Equality

Overview

Title III comprises Articles 20 to 24 of the Charter and provides for equality before the law of various categories of persons. They prohibit discrimination on the grounds set out. These include sex, race, ethnic or social origin, religion or belief. They reaffirm the basic principle in an article about respect for human dignity.

Title III requires measures to be taken at the level of state and other authorities to ensure respect for religious, cultural, and ethnic diversity.

There are specific protections required for children, older persons and persons with disabilities. It is contemplated that these categories will require extra protection so as to secure equal participation in society.

Long-Standing EU Value

Equality has long since been recognised as a general principle of EU law. The EU Treaties (and their predecessors) have protected equality for many years. Several of the key provisions have been declared to be directly applicable.

The principle that men and women should receive equal pay for equal work has been enshrined in the European Treaties since 1957 (today: Article 157 of the Treaty on the Functioning of the European Union (TFEU)). Article 153 TFEU allows the EU to act in the wider area of equal opportunities and equal treatment in employment matters and within this framework, Article 157 TFEU authorises positive action to empower women.

In addition, Article 19 TFEU provides for the adoption of legislation to combat all forms of discrimination, including on the basis of sex. Legislation against trafficking in human beings, particularly women and children, has been adopted on the basis of Articles 79 and 83 TFEU. The Rights, Equality and Citizenship Programme finances, among others, measures contributing to the eradication of violence against women, based on Article 168 TFEU.

The EU has introduced a series of equality measures. There is a framework directive for equal treatment in employment and occupation. There are equality directives provisions in the area of race and ethnic origin. The EU legislation also extends to require equality in relation to access to goods and services and to social services.

The Protections

Article 20 provides for the general principle of equality before the law. Article 21 sets out 15 grounds on which discrimination is prohibited. These are illustrative and are not exhaustive.

Article 22 provides that the EU must respect cultural religious and linguistic diversity.

Article 23 provides for equality between men and women in all areas with the possibility of positive action in favour of the underrepresented sex.

Article 24 deals with the rights of children. The child’s best interest is the primary consideration in actions on the part of public authorities and private institutions. Article 25 deals with social and occupational rights for persons with disabilities.

The provisions of the Charter have been used in tandem with other EU legislation and on a stand-alone basis. They have also been used In the interpretation of equality legislation. Questions arise as to the interaction between the Charter provisions and the EU legislation.

It has been suggested that there are grounds for the Charter equality provisions to act in a radical way on a stand-alone basis. This is something which may emerge over time. Article 20 is similar to the 14th Amendment to the U.S. Constitution. This has been interpreted by the Supreme Court over many years to ensure that the substance of equality before the law is ensured. It has been used to counter discrimination on any ground.

Article 20 – Equality before the law

Everyone is equal before the law.

Article 20 is used primarily in conjunction with the existing legislation. Several Court of Justice judgements have limited the scope of the Charter to areas where there are specific EU directives and legislation. The Court has been reluctant to extend and use Article 20 to justify new ground of discrimination.

The court has held in a number of cases that the difference in treatment between categories of workers is a matter of EU law when covered by provisions of EU legislation. For example, there are specific legislation and part-time and fixed-term workers.  Accordingly, the interpretation of this EU law is guided by the Charter.

Article 21 – Non-discrimination

1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.

The ECJ has held that Article 21 has horizontal effect. Therefore, it may be used directly in national courts between private parties in matters where the subject matter is within the scope of EU law. Consequently, inconsistent national provisions must be disapplied.

Article 21 is based on Article 13 of the European Convention on Human Rights. It supplements the existing anti-discrimination provision in Article 19 of the Treaty on the Functioning of the European Union. This and other TFEU provisions are the basis for the European Union to legislate in relation to anti-discrimination.

Article 52.3 provides that the provisions of Article 21 have the same scope and meaning as Article 14 and European Convention on Human Rights.

Although the Charter and ECHR provisions are similar there have been divergence in cases between Court of Justice of the European Union and the European Court of Human Rights in relation to much the same issues under the respective instruments. This has been the case, even where there is relatively different little difference in wording.

Prior to the Charter, EU Courts had held that the principles of non-discrimination reflected in the Treaties and EU legislation have direct effect between individuals.

Article 22 – Cultural, religious and linguistic diversity

The Union shall respect cultural, religious and linguistic diversity.

Article 22 is binding only European Union and its institutions but not the member states. It is unclear whether it is in the nature of a right or principle. Both interpretations appear to be open.

Article 22 upholds the diversity cultural, religious and linguistic diversity of the European Union. It is supplemental to provisions of the Charter, EU treaties and secondary legislation dealing with the same subject matter.

• Article 167 of the Treaty on the Functioning of the European Union gives expression to cultural diversity.
• Article 41 in conjunction with Article 21 prohibits discrimination on the basis of language.
• Article 17 of the Treaty on the functioning of the European Union protects the status of churches religious philosophical and non-confessional organisations and communities.
• Article 10 of the Charter which protect which protects freedom of religion and belief.

Article 23 – Equality between women and men

Equality between women and men must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.

Article 23 restates still outstanding Treaty principle that equality between men and women must be ensured in all areas including employment work and pay. It confirms that the principle of equality shall not prevent the maintenance or adoption of measures providing first specific advantages in favour of the underrepresented sex.

The principle is reflected in Article 3 of the Treaty on European Union and Article 8 of the Treaty on the Functioning of the European Union which seek to promote the equality of men and women. It also echoes the European Charter Social Charter revised and updated in 1996.

Article 23 extends to employment and also to access to goods and services. Extensive EU secondary legislation by way of directives has given detailed effect to the principle.

The European Court of Justice has invalidated provisions of the Equality directive with reference to the Charter. There was a limited exception in respect of car insurance premiums based on accurate testicle data.

The European Court of Justice has reviewed national legislation in relation to non-discrimination. It has held provisions of national legislation to be contrary to the Articles 21 and 23 guarantees even in circumstances in which the European Court of Human Rights had taken a different view of the same subject matter.

Article 24 – The rights of the child

1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents unless that is contrary to his or her interests.

Article 24 deals with the rights of the child. EU legislation must therefore be applied and interpreted having regard to the provisions of Article 24.

The best interest of the child is the paramount consideration and guiding principle. This reflects the Convention on the Rights of the Child.

Article 24 provides and restates some key principles for children provided in the UN Convention of the Rights of the Child 1989. A child is generally understood to be a person below the age of majority which is 18 years in all member states and under the 1989 Convention.

States are obliged in implementing EU law to ensure that parents are enabled to care for their children. This is reflected in the parental rights legislation and parental leave legislation.

Children have to have the right to express their views freely and have them taken into consideration. They are to have the opportunity to be heard when their interests are at stake. This principle is reflected in legislation including the Brussels Regulation in relation to the return of children taken cross-border.

In accordance with child protection legislation generally, the views of the child are subject ultimately to considerations of the child’s best interests and welfare.

Article 24(3) e provides a right for the child to maintain personal relations and contact with both parents. This is subject to national law in relation to the same.

Article 25 – The rights of the elderly

The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.

Article 25 recognises that the elderly should be able to lead a life of dignity and independence and to participate in social and cultural life. This is a principle not right.

Article 26 – Integration of persons with disabilities

The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration, and participation in the life of the community.

The EU recognises and respects the rights of persons with disabilities to benefit from measures designed to ensure their independence social and occupational integration and participation in community life. This is a principle and not a right. In the same way, as with the rights of the elderly, it may be relied on in the interpretation and review of acts of the European Union.