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    Marta Lasek

    Extending the scope. Application of EU anti-discrimination directives as

    regards fundamental rights protection.

    Table of contents1. Introduction ..................................................................................................................................... 1

    2. Achieving the goal - directives. ....................................................................................................... 3

    3. EU anti-discrimination law.............................................................................................................. 4

    4. Grounds and categories of discrimination. ...................................................................................... 6

    5. Direct discrimination extension Roca lvarez judgement. ......................................................... 7

    5.1. Proceedings before the Court. ...................................................................................................... 7

    5.2. Roca lvarezjudgements horizontal effect............................................................................ 95.3. (Non-) Implementation ofRoca lvarez judgement. Spain and Poland. .................................. 10

    6. Member States feedback amending directives - Association belge des Consommateurs TestsAchats judgement. ................................................................................................................................ 12

    6.1. Proceedings before the Court. ................................................................................................... 13

    6.2. Implementation of the judgement. .............................................................................................. 15

    7. New categories of discrimination. Discrimination by association and by declaration. ................. 16

    7.1. Discrimination by association. Coleman effect. ......................................................................... 17

    7.2. Discrimination by declaration. Feryn case. ................................................................................ 19

    8. Conclusions. Towards European Constitutionalism. ..................................................................... 20

    9. Literature and cases. ...................................................................................................................... 22

    9.1. Literature. ................................................................................................................................... 22

    9.2. Cases. .......................................................................................................................................... 22

    1. IntroductionEU directives have proven to be a useful tool in the process of establishing the Internal

    Market of the European Union. In my opinion nevertheless, the impact of EU directives is far

    more interesting andwhat needs to be underlined from the very beginning - pivotal in the

    field of protection of fundamental rights.

    The aim of this paper is to scrutinise the impact of directives on enhancing the human

    rights protection in the European Union on the basis of EU anti-discrimination directives and

    related Court of Justice of the European Unions case-law.

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    As it has been already pointed out by academics on various occasions, the concept of

    the original European Communities relied purely upon the idea of economic integration which

    given Europes economic condition after the Second World War appeared to be the only

    possible solution in order to restore the devastations.

    While its traditional functions were focused on economic integration, the Union gradually

    acquired a more universal nature and also was able to elaborate its own catalogue of individual

    rights and liberties1. The development of this catalogue of individual rights and liberties was

    instigated by the former European Court of Justice, initially in Costa v. ENEL2 (1964), Stauder3

    (1969) andInternationale Handelsgesellschaft4 (1970) cases. The necessity of recognising

    individual rights on the Communitarian level was in fact a natural consequence of economic

    integration and an indispensible condition of exercising effectively the Common market freedoms.

    However, while economic integration is commonly regarded as an undisputed priority

    among the Member States, the fundamental rights question is deeply rooted in each countrys

    mentality and its governments political vision and thus, it has always been subject to a heated

    debate. As a result, the economic principles of the European Union are protected by a number of

    directly applicable provisions of the primary law (Treaties).

    As for individual rights, although their application has already been safeguarded to some

    extent by the Court of Justice of the EU, their enforcement on the level of law provisions was

    supposed to come into force thanks to the Charter of Fundamental Rights. The Charter was

    proclaimed in 2000 by the European Parliament, the Council and the Commission and since the

    entry into force of the Treaty of Lisbon in December 2009 has been acknowledged to have the full

    legal effect.

    However, as describes Niamh Nic Shuibhne, the Charter has been characterised since

    then as a non-binding exposition of binding rights5. Its significance has been weakened by an

    opt-out secured initially by the United Kingdom and Poland and later followed by the Czech

    1Lech Garlicki, Cooperation of courts: The role of supranational jurisdictions in Europe:http://www2.wpia.uw.edu.pl/694,European_Convention_on_Human_Rights_and_the_legal_system.html, p. 2.2 C-6/64, 15/07/1964.3 C-29/69, 12/10/1969.4 C-11/70, 17/12/1979.5Niamh Nic Shuibhne, The reality of rights: from rhetoric to opt-out, European Law Review, 2009, 34(6),

    815-816, p. 1.

    http://www2.wpia.uw.edu.pl/694,European_Convention_on_Human_Rights_and_the_legal_system.htmlhttp://www2.wpia.uw.edu.pl/694,European_Convention_on_Human_Rights_and_the_legal_system.htmlhttp://www2.wpia.uw.edu.pl/694,European_Convention_on_Human_Rights_and_the_legal_system.html
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    Republic. As a result, even the Court of Justices jurisprudence shows its certain reservations

    towards the Charter of Fundamental Rights. As pointed out byNiamh Nic Shuibhne in the same

    publication, the Court of Justice did not refer to it in a judgment until 2006.

    The statement that there exists a certain deficiency in the EU primary law concerning theprotection of fundamental rights therefore appears to be justified. That is why in the light of the

    above reasoning, EU secondary law dealing at least indirectly with the issue of fundamental rights

    plays a key role in supporting the human rights protection system in the scope of the European

    Union.

    2.Achieving the goal - directives.By virtue of Article 249 TEU, directives are to be implemented in a way that their

    required result will be attained. The manner of achieving this goal remains within the

    competences of the Member State to which the directive is addressed. The implementation

    might therefore be conducted by means of relevant executive resources, e.g. statutes, acts of

    parliament etc.

    At this point, it is vital to point out that the main addressee of norms included in

    directives are always the Member States and not individuals. Consequently, a Member Statesfailure to apply a directive might lead to launching proceedings before the Court of Justice

    under the terms of articles 226-228 TEU against the State resulting in a penalty of fine.

    However, in the view of the Court of Justice of the European Union expressed in Van

    Duyn6(1975) judgements operative part, directives are regarded as binding instruments of

    law and referring to obligations provided by a directive cannot be excluded. Thus, the Court

    granted direct effect to directives and in order to justify it adopted the so-called estoppel

    argument which according to Krzysztof Wjtowicz, should be considered to be the equivalentof the Latin nemo auditur turpitudinem suam allegans principle7. InRatti8 (1979) case the

    Court of Justice explains that once the time limit for implementation of a directive into

    national legal order expires, Member States are forbidden to deny its direct effect.

    6 C-41/74, 04/12/1974.7

    Krzysztof Wjtowicz, The principles governing the application of Community law in the countries of theEuropean Union, Zeszyty CEN, Zeszyt 8(2003), p. 44. 8 C-148/78, 05/04/1979.

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    Moreover, the European Court of Justice has entitled individuals to refer to directly

    applicable provisions before a national court. In case of directives, an individual application

    must fulfil the general criteria established in Van Gend en Loos9 (1963) judgement. It is

    therefore necessary for the provision to be firstly, clear and precise, secondly, unconditional

    and thirdly, capable of producing rights for individuals.

    In case of directives, individuals are enabled not only to defend themselves against the

    application of a domestic rule of law that does not comply with the directive, but they can also

    request a positive application of the directive in place of a domestic rule of law.

    3. EU anti-discrimination law.Having described briefly the application of directives and theirfrom certain authors

    point of view limited and non-automatic effect10, I would like to focus on