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In this section I will talk about

the principle of non-discrimination.
This has been described as
being the DNA of EU law and
the cornerstone on which
European integration is built.
It permeates every aspect of EU law,
it binds both the EU and
all its institutions.
It binds the member states and
it can even bind private parties
within the member states.
Discrimination consists of both
treating like cases differently,
and also treating
different cases the same.
The test is whether the difference
in treatment is on the basis of
substantial objective
differences between the cases.
Let's give some examples and
try to clarify this.
In most countries in Europe, motorcyclists
are allowed to travel on motorways, but
people on mopeds are not.
This is a clear difference in treatment,
but it is not discrimination because there
are substantial objective
differences between motorcycles and
mopeds in terms of speed, which means
that mopeds are not comparable to
motorcycles when it comes to
travelling on a motorway.
On the other hand, a rule prohibiting
mopeds from parking on motorbike parking
places may well discriminate,
when they need to park their bikes,
moped riders are in a comparable
situation to motorcycle riders.
And to complete this example,
imagine this car
park charged motorcycles the same
amount to park there, as a large lorry.
Here there might be discrimination because
the two cases are not comparable when it
comes to occupying parking spaces,
yet they are treated the same.
There are numerous measures in
the treaty which give expression to
the principle of non-discrimination
in a variety of contexts.
The treaty expressly
prohibits discrimination on
the grounds of nationality in
Article 18 TFEU, and prohibits
discrimination on the grounds of sex in
matters of employment in Article 157 TFEU.
In addition, the charter of fundamental
rights of the European Union contains
a prohibition on any discrimination
based any grounds such as sex,
race, color, political opinion,
age, sexual orientation and so on.
But it can be argued that all these
explicit prohibitions on discrimination in
EU primary law, are merely different
expressions of the general principle of
equality, or non discrimination,
which is a general principle of EU law.
And the case law of the Court of Justice
shows, that this general principle extends
not just to differences of treatment on
grounds such as sex, race, nationality,
political opinion which are quite familiar
to discrimination law as in national law,
or in the law of the European Convention
on Human Rights for
example, but also extends to difference
of treatments on any other grounds.
So for instance, treating steel producers
less favorably than aluminium producers,
or importers of liquors less favorably
than those of table wine, or
traders in lamb meat less favorably than
traders in beef might be discriminatory.
This has important implications for
a business because it widens the range
of arguments that they can use,
to challenge measures that might put
that business at a disadvantage.
Having said that,
it must be recognized that measures that
differentiate on grounds such as sex or
nationality, are much more likely to
be considered discrimination than treating
different industry sectors differently.
In particular any difference of treatment
on the grounds of nationality is likely to
be very problematic from
an EU law perspective as will
be discussed in the section
on the internal market,
prohibiting rules which
disadvantage products or persons or
services from other member states
in a particular national market,
has been a key factor in building the
internal market and European integration.
There are two main categories of
discrimination, direct discrimination
occurs when a person is treated less
favorably because of their status.
A good example of direct discrimination
was a Greek law, which stated that
only Greek nationals could hold
the post of captain or first mate.
Non-Greek nationals were at disadvantage
in their oppor employment opportunities,
because of their nationality.
So the Court of Justice held that the
Greek law w,as directly discriminatory on
grounds of nationality, or
another example, an Irish campaign backed
by the Irish government, that was designed
to encourage people to buy Irish and so
put non-Irish product, products at a
disadvantage because of their nationality.
But more common and
more subtle is indirect discrimination,
indirect discrimination occurs when
a requirement is imposed on a person
which appears on the face of it to tre,
treat everyone the same way.
But in reality, it puts person's in
a particular group at a disadvantage.
A good example of this are residency
requirements, in one such case,
an Austrian law required that all
undertaking trades in Austria to apply,
only appoint managers who
were resident in Austria.
The court found that this measure
was indirectly discriminatory,
because whilst it might not make
a mention of nationalities it in
fact put nationals of other
member states at a disadvantage,
as non-residents are in
the majority of cases, foreigners.
Another example, this time in
the context of sex discrimination,
is a policy by a department store to
exclude part time workers from its
occupational pension scheme.
As women were much less likely
than men to work full time,
such a policy placed
women at a disadvantage.
So the reason for the less favorable
treatment was not the sex of the workers,
but the result of
the policy was nonetheless,
that women were less
favorably treated than men.
But it's important to remember
that differences in treatment,
even if they might be prima facie
discriminatory, can be justified.
And the treaties provide member
states with specific exemptions,
that allow them to justify
the differences in treatment.
So rules that require imported use cars
to be subject to road worthiness tests
that domestic cars are not required
to take can be justified on
grounds of protecting public health.
And decisions to deport non-national EU
citizens, which of course cannot apply to
national EU citizens, can be justified on
the grounds of protecting public order.
In addition to these express requirements
that are stipulated in the treaty,
member states may be able to justify
indirectly discriminatory measures by
reference to other objective requirements
such as protecting the environment,
protecting consumers.
This issue of how differences of
treatment can be justified will be
dealt with in much greater detail in
the internal market part of the course.
It's also important to remember that
any such justification must respect
the principles of proportionality and
respect for
fundamental rights,
which are covered in Magnus' lectures.
The principle of nondiscrimination in
the EU law is particularly complex,
because this principle can be
seen as performing a number of
different roles within
the EU legal system.
It can have a market unifying role,
by removing differences of
treatment which can create
barriers in the internal market.
It can have a market regulatory role,
which ensures that all actors are treated
the same to ensure fair competition,
and prevent distortions in
the market causing by treating certain
market actors more favorably than others.
But, just as the European Union has moved
beyond being a merely Economic Union,
so the principle of nondiscrimination has
grown beyond being a mere
market principle, and
is now evolving into a principle that
protects the rights of all EU citizens,
regardless of whether they are market
actors to be treated fairly and equally.
And in that role as a constitutional
principle of non-discrimination,
it comes into the scope of the principle
of respect for fundamental rights and
that, is the subject of the next lecture.
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