Abstract
Analysis of the EU non-discrimination acquis tends to be limited to the gender equality and non-discrimination directives, showing a gaping difference in the level of protection accorded to certain groups over others. Broadening the perspective to procedural and soft law measures pertaining to criminal forms of discrimination can, however, yield more nuanced insights. The working paper documents the emergence of a ‘continuum of equality’ in the criminal branch of EU anti-discrimination law, particularly in the Victims’ Rights Directive. It shows that the Charter of Fundamental Rights of the EU can play an important role in approximating EU norms to international human rights standards and offer strategies for addressing legislative deadlock to equalize protection across discriminated groups. Rather than the prohibition of discrimination, Charter provisions governing the relationship between EU and international norms become significant in this process.
Highlights
In 2016 the Dutch EU Presidency chose to rent a truck and officially join the Warsaw Pride Parade
Could the EU Presidency rally behind a statement condemning discrimination tout court, rather than only condemning manifestations of discrimination that amount to “hate” at the Parade? If so, what should be the role of EU non-discrimination law and the Charter of Fundamental Rights of the EU? Do judicial interaction and/or policy processes on hate speech and hate crime have the potential to meaningfully broaden the scope of protection from discrimination? These are some of the questions this paper seeks to answer
Rulings address hate speech and hate crime, and impose positive obligations with an emphasis on ex officio duties to investigate and prosecute bias regardless of whether national legislation explicitly lists a given protected characteristic. This broadens the scope of protection from discriminatory crimes at the national level with two important consequences for EU anti-discrimination law: first, it settles the scope of the Victims’ Rights Directive, and second, it informs the interpretation of the Charter of Fundamental Rights as concerns criminal forms of discrimination
Summary
13 The expansion of Member States’ obligations under the criminal branch demonstrates the emergence of a continuum of equality that partly increases the coherence of EU equality law.[14] It stands in stark contrast with the civil branch, where gaping differences remain due partly to legislative deadlock concerning the so-called draft Horizontal Directive.[15]. 12 EC European Commission, ' Guidance Document related to the transposition and implementation of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA' [2013] Ref Ares (2013)(3763804) DG Justice; EU High Level Group on combating racism, xenophobia and other forms of intolerance, Guidance Note on the Practical Application of Council Framework Decision 2008/913/JHA, November 2018 (“Guidance Note”); European Commission, Code of Conduct on Countering Illegal Hate Speech Online, June 2016;. We conclude that rather than this being the case, the Charter has been used for three distinct purposes: a) to maintain the status quo; b) to reinforce the salience of EU law as a catalyst for change; and c) to uphold/impose a narrow reading of the anti-discrimination directives
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
