The Curious Absence of Race Discrimination Litigation in EU Law

Organised by

• Department of Law

Despite the fact that there is pervasive racial inequity and racial discrimination within most countries of the European Union, and that there is a robust EU legal instrument (the Race Equality Directive, RED) that prohibits race discrimination across a wide range of sectors, there has been a puzzling lack of race discrimination litigation coming to the EU Court of Justice (CJEU) from national courts, particularly as compared with the flow of litigation to the CJEU challenging sex discrimination and age discrimination. Drawing on data concerning anti-discrimination litigation before the national courts of selected Member States, we ask a number of questions with a view to uncovering what the reasons might be. These questions include whether the low level of EU litigation on race discrimination largely reflects low litigation rates on the issues at national level; whether it may reflecting a preference for other remedies, instruments or forums within national and international law, and if so for what reasons; whether EU law’s obscuring of the intersectional nature of race discrimination could partly explain the paucity of case law on the topic; or whether disillusionment or disappointment on the part of potential litigants with the CJEU’s approach to date may be part of the answer. We also consider more fundamental possible reasons for the limited use that has been made so far of the EU’s Race Discrimination legislation, such as post-colonial ‘colour-blindness’ or uneasiness about the category of ‘race’ in Europe; including governments’ refusal or reluctance to gather ethnically or racially disaggregated data which is often necessary to demonstrate structural inequality or discrimination.