Discrimination as a basis for ethnic and racial inequality in the EU Gregor Maučec

Topics Pervasiveness of the problem: discrimination on the grounds of racial or ethnic origin perpetuates inequalities in the EU Racial and ethnic origin: a definitional puzzle EU Law on the Elimination of Discrimination on the Basis of Race and Ethnicity: latest developments and achievements Conclusion: can members of racial and ethnic minority groups in the EU still hope for a brighter future?

Pervasiveness of the problem: discrimination on the grounds of racial or ethnic origin perpetuates inequalities in the EU Eurobarometer on Discrimination (2015): Discrimination on the grounds of ethnic origin is regarded as the most widespread form of discrimination in the EU (64%), followed by discrimination on the basis of sexual orientation (58%), gender identity (56%), religion or belief (50%), disability (50%), age (being over 55 years old, 42%) and gender (37%) The UN Special Rapporteurs on the human rights to safe drinking water and sanitation and to adequate housing, the European Committee of Social Rights, and the WHO: discrimination in access to water and sanitation on the basis of race and ethnicity (e.g. Roma in Slovenia; Roma and people of African descent in Portugal) The European Network Against Racism (Racism and Discrimination in Employment in Europe, ENAR Shadow Report 2012-2013; Racist Crime in Europe, ENAR Shadow Report 2013-2014): Roma, people of African Descent and Black Europeans, Muslims, Jews and migrants - groups suffering the highest level of discrimination in Europe in employment and as victims of hate crimes

The Labour Force Survey (LFS) - at the EU level in 2014 and for the age group 20-64, the unemployment rate of: nationals: 9,5% persons with a nationality of a foreign country: 16,1% persons with a nationality other than EU 28: 20,1% The European Statistics of Income and Living Condition (EU-SILC) survey - in the EU in 2014 and for persons aged 18 and over, at-risk-of-poverty rate of: nationals: 15,5% foreign nationals: 31,7% non-EU 28 citizens: 38% The rate of early school leavers at the EU level (in 2014) for: nationals: 10% foreign nationals: 23,4%

Racial and ethnic origin: a definitional puzzle The concepts and definitions of racial and ethnic origin are complex Racial, ethnic and national origin, minority religion, language and cultural traditions - not clearly distinguished in law, but recognised as intrinsically interlinked The Permanent Court of International Justice (Advisory Opinion No. 17 concerning the Greco-Bulgarian Communities): a (minority) community is “a group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united by this identity of race, religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, ensuring the instruction and upbringing of their children in accordance with the spirit and traditions of their race and rendering mutual assistance to each other.”

European Court of Human Rights: Oršuš and Others v Croatia (2010): Romani language not being part and parcel of Roma ethnic origin – distinction based on this ethnic minority language was neutral in terms of racial or ethnic origin Cases concerning the use of minority languages - Kurdish in Turkey (election campaigns and civil registries) or French in Belgium (education) have not necessarily been examined in the context of discrimination based on racial or ethnic origin Timishev v. Russia (2005) and various Roma cases - discrimination based on ethnic origin is a form of racial discrimination, which is a particularly invidious form of discrimination D. H. and Others v the Czech Republic (2007), Yordanova and Others v Bulgaria (2012) and other Roma cases - broader interpretation of ethnic discrimination by taking on considerations of social marginalization Court of Justice of the EU: Feryn (2008): not clarifying potential differences between ‘Moroccans’, ‘immigrants’, ‘race’ and ‘ethnic origin’ when establishing direct discrimination under the Directive 2000/43/EC (Racial Equality Directive) Nikolova (2015): protection under the Race Equality Directive provided to an ethnically non-Roma person whose business was situated in a predominantly Roma neighbourhood; discrimination based on perceived or assumed ethnic or racial origin The number of the most sizeable communities in Europe (Muslims in Europe: Questions and Answers, 2015; ENAR, Afrophobia in Europe, ENAR Shadow Report, 2014-2015): 19 million European Muslims 8 million Black Europeans 7 million Roma

EU Law on the Elimination of Discrimination on the Basis of Race and Ethnicity: latest developments and achievements Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (Racial Equality Directive): discrimination based on racial and ethnic origin in the fields of employment, social protection, including social security and healthcare; social advantages, education and access to and supply of goods available to the public including housing is prohibited The Charter of Fundamental Rights of the EU prohibits discrimination based – among other grounds – on race and ethnic origin (Article 21) Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law All EU Member States have signed and ratified: The Convention for the Protection of Human Rights and Fundamental Freedoms (1950) which prohibits discrimination based – among other grounds - on race, colour, language, religion, national or social origin and association with a national minority The International Convention on the Elimination of All Forms of Racial Discrimination which prohibits racial discrimination, defining it as any distinction based on race, colour, descent, national or ethnic origin.

National laws often define and list recognised ethnic minorities International and national courts have interpreted ethnic origin broadly National laws often define and list recognised ethnic minorities In the spotlight: implementation and monitoring of national legislation on non-discrimination across the EU Member States (the need for data on (in)equalities based on racial and ethnic origin to measure the level of implementation and monitor the impact of policies) The Court of Justice of the EU‘s advanced interpretation of EU non-discrimination law in the Nikolova judgment: the Racial Equality Directive prohibits all discrimination “based on race or ethnic origin” regardless of the actual race or ethnic origin of the person who had been wronged by the discriminatory practice every person affected by collective racial discrimination is a victim of that discrimination, regardless of their own racial or ethnic orgin “comparator” districts is a crucial tool indirect discrimination with “offensive and stigmatizing” effects cannot be justified the ruling can cross-fertilize other areas of the EU’s anti-discrimination law practices of governments and service providers with stigmatizing or humiliating effects on Roma communites are still prevalent in Europe – they are prima facie proof of direct discrimination, but even if indirect, cannot be justified.

Conclusion: can members of racial and ethnic minority groups in the EU still hope for a brighter future? In the EU, both ethnic and racial discrimination is still present in many forms and in various areas of an individuals' work and life Comprehensive approach in tackling the issues of ethnic and racial inequality is essential: better enforcement and further improvement of EU legislation on the prohibition of racial and ethnic discrimination reinforcement of EU laws on combating racist violence specific policy strategies to address Afrophobia, Xenophobia, anti-Semitism and Islamophobia

addressing the social and economic needs of the most marginalized or discriminated against groups in each EU Member State identify structural racial or ethnic discrimination, including consideration of discriminatory laws and discrimination by private actors whether governments have racially non-discriminatory laws that bind public and private entities (with a definition of racial discrimination consistent with international human rights law), require public and private institutions to develop racially non-discriminatory action plans, and fully implement such laws and policies the EU should ensure that Member States collect equality data to measure racial and ethnic discrimination, as systematically as they do with gender and age

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