Race Discrimination and the European Union Anno 1996: From Rhetoric to Legal Remedy?

Abstract

The question of the legal competence of the EU to adopt binding measures to assist in combatting racial discrimination has traditionally not received much attention. The Treaty on European Union does not include a general prohibition of discrimination but only of (pay related) sex discrimination. Moreover, the Treaty provision outlawing discrimination on grounds of nationality has generally been interpreted as limited to discrimination between nationals of the Member States. For the rest, if anything, the Treaty provisions actually reinforce unequal treatment between the legal situation of migrants with the nationality of a Member State and ‘third country nationals’ (in particular the free movement of persons provisions and the definition of European Union citizenship, as introduced by the Maastricht Treaty). This not only risks feeding xenophobia, it is also an unacceptable starting-point to combat the disgraceful manifestations of racism in the territory of the Member States of the European Union. It is significant that in the run up to the Inter-Governmental Conference to amend the terms of the Treaty, a widely made proposal is to include a prohibition on discrimination on grounds inter alia of race and ethnic origin. A tandem proposal is to provide equal treatment for established third country nationals in certain respects. This article examines both the current situation (possible judicial and legislative approaches) as well as the desirable Treaty amendments.