Indirect Discrimination Law in the EC; Appearance Rather than Reality?

Abstract

It would not be an overstatement to suggest that the principle of equality constitutes a cornerstone of European Community Law. The prohibition of discrimination on the basis of nationality, enshrined in Article 6 of the EC Treaty, is a theme that runs through Community Law. It has been central to the realization of SingleMarket dream, in eliminating inter-state barriers to develop greater free movement of the four key factors of production, namely goods, persons, services and capital within the Union. The European Court of Justice (ECJ) has even developed a general unwritten principle of equality, binding on all Community legislative action. However, beneath this appearance of uniformity of approach there lies, paradoxically, a marked difference in relation to the prohibition of hidden forms of unequal treatment (or indirect discrimination) in EC Law. Here, the ECJ has been unable to sustain the unifying quality of the equality principle. It has singularly failed to establish a comprehensive legal test relating to the concept of indirect discrimination. Instead, the case law has diverged considerably, the ECJ apparently willing to develop principles on a sectoral as opposed to a generic basis. This paper aims to analyse and expose the inconsistency of treatment by the ECJ in its appraisal of indirect discrimination in relation to the following key economic sectors: free movement of goods, services and workers and gender equality in employment. Behind the presentation of uniformity of approach, the ECJ has established subtle but significant legal distinctions which have had profound economic consequences for litigants and markets alike. Such a state of affairs raises serious questions about the universality and impartiality of the application of the principle of equality in the European Community Law context, not least because hidden as opposed to more express forms of discrimination tend now to take on a more prevalent and signification role in the Single Market.