Evolutions in Non-Discrimination Law within the ECHR and the ESC Systems: <I>It Takes Two to Tango in the Council of Europe</I>

Abstract

Recent years have seen important developments in the antidiscrimination case law of the European Court of Human Rights and the European Committee on Social Rights. While the latter has always been a privileged European forum for discrimination monitoring and, when applicable, for discrimination-based collective complaints (with a third of its decisions to date raising discrimination issues), the former has also developed an interesting albeit more marginal antidiscrimination case law and has issued a series of crucial decisions in the last five years or so. The purpose of this Article is to assess and compare the take of the two leading human rights bodies of the Council of Europe and their complementary and mutually reinforcing approaches, by situating them within the broader context of substantive changes in antidiscrimination law in the European Union. The two European institutions’ respective case law is analyzed with a special emphasis on their conceptions of discrimination, their tests and reasoning, and in particular by reference to their case law on disability and the education rights of Roma children. One of the major developments to be discussed is the emergence and consolidation of a collective conception of discrimination by both bodies that is unprecedented in Europe, especially through their case law on indirect and structural discrimination and on enforcing positive duties and in particular positive action. While there are still important differences between the two bodies’ approaches, their growing body of reference jurisprudence shows interesting signs of convergence and cross-fertilization. As a matter of fact, the enhanced coordination between the ECtHR’s and the ECSR’s approaches to non-discrimination has become legally necessary since the entry into force of Protocol 12 to the European Convention on Human Rights and the extension of the ma-