be discriminatory

On 19 December 2018, the National Non-Discrimination and Equality Tribunal found that Helsinki Police 
had practised ethnic profiling amounting to direct discrimination prohibited by the Non-Discrimination 
Act. 

Racial or 
ethnic origin

The case concerned two black women who had been stopped and searched by two police officers who 
were  on  surveillance  of  suspected  prostitutes  and  performing  immigration  status  checks.  The  police 
officers denied discriminating against the women but admitted that their actions were in part influenced 
by the fact that the women were black, explaining that many foreign prostitutes lack the right to reside 
in Finland and may even be victims of human trafficking. 

36 

Finland, National Non-Discrimination and Equality Tribunal decision No. 216/2017, of 21.03.2018.

89

Key developments at national level in legislation, case law and policyThe Tribunal considered that the aim pursued – to combat street prostitution and human trafficking – 
was an acceptable aim needed for justification for direct discrimination.37 However, the means used by 
the police were not proportionate and therefore there was no justification for discrimination. The Tribunal 
pointed out, in particular, that the white man, whom the police officers saw talking with the women, was 
not stopped by the police, even though the legislation prohibits both the purchase and offering of sexual 
services in a public place. The Tribunal thus confirmed that the Non-discrimination Act has a wide scope 
of applicability and that discrimination is prohibited in all fields of life including the acts of authorities 
such as the police. 

The Tribunal ordered the police to refrain from repeating such discriminatory stop and search practices 
and imposed a conditional fine of EUR 10 000 in order to enforce compliance with its injunction.38 

Online sources: 
www.yvtltk.fi/fi/index/tiedotteet/2019/02/yhdenvertaisuus-jatasa-arvolautakuntakatsoipoliisinmenetelle
ensyrjintakiellonvastaisestikatuprostituutionvalvonnassa_0.html
www.yvtltk.fi/material/attachments/ytaltk/tapausselosteet/kmnntSkQp/YVTltk-tapausseloste-_19.12.2018 
-etninen_profilointi.pdf

FR

France 

LEGISLATIVE DEVELOPMENT

Racial or 
ethnic origin

Bill relating to the authorisation and control of parking by Travellers

On 23 October 2018, the Senate adopted without amendments a legislative bill intended to amend the 
Law No. 2000-614 of 5 July 2000 relating to parking sites and domiciles of Travellers, in order to simplify 
relations between local authorities and Travellers and to facilitate the control of illegal occupation of 
land and parking sites.

The measures contained in the bill include:

 – The  creation  of  administrative  units  composed  of  groups  of  cities  and  towns  that  cooperate  to 
collectively  manage  parking  sites  to  fulfil  their  requirements  to  implement  a  certain  number  of 
parking sites.

 – The possibility for towns that have met their obligation to provide Travellers with parking sites to 
forbid Travellers from parking in any other area than those provided for that purpose, even if the 
other towns in the administrative unit have not collectively implemented their obligations.

 – The possibility of unilaterally imposing a fine of EUR 500 in cases of illegal parking, thus facilitating 

controls by local authorities.

 – Sanctions of criminal law are doubled in case of public prosecutions before the penal courts for illegal 
occupation of land, bringing the maximum sanctions to 12 months in prison and a fine of EUR 7 500. 
 – A requirement that local authorities be informed three months in advance before any important event 

where more than 150 caravans will arrive in a town, assemble and require parking.

37 

38 

Section 11(1) of the Non-Discrimination Act stipulates a general justification defence of direct discrimination in situations 
governed by the Racial Equality Directive and when public power is used. It reads: ‘differential treatment is only allowed if 
the treatment is based on legislation, the treatment has an acceptable aim and the means used are in due proportion for 
achieving this aim’.
Finland, National Non-Discrimination and Equality Tribunal decision of 19.12.2018, No. 337/2018.

90

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 The legislation adopted is the result of large-scale negotiations between all parties over more than a 
year and is far less repressive than what was initially foreseen. 

Online source: 
www.senat.fr/petite-loi-ameli/2018-2019/33.html

CASE LAW 

Legality of the decision to remove alternative meals in school on the ground of 
secularism of public services 

In France, state school cafeterias are managed and financed by cities and towns. From 1984, the town 
of Chalon-sur-Saône provided alternative meals to children in the school cafeteria when serving pork.

Religion 
or belief

In September 2015, the Municipal Council abrogated the municipal by-law authorising alternative meals 
on the ground that it was illegal and contrary to the principles of neutrality and secularism of the public 
services and approved a new catering programme that did not provide alternative meals when pork was 
served.

An NGO challenged the new municipal by-law before the administrative court on the grounds of illegality 
and religious discrimination. The court requested the observations of the Defender of Rights (the equality 
body) and the National Consultative Committee on Human Rights (the national human rights institution). 
The court concluded that the by-law was illegal because it was exclusively based on the will to implement 
the principle of secularism and because it was contrary to the higher interests of children, an issue raised 
by the National Consultative Committee on Human Rights.

The Mayor appealed the decision before the Administrative Court of Appeal, which delivered its ruling 
on  23  October  2018.  Due  to  a  procedural  irregularity,  the  first  instance  court  decision  was  quashed, 
although  the  Administrative  Court  of  Appeal  maintained  the  arguments  raised  by  the  claimant  NGO 
and the Defender of Rights to annul the by-law. It stated that principles of secularism and neutrality 
of the public service do not prevent the provision of alternative meals in substitution of pork and that 
modifications  to  the  organisation  of  a  public  service  could  only  result  from  considerations  related  to 
constraints due to necessities of service. The town had not raised any element that would indicate that 
the provision of this service for more than 30 years had created any such constraints and the decision 
was therefore found to be illegal.

The  claimant  NGO  and  the  Defender  of  Rights  had  presented  arguments  that  the  municipal  by-law 
constituted discrimination on the ground of religion, but this argument was not examined by the court 
due to the legal principle of economy of means.39

Online source:
https://juridique.defenseurdesdroits.fr

39 

France, Dijon Administrative Appeal Court, 23.10.2018, n° 17LY03323, Town of Chalon-sur-Saône.

91

Key developments at national level in legislation, case law and policyReligion  
or belief

POLICY AND OTHER RELEVANT DEVELOPMENTS

UN Committee decision on non-conformity of Supreme Court decision on religious 
freedom in employment with the International Covenant on Civil and Political Rights

The case before the Human Rights Committee concerned the conformity of a decision of the Court of 
Cassation  (Supreme  Court)  with  Articles  18  (freedom  of  religion)  and  26  (non-discrimination)  of  the 
International Covenant on Civil and Political Rights (ICCPR). The case was brought before the Committee 
by  a  claimant  who  had  been  dismissed  from  her  position  as  deputy  director  of  a  daycare  centre  for 
underprivileged  children  when  she  refused  to  remove  the  veil  which  she  wore  due  to  her  religious 
beliefs, in violation of in-house regulations. She filed a complaint with the Labour Court alleging that the 
dismissal was null and void as it violated the principle of non-discrimination on the ground of religion in 
employment. 

After a first decision by the Social Chamber of the Court of Cassation stating that the principle of neutrality 
(invoked by the employer) did not apply to private employment and concluding that the dismissal of the 
claimant was discriminatory,40 the Paris Court of Appeal concluded that the prohibition of the veil could 
be an occupational requirement based on the secular ethos of the childcare centre.41 

The case returned before the plenary assembly of the Court of Cassation, which adopted yet another 
view on the case by examining whether the ban on the veil constituted a ‘legitimate restriction’ to the 
freedom of religion which can be imposed by an employer on the basis of Articles L1121-1 and L1321-3 
of the Labour Code, through the adoption of in-house regulations. Taking into consideration facts such 
as the role of the daycare centre in promoting social stability; kinship in the respect of the various origins 
of the children and their parents in a disadvantaged neighbourhood; and the close contact between all 
employees, the parents and the children, the Court concluded that the employer had demonstrated that 
the limitation to religious freedom was justified by the nature of the operation and the specific function 
of the claimant. The limitation was found to be proportionate to the legitimate objective pursued. The 
Court did not address the issue of potential discrimination.42 

The  claimant  argued  that  the  decision  was  a  restriction  to  freedom  of  religion  that  is  not  foreseen 
by law; that is not necessary in a democratic society since it cannot be justified by the protection of 
security, public order or public health; that is not proportionate since it gave rise to her dismissal without 
compensation; and finally, that the internal regulation was illegal because it was general, imprecise and 
disproportionate.

After stating that national law protects freedom of religion and that the principle in private employment 
is the freedom to manifest one’s religion, the French State argued that the present restriction to the 
expression  of  religion  was  in  conformity  with  the  ICCPR.  In  this  regard,  the  State  argued  that  the 
restriction  was  prescribed  by  law  through  Articles  L1121-1  and  L1321-3  of  the  Labour  Code,  that  it 
pursued the legitimate aim of protecting the freedom of others (i.e. the children and the parents) and 
that it was proportionate considering that it was only applicable when the claimant was present in the 
childcare centre. Therefore, the State concluded that the internal regulation was not discriminatory in 
light of Article 26 of the Covenant, since it did not target a particular religion and was justified as it was 
legitimate and reasonable.

40 

41 

42 

France, Social Chamber of the Court of Cassation, Baby-Loup Case No. 536 of 19.03.2013 (11-28.845), 
ECLI:FR:CCASS:2013:SO00536. Available at: https://www.courdecassation.fr/jurisprudence_2/chambre_
sociale_576/536_19_25762.html.
France, Appeal Court of Paris, Baby-Loup Case No. 13/02981 of 27.11.2013. Available at: https://juridique.defenseurdes 
droits.fr/doc_num.php?explnum_id=7450.
France, Plenary Court of Cassation, Baby-Loup Case n° 612 of 25.06.2014 (13-28.369), ECLI:FR:CCASS:2014:AP00612. 
Available at: https://www.courdecassation.fr/jurisprudence_2/assemblee_pleniere_22/612_25_29566.html. See also 
European equality law review, Issue 2015/1, pp 105-106.

92

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 DE

Religion 
or belief

On 10 August 2018, the Committee published its views concerning the case. It found that the State did 
not  explain  how  wearing  a  headscarf  alters  the  claimant’s  capacity  to  ensure  social  stability,  kinship 
and  the  rights  of  the  children  and  their  parents.  Moreover,  the  State  did  not  explain  how  wearing  a 
headscarf is incompatible with the purpose of the daycare centre to ‘work in support of early childhood 
in deprived areas and to promote the social and professional integration of women’ in those areas. For 
the Committee, it is also not clear from the State’s arguments how the claimant’s headscarf interfered 
with the fundamental rights and freedoms of the children and parents. 

Wearing  a  headscarf  does  not  constitute  a  proselytising  act.  The  restriction  imposed  is  therefore  not 
proportionate to the objective pursued. The claimant’s dismissal further to her refusal to remove her 
headscarf  was  not  in  conformity  with  Article  18  para.  3  of  the  ICCPR  and  constituted  intersectional 
discrimination based on gender and religion, violating Article 26 of the Covenant.43

Online source: 
https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2FC%2F123
%2FD%2F2662%2F2015&Lang=en

Germany 

CASE LAW

Rejection of applicant teacher wearing a headscarf 

An applicant for a teaching position at a state school claimed that her application had been unsuccessful 
because  she  wears  a  Muslim  headscarf  and  that  she  was  therefore  unlawfully  discriminated  against 
on religious grounds. In the view of the first instance court, the wearing of the headscarf was the main 
reason for the rejection of her application, yet her claim was dismissed.44

In  its  ruling  of  27  November  2018,  the  appeal  court  ruled  that  the  claimant  had  been  discriminated 
against in the sense of Article 7 of the General Equal Treatment Act and awarded her compensation of 
1.5 months’ salary (EUR 5 159.88). The Court found that the so-called Berlin Neutrality Act (according 
to which no religious or ideological symbols should be worn in schools by teachers),45 invoked by the 
defendant (the Land Berlin) offered no justification for her treatment. The court argued that this act has 
to be interpreted in accordance with the jurisprudence of the Federal German Constitutional Court which 
held in 2015 that an abstract, general ban on religious symbols worn by teachers is unconstitutional.46 
An exception is a situation of concrete dangers to the peace of the school or state neutrality, but there 
was no reason to assume that such a danger existed in this case.47 

Online source:
http://www.berlin.de/gerichte/arbeitsgericht/presse/pressemitteilungen/2018/pressemitteilung.761600.php

43  UN Human Rights Committee Complaint procedure CCPR/c/123/D/2662/2015 of 18 June 2018 (published 10 August 

2018) of F.A. v France.

44  Germany, Berlin Labour Court, 24.05.2018, Az. 58 Ca 7193/17.
45  Germany, Act on Article 29 of the Constitution of Berlin of 27.01.2005, GVBl. 2005, 92.
46  German Federal Constitutional Court BVerfG, 27.01.2015, 1 BvR 471/10, 1 BvR 1181/10.
47  Germany, Berlin-Brandenburg Land Labour Court, 27.11.2018, Az. 7 Sa 963/18.

93

Key developments at national level in legislation, case law and policyEL

Greece 

LEGISLATIVE DEVELOPMENT

Repeal of the fiscal law provision obliging spouses to submit a joint income tax return 

Gender

In February 2018, the Council of the State ruled that a husband may submit a joint income tax return 
including his wife’s income, only if both spouses agree to it (the agreement is deemed to exist even tacitly 
by the mere submission of a joint income tax return), whereas if either of the spouses informs the tax 
authorities  explicitly  of  the  absence  of  his/her  consent,  the  spouses  may  submit  separate  income  tax 
returns.48

Following this judgment, on 18 December 2018, Parliament adopted an amendment49 to the relevant 
provision of Article 67(4) of the Income Tax Code50 which previously required that spouses submit a joint 
income tax return. According to the new provision, spouses may submit separate income tax returns if 
either of them chooses to do so by submitting an irrevocable declaration to the tax authorities for each 
fiscal year. 

The obligation of spouses to submit a joint income tax return had been denounced by women’s rights 
NGOs for many years as direct discrimination to the detriment of married women on the ground of their 
marital status, since it was only men who could submit, in their name, a joint tax return.

This is an exemplary case of the immediate and effective application of Council of State case law by the 
Greek legislator, although this reform has been long overdue. 

CASE LAW

Parental leave recognised as working time

Gender

A female worker, employed by a private bank, brought a case to the court complaining that her period 
of non-paid parental leave (one year, five months and one day) from December 1999 to May 2001 was 
not recognised by her employer as working time for the purpose of pay calculation (the pay system was 
set  in  pay  scales  based  on  seniority),  although  this  period  had  been  recognised  as  insurable  time  by 
the social security scheme due to the payment of both the employer’s and the employee’s contribution 
by the female worker herself. The employee had submitted written petitions regarding this issue to her 
employer upon her return from parental leave, which were never answered. Whilst she was employed, 
she was afraid of victimisation and therefore waited until her retirement in September 2013 to bring 
the case to court.

48  Greece, Council of State judgment No. 330/14.02.2018.
49  Greece, Act 4583/2018, OJ A 212/18.12.2018, Article 59(5). 
50  Greece, Act 4172/2013, OJ A 167/23.07.2013. Article 67(4) of the Income Tax Code provided that spouses, during their 
marriage, were obliged to submit a joint income tax return; however, the income tax, the corresponding fees and the 
contributions were calculated separately for each spouse on the basis of his/her income. According to the same Article, 
the parties to a life partnership agreement might also submit a joint income tax return (in this case it is optional); if they 
did, they had the same treatment as married spouses. The husband (or the party to the life partnership agreement who is 
declared as the principal taxpayer) was obliged to submit the income tax return not only for his income but for the income 
of his wife (or of the other party to the partnership agreement) as well. Separate income tax returns were allowed only 
(a) if the marital cohabitation had ceased (or the life partnership had been dissolved); the relevant burden of proof was 
born by the taxpayer, (b) if one of the spouses (or one of the parties to a life partnership agreement) had been declared 
bankrupt or had been put under guardianship by judicial decision for lack of mental capacity. 

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EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Gender

The claimant alleged that the bank’s refusal to recognise this period as working time constituted direct 
gender discrimination in breach of Act 3896/2010, implementing Directive 2006/54/EC, to be interpreted 
in the light of Articles 4(2) and 21(1) of the Greek Constitution, the CEDAW, Directive 2006/54/EC and 
Articles 21 and 33 of the Charter of Fundamental Rights of the EU. She claimed the relevant pay arrears 
(regarding the pay difference) for the five last years, given that pay arrears for the previous period had 
been time-barred.

In its judgment of 20 July 2018, the Athens Court of Appeal did not explicitly identify as direct gender 
discrimination the non-recognition of non-paid parental leave as working time for the purpose of the 
calculation of the claimants’ salary. However, the Court of Appeal found that this practice was contrary to 
Act 3896/2010 implementing Directive 2006/54/EC, in particular to Article 3(1) of the said Act, prohibiting 
direct  and  indirect  discrimination  on  the  ground  of  gender,  to  Article  4  of  the  said  Act  providing  the 
principle of equal pay between women and men for the same work or work of equal value, to Article 18 
of the said Act providing that the less favourable treatment of parents due to the take up of parental 
leave is considered discrimination for the purposes of the said Act and Article 21(1) of the Constitution 
requiring the protection of maternity; the Court therefore awarded the female employee the relevant loss 
of pay in the form of pay arrears (EUR 6 118.12) for the last five and a half years of service.51 

Discrimination against female cleaners

A  recent  case,  inspired  by  the  CJEU  judgment  in  Nikoloudi  (C-196/02),52  concerned  the  decision  of  a 
private bank to close down the cleaners’ department in order to outsource the cleaning activities. This 
resulted in the redundancy of 64 cleaners, all of them women (with the exception of one male cleaner). A 
great majority of the cleaners accepted the employer’s offer to resign in order to be paid a bonus, which 
amounted to double or triple the legal redundancy compensation. The female cleaners who declined the 
offer were dismissed. One of them brought the case before the First Instance Court of Athens alleging, 
inter alia, that she was the victim of direct (or indirect) sex discrimination. According to the claimant, 
her employment in a predominantly female department was terminated without her being offered the 
possibility of being transferred to another position, whereas in predominantly male departments, such 
as those of blue-collar workers or clerks, employees were given the possibility of being transferred to 
other positions within the bank. 

In its judgment of 12 December 2018, the First Instance Civil Court of Athens found that the provision of 
the internal rules of the bank, as modified in June 2014, that excluded the cleaners53 from the possibility 
of being transferred to other jobs, whereas workers in predominantly male departments were offered 
that possibility, constituted indirect sex discrimination in breach of Act 3846/2010,54 which implements 
Directive 2006/54/EC.55 

However,  the  Court  did  not  find  that  the  termination  of  the  employment  contract  per  se  constituted 
(direct or indirect) sex discrimination. The reasoning of the Court was as follows: the termination was due 
to the implementation of the business decision of the bank to close down the cleaners’ department and 
not due tο any other ground which would amount to or could be deemed sex discrimination. This wording 
shows that the Court was looking for a possible ‘fault’ by the employer, which it did not find. Nonetheless, 
the termination was found null and void in breach of other national law provisions, which are not of 
interest under EU law and in the present context. 

CJEU 10 March 2005 Nikoloudi v Organismos Tilepikinonion Ellados AE Case C-196/02, ECLI:EU:C:2005:141.
The word in Greek is used in the female gender given that it is a predominantly female profession.

51  Greece, Athens Court of Appeal, judgment No. 3693/2018 of 20 July 2018. 
52 
53 
54  Greece, Act 3896/2010, ‘Implementation of the Principle of Equal Treatment of Men and Women in Matters of Employment 
and Occupation. Harmonisation of Existing Legislation with Directive 2006/54/EC of the European Parliament and the 
Council,’ OJ A 207/08.12.2010.

55  Greece, First Instance Civil Court of Athens, judgment of 12 December 2018, No. 2323/12.12.2018. 

95

Key developments at national level in legislation, case law and policyAfter the aforementioned CJEU preliminary ruling in Nikoloudi, this is the only Greek judgment applying 
the notion of indirect discrimination on the grounds of sex in private sector employment. Therefore, this 
judgment is of great importance. However, it is obvious that the Court subjected the finding of discrimination 
to the requirement of fault, which is contrary to the ECJ case law in Draehmpaehl56 and Dekker.57

Although a big step forward, this judgment shows the difficulties in the implementation of the concepts of 
EU anti-discrimination law by the national courts, in particular the concepts of indirect discrimination and 
the non-requirement of fault. It also shows that the concept of indirect discrimination is still unclear, which 
explains the scarcity (almost nonexistence) of relevant case law in employment in the private sector. 

It should be also noted that the applicant requested the shift of the burden of proof, but the court neither 
responded to this request nor applied EU law on the shift of the burden of proof.

HU

Hungary 

CASE LAW

Gender

Dismissal of a pregnant employee during probationary period

The complainant in this case started work at a hospital as a kitchen aide and became pregnant during 
her  probationary  period.  She  informed  her  direct  supervisor  and  a  few  days  later  became  sick  and 
subsequently  went  on  sick  leave.  One  week  after  she  went  on  sick  leave,  her  employer  informed  her 
via phone that her employment was terminated with immediate effect because of her pregnancy. The 
employee  filed  a  complaint  with  the  Equal  Treatment  Authority  claiming  that  the  termination  of  her 
employment was discriminatory due to the fact that it was based on her pregnancy and health condition. 

The Equal Treatment Authority launched an investigation into the case. The respondent claimed that it 
did not violate the complainant’s right to equal treatment since her contract was terminated during her 
probationary period when both parties can lawfully terminate the employment with immediate effect 
without the obligation to provide reason for the termination. The respondent rejected the allegation that 
the employment contract was terminated due to the pregnancy, but was unable to provide an acceptable 
explanation for the termination of her contract.

The Equal Treatment Authority found in its decision of 3 July 2018 that the respondent was not able to 
prove that it observed the right to equal treatment or that it was exempted from this obligation, based 
on  the  Equal  Treatment  Act.  The  Equal  Treatment  Authority  found  that  the  respondent  violated  the 
complainant’s right to equal treatment and directly discriminated against her based on her pregnancy 
and health condition. A causal connection was established between the pregnancy and health condition 
of the complainant and the subsequent termination of her employment. The fact that labour regulations 
allow the immediate termination of employment during a probationary period does not provide a lower 
level of scrutiny for proof under the anti-discrimination framework and therefore does not waive the 
obligation for the employer to observe the requirement of equal treatment.58

The  decision  of  the  Equal  Treatment  Authority  refers  to  the  decision  in  principle  no.  23/2018  in 
administrative law of the Curia.59 

ECJ, 22 April 1997 Draehmpaehl v Urania Immobilienservice OHG, Case C-180/95, ECLI:EU:C:1997:208.
ECJ, 8 November 1990 Dekker v Stichting Vormingscentrum voor Jong Volwassenen Case C-177/88, ECLI:EU:C:1990:383. 

56 
57 
58  Hungary, Equal Treatment Authority, decision No. EBH/308/2018 of 3.07.2018. 
59  Hungary, Curia, judgment No. Kfv.III.37.585/2017 of 5.06.2018.

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EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Online source: 
www.egyenlobanasmod.hu/sites/default/files/nyilvanos_hatarozat/30.08.28.309.18..pdf

First instance court decision on damages for segregation in education

In March 2015, the Curia (Hungary’s Supreme Court) had concluded in an actio popularis lawsuit launched 
by the Chance for Children Foundation (CFCF) that the Roma pupils in the Nekcsei Demeter elementary 
school of Gyöngyöspata had been unlawfully segregated. In each grade there were two classes, one with 
practically only Roma pupils and one where there were almost none.60 Furthermore, the Roma and non-
Roma classes were separated physically by being placed on different floors of the school building and 
the Roma children were provided with lower quality education than their non-Roma peers. The Curia’s 
judgment was based on the conclusions of the Minorities Ombudsman that in December 2011 neither 
the school nor the municipality had taken any measure to remedy the situation that had been disclosed 
in April of the same year, nor had they complied with any of the Ombudsman’s recommendations.

Racial or 
ethnic origin

Based on the Curia’s final and binding decision, 63 former pupils of the segregated Roma classes, with 
the help of CFCF and pro bono lawyers, launched a lawsuit for damages in February 2016 against the 
school, the Municipal Council and the Klebelsberg School Maintaining Centre.61 Their claims concerned 
the  long-term  disadvantages  they  had  suffered  as  a  result  of  their  substandard  education  (e.g.  the 
loss of the real possibility to succeed in the labour market). Each former pupil claimed HUF 500 000 
(EUR 1 560) per school year spent in segregated classes. The respondents requested the court to reject 
the claim, arguing that a maximum of 10 % of the claims (i.e. EUR 156 per claimant) would be realistic 
and that the responsibility of the individuals for their failure in education and employment should also 
be considered. 

On 16 October 2018, the Eger Regional Court delivered a first instance judgment in the case.62 The Court 
agreed with the Curia judgment that the respondents had violated the claimants’ right to equal treatment 
and eventually adjudicated the claims of 62 claimants after individually examining their circumstances, 
including the number of school years they had spent in segregated education and how the discrimination 
they  had  suffered  impacted  on  their  lives.  It  rejected  the  claim  of  two  claimants,  fully  granted  the 
requested compensation in 12 cases and granted part of the requested compensation in 48 cases. The 
claimants originally claimed HUF 290 million (EUR 906 250) in damages altogether, which they later 
modified to HUF 143 million (EUR 447 900). Of this, the court granted them a total of HUF 89 million 
(EUR 278 120).63 

Online sources: 
https://birosag.hu/aktualis-kozlemenyek/egri-torvenyszek-itelet-gyongyospatai-szegregacios-ugyben 
(press release from the Eger Regional Court);
https://168ora.hu/itthon/tortenelmi-itelet-karterites-jar-a-gyongyospatai-gyerekeknek-a-szegregacio-
miatt-157638 (press report on the decision).

First instance court decision on the harassing practices of the Municipality of Miskolc

In December 2018, the Regional Court of Miskolc delivered its judgment in one of the most large-scale 
cases  of  discrimination  in  Hungary,  ruling  on  the  combined  harassing  effect  of  a  series  of  different 

Racial or 
ethnic origin

60 
61 

62 

63 

The proportion of Roma children within the student population at the relevant time was around 50 %.
KLIK is the state body that – as of 1.01.2013 – became the municipality’s legal successor as a result of the national 
centralisation of school management.
At the time of writing, the first instance court decision has still not been published. The summary here is based on the 
court’s press release and media coverage of the decision.
The lowest amount a plaintiff received was HUF 200 000 (EUR 635), the highest amount HUF 3.5 million (EUR 10 940). The 
aggregate number of school years with regard to which damages were granted was 226.

97

Key developments at national level in legislation, case law and policypractices  and  actions  targeting  the  local  Roma  population  taken  by  Miskolc  Municipal  Council  over  a 
period of more than five years. 

Firstly,  the  municipal  authorities  responsible  for  areas  including  public  health  and  child  protection 
performed  recurring  and  concentrated  inspections  in  the  segregated,  mainly  Roma  neighbourhoods. 
Secondly,  the  municipal  Social  Housing  Decree,  as  amended  in  May  2014,  clearly  aimed  to  drive  out 
indigent (mainly Roma) social housing residents from the municipality by offering them compensation 
for the termination of their social housing contracts provided they undertook to move out of Miskolc. 
Thirdly, the municipality started to systematically terminate the social housing tenancies of people living 
in low-standard accommodation in a highly segregated part of the town, called the ‘Numbered Streets’, 
without taking any measures to provide the tenants with alternative housing and thus exposing them to 
the threat of homelessness. 

The Curia (Hungary’s Supreme Court) had already concluded in 2015 that the amendment of the Miskolc 
municipal decree discriminated against people living in low-standard social housing, thus quashing the 
amendment.64 In parallel, the Ombudsman issued a report stating that the same amendment amounted 
to direct discrimination on the basis of financial situation and indirect discrimination on the ground of 
race. Furthermore, the report severely criticised the practice of concentrated administrative inspections 
in segregated areas and formulated a number of recommendations. 

Also in 2015, the Equal Treatment Authority established that the municipality of Miskolc subjected the 
residents of the Numbered Streets to the threat of homelessness or having to move to other segregated 
areas and, by doing so, discriminated against them on the basis of their social status, financial situation 
and Roma origin. The Authority also ordered the municipality to put an end to the discriminatory situation 
by  developing  two  separate  action  plans  (by  30  September  and  31  December  2015  respectively)  on 
the provision of alternative housing of an adequate standard for the tenants of the Numbered Streets. 
Finally, the Authority imposed a fine of HUF 500 000 (EUR 1 670) on the municipality.65 The decision of 
the equality body was upheld on all counts by the national courts. 

However, despite adopting the requested action plans, the municipality did not change its practices and 
continued the process of driving the poor Roma population out of town. Two NGOs, the Hungarian Civil 
Liberties  Union  (TASZ)  and  the  Legal  Defence  Bureau  for  National  and  Ethnic  Minorities  (NEKI),  then 
submitted an actio popularis civil law claim to the Miskolc Regional Court. 

In its decision of 12 December 2018, the Miskolc Regional Court concluded that through the raids held 
in the Roma neighbourhoods, the elimination of social housing without providing adequate guarantees 
against homelessness and the manner in which the municipality communicated the issue to the public, 
the Municipality of Miskolc and the Miskolc Municipal Law Enforcement Body had violated the human 
dignity and the right to non-discrimination of the Roma of Miskolc. The Court held that the practices of 
the municipality amounted to harassment based on ethnicity and ordered the respondents to publish an 
apology on the municipal website and through the Hungarian news agency, and to pay a so-called public 
interest fine of HUF 10 million (approx. EUR 31 000). The municipality submitted an appeal against the 
decision and the mayor declared publicly that he had no intention of changing his policies. Among other 
things, he said: ‘I have some bad news for TASZ and NEKI: […] we will pay the fines if we must, like we 
have done in the past, but it is not HCLU and especially not NEKI who can tell us what we must do in 
Miskolc to protect public safety. We will see them in court!’

Online sources: 
https://nepszava.hu/3018359_szamozott-utcak-az-orszag-legnagyobb-diszkriminacio-ellenes-peret-
nyerte-meg-a-tasz and 

64  Hungary, Curia, decision No. Köf.5003/2015/4, of 13.05.2015.
65  Hungary, Equal Treatment Authority, decision No. EBH/67/22/2015 of 15.07.2015.

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https://borsodihir.hu/helyben-jaro/2018/12/miskolc-polgarmestere-elkuldte-a-jogvedoket-a-fenebe 

POLICY AND OTHER RELEVANT DEVELOPMENTS

Report of Ombudsperson on preferential treatment of women concerning repayment 
conditions for student loans

The Ombudsperson, after receiving complaints from individuals, implemented an ex officio investigation 
regarding  recent  amendments  (in  effect  since  1  January  2018)  of  the  Governmental  Decree  on  the 
System of Student Loans. According to the new provisions, women are entitled to a relief of 50 % of their 
student loans after giving birth to (or adopting) a second child and a relief of 100 % after giving birth 
to (or adopting) a third child. Moreover, pregnant women may suspend the repayment of their student 
loans from the 91st day of their pregnancy, for a total duration of 36 months. Fathers (either biological 
or adoptive) are not entitled to this relief, even in situations when the parents are living together and the 
mother has already repaid or never had a student loan, the entitlement is not transferrable to the male 
spouse/partner. Single fathers, either raising biological or adopted children, are also excluded from this 
entitlement. According to the conclusions of the Ombudsperson, the government should consider revising 
the amendment.

The Ombudsperson’s report of 24 July 2018 stated that the preferential treatment of women should 
not  be  considered  necessarily  as  discriminatory  or  unconstitutional,  if  the  policy  in  question  qualifies 
as an ex gratia allowance/relief. The Ombudsperson states that the preferential treatment of women 
in  this  situation  is  justified,  taking  into  consideration  the  extra  burden  of  childbearing  in  cases  of 
biological  mothers,  as  compared  to  fathers.  However,  it  holds  that  the  student  loan  repayment  rules 
(that the entitlement for relief is not transferrable) are ‘unreasonable’ in cases where the parents are 
living together. The Ombudsperson explains that there are single biological fathers who are raising their 
children alone from the earliest stage (e.g. because the mother died or left the family), in which case the 
policy is ‘worrisome in relation to the requirement of equal treatment’. Moreover, in the cases of single 
adoptive  mothers  and  fathers,  the  differentiation  between  women  and  men  is  not  justified  (because 
there are obviously no differences between their parental burdens) and thus the policy is ‘anomalous in 
relation to the requirement of equal treatment’.

Online source:
https://www.ajbh.hu/documents/10180/2805034/Jelentés+a+nullázható+diákhitel+kapcsán+978_2018
/809493ba-7ede-bfb5-a034-46d085dc6a14?version=1.0

Iceland 

LEGISLATIVE DEVELOPMENT

IS

Higher ceiling for payments during maternity/paternity leave

Gender

The Minister of Social Affairs and Equality signed a new regulation in December 2018 amending the 
regulation on payments from the Maternity/Paternity Leave Fund as amended66 by which payments to 
parents on maternity/paternity leave will be raised from 1 January 2019 up to the amount of EUR 4 303 

66 

Iceland, Act on Maternity/Paternity Leave and Parental Leave, No. 95/2000 as amended, available at:  
https://www.government.is/media/velferdarraduneyti-media/media/acrobat-enskar_sidur/Act-on-maternity-paternity-
leave-95-2000-with-subsequent-amendments.pdf.

99

Key developments at national level in legislation, case law and policy(ISK  600  000)  (from  the  previously  planned  amount  of  EUR  3  728  (ISK  520  000)  foreseen  in  the 
Government Fiscal Policy which was introduced on 11 September 2018).67 

The ceiling for maternity/paternity leave payments has never been higher, but the value has decreased 
since  the  financial  collapse  in  2008.  By  increasing  payments,  it  is  hoped  that  fathers  will  be  more 
inclined to take the leave they are entitled to.68 According to the Act on Maternity/Paternity Leave and 
Parental Leave, parents shall each have an independent entitlement to maternity/paternity leave for up 
to three months after giving birth, primary adoption or upon receiving a child into permanent foster care. 
This entitlement shall not be transferable. In addition, the parents shall have a joint entitlement to an 
additional three months, which either parent may draw in its entirety or the parents may divide between 
them (Article 8 of Act No. 95/2000).

A parent acquires the right to payments from the Maternity/Paternity Leave Fund after she/he has been 
active on the domestic labour market for six consecutive months prior to the birth of a child or the date 
on which an adoptive or foster child enters the home. The work contribution of a self-employed parent 
shall be based on the payment of the insurance levy on calculated remuneration for the same period.

The Maternity/Paternity Leave Fund’s monthly payment to an employee during maternity/paternity leave 
amounts to 80 % of her/his average wage during a 12-month consecutive period, ending two months 
prior  to  the  first  day  of  the  maternity/paternity  leave.  Included  in  such  wages  shall  be  all  forms  of 
wages and other remunerations under the Insurance Levy Act.69 The maximum and minimum monthly 
payments from the Maternity/Paternity Leave Fund for each year are published on the Fund’s website.70 

Online source:
https://www.ruv.is/spila/ruv/frettir/20181218

POLICY AND OTHER RELEVANT DEVELOPMENTS

Gender quotas not meeting expectations

The  Act  respecting  Amendment  to  the  Act  on  Public  Limited  Companies  and  Act  on  Private  Limited 
Companies  (Ownership,  Sex  Ratios  and  acting  Chairmen  of  Boards  of  Directors)  No.  13/2010  71  has 
not led to the results expected within the corporate world. The number of women holding the highest 
positions  has  not  increased,  according  to  recent  research  by  Deloitte  published  in  October  2018.72 
Roughly, more than 80 % of company boards of the largest firms in the country consist mainly of male 
members. The gender quota law stipulates that the boards of public limited companies as well as private 
limited companies with more than 50 employees must be composed of at least 40 % of members of the 
under-represented sex. The gender quota act became binding on state-owned companies in 2010 and 
on public limited companies in 2013. 

67 

68 
69 
70 
71 

72 

The Fiscal Budget for 2019 was introduced on 11.09.2018 and is available at: https://www.stjornarradid.is/verkefni/
efnahagsmal-og-opinber-fjarmal/fjarlog/fjarlog-fyrir-arid-2019/. See also: https://eyjan.dv.is/eyjan/2018/12/18/asmundur-
haekkar-faedingarorlofid-um-80-thusund-kall-manudi-lod-vogarskalar-aukins-kynjajafnrettis/.
https://www.ruv.is/frett/hamarksgreidslur-faedingarorlofs-taka-kipp.
Iceland, Article 13 (2) of the Act on Maternity/Paternity and Parental Leave No. 95/2000 as amended.
http://www.faedingarorlof.is/files/Upph%C3%A6%C3%B0ir%202019_232393447.pdf.
Iceland, Act respecting Amendment to Act on Public Limited Companies and Act on Private Limited Companies 
(Ownership, Sex Ratios and acting Chairmen of Boards of Directors) (Lög um breytingu á lögum um hlutafélög og lögum um 
einkahlutafélög (eignarhald, kynjahlutföll og starfandi stjórnarformenn) No. 13/2010,  text available in English at:  
www.government.is/library/04-Legislation/Act%20No%202-1995.pdf. 
The Association of Women in Business (Félag kvenna í atvinnurekstri, FKA) presented the results of the Deloitte analysis 
of the 100 largest companies in Iceland: https://www.frettabladid.is/frettir/loeg-um-kynjakvota-ekki-skila-naegilegum-
arangri/.

100

Gender

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 According to this research, women make up only 10 % of the directors of the 250 largest companies in 
Iceland. Men make up the large majority of the members of the boards of directors of these companies 
(82 %). There are no current signs that the number of women is increasing in the highest echelons of 
these corporations. Interestingly, the research also shows that the number of women on company boards 
is higher in companies where women are directors. 

While there are currently no women at all on 23.2 % of company boards in Iceland, the sex representation 
ratio is equal on only 8.6 % of company boards and women outnumber men on only 9.4 % of the boards. 

Online source:
https://www.ruv.is/frett/ahrif-kynjakvotalaganna-litil-i-fyrirtaekjum

Equal pay certification

The Minister of Welfare and Equality has granted companies a postponement of one year to obtain an 
equal pay certification. This deferral applies to private corporations and institutions, independent of their 
size, but not to public institutions, funds or state-owned companies. 

The  reason  for  this  postponement  is  a  lack  of  parties  able  to  conduct  the  certification  process  to 
implement the law. 

Gender

The  amendment  to  the  Gender  Equality  Act  No.  10/2008  which  came  into  force  on  1  January  2018 
makes it obligatory for companies and institutions employing 25 or more workers on an annual basis to 
obtain equal pay certification of their equal pay system and the implementation thereof. The purpose of 
this obligatory certification is to enforce the current legislation prohibiting discriminatory practices based 
on gender and requiring that women and men working for the same employer shall be paid equal wages 
and enjoy equal terms of employment for the same jobs or work of equal value.73 

According to the law, companies and institutions with more than 250 employees were to be ready to 
obtain pay certification by the end of 2018. To date, 39 companies have obtained this certification. 

The amendment to Regulation No. 1030/2017 drafted by the Minister of Welfare and Equality came into 
effect on 14 November 2018. The amended regulation stipulates the following time limits for obtaining 
equal pay certification:74 

 – Companies and institutions with more than 250 employees – 31 December 2019; 
 – Companies and institutions with 150-249 employees – 31 December 2020; 
 – Companies and institutions with 90-149 employees – 31 December 2021;
 – Companies and institutions with 25-89 employees – 31 December 2022. 

Online source: 
www.ruv.is/frett/krofu-um-jafnlaunavottun-frestad-um-12-manudi

73 

Regulation No. 1030 of 13.11.2017 on the certification of equal pay systems of companies and institutions 
according to the ÍST 85 Standard, available at: https://www.government.is/library/04-Legislation/Regulation_
CertificatinOfEqualPaySytems_25012018.pdf.

74  News from the Government on 14.11.2018 https://www.stjornarradid.is/verkefni/allar-frettir/frett/2018/11/14/Frestur-

fyrirtaekja-og-stofnana-til-ad-odlast-jafnlaunavottun-framlengdur-um-12-manudi/.

101

Key developments at national level in legislation, case law and policyIE

Ireland 

Gender

Positive discrimination in Irish higher education institutions

On  12  November  2018,  the  Prime  Minister  (An  Taoiseach  Leo  Varadkar)  and  Mary  Mitchell  O’Connor, 
Minister of State with special responsibility for Higher Education, launched the ‘Gender Action Plan 2018-
2020: Accelerating gender equality in Irish higher education institutions’. The Action Plan is designed to 
transform the higher education sector’s gender equality performance. The government initiative is that 
45 senior academic posts will be established for which only women may apply. Such appointments are to 
take place over three years and there is to be additional state funding for such posts. The minister also 
wants 40 % of professors in institutes of higher education to be female by 2024. The Gender Equality 
Taskforce was established in November 2017 to build on the work of the Higher Education Authority 
(HEA) ‘National review of gender equality in Irish higher education institutions’ (2016). The Taskforce 
identified significant measures that will further accelerate progress in achieving gender equality in Irish 
higher education institutions following the recommendations of the HEA Expert Group (2016). 

To date there are no precise details published as to the nature of these appointments save that they will 
be new permanent, pensionable posts. It is not known whether these posts will be in Irish universities or 
in institutes of technology or in what fields, e.g. science or engineering. The Employment Equality Acts 
1998 to 2015 make limited provision for positive discrimination and do not provide for quotas. Section 
24 of the 1998 Act (as amended) provides that the Act is without prejudice to ensuring full equality in 
practice between men and women in their employment by providing specific advantages so as to make 
it easier for an under-represented sex to pursue a vocational activity or to prevent or compensate for 
disadvantages in professional careers. This section of the Act has not been litigated in Ireland and it 
is possible that there could be litigation depending on the nature of the proposed posts. The Electoral 
(Amendment) (Political Funding) Act 2012 provided that political parties had to have a certain quota of 
female candidates in general elections in order to obtain political funding. This approach was criticised 
at the time and has resulted in only a marginal increase in the number of women elected to parliament. 

The controversy in respect of appointments to professorial posts in Irish institutes of higher education 
stems in the main from the case of Sheehy Skeffington v National University of Ireland Galway where the 
complainant, a lecturer, failed to be appointed to a senior lecturer post.75 The statistics for that particular 
constituent  college  of  the  National  University  of  Ireland  showed  that  few  women  were  appointed  to 
senior  posts,  i.e.  one  in  two  men  and  one  in  three  women  would  get  promotion  at  the  college.  The 
complainant had applied for promotion on numerous occasions. 

Looking deeper into this case, it was badly handled by the respondent employer and there was a breach 
of fair procedures in the appeal process. The complainant made out a prima facie case of discrimination. 
In respect of indirect discrimination, the equality officer considered that there was one neutral criterion 
that put women at a disadvantage, namely that the application form for senior lecturers asks people to 
state when they were on maternity leave or other unpaid leave. Male applicants left this part of the form 
‘blank’. The complainant had taken leave to look after her elderly mother and other female applicants 
had taken maternity, adoptive and parental leave. The only successful woman candidate had taken no 
leave. Such caring responsibilities were seen as a disadvantage to women. The equality officer ordered 
promotion of the complainant from 1 July 2009 with all necessary adjustments to salary and benefits 
and payment of EUR 70 000 (being approximately one year’s salary). In addition, the respondent must 
conduct a review of its policies with respect to the gender ground with a report on progress to be made 
to the Irish Human Rights and Equality Commission. 

75 

Ireland, Equality Tribunal, Decision No. DEC-E2014-078 of 13.12.2014, available at: www.workplacerelations.ie/en/
Cases/2014/November/DEC-E2014-078.html.

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EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 IT

Gender

Online source: 
www.workplacerelations.ie/en/Cases/2014/November/DEC-E2014-078.html

Italy 

CASE LAW

The ban on dismissal on grounds of marriage does not apply to male workers

A male worker contested his dismissal, maintaining that it was discriminatory under Article 35 of the Code 
of Equal Opportunities between Women and Men76 as it took place within the year following his marriage. 
He argued that the ban on dismissal after the first year of marriage to protect against discrimination 
applies to male workers in the same way as to female workers. In fact, although Article 35 expressly 
refers to female workers, it aims to protect the worker’s right to have a family. Moreover, he argued that 
the personal scope of the Code for Equal Opportunities (Decree No. 198/2006) includes both sexes and 
that differential treatment would not be consistent with Directive 76/207/EEC on the implementation 
of the principle of equal treatment for men and women as regards access to employment, vocational 
training and promotion and working conditions, as it amounts to sex discrimination. 

The Court of Cassation, in its decision of 12 November 2018, confirmed the second instance judgment 
which deemed the personal scope of Article 35 to be limited to female workers. This provision is the 
expression  of  the  specific  constitutional  protection  awarded  to  working  women.  The  Court  underlined 
that the protection against discriminatory dismissal on grounds of marriage had been introduced in the 
1960s to strengthen the protection of women’s employment rights. This specific protection is perfectly 
in line with the social reality, since employers tend to dismiss recently married female workers as they 
expect  long  absences  from  work  when  women  become  pregnant.  Moreover,  it  responds  to  the  same 
objectives  as  the  constitutional  principles  of  both  the  protection  of  motherhood  and  equality,  which 
provide that maternity shall not be an obstacle to women’s effective participation in the labour market. 
Consequently, this stronger protection awarded to women is not discriminatory, not even under EU law. 
This can justify differential treatment as men are not in an analogous situation.77

The Court underlined once again the principle ruled by the Constitutional Court, following which different 
protection based on gender cannot be deemed to be discriminatory in itself. It mainly shed light on the 
development of the protection of female workers as mothers in Italian legislation, in order to clarify the 
reason for excluding male workers from the personal scope of Article 35 and the consistency of this 
exclusion with the principle of equal opportunities. In particular, it recalled the legitimacy of measures of 
protection of maternity as an instrument to achieve substantial equality for working women, in line with 
well-established CJEU case law.78

Online source:
www.neldiritto.it/public/pdf/CASS_28926_2018.pdf

76 

77 
78 

Italy, Code of Equal Opportunities between men and women Decree No. 198/2006 of 11.04.2006, published in OJ No. 125 of 
31.05.2006, o.s. No. 133, available at: www.normattiva.it/atto/caricaDettaglioAtto?atto.dataPubblicazioneGazzetta=2006-
05-31&atto.codiceRedazionale=006G0216&currentPage=1. 
Italy, Court of Cassation decision No. 28926 of 12.11.2018, available at: http://www.neldiritto.it/public/pdf/.
Such as, for instance, C 476/99, judgment Lommers of 19.03.2002, published at https://eur-lex.europa.eu/legal-content/
IT/TXT/PDF/?uri=CELEX:61999CJ0476&rid=1, or C 232/09, Judgment Danosa of 11.11.2010, published at https://eur-lex.
europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62009CJ0232&rid=1.

103

Key developments at national level in legislation, case law and policyCASE LAW

The Constitutional Court strengthens the right to compulsory maternity leave

Gender

The Constitutional Court delivered a judgment on 13 July 2018, in which it ruled that Paragraph 3 of 
Article 24 of Decree No. 151/2001 on the Protection of Motherhood and Fatherhood79 contradicts the 
Constitution. Article 24 extends the right to maternity allowance for the period of compulsory maternity 
leave to working mothers who, at the beginning of this period, are temporarily absent from work or on 
leave from work with no right to remuneration or have been unemployed for less than 60 days. Under 
Article 24, para. 3, absences due to illness or an accident at work, leave due to care for a sick child, 
absence due to foster care or periods of interruption of work in case of a vertical part-time contract are 
exceptions and not to be reckoned for the time limit of 60 days.80 

The  Constitutional  Court  ruled  that  Paragraph  3,  which  does  not  include  periods  of  leave  to  care  for 
disabled relatives in these exceptions, is not in compliance with Articles 3, 31 and 37 of the Constitution, 
ensuring the principle of equality and the protection of the family and of motherhood.81 

The Court underlined in its ruling that the remunerated period of leave to care for a disabled relative, 
which is grounded on objective and strict requirements, must be included in the other exceptions provided 
by the law mentioned above as it responds to the need to ensure that the necessary care for disabled 
people can be provided by their family. 

Not  recognising  the  need  to  care  for  a  disabled  relative  would  also  arbitrarily  sacrifice  the  special 
protection granted by Article 37 of the Constitution to both the mother and the child, as it would compel 
the mother to choose between taking care of the disabled person or returning to work to benefit from 
the  maternity  allowance.  The  judgment  of  the  Constitutional  Court,  which  added  the  period  of  leave 
to care for disabled people to the exceptions expressly laid down by Paragraph 3 of Article 24, further 
strengthened the protection of maternity and was a necessary intervention (as stated by the Court itself), 
as case law could not merely add it to the list of exceptions by way of interpretation. 

Online source:
www.giurcost.org/decisioni/index.html 

LV

Latvia 

POLICY AND OTHER RELEVANT DEVELOPMENTS

Racial or 
ethnic origin

UN CERD publishes conclusions and recommendations on Latvia’s periodic reports 

On 30 August 2018 the UN Committee on the Elimination of Racial Discrimination (CERD) published its 
concluding  observations  on  the  sixth  to  twelfth  combined  periodic  reports  on  Latvia,  which  had  been 
submitted with a 10-year delay.82 

79 
80 

81 
82 

Italy, Decree No. 151 of 26.03.2001 on the Protection of Motherhood and Fatherhood, published in OJ No. 96 of 26.04.2001.
A vertical part-time employment scheme provides for full working days but only at predetermined times, that is, on some 
days of the week, in some weeks of the month or in some months of the year.
Italy, Constitutional Court judgment No. 158 of 13.07.2018, available at: www.giurcost.org/decisioni/index.html. 
Combined sixth to twelfth periodic reports submitted by Latvia under Article 9 of the Convention, due in 2007, distributed 
10.11.2017. Available at: https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD% 
2fC%2fLVA%2f6-12&Lang=en.

104

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Reiterating to a large extent the concerns raised consistently by the UN and regional treaty bodies in 
recent years, CERD expressed concern about a number of issues, including:

 – the lack of reliable disaggregated statistics on the enjoyment of economic and social rights by people 

belonging to various ethnic groups;

 – the lack of adequate financial and human resources for the Ombudsman’s Office to fully discharge its 

mandate and the reported reduction in its work concerning racial discrimination;

 – the  lack  of  a  comprehensive  anti-discrimination  law  and  of  measures  to  ensure  the  effective 

implementation of legal provisions prohibiting racial discrimination;

 – recent  amendments  to  the  Law  on  Education  that  reduce  the  proportion  of  minority  language 

education in the last three grades of basic education in minority schools;83 

 – the  risk  that  the  State  Language  Law  may  result  in  unnecessary  restrictions  having  the  effect  of 
creating  or  perpetuating  ethnic  discrimination  or  impede  the  ability  of  ethnic  minorities  to  access 
employment in the public and/or private sectors;

 – the high numbers of ethnic minorities among the prison population and the insufficient analysis of 

the reasons behind this phenomenon;

 – the concerning number of people with no nationality (stateless people or ‘non-citizens’).84

Concerning  the  situation  of  Roma,  the  Committee  urged  Latvia  to  take  effective  measures,  including 
adopting  and  implementing  a  national  action  plan  with  timelines  and  concrete  targets  to  eliminate 
discrimination against Roma. 

Two  NGOs  submitted  shadow  reports:  the  Latvian  Centre  for  Human  Rights,  highlighting  the 
disproportionate number of Roma children in special education, the symbolic value of granting automatic 
citizenship to non-citizen’s children, the Ombudsman’s low capacity to fight racial discrimination and the 
concerning issue of hate crimes/hate speech; and the Latvian Human Rights Committee, focusing on the 
use of minority languages, political hate speech, etc. The Ombudsman has accused the two NGOs of 
spreading false information allegedly to discredit Latvia.85 

Online source: 
https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/LVA/CERD_C_LVA_CO_6-12_32235_E.pdf 

Luxembourg 

LEGISLATIVE DEVELOPMENT

Change of gender in the civil registry

LU

Gender

On 10 August 2018, an amendment was adopted to the Civil Code establishing the possibility for an 
individual to change their gender and first name(s) in the civil registry.86 The Law entered into force on 
16 September 2018.

The law opens the possibility of changing the gender registration of adult citizens of Luxembourg without 
obliging the applicant to undergo medical or surgical treatments. A declaration, signed by the applicant, 

83 

84 

85 

86 

Currently, the Education Law foresees 60 % Latvian / 40 % minority language in grades 10-12 in schools with bilingual 
education programmes. The amendments envisage a language ratio of 80 % / 20 % in 2019/2020. 
‘Non-citizens’ are former USSR citizens who were resident in Latvia on 1.07.1991 and have not obtained any citizenship. 
According to the Office of Citizenship and Migration Affairs, as of 1.07.2018 there are 228,855 non-citizens in Latvia. 
Statement published by the Ombudsman on 9.08.2018, available at: www.tiesibsargs.lv/news/en/ombudsman-is-critical-
about-effectiveness-of-the-un-committee.
The law was published with Memorial No. 797 on 12.09.2018.

105

Key developments at national level in legislation, case law and policyof ‘intimate and stable conviction’ that his/her gender does not correlate with the sex indicated on his/
her  birth  certificate  suffices.  Minors  of  five  years  and  older,  non-Luxembourg  nationals,  refugees  and 
stateless persons can also apply under special conditions.

The new law confirms the ruling of the Administrative Tribunal of Luxembourg in the case of a request 
for  gender  change  in  the  civil  registry  in  2016.  Prior  to  this  judgment,  judges  requested  medical 
certificates confirming a diagnosis of transgender and establishing the irreversible nature of sex-change 
by hormone therapy and gender reassignment surgery. The Court ruled in this case that, ‘with regard 
to the international evolution inciting the States to abolish sterilisation and the principles laid down in 
Article 8 of the European Convention on Human Rights, the tribunal considers that the principle of the 
irreversible nature of sex-change by gender reassignment surgery leading to sterilisation can no longer 
be maintained’ and ‘that, consequently, the irreversible nature of sex-change should only focus on the 
change in appearance of the individual’.87 

The law transfers the competency to deal with requests to change gender in the civil registry from the 
administrative tribunal to the Ministry of Justice.

Online sources: 
http://legilux.public.lu/eli/etat/leg/loi/2018/08/10/a797/;
https://itgl.lu/legal/loi-relative-a-la-modification-de-la-mention-du-sexe-et-du-ou-des-prenoms-a-letat-
civil/

NL

Netherlands 

LEGISLATIVE DEVELOPMENT

Gender

Bill to extend paternity leave adopted by the House of Parliament

On 2 October 2018, the House of Parliament (Second Chamber) adopted a bill that extends paid birth 
leave for the mother’s partner from two days to one working week. During the leave, the partner will 
continue to receive 100 % of their remuneration. The partner may choose whether he/she takes the week 
directly after the birth of the child or at any other time during the first four weeks after the birth. In most 
cases, the partner will be the father of the child, but this does not have to be the case. The regulation 
applies to the person to whom the mother of the child is married, the registered partner, the person she 
co-habits with or the person who is the legal guardian of the child. The regulation entered into force on 
1 January 2019.

Partners are allowed to request additional birth leave up to a maximum of five weeks, which must be 
taken within six months after the birth. The employer is not obliged to pay salary during this leave, but 
the  employee  can  apply  to  the  social  security  authorities  for  a  benefit  of  70  %  of  their  daily  salary. 
This benefit has a cap and cannot be more than EUR 3 218.80 gross per month.88 The provision for the 
additional leave enters into force on 1 July 2020. Prior to this amendment, an employee whose partner 
gave birth to a child was entitled to two days paid birth leave and three days of unpaid parental leave. 

In addition to birth leave, adoption leave and leave to care for a foster child have also been extended 
from four to six consecutive weeks. Adoption or foster care leave can be taken within six months after 

87 
88 

Luxembourg, Judgment No. 173/2016 of 1.06.2016 of the Administrative Tribunal of Luxembourg (civil affairs).
The amount that applies as of 1 July 2018.

106

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019  
the arrival of the child. Furthermore, the right to a benefit (of 100 % of the daily salary) will be extended 
from four to six weeks. This regulation also entered into force on 1 January 2019.

The  purpose  of  the  extension  of  the  different  types  of  leave  for  partners  is  to  strengthen  the  bond 
between the partner/father and the child, which could ultimately have a positive impact on the position 
of women on the labour market. If the difference in the duration of leave for mothers and fathers is 
reduced, this could strengthen the position of women in the labour market. In addition, the regulation 
should contribute to a better division of tasks between men and women and in this way, create a better 
work-life balance for both. When the care for children is shared more equally between men and women, 
there should be more room for women’s development and for them to continue to work more hours.

The extension of paternity leave has been the subject of discussion for many years in the Netherlands. 
On  1  December  2001,  the  right  to  birth  leave  of  two  days  for  partners  was  introduced.  In  2014,  a 
proposal to extend this leave to five days failed because of the costs. In November 2016, a new proposal 
was submitted to extend the leave to five days, but this proposal was withdrawn after the elections of 22 
March 2017. Subsequently, the present government introduced the newly adopted bill. 

The government referred to the European Commission’s proposal for a directive on work-life balance, 
which also contains a regulation on paternity leave (10 days) and a regulation on partly paid parental 
leave of six weeks. However, the government did not want to await the final outcome and adoption of 
the proposed directive before amending the legislation on birth leave/paternity leave. The government is 
of the opinion that the Dutch proposal meets the standard set in the draft directive on paternity leave/
birth leave. This is different with respect to parental leave. The Dutch government is not in favour of 
a paid parental leave of six weeks, because of the costs. It therefore does not want to anticipate the 
Commission’s proposal in this area.

Also the Dutch birth leave will be one working week, whereas the Commission suggested 10 days. In 
this respect, the government stated that the Commission’s proposal does not require member states to 
guarantee payment during these 10 days.

Online source: 
www.rijksoverheid.nl/documenten/kamerstukken/2018/06/14/wetsvoorstel-invoering-extra-geboorte 
verlof-incl.-memorie-van-toelichting

CASE LAW

Judgment by the Council of State on discrimination against a pregnant woman who 
applied for a research grant

Gender

On  31  October  2018,  the  Council  of  State  delivered  its  judgment  in  the  case  of  a  female  academic 
researcher who had applied for a (substantial) grant for her research. On 19 October 2015, the applicant 
sent an email to NWO (Netherlands Organisation for Scientific Research), the organisation in charge of 
selecting recipients of research subsides, to inform them of her pregnancy and to ask them to take this 
into account during the application process. During the application procedure, an applicant has five days 
to  submit  a  reply/defence  to  the  reports,  which  are  drafted  by  referees  regarding  his/her  application. 
This deadline lay on or around the date the applicant was due to give birth. When the applicant asked 
for a deferral, NWO informed her that this was not possible. Therefore, the applicant asked if the NWO 
could send the referee reports with comments and questions regarding her application to her as soon 
as possible after receiving them so that she could already start to work on formulating her response 
to the reports. NWO received the reports on 10 November, 26 November and 21 December 2015. On 
5 January 2016, the applicant contacted the NWO to find out if the reports had already been received. 
Subsequently she received the reports on 7 January. She submitted her reply three days before giving 

107

Key developments at national level in legislation, case law and policybirth on 13 January. Her application was rejected in May 2016. The applicant argued that NWO acted in 
a discriminatory way by not paying due attention to the fact that she was pregnant and was due to give 
birth. 

The lower administrative court dismissed the case, but was overruled in appeal by the Council of State’s 
decision.  The  Council  observed  that  the  policies  of  NWO  were  not  discriminatory  per  se.  NWO  has  a 
‘Diversity  Policy’  which  takes  into  account  the  specific  situation  of  pregnant  applicants.  However,  the 
decisions by NWO in this individual case did not meet the high standards that are applicable when civil 
rights are at stake. ‘The degree of assertiveness of the pregnant applicant cannot determine the extent 
to which her fundamental rights are respected’, so the Council ruled. NWO should have contacted the 
applicant to discuss the appropriate period for the response, taking into account the interests of other 
applicants. This was especially the case, as NWO was informed of the pregnancy and the due date and 
because they had already received the referee reports in November and December 2015, but did not 
send them to the applicant until 7 January 2016. 

The Council revoked the decision by NWO and ruled that if the applicant still wants to continue with her 
application for the grant, her application must be included in the next application round.

This is a relevant judgment for several reasons. Firstly, there have been discussions about equal treatment 
by NWO, but this is the first time that the issue has been the subject of a court ruling. Secondly, the 
subsidies that NWO can grant can be substantial amounts (up to EUR 800 000 in this case) and are very 
important for academics, especially academics in the first stages of their career. These grants are usually 
awarded during a phase of life in which women often become pregnant. As the time schedules for the 
NWO applications are very strict, it is very difficult for women who are pregnant or have young children to 
deliver the necessary high quality within the set time limits. In view of this, it is important that the Council 
of State explicitly ruled that NWO must pay due attention to the interests of pregnant women and that 
it is the basic right of a pregnant woman to be treated equally in a situation like this.

Online source: 
www.raadvanstate.nl/uitspraken/zoeken-in-uitspraken/tekst-uitspraak.html?id=97095

POLICY AND OTHER RELEVANT DEVELOPMENTS

New housing policy for Roma to ensure non-discrimination and the enjoyment of their 
cultural rights 

Racial or 
ethnic origin

In July 2018 the Minister of the Interior and Kingdom Relations issued a new housing policy framework for 
Roma, Sinti and Travellers.89 The aim is to prevent discrimination, ensure the cultural rights of the target 
groups and to provide legal security in the area of housing. The policy framework provides guidelines for 
municipal authorities, effectively limiting their power to autonomously shape housing policy regarding 
Roma, Sinti and Travellers. In particular, municipalities are required to provide more space for the target 
groups to live in accordance with their own cultural identity and to ensure they have the opportunity to 
obtain a place to live in a trailer park within a reasonable timeframe. Most importantly, municipalities are 
no longer allowed to pursue policies aimed at eliminating trailer parks. 

During the last decades, many municipalities have been very reluctant to provide adequate housing for 
Roma, Sinti and Travellers at trailer parks or even pursued ‘elimination policies’ regarding such parks, 
aiming instead to make the inhabitants settle in more regular housing. Both the national equality body, 
the Netherlands Institute for Human Rights (NIHR), and the National Ombudsman had held in the past 

89 

Beleidskader Gemeentelijk woonwagen- en standplaatsenbeleid, available at: www.rijksoverheid.nl/documenten/rapporten/ 
2018/07/02/beleidskader-gemeentelijk-woonwagen-en-standplaatsenbeleid.

108

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 that such elimination policies were in violation of the prohibition of discrimination on the grounds of 
race or ethnic origin.90 The new policy framework is in line with the recommendations of both institutions 
to provide housing opportunities for Roma, Sinti and Travellers that respect their cultural identity and 
human rights.

Online source: 
www.rijksoverheid.nl/documenten/rapporten/2018/07/02/beleidskader-gemeentelijk-woonwagen-en-
standplaatsenbeleid 

Poland 

LEGISLATIVE DEVELOPMENTS

PL

The proposed draft amendments to the law of 2005 on family violence are not in 
compliance with the Istanbul Convention

On 31 December 2018, the governmental draft law amending the law of 2005 on counteracting family 
violence was published on the website of the Ministry for Family, Employment and Social Policy.91 The 
proposed amendments may be considered as a step backwards in the protection of victims of gender-
based violence.

Gender

The controversial amendments included a change to the name of the Act, by replacing the term ‘violence 
in the family’ (in Poland, the family is considered an institution that should always be protected and kept 
on a pedestal, regardless of circumstances) with the term ‘domestic violence’. Other proposed changes of 
the law are clearly not in compliance with standards provided for in the Istanbul Convention. For instance, 
alterations to the definition of family (domestic) violence in the current proposal considers as domestic 
violence only recurring acts of violence. Thus all forms of protection and assistance to victims provided 
for in the law would not apply to one-off cases. In addition, the procedure for issuing the uniform protocol 
of the so-called ‘Blue Card’,92 initiated mainly by the police in the event of discovering cases of domestic 
violence, in order to document the history of its interventions, was also changed and made dependent on 
the victim’s consent. This change didn’t take into account the fact that in most domestic violence cases 
the victims are intimidated by the perpetrators, so a lack of consent may arise from the victim’s fears 
for their own life or health or that of their children. In response to heavy criticisms from experts, the 
Prime Minister withdrew this proposal on 3 January 2019, assuring the public that all ‘dubious changes’ 
proposed will be removed. The resignation of the deputy Minister of Family, Labour and Social Policy, who 
was responsible for the preparation of the draft amendment, was also announced on that day. 

Online sources: 
www.tvn24.pl/wiadomosci-z-kraju,3/jednorazowa-przemoc-nie-bylaby-przemoca-projekt-nowelizacji-
ustawy-o-przemocy-w-rodzinie,896663.html;
http://wyborcza.pl/7,75398,24344225,morawiecki-zdymisjonowal-wiceminister-odpowiedzialna-za-
projekt.html

90  Netherlands, NIHR opinions Nos. 2015-6, 2016-19, 2016-22, 2016-71, 2016-72; 2017-55; 2017-103; 2017-136; 2017-137. All 

opinions can be found at https://mensenrechten.nl/nl/oordelen. See also National Ombudsman, ‘Woonwagenbewoner 
zoekt standplaats. Een onderzoek naar de betrouwbaarheid van de overheid voor woonwagenbewoners’ [Trailer resident seeks 
trailer site. An investigation into the reliability of the public authorities for trailer inhabitants], available at:  
www.nationaleombudsman.nl/system/files/bijlage/DEF%20Rapport%202017060%20Woonwagenbewoner%20zoekt%20
standplaats.pdf.
http://wyborcza.pl/7,75398,24327192,ministerstwo-rodziny-projekt-ustawy-o-przemocy-w-rodzinie-zostal.html.
The Blue Card procedure is a multi-agency intervention system and procedure for domestic violence. 

91 
92 

109

Key developments at national level in legislation, case law and policyUnequal retirement age for female and male academics and scientists

On 1 October 2018, most provisions of the Law of 3 July 2018 on higher education and science (informally 
called by the drafters the ‘Constitution for science 2.0 or Law 2.0’) entered into force. This Law does not 
provide for any special regulations regarding the retirement age of academics and scientists. As a result, 
the general rules on retirement apply, providing for a differentiated retirement age for women (60 years) 
and men (65 years). The original ministerial draft of the Law on higher education (dated 22 January 
2018) provided in Article 146 §1 for an equal retirement age for academic teachers, at the age of 65, 
regardless of their sex. However, this provision was removed even before the draft was submitted to the 
Parliament, despite protests from the academic community. 

Gender

In  addition  to  numerous  well-known  general  arguments  in  favour  of  an  equal  retirement  age  for  all 
working women and men, e.g. the lower amount of retirement benefits received by women compared to 
men, there are also specific arguments relating in particular to scientists and academic teachers.93 The 
academic careers of women are often delayed by their activities in relation to maternity and childcare. 
If  subjected  to  a  lower  retirement  age,  female  academics  and  scientists  have  less  time  to  progress 
towards higher academic levels. Many women may not be able to become professors at all. While Law 
2.0 emphasises that all scientists have to compete according to the same rules, in practice women will 
not be able to compete on equal terms because they will have five years’ less time to achieve what 
male scientists may continue to strive to achieve until the age of 65. According to research presented 
by the Ministry of Science and Higher Education, the title of professor is awarded on average at the age 
of 57. Should a woman become professor at that age and finally achieve a prestigious position and the 
recognition of her academic abilities, she would only be able to enjoy this stable employment situation 
for three years before her retirement (at the age of 60). 

It should also be mentioned that there are far fewer women employed in higher education than men. The 
lowering of the retirement age for women will result in fewer possibilities for intergenerational exchange 
between established female academics and their younger female peers.94 The earlier retirement age, 
generally discriminatory for all female workers, and in particular for female academics and scientists, 
will  result  in  fewer  opportunities  for  women  to  participate  in  decision-making  processes  concerning 
science and university education. The same goes for female academics’ chances to participate actively in 
decision-making in the academic and scientific world. It should be noted that the management structures 
of Polish universities are currently already mainly dominated by men over the age of 60. For example, 
the  management  board  of  the  Conference  of  Rectors  of  Polish  Academic  Schools  does  not  include  a 
single woman. 

Online sources: 
www.petycjeonline.com/list_rodowiska_akademickiego_do_prezydenta_rzeczypos
http://serwisy.gazetaprawna.pl/edukacja/artykuly/1113722,wiek-emerytalnynaukowcow-kobiety-chca-
pracowac-dluzej.html

93 

94 

According to a report prepared by the Polish Social Security Institution in 2017, the average retirement benefit for men 
amounted to PLN 2,699.52 (approx. EUR 750), while in the case of women it amounted to PLN 1,614.39 (approx. EUR 400). 
It should be noted that for academics who are already full professors the retirement age is the same for women and men: 
70 years. It still means however that women have 5 years less in order to obtain the title of professor since their retirement 
age before having this title is 60 while for men it is 65. 

110

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 PT

Gender

Portugal 

LEGISLATIVE DEVELOPMENT

New law on the promotion of equal pay for men and women

On 21 August 2018, Law No. 60/2018 on the promotion of equal pay for men and women for equal work 
or work of the same value was adopted.95 This law entered into force six months after its publication, as 
established by Article 19 of the law.

The main goal of this piece of legislation is to establish a set of measures directly intended to contribute 
to a better implementation of the principle of equal pay. These measures are the following:

 – The  Ministry  of  Employment  and  Social  Affairs  will  publish  detailed  statistics  on  a  yearly  basis 
regarding  the  salary  gap  between  men  and  women,  at  both  the  general  and  sectoral  levels;  and 
statistics specifically per company, profession and qualification level, based upon the annual balance 
sheet provided by the companies (Article 3);

 – Employers must implement a transparent wage policy in their companies (Article 4);
 – Following the publication of the statistical data mentioned above, if the Gender Equality Agency in 
Employment (CITE) detects wage inequalities in a company, it notifies the employer that they must 
present an, ‘evaluation plan of the wage differences in the company’ which is intended both to justify 
those differences and to eliminate those with no objective justification; the plan will be put in place 
for a period of 12 months (Article 5); 

 – Workers  and  union  representatives  also  have  the  right  to  ask  the  CITE  for  advice  on  alleged 
discriminatory gender pay practices within the company; if the CITE concludes that wage discrimination 
on the ground of sex is in place, the employer is compelled to eradicate it and may be subjected to 
a fine (Article 6);

 – The dismissal or application of disciplinary measures against a worker until one year after he/she has 

asked the CITE for the advice indicated above is presumed unlawful (Article 7).

The measures now approved are examples of possible good practices in this field, since they go significantly 
beyond the level of protection granted by EU law. However, they may be difficult to implement in practice 
(mainly as regards the assessment tasks of the CITE). At another level, this Act repeats some of the 
definitions  and  some  of  the  rules  that  are  already  inscribed  in  the  Labour  Code,  apparently  with  the 
aim of reinforcing the protection already granted in this field. However, since the content of both the 
definitions and the rules is not always equivalent, some technical problems may arise in the application 
of this legislation.

95 

Portugal, Law No. 60/2018 of 21 August 2018, published in the Official Journal of 21.08.2018 (www.dre.pt).

111

Key developments at national level in legislation, case law and policyRO

Romania 

LEGISLATIVE DEVELOPMENTS

Gender

Legal amendments to the Gender Equality Law: harassment prohibited, level of fines 
reduced 

On 6 August 2018, a new amendment of the Gender Equality Law entered into force after being adopted 
by the Parliament on 10 July 2018 and promulgated by the President on 2 August 2018.96 

The Chief of the Commission on Equal Opportunities between Women and Men from the Chamber of 
Representatives  promoted  the  amendment,  as  a  bill  to  prohibit  harassment  in  the  street.  Before  the 
adoption of the amendment, the Gender Equality Law only provided definitions of harassment, sexual 
harassment and psychological harassment, omitting to include these in the list of behaviours prohibited 
by Article 37 of the Gender Equality Law. 

The new provisions give the police, gendarmes and local police, the mandate to sanction all harassment, 
sexual harassment and psychological harassment behaviours, irrespective of whether it takes place in 
the public or private sphere.

However,  the  amendment  also  divides  by  ten  the  maximum  level  of  administrative  fines  that  can  be 
issued in case of all forms of sex discrimination, including harassment. Instead of ranging from EUR 631 
(RON 3 000) to EUR 21 052 (RON 100 000), fines can now range from EUR 631 (RON 3 000) to EUR 2 105 
(RON 10 000).

The  inaccuracies  in  the  Gender  Equality  Law,  including  the  fact  that  harassment  was  not  previously 
included  in  the  list  of  forbidden  behaviours  that  are  sanctioned  by  this  law,  are  caused  by  repeated 
amendments  of  the  law  which  are  not  well  coordinated.  This  amendment  aims  to  address  these 
inaccuracies. At the same time, because several national laws overlap in the field of equality and non-
discrimination – for example the Gender Equality Law and the Anti-Discrimination Law – definitions and 
institutional mandates also overlap. 

For example, before the adoption of Law 232/2018, harassment, including harassment on the ground 
of sex, was already prohibited under the Anti-discrimination Law.97 The National Council for Combating 
Discrimination  sanctioned  several  cases  of  sexual  harassment  or  harassment  on  the  ground  of  sex, 
basing its decisions on the Anti-Discrimination Law, not on the Gender Equality Law. From this point of 
view, this amendment is only duplicating provisions which already exist. The novelty of Law 232/2018 is 
that it gives power to the police and gendarmes to sanction sexual harassment, instead of the National 
Council for Combating Discrimination, an institution that has developed a certain level of expertise in 
equality and non-discrimination over the last 15 years.

Along with sending the message that sex discrimination and harassment is no longer considered as serious 
an offence as it was before, this change also places sex discrimination on an inferior scale compared 
to discrimination on all other protected grounds, because the provisions of the Anti-Discrimination Law 
stipulate higher fines. According to Article 26 of the Anti-Discrimination Law, the fines range between 
EUR 210 (RON 1,000) and EUR 6,310 (RON 30,000) for discrimination against an individual and EUR 420 
(RON 2 000) and EUR 21 052 (RON 100 000) for discrimination against a group or a community. 

96 
97 

The legislative process is available at: www.cdep.ro/pls/proiecte/upl_pck2015.proiect?cam=2&idp=17052.
Romania, Government Ordinance No.137/2000 on the prevention and prohibiting of all forms of discrimination, Articles 2 
(5) and 26 (1).

112

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Online source: 
www.cdep.ro/pls/proiecte/docs/2018/pr258_18.pdf

Legal amendments to the Gender Equality Law: new and revised structures

Gender

On 19 July 2018, a new amendment to the Gender Equality Law entered into force after being adopted 
by the Parliament on 18 June 2018 and promulgated by the President on 16 July 2018.98 

Gender

The  amendment  regulates  the  professional  status  of  equal  opportunities  experts  and  specialists.  It 
establishes  the  main  competences  that  fall  under  these  professions  (Article  2(5)  of  Law  202/2002), 
including assessing gender inequality with the employer and proposing solutions, such as drafting action 
plans and implementing projects and programmes aimed at addressing gender inequality.

The new provisions only create the possibility, not the obligation, for public and private employers with 
more than 50 employees to assign the competences mentioned above to an employee who is already 
working for them or to hire a gender equality expert/specialist, depending on available budget.

The  amendment  also  establishes  the  governing  structure  of  COJES,  the  county  level  commission  in 
the  field  of  equal  opportunities  for  women  and  men  (Comisia  judeţeană  de  egalitate  de  sanse  intre 
femei si barbaţi), by explicitly mentioning which institutions from the local level appoint the President, 
Vice President, and Executive Secretary of COJES. It also assigns to the National Institute for Scientific 
Research in the Field of Labour and Social Protection the legal obligation to provide data and information 
necessary for drafting strategies and policies in the field of equal opportunities and treatment of women 
and men.

The Government, in particular the National Agency for Equal Opportunities for Women and Men (ANES), 
promoted this bill. Its aim is to establish an effective structure at the local level (COJES) that ANES can 
work with to implement policies and projects on gender equality throughout the country.

The  Explanatory  Statement  accompanying  the  bill  clarifies  that  the  regulation  of  the  professions  of 
gender equality expert and gender equality specialist was necessary because ANES trained experts and 
specialists in a project implemented in 2015 using European structural funds. Moreover, Romania joining 
UN Women’s ‘HeForShe’ campaign involved committing to 70 % of the 1 680 national and local public 
institutions including gender equality experts/specialists in their organisational chart.

In addition, the change in the COJES governance structure aims to ensure the functioning of these local 
commissions  and  the  representation  and  participation  in  COJES  of  the  local  institutions  that  have  a 
mandate and could contribute to tackling violence against women and ensuring equal opportunities and 
equal treatment of women and men, for example the General Department for Social Assistance and Child 
Protection.

Online sources: 
www.cdep.ro/pls/proiecte/docs/2018/pr171_18.pdf
www.cdep.ro/proiecte/2018/100/70/1/em226.pdf (Explanatory statement)

98 

The legislative process is available at: www.cdep.ro/proiecte/2018/100/70/1/em226.pdf.

113

Key developments at national level in legislation, case law and policyNew anti-money-laundering legislation may paralyse NGOs supporting vulnerable groups

All grounds

The anti-money-laundering law adopted by Parliament on 25 October 2018 for the purpose of transposing 
Directive 2015/84999 is criticised for having a ‘chilling effect’ on civil society organisations, as well as for 
irregularities in the voting procedures.100 The law qualifies NGOs as ‘reporting entities’ similar to for-profit 
entities such as banking institutions, auditors, etc. insofar as they provide financial services. Additional 
due diligence obligations are thus imposed upon these organisations,101 the sanction for failure to comply 
being the dissolution of the organisation.

Furthermore, the inaccurate translation of certain terms in the text of the law imply that every single 
person  actually  assisted  in  any  way  by  a  civil  society  organisation  would  have  to  be  reported  to  the 
anti-money-laundering  authorities,  regardless  of  the  type  of  service  or  assistance  provided.  Personal 
data of beneficiaries, including vulnerable groups targeted by discrimination, will thus be shared with the 
relevant authorities, possibly in violation of the EU General Data Protection Regulation. 

Online source: 
www.cdep.ro/pls/proiecte/upl_pck2015.proiect?idp=17322 

POLICY AND OTHER RELEVANT DEVELOPMENTS

Attacks against the National Council for Combating Discrimination (equality body)

All grounds

In the context of the failed constitutional referendum which sought to redefine family, and of a draft bill 
on civil partnership which is publicly supported by the equality body, the National Council for Combating 
Discrimination (NCCD), there have been more and more calls in the public arena targeting the body. The 
Vice President of the Liberal Party, as well as other politicians, has asked for the institution to be closed 
down, arguing notably that it is ‘a Gestapo-type institution’ aiming to oppress freedom of expression and 
freedom of religion.

In addition to conservative politicians criticising the NCCD for being a ‘policeman of political correctness’, 
an online petition was launched against the institution and notably against the fact that the President 
and the spokesperson for the Orthodox Church, for instance, were called to attend hearings before the 
NCCD when petitions were filed against them.102 Criticism is also directed at the partnership between 
the NCCD and the LGBT organisation, ACCEPT, and their combined efforts to train judges, prosecutors, 
lawyers, teachers, medical doctors and social assistants. Finally, the position of the NCCD in the Coman 
case before both the CJEU and the Romanian Constitutional Court has been heavily criticised.103 

Online source: 
https://romanialibera.ro/politica/motivele-pentru-care-se-cere-desfiintarea-cncd-757261?fbclid=IwAR2_
PPBZEsT9-ZMNgRFEFp8vOogHk6NZlsRS5YaKjdWAC1-soed-0TRSlGY

99  Directive 2015/849 of 20 May 2015 on the prevention of the use of the financial system for the purposes of money 

laundering or terrorist financing.

100  An appeal in English against the provisions is available at: https://civilsocietyeuropedoteu.files.wordpress.com/2018/10/

letter-to-vp-timmermans-commissioner-jourova-aml-transposition-romania-public.pdf.

101  The 18 organisations representing national minorities present in Parliament are exempted. Other NGOs representing the 

same national and ethnic minorities are not exempted. 

102  Petition available at 2018 – www.petitieonline.com/petitie_pentru_desfiintarea_consiliului_national_pentru_

combaterea_discriminarii_cncd.

103  See CJEU, C-673/16, Grand Chamber judgment of 5 June 2018, ECLI:EU:C:2018:385 as well as the final ruling of the 

Romanian Constitutional Court of 18 July 2018. 

114

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 SK

Age

Slovakia 

CASE LAW

Expert opinion of the equality body on age discrimination

The claimant had applied for a position of train steward with a private train company for which she met 
all the required criteria, yet she was not selected. The employer had informed her that applicants born 
after 1986 had been prioritised, while it had been deduced from her CV that she must have been at least 
ten years older. The claimant filed a complaint with the national equality body, claiming that she had 
been discriminated on the ground of age. 

Before  the  equality  body,  the  employer  stated  that,  among  other  criteria,  an  assessment  had  been 
made of how the applicants would fit in the current team of train stewards. In this regard, the employer 
explained that all the train stewards on the given train route were young people who spend time together 
not only at work, but who also share joint company accommodation when they have to stay overnight. 
The employer generally concluded that, in order to secure the effective functioning of the working team 
and satisfaction of its members, it limited the selection of the candidates by taking into consideration 
the fact that its oldest currently employed steward was 31 years old. The CVs of the selected candidates 
showed that the claimant only differed from them in age and that her work experience was particularly 
relevant for the position as described in the job advertisement. 

The National Centre for Human Rights concluded that the exclusion of the candidate on the ground of her 
age for the given employment position could not be objectively justified.104 In this regard it pointed out 
that differential treatment on the ground of age can only be lawfully considered in specific circumstances, 
as specified by law. It thus concluded that the employer had discriminated against the claimant on the 
ground of age. The Slovak equality body cannot impose any duties on the employer, but its expert opinion 
can be relied upon before the national courts if the claimant were to bring a case before them. 

Online source: 
http://www.snslp.sk/CCMS/files/Odborné_stanovisko_-_Diskriminácia_z_dôvodu_veku_v_predzm 
luvných_pracovnoprávnych_vzťahoch.pdf

Constitutional court dismissed a complaint on the failure of public prosecution offices to 
assess the discriminatory impact of a municipal housing regulation

In July 2016, the town of Prešov adopted a binding regulation on social housing which gave tenants 
the possibility of swapping flats with each other, upon the mayor’s agreement, but only within their own 
neighbourhood. In one of these neighbourhoods, there is a significant proportion of Roma inhabitants. A 
local human rights NGO challenged the relevant provision at a district prosecution office, arguing that it 
amounted to indirect discrimination of Roma tenants living in the given area as it effectively prevented 
them  from  swapping  their  flats  with  tenants  from  other  areas  of  the  town.  As  such  it  contributed  to 
maintaining their housing segregation and ghettoisation. 

Racial or 
ethnic origin

The  district  and,  subsequently,  the  regional  and  general  prosecution  offices  dismissed  the  complaint, 
leading the NGO to bring the issue to the attention of the Constitutional Court, arguing a violation of its 
right to judicial and other legal protection and the right to fair trial guaranteed by the Slovak Constitution 
and European Convention on Human Rights. In particular, it argued that the prosecution offices did not 

104  Expert opinion of the Slovak National Centre for Human Rights dated 11.07.2018. Available at: http://www.snslp.sk/CCMS/
files/Odborné_stanovisko_-_Diskriminácia_z_dôvodu_veku_v_predzmluvných_pracovnoprávnych_vzťahoch.pdf.

115

Key developments at national level in legislation, case law and policyRacial or 
ethnic origin

All grounds

duly investigate its complaints and did not take into account its legal argumentation, thus violating the 
principle of equality of legal arms.

The Constitutional Court dismissed the constitutional complaint as manifestly ill-founded. Although it noted 
that the claimant’s arguments could have been analysed in greater depth, it stated that the prosecution 
offices sufficiently substantiated their decisions. The Court also disregarded the NGO’s claim regarding 
an alleged violation of its right to effective remedies under Article 6 of the International Convention on 
the Elimination of Racial Discrimination. In this regard the Court concluded that the claimant, as a legal 
entity, does not have an ethnic origin that could form the basis for racial discrimination and violation of 
rights under the Convention.105 

Online source: 
www.ustavnysud.sk/vyhladavanie-rozhodnuti#!DecisionsSearchResultView 

Constitutional Court decision on liability for discriminatory treatment in access to 
services

The claimant filed a constitutional complaint against the decisions of the general courts106 in his case of 
racial discrimination which concerned the refusal by a mobile telephone operating company to provide 
him with a fixed-price phone service.107 The general courts, including the Supreme Court, had dismissed 
his claim due to the particular circumstances of the case which prevented the liability of either of the 
respondents. The courts had found that the person who was responsible for the discriminatory treatment 
was an employee of the company providing the mobile telephone operating company’s services under an 
agency contract at the relevant time, but this service provider no longer has a contract with the mobile 
operator.  As  the  rights  to  human  dignity  and  protection  from  discrimination  are  personal  rights,  the 
general courts found that the service provider’s successor could not be deemed responsible. Furthermore, 
the mobile telephone operating company could not be deemed responsible either as it had not been in 
direct contact with the claimant. 

Before the Constitutional Court, the claimant argued that the general courts had violated his right to a 
fair trial guaranteed by the Slovak Constitution.

On  15  November  2018,  the  Constitutional  Court  dismissed  the  claimant’s  constitutional  complaint, 
finding that the legal opinion and reasoning of the general courts regarding the lack of responsibility 
of the respondents for discriminatory treatment had not been in breach of the Constitution. The Court 
confirmed that a violation of the principle of equal treatment has a personal character and cannot be 
transferred by contract to the legal entity’s successor. 

Online source: 
www.ustavnysud.sk/vyhladavanie-rozhodnuti#!DecisionsSearchResultView

105  Slovakia, Constitutional Court, 1.08.2018, No. IV. ÚS 435/2018-13, delivered on 10.09.2018 in the case Poradňa pre 

občianske a ľudské práva (Centre for Civil and Human Rights) v District prosecution Prešov in the proceeding file no. Pd 
267/16/7707, Regional prosecution in Prešov in the proceeding file no. Kd 78/17/7700 and General prosecution of Slovak 
republic in the proceeding file no. VI/2 Gd 411/17/1000-9. 

106  Slovakia, Regional Court in Kosice, 18.09.2013 No. 5 Co 197/2012; and Supreme Court, 8.12.2016, No. 3 Cdo 405/2015 – 773. 
107  See also European equality law review, Issue 2017/1, pp 130-131. 

116

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Spain 

LEGISLATIVE DEVELOPMENTS

ES

Comprehensive bill for equal treatment and non-discrimination 

In 2011, the socialist government presented an important equality bill to fill the existing gaps in Spanish 
non-discrimination law. Due to early elections and the subsequent appointment of a new conservative 
government, however, the bill was never approved. 

In March 2017, the Socialist Parliamentary Group presented a bill similar to the bill of 2011, which has 
been pending since then. In June 2018, a new socialist government was formed and one of its main 
priorities was to strengthen equality policies and promote the 2017 bill. 

All 
grounds

The bill covers all grounds listed in Article 14 of the Constitution, i.e. all those covered by the EU directives 
as well as disease and sexual identity and ‘any other personal or social condition or circumstance’. All 
fields of application covered by Directives 2000/43 and 2000/78 are covered by the bill, in addition to 
the area of media and advertising. 

The bill proposes definitions that are consistent with the Directives, and also defines and prohibits multiple 
discrimination (‘when various causes of those provided in this law are combined or interact, generating 
a  specific  form  of  discrimination’),  as  well  as  discrimination  ‘by  mistake’  (‘founded  on  an  incorrect 
assessment of the characteristics of the person discriminated against’). As far as judicial protection and 
administrative action against discrimination are concerned, a wide array of potential remedies is listed in 
the bill, including invalidity declaration, termination, repair, prevention, and compensation for material and 
moral damages. Rules regarding the burden of proof are provided for in accordance with the Directives, 
as is the participation of organisations in civil, social and administrative procedures. With regard to public 
authorities, the bill foresees an obligation to act when they have knowledge of an act of discrimination. 
Furthermore, it stipulates that a national strategy for equal treatment and non-discrimination is to be 
developed as well as positive action measures. Finally, public authorities are to collect and systematise 
statistical data so as to diagnose the reality of discrimination and to design new policies.

The bill also foresees the creation of an authority for equal treatment and non-discrimination, to exercise 
the  equality  body  mandate  as  foreseen  by  the  Racial  Equality  Directive.  It  would  be  an  independent 
body and its duties would include the functions foreseen by the Directive as well as additional functions 
such as mediation, investigation of cases of discrimination on its own initiative, intervention in litigation, 
training,  etc.  It  would  have  jurisdiction  on  all  grounds  of  discrimination,  which  implies  that  the  two 
existing bodies (dealing with racial and gender discrimination, respectively) would be abolished or change 
their functions. 

Last  but  not  least,  a  comprehensive  regime  for  infractions  and  sanctions  is  foreseen,  to  replace  the 
current system where sanctions are laid down for all grounds only in the field of employment and in all 
fields for gender and disability.108 

Online source:
www.congreso.es/public_oficiales/L12/CONG/BOCG/B/BOCG-12-B-97-1.PDF#page=1

108  After the cut-off date for this publication, on 13.02.2019, Parliament rejected the draft General State Budget presented by 

the government and as a result, the President of the government dissolved the Parliament. As a result, all bills, including 
the Comprehensive Bill for Equal Treatment and Non-Discrimination, were withdrawn.

117

Key developments at national level in legislation, case law and policyGender

Gender

Calculation of unemployment benefits for part-time workers in conformity with the CJEU 
judgment in Espadas Recio of 9 November 2017

Royal Decree 950/2018, of 27 July 2018, has implemented the judgment of the CJEU of 9 November 
2017, C-98/15 (Espadas Recio) and, accordingly, modified social security legislation so that for part-time 
workers the calculation of the right to unemployment benefits takes into consideration the days that 
they have contributed to the social security system rather than only the days that they have effectively 
worked.109

In  its  judgment,  the  CJEU  considered  that,  by  excluding  the  days  not  worked  for  calculating  the 
unemployment benefit, Article 3(4) of Royal Decree 625/1985110 established a difference in treatment 
to the detriment of ‘vertical’ part-time workers. Given that ‘vertical’ part-time workers were adversely 
affected by this national measure and given that 70 % to 80 % of ‘vertical’ part-time workers are women, 
Article 3 (4) of the Royal Decree 625/1985 is discriminatory against women (indirect discrimination). The 
CJEU considered, then, that Article 3 (4) of the Royal Decree 625/1985 goes against Article 4 (1) of the 
Council Directive 79/7/EEC of  19 December 1978  on the  progressive implementation  of  the  principle 
of equal treatment for men and women in matters of social security. The new legislation has simply 
established that the duration of the unemployment benefit must be based on the number of days for 
which social security contributions were paid in the preceding six years, which is the system applied to 
full-time workers. 

Online source:
www.boe.es/diario_boe/txt.php?id=BOE-A-2018-10652

Paternity leave extended to five weeks

Law 6/2018 of 3 July 2018 (Final Disposition 38) has extended paternity leave from four to five weeks.111

Paternity leave was first established in 2007 by the Organic Law on Effective Equality.112 This provision 
granted new fathers 13 fully paid days of leave and stated the intent to extend it to four weeks within 
six  years  after  implementation  of  the  law.  However,  the  promised  extension  of  paternity  leave  was 
continuously postponed and only finally came into force on 1 January 2017. 

The State budget act for 2018 extending paternity leave to five weeks was approved by means of Law 
6/2018 on 3 July 2018.113 This was the second extension of paternity leave within two years. This new 
law has changed Article 48.7 of the Workers’ Statute and Article 49.c) of the Basic Statute of the Public 
Employee and applies to both workers in the private sector and civil servants. Apart from a prolongation 
of the leave, the act also introduced the possibility of taking up paternity leave in two separate periods 
within the first nine months after the birth of a child. 

109  Spain, Royal Decree No. 950/2018, of 27.07.2018, which modifies Article 3(4) of Royal Decree No. 625/1985, of 2 April 1985, 

available at: www.boe.es/diario_boe/txt.php?id=BOE-A-2018-10652.

110  Spain, Article 3 (4) of the Royal Decree 625/1985, of 2.04.1985, on unemployment benefit, available at:  

www.boe.es/buscar/act.php?id=BOE-A-1985-8124.

111  Spain, Article 48.7 of the Workers’ Statute, approved by Royal Legislative Decree 2/2015, of 23 October 2015, modified by 

Law 6/2018, of 3 July 2018, www.boe.es/buscar/act.php?id=BOE-A-2015-11430.

112  Spain, Organic Law on Effective Equality, Law 3/2007, 22 September 2007
113  Spain, State Budget Act for 2018, approved by Law No. 6/2018, of 3.07.2018, available at: www.boe.es/diario_boe/txt.

php?id=BOE-A-2018-9268.

118

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 Proposed draft reform of Article 49 of the Constitution on the rights of persons with 
disabilities

Article 49 of the Spanish Constitution, approved in 1978, was aimed at protecting people with disabilities 
and since then a rich body of legislation has developed on the basis of that provision. On 7 December 
2018,  a  draft  proposal  was  adopted  by  the  Government  to  adapt  Article  49  to  the  CRPD,  radically 
modifying  the  language  and  structure  of  the  provision.  The  wording  proposed  is  based  on  the  work 
carried out by the Commission for Comprehensive Disability Policies of the Congress of Deputies, with 
the active participation of the Committee of Representatives of People with Disabilities. 

Disability

The draft provision is worded as follows:

1.  ‘Persons with disabilities are holders of the rights and duties set forth in this Title in conditions of real 

and effective freedom and equality, without discrimination.

2.  The public authorities shall implement the necessary policies to guarantee full personal autonomy 
and social inclusion of persons with disabilities. These policies will respect their freedom of choice 
and preferences and will be adopted with the participation of organisations representing persons with 
disabilities. The specific needs of women and girls with disabilities will be particularly addressed.
3.  The reinforced protection of persons with disabilities will be regulated for the full exercise of their 

rights and duties.

4.  Persons with disabilities enjoy the protection provided in international agreements that ensure their 

rights.’

The  Government’s  proposal  represents  a  vast  improvement,  notably  due  to  the  conceptual  approach 
to  disability  which  focuses  on  a  social  rather  than  medical  and  rehabilitative  model  and  emphasises 
the  rights  and  duties  of  persons  with  disabilities.  Furthermore,  it  foresees  the  active  participation  of 
representative organisations of persons with disabilities in the establishment of relevant policies.

The preliminary draft of the Government would need to be approved by Parliament to be adopted.114

Online source:
www.lamoncloa.gob.es/consejodeministros/referencias/Paginas/2018/refc20181207.aspx

CASE LAW

The National Court rejects the right of a sex workers’ association to create a union

The National Court stated in a judgment of 19 November 2018 that, under Spanish Law, the existence 
of a sex workers’ union is null and void given that it is not possible to conclude an employment contract 
for the purpose of prostitution.

Gender

In the summer of 2018 OTRAS (a sex workers’ organisation) sent a request to the General Directorate of 
Labour to be registered as a union. The accompanying statutes stated that the purpose of this union was 
to defend the labour interests of sex workers. This included prostitutes, but also workers related to other 
sex activities such as porn actors. In accordance with Spanish legislation, which recognises the freedom 
of association in the Freedom of Association Organic Law (Organic Law 11/1985, of 2 August 1985), 
public authorisation for the creation of unions is not necessary, but the Labour Authority may refuse to 
register a union or may request changes if the application does not comply with current legislation. 

114  Following the dissolution of Parliament by the Government after the cut-off date of this report, the proposal is now put on 

hold pending new general elections.

119

Key developments at national level in legislation, case law and policyTwo human rights associations and the public prosecutor’s office filed a complaint against the statutes 
of OTRAS, alleging that it is illegal to hire people to practise prostitution and that, therefore, the union 
is  illegal.  OTRAS,  supported  by  several  feminist  organisations,  maintained  that  defending  the  labour 
rights of prostitutes was appropriate because women should be free to use their body as they please. 
Nevertheless, most feminist organisations consider prostitution to be a form of exploitation of women 
which should be abolished. The two positions clashed in a debate that concluded, for now, with the ruling 
of the National Court of 19 November 2018, which ruled that it is not possible to register a sex workers’ 
union. The National Court ruled that, according to the law, it is illegal to conclude an employment contract 
for  the  purpose  of  prostitution.  The  Court  also  stated  that,  although  the  right  to  create  a  union  falls 
under the freedom of association which is a fundamental right, it can only be granted to persons holding 
the status of worker, which presupposes the existence of a legitimate employer and legal employment 
contract. Based on the absence of a legal status of both employer and employee in the sex industry, a 
union established to defend and negotiate labour rights for this occupational group is not legal.

Online sources:
www.finanzas.com/noticias/20180904/dimite-directora-general-trabajo-3902846.html
www.eldiario.es/economia/Audiencia-Nacional-estatutos-sindicato-prostitutas_0_838166337.html

SE

Sweden 

CASE LAW

Religion  
or belief

Handshake requirement as indirect discrimination in employment

The claimant applied for a position as an ‘internal interpreter’ (providing interpreting services by telephone 
or through a video link) and was invited for an interview. During the interview she was introduced to the 
manager, but instead of shaking hands with him she smiled and put her hand on her heart. The applicant 
indicated that her refusal was due to religious beliefs as a Muslim where shaking hands with a man 
outside of the family was considered too intimate. The claimant also said that she does not shake hands 
with women either when there are men present, in order to avoid hurting their feelings. The manager 
ended the interview after the handshake incident and stated that she could not work there. He made 
clear that his refusal was linked to the claimant’s religious beliefs by stating that, by contrast, a refusal 
to shake hands due to a fear of germs would not have had an impact on his hiring decision. The claimant 
submitted a complaint to the Equality Ombudsman (DO), which agreed to pursue the case in court on 
her behalf.

The employer had an equality policy which required employees to shake hands with men and women but 
indicated that circumstances such as fear of germs are legitimate reasons to refrain from shaking hands. 
The employer argued that the refusal to shake hands due to religion was not protected by the European 
Convention on Human Rights (ECHR) and thus not protected under the Discrimination Act either. 

The  Labour  Court  ruled  that  the  employer  had  violated  the  prohibition  against  indirect  discrimination 
on  the  ground  of  religion.115  According  to  the  Court,  a  manifestation  of  religion  such  as  a  refusal  to 
shake hands is protected by Article 9 of the European Convention on Human Rights (ECHR), even if that 
manifestation is shared only by a minority within the specific religion. This also meant that the company 
policy particularly disadvantaged people with a certain religion, which brought it within the scope of the 
prohibition of indirect discrimination in the Discrimination Act. Finally, even though the company policy 
had a legitimate purpose, the Court held that the policy was not necessary and appropriate to achieve 

115  Sweden, Labour Court, decision of 15.08.2018 (AD 2018 No. 51).

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EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019  
that purpose, indicating that it would have been sufficient to require equal treatment in the greeting of 
men and women. The claimant had indeed indicated that she treated men and women the same when 
men were present. She was awarded SEK 40 000 (EUR 3 800) as compensation.

It is important to note that two of the five judges on the Labour Court dissented, holding that the policy 
was necessary and appropriate, both concerning colleagues and others in the workplace as well as in 
relation to the job of being an interpreter, which requires impartiality and neutrality. 

Online source: 
www.arbetsdomstolen.se/upload/pdf/2018/51-18.pdf

Interruption of probationary employment in connection with pregnancy

On 28 November 2018, the Swedish Labour Court116 ruled in a case on sex discrimination regarding the 
termination of the probationary employment of a woman shortly after she had given birth to a child. The 
woman informed the employer about the pregnancy prior to her employment. She had received positive 
feedback from her supervisors regarding her performance during her employment. In agreement with 
her  employer,  the  employee  had  planned  to  take  a  period  of  parental  leave  before  the  delivery.  Due 
to pregnancy-related sick leave which lasted until the child was born, she had stopped working earlier 
than  anticipated.  Three  weeks  after  the  birth  of  her  child,  the  employer  terminated  the  probationary 
employment. 

Gender

According  to  the  Swedish  Employment  Protection  Act,  an  employer  is  free  to  terminate  probationary 
employment  at  any  time,  without  the  requirement  to  provide  justification.  However,  if  the  employee 
demonstrates circumstances that give reason to presume that the termination was discriminatory, the 
Discrimination Act applies a shift in the burden of proof and requires the employer to show that there 
was  no  discrimination.  In  this  case,  the  Swedish  Labour  Court  ruled  upon  whether  the  employee  had 
established a presumption of discrimination.

The  Swedish  Labour  Court  acknowledged  the  timing  between  the  interruption  of  the  probationary 
employment and the pregnancy-related sick leave. However, the employment was not terminated until 
after  the  birth  of  the  child.  At  that  point,  the  woman  was  no  longer  pregnant  and,  according  to  the 
Swedish Labour Court, there was no reason to believe that she was about to become pregnant again in 
the foreseeable future. For that reason, the Swedish Labour Court ruled that the timing was not sufficient 
to establish a presumption of discrimination. The Swedish Labour Court also stated that the mere fact 
that an employer interrupts a probationary employment before the end of the trial period for a worker 
who is pregnant during the probationary period and has a reduced capacity to work as a result of her 
pregnancy, does not give cause to assume that the interruption was related to the pregnancy. Thus, the 
Swedish Labour Court did not shift the burden of proof to the employer to show that discrimination or 
reprisals have not occurred. Instead, the discrimination claim was rejected. 

Online source:
www.arbetsdomstolen.se/upload/pdf/2018/74-18%20-%20NY.pdf

Music festival marketed as cis-man free

Gender

In the summer of 2018, an association organised a music festival marketed as ‘the world’s first major 
music  festival  for  women,  non-binary  and  transgender  only’.  Following  reports  and  media  attention, 
the Equality Ombudsman initiated an investigation regarding the possible discriminatory nature of the 
festival.

116  Swedish Labour Court judgment AD 2018 No. 74.

121

Key developments at national level in legislation, case law and policyIn its decision of 17 December 2018, the Equality Ombudsman found no clear indication of discrimination 
in  relation  to  a  specific  person  at  the  festival  itself.  The  organisers  claimed  that  everyone  over  the 
minimum age holding a valid ticket had been allowed to enter the festival. 

However,  with  reference  to  the  judgment  of  the  CJEU  in  case  C-54/07  Firma  Feryn,  the  Equality 
Ombudsman found that the organisers of the festival had breached the ban on gender discrimination 
in the marketing and information preceding the festival. On the association’s website and in the media, 
the organisers had explicitly stated that cis-gender people identifying themselves as men were excluded 
from participating in the festival and that only women, non-binary and trans people were welcome. The 
Equality Ombudsman found that this could only be understood as meaning that the festival was closed 
to cis-men and that people belonging to this group would be denied access to the festival. The marketing 
for  the  festival  had  thus  been  intended  to  dissuade  cis-men  from  coming  to  and  participating  in  the 
festival, which constitutes a breach of the Discrimination Act (Chapter 2 Section 12.1.2). 

The Swedish Discrimination Act only provides for sanctions (damages) in cases involving discrimination 
against  a  specific  individual  (in  addition,  a  financial  penalty  can  be  ordered  when  a  natural  or  legal 
person does not comply with a request ordered by the Equality Ombudsman to fulfil his or her obligation 
according to the Act). The decision of the Equality Ombudsman regarding the cis-man-free festival is 
merely of a guiding nature. It does not concern discrimination of a specific individual and it does not 
entail any sanctions for the organisers of the festival. However, in the decision, the Equality Ombudsman 
stressed that it cannot be ruled out that the information about the festival spread by the organisers led 
to discrimination against one or more individuals who were dissuaded from participating in the festival.

Online source: 
www.do.se/globalassets/stallningstaganden/ovriga/tillsynsbeslut-festival-til-2018_63.pdf

TR

Turkey 

The dismissal of a female civil servant for wearing a headscarf

The applicant in this case was a civil servant who was dismissed in 2001 for wearing a headscarf at 
work. After various appeals against the decisions of lower courts and requests for rectification of the 
Conseil d’Etat’s decision in favour of the employer, the applicant lodged an individual application with 
the Constitutional Court.

Religion  
or belief

On 18 July 2018, the Second Section of the Constitutional Court found a violation of the freedom of 
religion safeguarded by Article 24 of the Constitution. The Court argued that the freedom of religion and 
conscience, enshrined in Article 24 of the Constitution, is fundamental for establishing and maintaining 
an effective and sound democracy based on the rule of law. 

The argument that it is a breach of the principle of secularism to allow public officers on duty to wear 
a headscarf on religious grounds − without taking into consideration the specific circumstances of their 
public  office  −  is  considered  unacceptable  by  the  Constitutional  Court.  Considering  practices  such  as 
wearing a headscarf by public officers as a threat to social unity is not in conformity with democracy and 
the understanding of pluralist secularism. Such practices reflect social diversity rather than constituting a 
threat against it. Dismissing the applicant based on the fact that she was wearing a religious headscarf 
is  a  sanction  that  constitutes  an  interference  with  the  applicant’s  right  to  follow  her  religion.  In  the 
assessment  of  this  case,  the  focus  should,  according  to  the  Court,  be  on  the  issue  of  whether  the 
grounds  established  by  the  inferior  courts  for  their  judgments  are  in  compliance  with  the  requisites 
of a democratic society. Any interference with the freedom of religion on a ground failing to fulfil the 

122

EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 UK

Sexual 
orientation

criteria set by the Constitutional Court would be a breach of Article 24 of the Constitution. The Court 
regarded the arguments presented by the employer and the inferior courts to be in breach of Article 24 
of the Constitution as they did not make any assessment of the problems caused or likely to be caused 
by her wearing a headscarf. The Court found that it was unclear which pressing social need justified the 
dismissal on grounds of maintaining public order and regarded the dismissal a disproportionate measure. 

However, the Constitutional Court failed to fully engage with the issue of gender equality and to identify 
the potential harm linked to the exclusion of women from public work in its decision. As a result of the 
ban in Turkey, women wearing headscarves could not enter university campuses, the work environment 
or Parliament and they were not able to participate in public life as they may have wished. If a feminist 
analysis is to be undertaken, the harm done to these women must be taken into account. 

Online source:
www.lexpera.com.tr/Appendix/PUBLICATION_TR/RG801Y2018N30497P5_258839534_1.pdf

United Kingdom 

CASE LAW

Supreme Court ruling in the ‘gay cake case’ on discrimination in access to goods and 
services

The  case  concerned  an  appeal  from  the  Court  of  Appeal  in  Northern  Ireland  (CANI)  which  had  ruled 
that a bakery had discriminated on grounds of sexual orientation, religious belief and political opinion 
when it refused to bake a cake at the request of the claimant, Gareth Lee, because the cake was to 
bear the slogan ‘Support Gay Marriage’. While concluding that the bakery had discriminated unlawfully 
for  reasons  ‘associated  with  homosexuality’,  the  CANI  had  explicitly  stated  that  this  finding  was  not 
incompatible with the bakers’ freedom of expression rights under the ECHR. The bakery appealed and on 
10 October 2018 the Supreme Court overturned the decision of the CANI. 

In relation to the sexual orientation claim, the Supreme Court held that the refusal of service was not 
because of the claimant’s actual or perceived sexual orientation but was due to an objection as to the 
message to be printed on the cake. It also held that the message was not indissociable from the sexual 
orientation of the customer, as gay marriage could be supported by those of any sexual orientation. As 
the bakers’ objection was thus to being required to promote the message on the cake, the situation was 
not comparable with people being refused services simply because of their sexual orientation or their 
religious faith.

In relation to discrimination on grounds of religious belief or political opinion (which is constitutionally 
protected in Northern Ireland), the Supreme Court held that discrimination could not be based on the 
religion or belief of the alleged discriminator. 

While the bakery could not refuse to provide the cake to the claimant because he was a gay man or 
because  he  supported  gay  marriage  (which  in  the  view  of  the  Supreme  Court  had  not  happened  in 
this case), it was not legally obliged to supply a cake decorated with a message with which the bakers 
profoundly  disagreed.  The  finding  of  discrimination  for  reasons  of  association  with  sexual  orientation 
was thus overturned.

In relation to the freedom of expression aspects of the case, the Supreme Court referred to the case 
law of the European Court of Human Rights and held that the bakery could not be required to promote 

123

Key developments at national level in legislation, case law and policyDisability

or support a view with which it did not agree. Freedom of speech also includes freedom not to speak in 
support of a view which a person does not hold.117 

Online source: 
www.bailii.org/uk/cases/UKSC/2018/49.html 

Supreme Court ruling on discrimination in the field of employment

The claimant was employed by Swansea University for 13 years until his retirement on ill health grounds 
at the age of 38. He satisfied the definition of ‘disability’ under the Equality Act 2010 and had been a 
member of the university pension scheme throughout his employment. He had worked full-time for the 
first 10 years before moving to part-time for his final three years of work, due to his disabilities. Part of 
his pension was provided on the basis of his final salary (for the years until 2009) and thereafter, until 
2013, on career average earnings. As well as additional entitlements under the provisions for ill-health 
early  retirement  for  a  lump  sum  and  annuity  (which  were  not  in  dispute),  he  was  also  entitled  to  an 
enhancement calculated on the basis of his actual salary at the date of retirement and this enhanced 
element was under dispute in the case. The claimant argued that basing the enhancement on his actual 
(part-time) salary amounted to less favourable treatment under the 2010 Equality Act because he was 
working  part-time  due  to  his  disabilities.  The  claimant’s  argument  was  accepted  by  the  Employment 
Tribunal but was rejected on appeal by the Employment Appeal Tribunal and the Court of Appeal. The 
decision was further appealed to the Supreme Court on the question of the meaning of the expression 
‘unfavourable treatment’ under the Equality Act 2010. 

The Supreme Court dismissed the appeal, ruling that the treatment was not unfavourable. In this case, 
the treatment in question was the award of the pension. The reason for giving the relevant enhancement 
of the pension was because of his disabilities and if he had been able to work full-time he would not 
have been entitled to the early and enhanced pension payment. Therefore, the award could not be said 
to be unfavourable.118 

Online source: 
www.bailii.org/uk/cases/UKSC/2018/65.html

117  United Kingdom, Supreme Court, Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland) 

[2018] UKSC 49, decision of 10.10.2018.

118  United Kingdom, Supreme Court, Williams v Trustees of Swansea University Pension & Assurance Scheme & Anor [2018] UKSC 

65, decision of 17.12.2018.

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EUROPEAN EQUALITY LAW REVIEW – Issue 1 / 2019 GETTING IN TOUCH WITH THE EU 

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