Article 47 of the Charter of Fundamental Rights of the European Union is all the rage in EU law scholarship. But not so much when it comes to the field of non-discrimination. This is somewhat surprising, given that it is in that field that the Court of Justice first pronounced on the principle of effective judicial protection, which is enshrined in that very provision. Moreover, justice and equality would seem to go hand-in-hand. My forthcoming chapter in the edited collection by Mariolina Eliantonio, Matteo Bonelli, and Giulia Gentile, Article 47 of the EU Charter and Effective Judicial Protection: The Court of Justice’s Perspective, charts the emergence and development of Article 47 of the Charter in the field of non-discrimination. Through examination of salient case-law of the Court of Justice, it argues that Article 47 of the Charter plays a significant role in the field of non-discrimination by helping drive procedural standards for ensuring effective judicial protection ‘onwards and upwards’, that is to say, towards better conditions and a higher level, in the EU legal order.
Origins of the relationship between Article 47 of the Charter and non-discrimination
As just mentioned, the relationship between Article 47 of the Charter and non-discrimination originated in early judgments of the Court of Justice, which are well-known to many readers. For example, in von Colson and Kamann (Case 14/83) and Johnston (Case 222/84), the Court gave expression to the principle of effective judicial protection for the first time in the context of sex discrimination, in connection with the right to an effective remedy before a court. Later, in Marshall (Case C-271/91), the Court strengthened effective judicial protection in matters of redress. Then, in Coote (Case C-185/97), the Court took the principle of effective judicial protection into the realm of protection against retaliation.
The Court’s early case-law thus established, indeed cemented, the principle of effective judicial protection as today guaranteed by Article 47 of the Charter in the field of non-discrimination. It outlined the broad contours of that principle, comprising the right to an effective remedy before a court, along with other aspects relating to retaliation, evidence and redress, which are equally instrumental for ensuring that individuals have adequate legal remedies for the protection of the rights they derive from EU law in the field of non-discrimination. At the same time, that case-law highlighted the critical role of the Court of Justice in fleshing out effective judicial protection which then filtered back into the main directives in the field.
Article 47 of the Charter and the main directives in the field of non-discrimination
The EU legislation in the field of non-discrimination is known for containing an elaborate set of procedural rules for the benefit of individuals wronged by unlawful discrimination. The Court of Justice’s case-law concerning some of the main directives on non-discrimination illustrates the influence of Article 47 of the Charter in strengthening effective judicial protection for individuals, as evidenced by judgments concerning effective access to justice, protection against retaliation, the burden of proof, the standing of equality bodies and other entities, and forms of redress.
For instance, as regards effective access to the courts, Egenberger (Case C-414/16), involving Directive 2000/78/EC (establishing a general framework for equal treatment in employment and occupation), stands out. In that judgment, the Court made it clear that an independent authority, and ultimately a court, must ensure effective judicial review by examining whether the difference in treatment at issue complied with the criteria laid down in the provisions of that directive and that a church or other organisation whose ethos or belief is based on religion could not itself authoritatively determine the matter.
More recently, in Braathens Regional Aviation (Case C-30/19), the Court solidified the link between Article 47 of the Charter and redress. In that judgment, the Court held that a national procedural mechanism–under which a defendant may bring a dispute to an end by admitting a claim for compensation for discrimination without acknowledging the existence of the alleged discrimination and without the applicant being able to obtain a finding of that discrimination from the competent court–ran counter to Directive 2000/43/EC (implementing the principle of equal treatment between persons irrespective of racial or ethnic origin), read in the light of Article 47 of the Charter.
Opportunities for further development of Article 47 of the Charter in the field of non-discrimination
The Court of Justice’s case-law, likewise, invites reflection about opportunities for further development of Article 47 of the Charter in the field of non-discrimination as regards procedural obstacles at the national level and tasks of the national courts and other competent bodies in this context. This is evident in the line of case-law concerning the horizontal enforcement of directives on non-discrimination. Recall Egenberger (Case C-414/16), mentioned above, in which the Court declared that Article 47 of the Charter has horizontal direct effect and thus may apply in disputes between private parties, as well as those involving public authorities. One can also point to the Cresco Investigation (Case C-193/17), in which the Court ruled on the obligations of national courts to provide sufficient remedies in addition to the misapplication of incompatible national law. Additionally, in Minister for Justice and Equality and Commissioner of the Garda Síochána (Case C-378/17), the Court addressed the obligations of other competent bodies responsible for adjudicating discrimination claims.
With the construction of a ‘Union of Equality’ at the forefront of institutional activities at the EU level and legislative initiatives on the horizon that aim to strengthen enforcement mechanisms in the field of non-discrimination, it will surely be exciting to see how the case-law of the Court of Justice on this subject continues to develop in the coming years.
No doubt, there is much fruitful terrain that remains to be investigated.
Posted by Kathleen Gutman, Référendaire, Court of Justice of the European Union. All opinions expressed herein are strictly personal.
Author of ‘The Role of Article 47 of the EU Charter of Fundamental Rights in the Field of Non-Discrimination: Onwards and Upwards’, in Mariolina Eliantonio, Matteo Bonelli, and Giulia Gentile (eds), Article 47 of the EU Charter and Effective Judicial Protection: The Court of Justice’s Perspective (Volume 1)
Suggested citation: K Gutman, “Article 47 of the Charter and non-discrimination: Going back to the grass roots”, REALaw.blog available at https://wp.me/pcQ0x2-wX.
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