Workshop – Update on European case law by Janneke Gerards and Colm O’Cinneide
Janneke Gerards is a Professor of Fundamental Rights Law at Utrecht University, the Netherlands. Her presentation dealt with the recent non-discrimination case law of the European Court of Human Rights. She discussed important judgments of the Court on discriminatorily motivated acts; pregnancy discrimination; secondary victimisation; disability discrimination and age discrimination.
The cases she presented dealt with legal questions such as:
- whether the respect for private life of Article 8(1) of the European Convention for Human Rights also covers the identity and self-worth of groups rather than just individuals;
- whether the financial obligations imposed on the State during a woman’s pregnancy by themselves constitute sufficiently weighty reasons to justify difference in treatment on the basis of sex; and
- whether a decision of the government to provide additional social assistance to families constituted of persons of a younger age can, in and of itself, be seen as manifestly without reasonable foundation.
Colm O’Cinneide, Professor of Constitutional and Human Rights Law at University College London (UCL), noted that the number of discrimination cases (broadly defined) that reach the Court of Justice of the EU, continues to fall. However, over the last year, there has nevertheless been a steady stream of significant judgments handed down by the CJEU, in particular on issues such as reasonable accommodation; religious symbols; and the right to a remedy. The provisions of the Charter of Fundamental Rights of the European Union are also increasingly featuring in the Court’s judgments, albeit not always in a substantive matter. He discussed a selection of the most important CJEU judgments of 2021, including cases dealing with age discrimination; discrimination on the basis of disability, gender, race and ethnicity, and religion or belief.
He concluded that the CJEU’s equality jurisprudence continues to evolve, including inter alia significant advances in the Court’s reasonable accommodation case law; clarification of the potentially important issue of whether disability discrimination can arise between two different groups of disabled persons; and new precision to the Court’s ‘headscarf’ jurisprudence. One overarching trend should be immediately obvious: the growing salience of Charter rights, even if so far they feature more as judicial rhetoric than as substantive law.