Far, But Not Far Enough: An Idealist Critique of the Racial Equality Directive

Abstract

Racial discrimination in theory, but also in the reality of today’s Europe, is a multifaceted problem. There are no clear boundaries between the personal and social attributes of ‘race’, ethnicity, religion, culture, nationality or national origin. Is the Racial Equality Directive, as  the key legislative tool for combating racial or ethnic discrimination in EC law, wide enough or does it go far enough to successfully address different aspects of contemporary racism? The Directive prohibits discrimination on the ground of ‘racial or ethnic origin’, but no definition is given of the meaning of ‘racial or ethnic origin’, while nationality as a ground of discrimination is expressly excluded from its scope, and religion is covered by a different directive. Additionally, the concept of equality underlying the Directive is situated between equality of treatment and a more substantive view of equality, with its remedial model mostly based on the ‘individual justice model’ and with the limits of positive action to be allowed under the Directive still unknown. Throughout the paper, an attempt is made to put forward some proposals to revise and update the Directive and to propose some guidelines to interpret the current text in order to set the common minimum at least slightly higher.