2 Janneke Gerards: Protocol No. 12 to the European Convention on Human Rights

2.1 Background and aims of Protocol No. 12 – the accessory character of Article 14

Protocol No. 12 to the European Convention on Human Rights 1 has a relatively long history. Intergovernmental work on the Protocol started in the 1990s, when preparations for the new protocol were made by the Steering Committee for Human Rights (CDDH). 2 The Protocol was adopted by the Committee of Ministers of the Council of Europe on 26 June 2000 and it was opened for signature by the member states of the Council of Europe on 4 November 2000 in Rome. 3 The Twelfth Protocol entered into force on 1 April 2005, when was ratified by the required number of ten signatory states. 4 At 1 December 2008, the Protocol was signed by 37 member states and ratified by 17 member states of the Council of Europe. This means that, at present, 10 member states have not signed the Protocol. 5 Of the 37 signatory states, 20 states have not ratified the Protocol.

The primary reason for drafting and adopting the Twelfth Protocol were the limitations of the present non-discrimination provision of Article 14 ECHR. 6 The possible strength of Article 14 has been strongly reduced by the fact that is not an independent provision. 7 According to the text of the Article the prohibition of discrimination can only be invoked in conjunction with other, substantive Convention provisions. Only if the subject-matter of a discrimination complaint comes ‘within the ambit’ of such a provision, the complaint may be examined by the Court. 8 The result is that Article 14 offers only limited protection against discrimination in the area of social, cultural and economic rights, since these rights are not expressly protected by the Convention. 9

The restrictive effects of the accessory character of Article 14 have been reduced somewhat by the readiness of the European Court of Human Rights to give a broad interpretation to the various Convention rights in order to declare non-discrimination complaints admissible. 10 An example of this is the case of Sidabras and Diautas , in which the ECtHR held that, for the purpose of the examination of a complaint about discrimination, access to private employment should be taken to come within the ambit of the right to privacy protected by Article 8. 11 Likewise, the Court has interpreted Article 8 as covering such issues as planning policy and health care 12 and it has brought all kinds of social security benefits within the ambit of the right to property as guaranteed by Article 1 of the First Protocol. 13

Of special relevance to the way in which the Court defines the «ambit» of the substantive provisions of the Convention is its admissibility decision in Stec (2005). 14 In this case the Grand Chamber of the Court held that Article 1 of Protocol No. 1:

«… places no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social security scheme or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit … that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements. In cases … concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question.» 15

In the recent case of Carson (2008), the Court confirmed that this means that the prohibition of discrimination in Article 14 extends beyond the enjoyment of the rights and freedoms that the Convention and Protocols require each State to guarantee:

«It applies also to those additional rights, falling within the general scope of any Convention article, for which the State has voluntarily decided to provide». 16

As a consequence, the prohibition of discrimination of Article 14 applies as soon as a discrimination complaint somehow relates to a Convention right, even if the right itself would not be applicable to the facts of the case. Furthermore, if a state provides more extensive protection to a right than the Convention obliges it to do, Article 14 of the Convention requires that the state act a non-discriminatory manner.

Since the Court has thus widened the scope of Article 14, the difference in scope between Article 14 and Article 1 of Protocol No. 12 is not as large as is sometimes thought. Nonetheless, the Convention still primarily guarantees «classic» civil and political rights. In a number of cases the Court has indicated that these rights cannot infinitely be stretched to cover social rights, even though it has accepted that «the mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation». 17 The Court has held that such issues as access to public places or protection of the environment cannot generally be considered to fall within the scope of the Convention. 18 In addition, the Court’s case-law on the accessory character of Article 14 is not entirely consistent. Although the Court in many cases defines «the ambit» of the substantive provisions as widely as possible, various cases can be mentioned in which the Court has declared the discrimination complaint inadmissible because the substantive articles were not held to be «applicable» or because no interference with a substantive right was established. 19

Consequently, quite a large number of possible equal treatment cases cannot be successfully challenged under Article 14 of the Convention. Cases about employment decisions regarding civil servants, about specific social rights issues (access to public facilities, access to healthcare), 20 about the choice of the language of correspondence with public authorities, 21 about issues of «racial profiling», 22 about access to nationality 23 or about certain aspects of asylum and immigration policy will still be declared inadmissible. 24 In addition, it appears from the Court’s case-law that it does not regard Article 14 as a central Convention provision. 25 In many cases the Court refuses to address a on-discrimination complaint if it has already decided upon the complaint about interference with a substantive non-discrimination provision. 26 Only in rare cases the Court provides substantive reasoning in reaction to a discrimination complaint. The result of the Court’s reluctance to deal with non-discrimination claims is that its non-discrimination case-law is relatively underdeveloped in comparison to that about other fundamental rights protected by the Convention. 27

It is precisely for these reasons that the Twelfth Protocol was proposed and accepted. 28 The Protocol contains an independent, self-standing prohibition of discrimination and applies to all situations in which a difference in treatment arises under national law. 29 For states in which Protocol No. 12 has entered into force, this means that individual applicants can bring any case of unequal treatment by the state before the European Court of Human Rights, regardless of its subject. Even if a case solely concerns social or cultural rights it will have to be considered by the Court under Protocol 12. This does not only mean that individuals are protected against discrimination in a more effective manner, but also that the Court will more often be called upon in equal treatment cases, enabling it to further develop its case-law.

2.2 Research questions and approach

The primary aim and intended effect of Protocol No. 12 is to widen the scope of the prohibition of discrimination to provide better and more sophisticated protection of individuals against unequal treatment. Although this seems to be clear at the outset, many questions can be asked as to the exact meaning and effects of the Protocol. This report will address the most important of these questions, which have been specified as follows by the Commission to Propose a Comprehensive Anti-Discrimination Legislation in Norway:

I. Positive obligations and indirect horizontal effect

It is believed that ECHR Protocol 12 Article 1 includes positive obligations on the signatories, including an indirect horizontal effect of the provision.

1. How broad will the positive obligations and indirect horizontal effect flowing from ECHR Protocol 12 Article 1 be?

2. Will such positive obligations and horizontal effect be more comprehensive than those already existing under the main Convention’s anti-discrimination protection scheme, i.e. Article 14 in particular? If so, in what ways?

3. What will be the limits (if any) of positive obligations and indirect horizontal effect flowing from ECHR Protocol 12 Article 1?

4. An orientation about the discussion whether the obligation to introduce positive actions or preferential treatment might form part of the positive obligations flowing from the Protocol.

II. Scope of ECHR Protocol 12 Article 1

ECHR Protocol 12 represents a general (as opposed to an accessory) prohibition clause against discrimination. In the Explanatory Report para. 22 it is suggested an expansion of the present Convention anti-discrimination protection as follows:

• «the enjoyment of any right specifically granted to an individual under national law,

• in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner,

• by a public authority in the exercise of discretionary power,

• by any act or omission by a public authority.»

The Commission is interested in a detailed analysis on the meaning and implications of the expansions listed in the Explanatory Report. Also, the Commission is interested in views as to what are the differences (if any) between a general principle of non-arbitrariness in public administration and the scope of ECHR Protocol 12 Article 1.

III. Relationships between Article 14 of the Convention and ECHR Protocol 12 Article 1.

Article 14 of the Convention will not be made void even if ECHR Protocol 12 Article 1 comes into force.

1. Is it likely that the European Court of Human Rights, in its interpretation of Article 14 of the Convention, will refer to and draw upon developments with regard to its interpretation of ECHR Protocol 12 Article 1? The Commission is particularly interested in more details on this question, as it has been suggested in the literature that the Court’s judgment in Thlimmenos v. Greece may have been inspired by the work on ECHR Protocol 12 Article 1.

2. What other relationships might there be between the two anti-discrimination provisions once Protocol 12 Article 12 has come into effect?

This report aims to provide answers to these questions on the basis of the available legal literature and case law. In addition, on request of the Commission a short section (IV) is added to explain the interrelationship between Article 1 of Protocol No. 12 and Article 26 of the International Convention on Civil and Political Rights (ICCPR).

As a preliminary to the report it must be remarked that little English-, Dutch-, German- or French-language literature has become available after the entry into force of the Protocol. The scholarly lack of interest in the Protocol might be explained by the fact that many important member states have still not signed or ratified the Protocol, as well as by the fact that, as yet, no cases about Protocol No. 12 have been decided by the European Court of Human Rights. 30 Although little information is available about cases pending before the Court, it may be derived from the available data that only a few cases have been brought under the Protocol thus far. 31 This might be different for the courts in the states that have ratified the Protocol, but due to language difficulties it is hard to investigate to what extent the Protocol has been invoked in national procedures. In the Netherlands, the Protocol has been invoked before the (lower) courts a number of times, but this has always been done in combination with other non-discrimination provisions, such as those contained in Article 26 ICCPR or Article 14 ECHR. Unfortunately, in none of these cases the Dutch courts have interpreted and applied Article 1 of Protocol No. 12 on its own, nor have they addressed any of the questions raised by the Commission.

As a result it is still rather difficult to answer questions as to the interpretation, meaning and scope of Protocol No. 12. The present report therefore draws heavily on the Explanatory Report to the Protocol, the drafting history, the existing case-law of the European Court of Human Rights and the sparse legal literature that is available. Answers to the research questions can and will only be given with great prudence.

2.3 Positive obligations, (indirect) horizontal effect and preferential treatment

2.3.1 Positive obligations and (indirect) horizontal effect

2.3.1.1 The Explanatory Report

According to the Explanatory Report to Protocol No. 12, Article 1 of the Protocol embodies a primarily negative obligation for the states, i.e. an obligation and to refrain from making unjustified distinctions between individuals or groups. 32 The text of Article 1 makes clear that a complaint about discrimination must relate to the enjoyment of «any right set forth by law» in order to be judicially enforceable. This formula has been included expressly to limit the possibility of reading positive obligations into the text. 33 It implies that Article 1 contains an obligation for the government not to discriminate when securing existing rights. This means that the text cannot easily be read as to include an obligation to create new rights or to introduce specific legislation to protect the principle of equal treatment. 34

As a species of the debate about positive obligations, attention has been paid in the drafting history to the question whether Protocol No. 12 might have any (indirect) horizontal effect. It appears from the Explanatory Report that the Twelfth Protocol is not intended to impose a general positive duty on the states to take measures to prevent or remedy all instances of discrimination in relations between private parties. 35 No obligation should be inferred from the text to adopt general legislation prohibiting discrimination in employment or the provision of services and goods. The drafting committee even expressly rejected a number of text variants which would more easily allow for direct or indirect horizontal effect. 36 The text that is finally chosen is meant to restrict any horizontal effect by expressly stating in the second paragraph that it is discrimination by public authorities that is prohibited. 37

Obviously, much has been done by the drafters to limit the horizontal effect of the Protocol, but the possibility of indirect horizontal effect cannot be ruled out entirely. The Explanatory Report states that a failure to provide protection against discrimination in very serious and grave cases may constitute a failure to comply with Article 1, even if a case concerns a horizontal relationship. 38 It reduces the possible impact of this statement by asserting that any such positive obligation would concern, at the most, relations in the public sphere that are normally regulated by law and for which a state has a certain responsibility (e.g. access to work and access to public services or utilities such as medical care and water). 39 The Explanatory Report also underlines that purely private matters would not be affected by the Protocol. 40 As De Schutter has mentioned, this may be taken to mean that in the interactions between private individuals the state authorities will only be under an obligation to prevent the most flagrant cases of discrimination and offer remedies to the victims thereof. 41

The definition of the scope of Article 1 of Protocol No. 12 does not entirely exclude any (indirect) horizontal effect. As will be explained in section II.2, the second paragraph of Article 1 does cover contracts in which a public authority is engaged, as well as services provided by the government (e.g. public transport or education). It is plausible that the second paragraph also covers decisions taken by a public authority in its capacity as an employer. 42 This means that the Protocol has, to a certain extent, horizontal effect, since the factual legal relationship in these cases is more «horizontal» than «vertical» in character. It is important to note, however, that such horizontal effect also arises from Article 14 of the Convention – according to the Court’s case-law, the state always has the obligation to respect Convention rights, whether it acts in its official state capacity or not. 43 Still, there is an important difference. As a result of the accessory character of Article 14 and the limited applicability of Articles 6 and 8 to employment relationships with civil servants, the present prohibition of discrimination does not generally cover the kind of discrimination issues that may arise from such relationships. The same is true for discrimination complaints about access to (some) public facilities and services. Because of the self-standing character of Article 1 of Protocol No. 12, employment complaints by civil servants and complaints relating to (allegedly) discriminatory provision of services by the government (for example complaints about accessibility of public transport facilities for disabled persons) can now be decided on their merits by the Strasbourg Court. Although it is debatable whether this can really be regarded as horizontal application of the European Convention, it may be a factor to be taken into account in deciding about the ratification of the Protocol.

2.3.1.2 Case-law of the European Court of Human Rights

Introduction

As has been mentioned before, no Strasbourg case-law is presently available in which the Twelfth Protocol has been interpreted and applied. It therefore cannot be said with certainty whether the European Court will opt for a similar approach concerning positive obligations as is currently used with respect to Article 14. This makes it rather difficult to predict the scope of any possible positive obligations and horizontal effect that may flow from Protocol No. 12. However, the Court will probably follow its established case-law, building on precedents it has already created. 44 This section will therefore set out the general line in the Court’s case-law on positive obligations and the creation of (indirect) horizontal effect under Article 14 of the Convention.

Positive obligations in the Court’s present case-law

The Court does not easily read positive obligations into the Convention if there is much controversy between the member states about the exact meaning or scope of a certain right. It usually leaves a wide margin of appreciation to the states in sensitive or complicated policy areas such as planning policy, tax law or social security. The Court defines positive obligations on the basis of a balancing exercise, whereby it juxtaposes the individual interest of the applicant (e.g. an interest to non-discrimination) and the general interest of the state (i.e. the interest not to treat cases in the same way). If a wide margin of appreciation is left to the state, the government’s reasons not to accommodate an individual interest to equal treatment will relatively easily be accepted. 45

As regards the positive obligations that the Court has read into the prohibition of discrimination of Article 14 ECHR, it can be concluded that such obligations and effects are limited in scope. The most important positive obligations that have been found to exist under Article 14 are procedural in nature. Such procedural obligations have only recently been accepted by the Court in the case of Nachova (2005). 46Nachova concerned the killing of two Roma by military policemen who were attempting to arrest them. According to the applicants, the facts disclosed disproportionate use of violence that was motivated by racial prejudice against Roma. Although the Court found that no racist intent had been established «beyond reasonable doubt», it did find a positive obligation to investigate allegations of racist motive:

«… the authorities’ duty to investigate the existence of a possible link between racist attitudes and an act of violence is an aspect of their procedural obligations arising under Article 2 of the Convention, but may also be seen as implicit in their responsibilities under Article 14 of the Convention taken in conjunction with Article 2 to secure the enjoyment of the right to life without discrimination.» 47

In later case-law the Court has explained that this positive obligation is not an absolute one, but an obligation to use best endeavours – the authorities must do what is reasonable in the circumstances. 48 In addition, the Court has made clear in the case of Angelova and Iliev that the national criminal legislation should contain a specific category for racially motivated offences in order to combat racial prejudice more effectively. 49 It can be derived from the latter line of case-law that the Court will also sometimes oblige national states to introduce legislation to combat particular forms of discrimination. It may be noted, however, that the case of racially motivated violence is highly specific – the Court itself clearly referred in all relevant cases to the need «to reassert continuously society’s condemnation of racism and to maintain the confidence of minorities in the authorities’ ability to protect them from the threat of racist violence». 50 It therefore cannot be concluded from this case-law that the Court will also be willing to adopt positive obligations to legislate against discrimination in other situation types.

Substantive positive obligations (such as an express obligation to apply the prohibition of discrimination in private or horizontal relations) have not been accepted under Article 14 ECHR. However, some positive obligations may arise from the combination of Article 14 and provisions such as Article 8 or Article 1 of Protocol No. 1. For example, if a state recognises individual rights and claims in the area of social security, the Court has held that the state should refrain from offering these advantages in a discriminatory way. 51 This primarily negative obligation may easily be translated into a positive obligation to guarantee all kinds of national benefits and advantages without discrimination. A good example of this can be found in the case of Petrov , which concerned the possibility for prisoners to maintain contact with their families. 52 Unlike married prisoners, the applicant had not been allowed to use the telephone to call his long-term partner. The Court held that Article 8 implies a positive obligation for the states to assist inmates in maintaining contact with their close family. 53 Since no convincing explanation had been advanced by the government to justify the difference in treatment between married and unmarried prisoners, the Court found a violation of Article 14 in conjunction with Article 8. 54 This outcome does imply an obligation for the respondent state to remove the difference in treatment with respect to contact between prisoners and their partners. Since the Court has regularly found such positive obligations to exist under Article 14 in combination with Article 1 of Protocol No. 1, Article 8 and other Articles of the Convention, it is probable that it will also recognise such obligations under Article 1 of Protocol No. 12.

The substantive kind of positive obligations described above differs from the general obligation to adopt legislation to combat discrimination in private law relationships. Although this cannot be said with any certainty, it does not seem very likely that the Court would accept such an obligation. Not only is it clear from the drafting history that such an obligation is expressly rejected by the states parties, there is no indication in the existing case-law on Article 14 that the Court would be willing to accept such an obligation. Abstract and general judgments in which the Court expresses a broad view on the lack of specific legislation are extremely rare. Examples are almost only visible in the sphere of abuse of minors, where the Court has found the lack of specific legislative possibilities for criminal prosecution to be incompatible with the need to protect the right to respect for the private life of the victim. 55 The Court has made clear that it normally will not interfere in the national choice to prefer civil-law provisions over criminal-law provisions:

«… the choice of the means calculated to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. In this connection, there are different ways of ensuring «respect for private life», and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue. Recourse to the criminal law is not necessarily the only answer.» 56

It is only because of the highly abject character of abuse of minors that the Court has accepted a positive obligation to introduce criminal-law provisions in this area:

«The Court finds that the protection afforded by the civil law in the case of wrongdoing of the kind inflicted on Miss Y is insufficient. This is a case where fundamental values and essential aspects of private life are at stake. Effective deterrence is indispensable in this area and it can be achieved only by criminal-law provisions; indeed, it is by such provisions that the matter is normally regulated.» 57

The Court has reiterated this principle in later case-law, which illustrates that it will not normally oblige the member states to make specific legislative choices. 58

Other examples of legislative positive obligations concern clear legislative anomalies or mistakes, as in the case of L. v. Lithuania . 59 In the case of L. , the right for transsexuals to change their gender and their civil status was recognised by Lithuanian law, but a bill to allow transsexuals to complete full gender-reassignment surgery was already pending for years without being accepted or rejected. The Court did not see any good reason not to adopt the bill and it held that the necessary legislation should be adopted within three months of the judgment becoming final. 60

In all of these situations, a clear violation of important individual rights was effected by a lack of legislation in an area where the Court usually does not leave a wide margin of appreciation. Apart from this highly specific category of cases, the Court will not easily accept a positive obligation to actively develop and adopt legislation.

(Indirect) horizontal effect in the Court’s present case-law

As to the horizontal effect of the Protocol it is doubtful whether this will reach any further than the effect that has already been created by the Court. The present case-law shows two different approaches that are used to give the Convention some applicability in private law relationships. Firstly, the Court has sometimes imposed positive obligations on the national authorities to guarantee Convention rights in relations between private individuals. The case of Appleby , for example, concerned the question whether the state could be held responsible for «private» limitations on the freedom of expression – in this case a prohibition on distribution of leaflets in a privately owned shopping centre. 61 The Court held in this case that the Convention could not (yet) be considered to cover the right to freedom of expression on private property, but it also found that

«… where the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation would arise for the State to protect the enjoyment of the Convention rights by regulating property rights». 62

The approach adopted by the Court in Appleby is rather similar to the views expressed by the drafters of Protocol No. 12 in the Explanatory Report. It is said in the Report that no positive obligations and (indirect) horizontal effect can generally be held to flow from the Protocol, except for «very serious and grave situations». Having regard to the Court’s findings in Appleby and the Explanatory Report, it can hardly be expected that the Court will impose much stronger positive obligations to guarantee fundamental rights in private law cases in the context of Protocol No. 12.

Secondly, the Court has created indirect horizontal effect by holding national courts responsible for a proper interpretation and application of the Convention. In many private law cases about, for example, defamation, property rights or family law issues, the Court has examined whether the national courts correctly applied the relevant provisions of the Convention. 63 The relevance of this approach to discrimination issues is illustrated by the 2004 case of Pla and Puncernau . 64 The case concerned a private law dispute about the interpretation of a will that was made in 1939 and in which the testatrix indicated that her son was to transfer the estate to a «son or grandson of a lawful and canonical marriage». The national court had interpreted the will as meaning that the testatrix did not want adopted or non-biological grandchildren to inherit her estate. According to the applicant this interpretation constituted a discrimination as prohibited by Article 14 in conjunction with Article 8. The Court decided as follows:

«Admittedly, the Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention.» 65

These considerations of the Court show that national courts need to apply the general principle of equal treatment as protected by Article 14 even in purely horizontal relationships, such as the interpretation of a testamentary disposition or a private contract. This is a far-reaching judgment which – if applied to Article 1 of Protocol No. 12 – would seem to imply some significant indirect horizontal effect. 66 After all, national courts would always have to respect the principle of equal treatment in deciding private law disputes, regardless of whether they concern employment contracts, contracts to provide services or goods or any other private transaction. Moreover, national courts should interpret the principle of equal treatment in accordance with the equal treatment case-law of the European Court of Human Rights as it stands at the moment the case is being brought before the national court.

An important caveat is in place, however, as regards the actual impact of the decision in Pla and Puncernau . The judgment has been delivered by a Chamber of seven judges, two of whom did not support the decision. The Grand Chamber has not expressed itself on the issue, nor have any similar cases been brought before the Court since 2004. This means that there is no authoritative judgment available in which the reasoning of the Chamber in Pla and Puncernau has been either confirmed or overruled. Moreover, it must be stressed that the judgment in Pla and Puncernau has not been favourably received by legal scholars – on the contrary, most case-comments are highly critical on the way in which the Court has interpreted and widened the national courts’ obligation to apply the Convention in private law disputes. 67 Even though the Court’s reasoning does not strongly deviate from that in other cases in which it has introduced some indirect horizontal effect (cf. the cases on defamation, family law or property rights), it is therefore still questionable whether Pla and Puncernau is really indicative of the Court’s stance on indirect horizontal effect. 68

Having regard to the above, it is difficult to predict the extent of the indirect horizontal effect that the Court might give to Protocol No. 12. Clearly, future confirmation or revision of the Pla and Puncernau line of reasoning may have important consequences for national courts that have to deal with cases concerning Protocol No. 12, since the material scope of Protocol No. 12 is substantially wider than that of Article 14. Ratification of Protocol No. 12, if combined with a wide reading of Pla and Puncernau , would oblige the national courts to interpret all kinds of private law contracts in conformity with the European Convention and the case-law of the ECtHR. In addition, ratification would make it easier for individuals to appeal to the European Court of Human Rights in (originally) private law cases, which would mean that the Strasbourg Court would pronounce itself on national cases about contract law much more frequently. 69 However, it be repeated here that it is far from certain that such consequences will really occur, since it is still possible that the Court will revise or nuance its findings in Pla and Puncernau . 70

2.3.2 Positive action or preferential treatment

Protocol No. 12 does not provide for a specific exemption relating to positive action or preferential treatment. The fact that the Protocol does not contain an express exception clause for preferential treatment has, in itself, raised some criticism in several states. 71 At least some of the negotiating states would have favoured the inclusion of such an exemption, but apparently a number of states strongly objected to this. As a compromise the Preamble to the Protocol contains the following sentence: 72

«Reaffirming that the principle of non-discrimination does not prevent States Parties from taking measures in order to promote full and effective equality, provided that there is an objective and reasonable justification for those measures […].»

This rather vague and undefined sentence is elucidated by the Explanatory Report, which states that

«… the fact that there are certain groups or categories of persons who are disadvantaged, or the existence of de facto inequalities, may constitute justifications for adopting measures providing for specific disadvantages in order to promote equality, provided that the proportionality principle is respected.» 73

The Explanatory Report further makes clear that the Protocol does not impose an obligation to adopt positive measures, since such an obligation would be inconsistent with the idea that the Convention does only contain enforceable individual rights. 74 This means that the Protocol does certainly leave the member states with sufficient leeway to adopt measures of positive action or preferential treatment, but it does not oblige them to do so.

It is less obvious how the Protocol should be applied to individual claims about preferential treatment. The Explanatory Report confines itself to stating that the proportionality principle has to be respected. Further elaboration of this general requirement of proportionality in case-law is essential if Protocol No. 12 is to provide any guidance to national policy makers and courts with respect to the acceptability of certain preferential treatment measures. To date, the European Court of Human Rights has not dealt with clear complaints about positive action or preferential treatment, which makes it difficult to say anything about the possible consequences of Protocol 12 for preferential treatment measures. 75 It is probable, however, that the Court will conform itself to the elaborate case-law that has been developed on the topic by the European Court of Justice (ECJ). If it would deviate from this case-law, undesirable inconsistencies and conflicting state obligations might arise for the states parties that are also member states of the EU. Both the ECJ and the ECtHR tend to avoid such differences and try to copy each other’s approaches. Although this normally means that the ECJ follows the ECtHR’s case-law, it is clear that the ECJ’s case-law in the area of non-discrimination is far more developed and refined than that of the ECtHR. For that reason, it is not surprising that the ECtHR has often adopted non-discrimination concepts and standards that have originally been developed by the ECJ. 76 There is no reason why it would not continue to do so in the future.

Nonetheless, it is difficult to make predictions in this area. The ECJ’s case-law on preferential treatment and non-discrimination is rather restrictive and it has often been criticised precisely for that reason. Other international organisations have sometimes adopted a different, more favourable approach towards issues of preferential treatment. An example is a case that was decided by the Human Rights Committee in 2004, in which it accepted a Belgian quota system that was based on arguments of descriptive representation and diversity which probably would have been rejected under the ECJ’s criteria for preferential treatment. 77 Given the ECtHR’s overall aim to offer real and effective protection to the rights contained in the Convention, it cannot be ruled out that the Court would be willing to adopt a more flexible approach with respect to preferential treatment. 78

2.3.3 Conclusions and answers to questions

1. How broad will the positive obligations and indirect horizontal effect flowing from ECHR Protocol 12 Article 1 be?

2. Will such positive obligations and horizontal effect be more comprehensive than those already existing under the main Convention’s anti-discrimination protection scheme, i.e. Article 14 in particular? If so, in what ways?

3. What will be the limits (if any) of positive obligations and indirect horizontal effect flowing from ECHR Protocol 12 Article 1?

4. An orientation about the discussion whether the obligation to introduce positive actions or preferential treatment might form part of the positive obligations flowing from the Protocol.

It has been explained in this section that extensive positive obligations have already been imposed to the states by the ECtHR on basis of substantive Convention provisions and Article 14:

• Procedural obligations have been imposed under Article 14 ECHR to use best endeavours to effectively investigate possibly racially motivated offences;

• National states are sometimes obliged to introduce specific legislation, but only in limited circumstances, e.g. to combat racial violence, to effectively deter highly abject crime or to guarantee the core of the rights protected under the Convention (even in private law relationships).

• National states are sometimes obliged to introduce specific legislation in order to remove legislative anomalies or mistakes that clearly and unjustifiably cause an interference with fundamental rights.

• All benefits and advantages that are offered by national legislation or policy should be provided in a non-discriminatory manner, except for the situation in which objective and convincing reasons can be advanced in justification of differential treatment.

• National courts should interpret national legislation as far as possible in conformity with the European Convention of Human Rights, including the prohibition of discrimination, even in purely private law cases. It is not clear, however, how far this positive obligation will extend.

Given this already extensive set of positive obligations there is no reason to suppose that the Court will be easily tempted to add new, even more extensive positive obligations purely on basis of Protocol No. 12. It is particularly unlikely that the Court will impose obligations to introduce national legislation to generally protect the principle of equal treatment in private law relationships (such as employment relations), since this would not fit in with the existing case-law on positive obligations. In addition, the creation of such positive obligations has expressly been rejected by the drafters in the Explanatory Report.

Nonetheless, if any new obligations would be imposed they would probably either concern relations in the public sphere for which the state has a certain responsibility (such as access to public services, education or medical care), or cases of flagrant discrimination (cf. the case-law about the need to combat racial violence). Purely private matters should not be affected by the Protocol. Furthermore, in most cases concerning positive obligations the Court will almost certainly leave a wide margin of appreciation to the states and it will always search for a fair balance between the need to protect individuals against discrimination and the need for the state to protect general and individual interests. In conclusion, this means that, in all probability, the number of new obligations flowing from Protocol No. 12 will be rather limited.

As regards preferential treatment, the consequences of the Protocol are more difficult to predict. It may be expected that the Court will be asked to express itself on national positive action and preferential treatment policies because of the wider material scope of the Protocol. It is not very plausible that the Court will impose positive obligations on the states to introduce preferential treatment policies, especially since the Preamble formulates the possibility for positive action in a negative manner («… the principle of discrimination does not prevent States Parties from taking measures in order to promote full and effective equality…»). In all probability, the Court will therefore limit itself to examining individual complaints about existing national policies for their conformity with the equal treatment principle. However, neither the Explanatory Report nor the Court’s existing case-law provide many clues as to the approach or standards that should be adopted by the Court in dealing with these cases. It is most probable that the Court will adopt the criteria for justification of positive action that are developed by the ECJ, but even under EU law many questions about positive action have remained unanswered. For that reason the ECtHR can also be expected to look for inspiration in national legislation and international law (in particular in the case-law of the Human Rights Committee and the approaches adopted under specific treaties such as CEDAW and CERD).

2.4 Scope of Protection of Article 1 of Protocol No. 12

2.4.1 «The enjoyment of any right set forth by law»

One of the most important and evident changes brought about by Article 1 of the Twelfth Protocol is the replacement of the sentence «the enjoyment of the rights and freedoms set forth in this Convention» by the sentence «the enjoyment of any right set forth by law». It is precisely this replacement that renders Article 1 into a self-standing, independent prohibition of discrimination, which can be invoked by any victim of discrimination without being obliged to demonstrate a link with a substantive Convention provision. The scope of protection of the non-discrimination provision is thereby substantively broadened. However, it is of great importance to the understanding of Protocol 12 that any case of discrimination must still relate to the enjoyment of «any right set forth by law» in order to be justiciable. As has been discussed in section I of this report, this requirement has been included in the first paragraph to limit the possibility of reading positive obligations or indirect horizontal effect into the text. 79 Apart from that, the exact meaning of the sentence is yet to be determined. The Explanatory Report gives hardly any information as to its interpretation, stating only that the term «law» is not restricted to national law, but may also cover international law. 80 It is precisely this information that has sparked intense debate in states with a dualist or incorporation system, such as the United Kingdom. 81 According to the UK government, the interpretation given in the Explanatory Report may imply that the protection against discrimination can be extended to rights which are protected by international treaties that have not been incorporated in national law or which do not have direct effect (as is the case with many social, cultural and economic rights). 82 Such international treaty rights might suddenly become judicially enforceable by means of an individual complaint relating to discrimination. 83 Some have argued that national systems of incorporation could thus be unwarrantedly circumvented. 84 Most experts have questioned this, however, arguing that international rights which have not been incorporated in the national legal system would not meet the standard of being «set forth by law». 85 Indeed, it is relevant to note that the Explanatory Report does mention that the coverage of international law «does not mean that this provision entails jurisdiction for the European Court of Human Rights to examine compliance with rules of law in other international instruments». 86 Although case-law of the Court has to be awaited for clarification on the issue, it is rather unlikely that ratification of the Protocol will result in unwarranted justiciability of international law provisions that a state has not incorporated in national law.

2.4.2 «No one shall be discriminated against…»

According to § 2 of Article 1 Protocol No. 12, «no one» shall be discriminated against by any public authority on any ground such as those mentioned in § 1. Having regard to the need for a consistent interpretation of the Convention, it is almost certain that the notion of «no one» will be interpreted similarly to the notion of «everyone» that is contained in Article 1 of the Convention («The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention»). The Explanatory Report does not contain any reasons why a different approach should be adopted in respect to Protocol No. 12. 87

From the Court’s case-law about Article 1 and other Convention provisions, such as Article 14, it may be derived that the Convention does not only protect natural persons against interference with their fundamental rights, but also groups of persons and legal persons such as companies and commercial enterprises. There are many examples of legal persons complaining about discrimination, such as trade unions, building societies, development companies, religious communities and publishers of newspapers. 88 In all of these cases the complaints have been declared admissible by the Court. 89 Furthermore, it appears from the case-law concerning Article 1 that there is no limitation as to the nationality of the persons to be protected; the protection offered by the Convention even stretches to persons who are not lawfully present on the territory of a state and stateless persons. 90 The only relevant criterion is that the alleged victim of discrimination in some respect must be subject to the jurisdiction of the State from which he claims protection. 91 This means that Protocol No. 12 ECHR, just like the other provisions of the Convention, has an extensive personal scope and protects a wide range of both national and legal persons against discrimination.

2.4.3 Grounds of discrimination

In drafting Article 1 of Protocol No. 12, the choice has been made not to change or supplement the list of discrimination grounds as contained in Article 14. The drafters of the Protocol have been severely criticised for this choice by the Parliamentary Assembly. 92 According to the Parliamentary Assembly, several grounds other than those mentioned in Article 14 can also be termed «suspect» or «odious» and should have been added to the list. In particular, the Parliamentary Assembly mentioned sexual orientation as a «suspect» ground of discrimination. 93 These criticisms have been parried in the Explanatory Report, in which it is stated that the addition of grounds might lead to unwarranted a contrario interpretations. 94 If certain grounds were to be added because of their perceived «suspectness», some states might be inclined to reason that, apparently, it is not problematic to distinguish on the basis of grounds not expressly mentioned (e.g. genetic make-up or disability). This kind of reasoning would be particularly undesirable since opinions on the «suspectness» and invidiousness of certain grounds may evolve in the course of time – a ground that is presently thought to be relatively unproblematic may well be considered unacceptable twenty years on. In addition to this, it was remarked in the Explanatory Report that there are no legal reasons to change the list of grounds. 95 The list is not exhaustive, which means that discrimination based on other grounds than those mentioned in the Article can be challenged just as effectively. 96 Finally, it would appear from the case-law of the ECtHR that the fact that a ground is not mentioned in Article 14 does not have any negative impact on the way in which a discrimination complaint is examined. This is clear, for instance, from the Court’s recent decisions on discrimination based on sexual orientation, in which it applied its very strict «very weighty reasons test» without paying the slightest attention to the fact that this ground is not included in the list. 97 For these reasons, the list of grounds was left unchanged.

The advantage created by such an open list of grounds is manifest, since it makes it easy to challenge cases of discrimination based on multiple grounds and cases of intersectional discrimination. In addition, it reduces the burden of proof for the applicant, who does not have to demonstrate that a difference in treatment was actually based on one of a limited number of grounds. In the same line, the open list of grounds makes the concept of indirect discrimination rather superfluous, although it can still be worth wile for an individual applicant to demonstrate that a case of discrimination affects a specific group to a disproportionate extent. After all, if the particular group is characterised by factors such as race or gender, it is probable that the Court will apply a stricter test to the arguments advanced in justification of the distinction.

For reasons such as these, Article 1 of Protocol No. 12 can be considered to constitute an important addition to national non-discrimination legislation and European legislation, which is mostly sectoral in nature and often only protects against discrimination on a limited number of grounds. The level of protection created by Protocol No. 12 is therefore relatively high, even if it only concerns discrimination by public authorities and not discrimination by private actors.

2.4.4 Legislation, governmental acts and exercise of power by public authorities

Regarding the scope of protection of Article 1, it is of relevance that the non-discrimination principle is not only applicable to legislative acts, but also to all other acts and exercise of power by public authorities. In order to clarify this point the Explanatory Report distinguishes four different categories of discrimination which are covered by Article 1 of the Twelfth Protocol:

1. Discrimination in the enjoyment of any right specifically granted to an individual under national law;

2. Discrimination in the enjoyment of a right which may be inferred from a clear obligation of public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner;

3. Discrimination by a public authority in the exercise of discretionary power (e.g. granting subsidies or exemptions, granting building or planning permits);

4. Discrimination by any other act or omission by a public authority (e.g. the behaviour of law enforcement officers when controlling a riot). 98

Although these categories seem to be self-evident, it is rather unclear how they relate to the two paragraphs of Article 1 of Protocol No. 12. According to the Explanatory Report it was unnecessary to specify the aspects that either fall under the first paragraph («the enjoyment of any right set forth by law shall be secured without discrimination on any ground…») or under the second («no one shall be discriminated against by any public authority on any ground…»). The two paragraphs must be considered to be complementary, their combined effect being that all elements are covered. 99 The reason why the division in paragraphs has been made has to do with the possible horizontal effect that might flow from the new provision. 100 The drafters wanted to make clear that the provision did not cover private acts of discrimination and did so by expressly stating that it is the state’s obligation to secure the enjoyment of rights without discrimination. Some experts criticised this formulation because it did not make entirely clear whether discrimination in fact (e.g. riot controlling) or exercise of discretionary power would be fully covered by this text. For this reason the second paragraph was added to secure coverage of all acts by public authorities.

The four categories distinguished in the Explanatory Report, in combination with the text of the two paragraphs of Article 1, make abundantly clear that the scope of application of Article 1 is not limited to legislation or clear government acts such as granting permits or exemptions. Especially the last category of discrimination that is mentioned in the Explanatory Report («discrimination by any other act or omission by a public authority») offers comprehensive protection against discrimination by public authorities. It is formulated such that it may extend to contracts in which a public authority is engaged or to services provided by the government (e.g. public transport or education). It is also probable that it covers decisions taken by a public authority in its capacity as an employer (see section I.1.1).

The question may be raised whether this range of protection against discrimination is really new and whether it differs from the protection that is already offered against government behaviour. Article 14 presently protects individuals against all government interference with their right to unequal treatment, provided that the case concerns an individual right that comes within the ambit of one of the substantive provisions of the Convention. This means that most situations mentioned in the four categories are already covered. This is clear for legislation (category 1) and national law obligations for the authorities to act in a certain way (e.g. the obligation to provide social security benefits to certain groups (category 2)). Subsidies and permits will often be covered by Article 1 of the First Protocol or Article 8 (category 3), while «other acts or omissions» (category 4) can come within the scope of the right to respect for one’s private life or the right to freedom of assembly (as in the situation of riot controlling in the context of a demonstration). The only difference is that it is now sometimes difficult for individuals to demonstrate a clear link between the difference in treatment and a substantive right, while this will be different under Article 1 of Protocol No. 12. The fact remains, however, that even under Protocol No. 12 an individual claim will always need to relate to a «right set forth by law».

2.4.5 Conclusions and answers to questions

ECHR Protocol 12 represents a general (as opposed to an accessory) prohibition clause against discrimination. In the Explanatory Report para. 22 it is suggested an expansion of the present Convention anti-discrimination protection as follows:

• «the enjoyment of any right specifically granted to an individual under national law,

• in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner,

• by a public authority in the exercise of discretionary power,

• by any act or omission by a public authority.»

The Commission is interested in a detailed analysis on the meaning and implications of the expansions listed in the Explanatory Report. Also, the Commission is interested in views as to what are the differences (if any) between a general principle of non-arbitrariness in public administration and the scope of ECHR Protocol 12 Article 1.

The personal scope of Protocol No. 12 is identical to that of Article 14 ECHR. Article 1 of Protocol No. 12 protects the same group ( i.e. all natural and legal persons subject to the jurisdiction of the state, see section II.2) and prohibits discrimination on the same non-exhaustive list of grounds (see section III.3). Furthermore, the material scope of Protocol No. 12 is identical to the material scope of Article 14 as regards the kinds of acts by national public authorities that are covered (drafting legislation and general rules, exercising discretionary powers of government, and all other acts and omissions). The main difference is that four categories of government behaviour have now expressly be named by the Explanatory Report and the material scope is formulated more clearly in the two different paragraphs of Article 1.

As regards the material scope of Protocol No. 12, some uncertainty still exists as to the exact meaning of the sentence «the enjoyment of any right set forth by law». The sentence has been formulated in this manner so as to make clear that the prohibition of discrimination does not have horizontal effect. It is not expected by most scholars that the ECtHR will interpret the sentence as meaning that international treaty provisions that have not been incorporated into national law are legally enforceable for individual applicants, but the future case-law of the Court will have to be awaited for confirmation of this assumption (see section II.1).

The most important innovation of Article 1 of Protocol No. 12 is therefore to be found in the fact that it is not necessary for an individual applicant to demonstrate a link between the alleged discrimination and one of the substantive Articles of the Convention. This means that a much wider range of legal issues is covered by Protocol No. 12, varying from providing access to public services to immigration control and from employment relationships of civil servants to systems of racial profiling. Combined with the fact that no limitations have been introduced as to the material or personal scope of the prohibition of discrimination, this means that the ECtHR will be able to express itself on the reasonableness of about every difference in treatment that may arise as a result or even as an unintended effect of acts of public authorities.

2.5 Concepts of discrimination and standards of review

2.5.1 Equality and non-discrimination

Although the Parliamentary Assembly has been critical about this, Article 1 of the Twelfth Protocol does not contain a general equal protection clause. 101 An important reason for leaving out a general equality principle appears to have been the desire to keep the text of the Twelfth Protocol as closely as possible to the text of Article 14. Since Article 14 would remain in force, inconsistencies between both provisions were to be avoided. It is explained in the Explanatory Report that the omission of a general equality clause can hardly be considered problematic, since the principles of non-discrimination and equality are closely intertwined. 102 However, perhaps the most important reason to limit the Protocol to a non-discrimination clause can be found in the fact that at least some of the negotiating states did not want any far reaching positive obligations to be imposed on them. If a general and positively formulated equality provision were laid down, such positive obligations would hardly be avoidable. After all, factual equality may perhaps only be reached by active intervention by the government. As a result, a purely negative prohibition of discrimination may have been the only formulation that was acceptable to all states. In the end, a compromise was reached by introducing a phrase in the Preamble, stipulating that the prohibition of discrimination flows from the «fundamental principle according to which all persons are equal before the law and are entitled to the equal protection of the laws». 103

Just like Article 14, Article 1 of Protocol No. 12 thus only prohibits discrimination. This does obviously not imply that all unequal treatment is prohibited – such would be impossible, since classification is unavoidable in practice. For that reason the United Kingdom would have favoured the inclusion of a clear and specific restriction clause in the text of the Protocol itself. 104 The drafters of the text, however, did not see any need for this, since, in their opinion, the situations where a distinction would be acceptable are already sufficiently safeguarded by the very meaning of the notion of discrimination. 105 The result is that the formulation of Article 1 of Protocol No. 12 does not differ from the text of Article 14 of the Convention. The question is whether this will imply that the same tests and standards will be applied to interpret Article 1 of Protocol No. 12 as have been developed in the context of Article 14. The remainder of this section will be devoted to answering this question. To do so, the standards of review under Article 14 will shortly be reiterated and attention will be paid to the question whether the standards used by the Court are similar to the general test of arbitrariness or reasonableness that is often applied under national law.

2.5.2 Standards of review under Article 14 ECHR

According to the Court’s well-established case-law on Article 14 of the Convention, a difference in treatment must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. 106 The European Court also sometimes examines whether the applicant finds himself in an analogous or similar position to the group or person he compares himself with. 107 Whichever of these two tests is applied, the Court’s standards are broadly similar to those applied under the substantive articles of the Convention. In general the Court first examines what aims are pursued with the difference in treatment and it will assess the legitimacy of this aim. Subsequently the Court will assess whether the difference in treatment was necessary to achieve the aim (test of necessity) and whether there is a «fair balance» between the harm done by the difference in treatment and the value of achieving the aim pursued (test of proportionality).

In most cases under Article 14, the Court will leave a certain margin of appreciation to the respondent state. The scope of the margin of appreciation depends on the nature of the individual right at stake and the policy area concerned. 108 A wide margin will usually be left in cases concerning social security, taxation, planning policy and related policy areas in which the national governments are clearly better placed than the Court to assess the need for certain distinctions. 109 This wide margin entails that the Court will apply a rather marginal test, meaning that it will strike down the distinction only if it is clearly irrational or arbitrary. 110 According to well-established case-law of the Court this will be different if the distinction is based on a «suspect» or «sensitive» ground of discrimination. 111 By now a number of grounds have been recognised as such, i.e. race, 112 gender, 113 sexual orientation, 114 nationality (although this is probably different in cases concerning immigration policy) 115 and birth 116 . In these cases the Court requires «very weighty reasons» to be advanced in justification of the discrimination and it will apply a very strict scrutiny to these reasons. The «suspectness» of the ground has a strongly predictive character – only in rare cases the Court has accepted a justification when applying the «very weighty reasons»-test. 117 If a difference in treatment is based on grounds of religion or marital status, the Court has sometimes applied a somewhat intensified review, but it has not yet expressly classified these grounds as suspect. 118 On the suspectness of other grounds, such as disability and age, the Court has not yet expressed itself.

The justification test applied by the Court in non-discrimination cases is not altogether different from the general test of reasonableness or arbitrariness that is often applied in national administrative law cases. 119 Some difference can perhaps be found in that the Court’s standards are somewhat more precise: it really requires that a legitimate aim is shown and it usually expressly investigates whether there is a reasonable relationship of proportionality between this aim and the harm done by the difference in treatment. In addition, it is clear that the Court will apply a stricter or more lenient test depending on the circumstances of the case. However, it must be stressed that this approach will mostly not deviate strongly from the approach taken by national (administrative) courts in deciding about legislative classifications or acts of public authorities. National courts will usually apply a far more sophisticated approach than the general test of arbitrariness – they increasingly tend to use separate tests of necessity and proportionality and they vary the strictness of their review according to the circumstances of the case. 120 It can only be concluded that the Court’s approach differs from a specific national approach by closely studying the national application of the test of reasonableness.

2.5.3 A different approach as a result of Protocol No. 12?

Having regard to the need for internal consistency and the express desire of the drafters of Protocol No. 12 to create a provision that follows Article 14 as closely as possible, 121 it is highly unlikely that the Court will apply different standards with respect to the Twelfth Protocol than it has already developed for the application of Article 14. 122 This is the more true since the criteria to assess the reasonableness of the justification (legitimate aim, necessity, proportionality) and the determination of the margin of appreciation are used in a similar fashion with respect to all the substantive Convention Articles. The question asked by the Commission is, however, whether it is probable that the effect of the existence of Protocol No. 12 will affect the Court’s case-law on Article 14, such as with respect to the recognition of concepts like substantive equality ( Thlimmenos ) 123 or indirect discrimination ( D.H. v. Czech Republic ) 124 . Indeed, the Court’s recent case-law on equal treatment law shows a number of important and fast developments. As regards the recognition of the concepts of substantive and indirect discrimination, as well as the development of standards on the burden of proof, it is highly unlikely, however, that the innovations in the Court’s case-law are due to the introduction of Protocol No. 12. The Protocol in itself does not at all require the recognition of these concepts. It is far more plausible that the Court, in deciding cases such as Thlimmenos and D.H. , has tried to bring its own case-law in line with the highly sophisticated and complex European Union case-law and legislation. It was clear at the end of the last century that the Strasbourg non-discrimination case-law increasingly ran out of pace with the European Union approach, which created uncertainty and confusion on the national level. Levelling the Strasbourg and Luxembourg case-law approaches was highly desirable from this perspective and many of the recent case-law developments can be explained by comparing the Strasbourg and Luxemburg case-law.

For example, although this is not visible in the Court’s reasoning in Thlimmenos , the concept of substantive equality has long been accepted within European law and it there seems to function as a fundament for concepts such as that of indirect discrimination. 125 It may even be suspected that Thlimmenos for the Strasbourg Court was the first step in the direction of accepting the concept of indirect discrimination. 126 The latter concept was adopted by the Court with express reference to the European law standards. 127 The Court even seemed to endorse the European rules as regards the burden of proof and the use of statistical evidence that have been laid down in Directives 97/80/EC and 2000/43/EC. 128

The development towards harmonisation probably has not yet ended, since a number of concepts and standards accepted under European law still have not been tried out under the Convention. This is particularly true for the concept of positive action or preferential treatment, as has been explained in section I.3 above. On the one hand, it is to be expected that the Court will try to follow the European preferential treatment approach as closely as possible in order to create a coherent and consistent European case-law. On the other hand, the desire for effective protection of fundamental rights may inspire the Court to take a somewhat more lenient approach towards «benign» forms of discrimination.

Choices such as this one and other choices relating to the future interpretation of both Article 14 and Article 1 of Protocol No. 1 will primarily be determined by the general interpretative principles of the Court (such as the aim to protect fundamental rights in an effective manner), the case-law that is already in existence and the desire to create a coherent and comprehensible Convention equal treatment law. Perhaps this is most clearly illustrated by the recent cases concerning segregation in schools. This is an issue that the European Court of Justice has not dealt with as it falls outside the scope of European law. It was also a new issue for the Strasbourg Court. In deciding the case the ECtHR used a set of assessment criteria that it mainly derived from its settled case-law, thus building on its own precedents. In addition the Court referred to a number of standard criteria concerning the margin of appreciation and it mentioned the need for effective protection of fundamental rights. There is no reason to think that the Court would have decided differently in these cases, or that it would have applied different criteria, when Protocol No. 12 had not yet existed.

2.5.4 Conclusions and answers to questions

1. Is it likely that the European Court of Human Rights, in its interpretation of Article 14 of the Convention, will refer to and draw upon developments with regard to its interpretation of ECHR Protocol 12 Article 1? The Commission is particularly interested in more details on this question, as it has been suggested in the literature that the Court’s judgment in Thlimmenos v. Greece may have been inspired by the work on ECHR Protocol 12 Article 1.

2. What other relationships might there be between the two anti-discrimination provisions once Protocol 12 Article 12 has come into effect?

The simultaneous existence of two non-discrimination provisions will probably not make much of a difference to the standards applied by the ECtHR. Article 1 of Protocol No. 12 has been worded in a similar fashion as Article 14 so as to minimise the possibility for differences of interpretation. In addition, it is settled case-law of the Court that the Convention should be interpreted in a consistent manner, which means that concepts, standards and criteria developed by the Court in cases about Article 14 will almost certainly also be applied in cases about Article 1 of Protocol No. 12. Differences might only arise to the extent that Protocol No. 12 is wider in scope, which means that cases about employment discrimination against civil servants, positive action measures, access to public services and specific aspects of immigration policy may now be brought before the Court more easily. This means that the Court may need to develop standards to deal with types of cases and questions which it has not yet been confronted with. It is to be expected that the Court will try to fit in any newly developed standards and criteria with already existing concepts and notions. In addition, it may try to conform as much as possible to the case-law of the European Court of Justice, which to a large extent reflects the status quo of equal treatment law in a large number of European states. Although this might sometimes result in surprising outcomes, no revolutionary changes are to be expected from the ratification of Protocol No. 12.

As to the co-existence of the provisions it is important to note that any new standards that are introduced under Article 1 of Protocol No. 12 (for instance to deal with a «new» issue of discrimination, such as preferential treatment or indirect discrimination), will also affect the interpretation of Article 14. The need for consistent application of both provisions may thus have the result that, indirectly, interpretations of the general concepts of equal treatment or non-discrimination that are adopted under Protocol No. 12 also become binding for states that have not ratified the Protocol. However, discrimination complaints that do not sufficiently relate to any of the substantive Articles of the Convention will still be declared inadmissible by the Court. 129 Thus, the entry into force of Protocol No. 12 will probably only have very limited effect for non-ratifying states.

2.6 Article 1 of Protocol No. 12 ECHR and Article 26 ICCPR

In national debates about Article 1 of Protocol No. 12 ECHR, the question has sometimes been raised as to whether the Protocol would have any added value if compared to Article 26 ICCPR. Both international instruments contain self-standing, independent non-discrimination provisions which offer protection against discrimination outside the material scope of the substantive Convention provisions. General Comment No. 18, in which the Human Rights Committee has laid down its main interpretation of Article 26, expressly states that the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the ICCPR. 130 This perspective is comparable to the approach adopted by the ECtHR in cases such as Stec or Carson , in which it has held that states that provide further reaching protection to rights than is strictly called for by the Convention, should do so in a non-discriminatory way. 131 To this extent no difference between the ECHR and the ICCPR is visible. Furthermore, both Article 26 ICCPR and Article 1 of Protocol No. 12 have non-exhaustive lists of grounds, they both have an open system of justification (not providing for an express justification clause or specific exemption clauses), the standards for justification are rather similar and both provisions allow for the concept of indirect discrimination. 132 If a state has already incorporated Article 26 ICCPR into its national legislation, ratification of Protocol No. 12 may therefore seem to have rather limited legal effect. There are, however, a few differences between Article 26 ICCPR and Protocol No. 12 ECHR that may be relevant in the debate about ratification.

Firstly, Article 1 of Protocol No. 12 expressly stipulates that protection should be offered against discrimination «in the enjoyment of any right set forth by law», making clear that the provision only protects individuals against behaviour by public authorities and not against private forms of discrimination. Article 26 ICCPR lacks such an express limitation of scope, which means that it is easier to interpret the provision so as to include positive obligations to guarantee the principle in horizontal or private law relationships.

Secondly, just like Protocol No. 12, Article 26 ICCPR does not provide for an exception for preferential treatment, nor does it contain an express obligation for the ratifying states to introduce positive action policies. However, Article 26 has been interpreted so as to include such positive obligations by the Human Rights Committee in its General Comment No. 18:

«… the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct these conditions.» 133

The ICCPR thus clearly imposes stronger obligations on the states than is envisaged by the Preamble to Protocol No. 12, although it must be stressed that General Comments are not binding. Furthermore, it has been mentioned in section I.2 of this report that the Human Rights Committee has adopted a rather lenient stance as regards preferential treatment, especially if compared with the ECJ. Since it is presently unclear which approach the ECtHR will take towards preferential treatment, however, it is difficult to say whether Protocol No. 12 leaves less room for or contains less obligations in the sphere of positive action policies than the ICCPR does.

Thirdly, the most important difference between Article 26 ICCPR and Protocol No. 12 concerns the enforcement mechanisms provided by the relevant treaties. If a state has ratified the Additional Protocol to the ICCPR, it is possible for individuals to bring complaints about discrimination before the Human Rights Committee. Different from the judgments rendered by the European Court of Human Rights, however, the opinions given by the HRC are not binding. This means that ratification of Protocol No. 12 provides a much stronger procedural instrument to individual victims of discrimination.

In conclusion, it may be said that Protocol No. 12 does not offer more or different substantive protection against discrimination than Article 26 ICCPR does. 134 In procedural terms, however, the opportunity for individual applications with the ECtHR that is opened up by ratifying Protocol No. 12 may have important added value.