The European Court of Justice and the march towards substantive equality in European Union anti-discrimination law

Abstract

European Union (EU) anti-discrimination law has developed under a mostly formal, procedural Aristotelian approach to equality, driven by seminal European case law and incorporated into a body of EU non-discrimination directives. The academic literature has criticized this approach as formalistic and static (Formal equality, non-discrimination and European Union (EU) law section). Against this backdrop, this article explores how the Court of Justice of the EU (CJEU) embraces substantive equality dimensions of non-discrimination. It documents standout cases supporting substantive equality in direct and indirect discrimination (Direct discrimination is less formal than meets the eye and Indirect discrimination is substantive at heart sections). It explores how the CJEU has promoted substantive equality in cases of non-discriminatory differential treatment (Compulsory differential treatment makes formal equality substantive section) and through positive action or discrimination (Positive action can become substantive positive discrimination section). It unearths a wider scope for substantive positive discrimination when constructed as a limitation of, rather than an exception to, formal equality (Substantive positive discrimination can limit formal equality section). It frames the evolution towards substantive equality in the broader fundamental rights context that has become the EU law context, as applied in seminal CJEU cases (Formal anti-discrimination supports and reflects overall substantive equality section). It shows how formal EU equality law has always supported substantive equality and has gradually been mobilized to further substantive equality aims, redefining piecemeal the overarching purpose of EU equality law in the process while increasing concerns of transparency and legitimacy (Conclusion: pragmatism, discretion and legitimacy section).