Non-Discrimination, the European Court of Justice and the European Court of Human Rights: Who Takes the Lead?

Abstract

It is often said that the non-discrimination case-law of the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ) might diverge because of their different backgrounds and ‘raisons d’etre’. In addition, it is almost an orthodoxy that the European Court of Human Rights (ECtHR) is ahead of the European Court of Justice (ECJ) in developing fundamental rights doctrines in many fields, except for that of non-discrimination law. The question is, however, if these assumptions are correct. This chapter presents four examples in the field of equality and non-discrimination to show that, indeed, there are divergences that seem to reflect the differences in procedural and legal setting and rationale. It proves to be untrue, however, that the ECJ always takes the lead in developing non-discrimination law. In the past decade, several cases can be seen in which the ECtHR is setting the example and the ECJ has (or has not) followed suit. It can be derived from this that alignment and harmonisation of equal treatment and non-discrimination law are needed to avoid that the Member States are confronted with diverging or even conflicting requirements in the future.