Ethnic discrimination, discrimination by association and the Roma community: CHEZ

The Race Equality Directive (RED)1 has now been in force for 15 years, but the European Court of Justice (ECJ) has only received four preliminary reference requests from national courts. This number is strikingly low, especially compared to the numerous cases which have reached the court regarding other discrimination grounds2 protected under Framework Employment Directive (FED),3 passed only few months after the RED. Whilst in the first of these cases, Firma Feryn,4 the ECJ had to consider how the concept of ‘direct discrimination’ ought to be interpreted, in the two following cases it did not have to rule on the RED substantive provisions: in Meister5 the preliminary reference only concerned the procedural provisions, and in Belov6 a preliminary reference concerning Roma discrimination was rejected on admissibility grounds. In this fourth preliminary reference on the RED, Chez,7 the ECJ has only ruled on the interpretation of the substantive provisions of the RED for second time. This judgment is also significant for some other reasons. Although the Roma are the largest ethnic minority in the EU, this is the first time that the ECJ considers the discrimination suffered by this group on the substance. Furthermore, the impact of this judgment may go well beyond the boundaries of ethnic discrimination because it clarifies the distinction between direct and indirect discrimination and it extends the concept of discrimination by association beyond its (apparent) initial confines, established in Coleman.8 For ECJ standards, the judgment is fairly long. Due to space constraints, this contribution will only focus on the issues that bring new developments to EU equality law and that can have more significance in shaping this area of law in the future. Thus, from the ten questions that the national court referred to the ECJ, this piece considers the clarification of the concept of ‘ethnic origin’, the distinction direct and indirect discrimination, the extension of the concept of discrimination by association, and the collective dimension of the claim in the context of the EU approach to address the discrimination suffered by the Roma community.