Race Judicata: Rien ne va plus for Race and Ethnicity in France and Europe?

Abstract

The French Constitutional Council recently declared that racial and ethnic origins are not objective legislative criteria and conflict with Article 1 of the French Constitution. Both earlier case law as well as the specific political background outside and within the Constitutional Council, indicate that the result does not come as a surprise. In fact, race and racial origins are extremely controversial terms, especially in France, where they clash with a universal, Republican view of citizenship. This has, for instance, led to the introduction of territorial measures which, as opposed to identity-based ones, have mostly passed constitutional muster. The decision equally raises a number of broader issues. First, what relevance does it assume at the European level, especially when read in the light of Directive 2000/43 and case law by the European Court of Justice concerning affirmative action and indirect discrimination? Second, what influence may its reasoning exercise on other European constitutional courts that will in the future have to decide on similar issues? In fact, demographic changes due to immigration will sooner or later have to lead to an increase of measures taking into account the racial/ethnic origin of European citizens in order to fight discrimination of populations with an immigration background. In this sense, the Constitutional Council problematically adopted a very formalistic and short-sighted view, at the expense of a more substantive conception of the equality principle.