Prohibited Grounds of Discrimination under EU Law and the European Convention on Human Rights: Problems of Contrast and Overlap

Abstract

Both EU law and the European Convention on Human Rights contain protections against invidious forms of discrimination. EU law has long been concerned to combat discrimination on the grounds of sex and nationality, and has more recently begun to tackle discrimination on the bases of race, sexual orientation, age, religion or belief and disability. Article 14 of the Convention is also concerned with these grounds—some explicitly, some through judicial interpretation—as well as others such as birth status. However, at a level of detail the two bodies of law differ in many ways: for example, in the contexts in which they apply, in their treatment of justifications for prima facie acts of discrimination, and in the extent to which direct and indirect discrimination are prohibited. It is thus a matter for debate how far they in fact overlap, or have the potential to do so. Furthermore, given that it is a shared concern of EU law and the Convention to combat invidious forms of discrimination, their respective anti-discrimination protections might be felt to provide a particularly strong illustration of the extent to which there are similarities and divergences between the two bodies of law. In this sense, anti-discrimination law offers an illuminating case study of the intersections and differences between the two bodies of ‘European’ law, both at European level and within the domestic legal systems of EU Member States.