Shaking the normative foundations of EU equality law : evolution and hierarchy between market integration and human rights rationales

Abstract

With the adoption of the Race Equality Directive (2000/43/EC), the Framework Directive (2000/78/EC) and the Gender Directive on goods and services (2004/113/EC), the landscape of EU non-discrimination law has changed dramatically. From a medium to advance market integration, non-discrimination has evolved toward a genuine fundamental right of equality. However, the Court of Justice’s efforts to give substance to this general principle of equal treatment have met political backlash. At the same time, while advancing the principle of equal treatment, the reforms have also instilled hierarchy within equality. More than sixteen years after the first comprehensive reforms, in a climate of political mistrust towards the EU, it is unlikely that new legislation will level off the ground. Today, how has the interplay of market-based and fundamental-rights-based rationales transformed the advancement of the principle of non-discrimination in Europe? This paper first examines the shift operated in the EU transformative equality enterprise, from a legislative and adjudicative focus towards a focus on enforcement, as a response to pushback. Second, the paper argues that the interplay between an instrumental market-based and an imperative rights-based understanding of equality, underlying this pushback, has transformed non-discrimination into a hybrid but effective principle. The third section, however, puts forward that the existence and effectiveness of this principle of non-discrimination is threatened by several lines of hierarchy within the European equality monument.