When outlining their future vision of a common and united Europe, the founding fathers of the European Union (EU) anticipated that it would be built through concrete achievements creating a de facto solidarity. As noted in EU Anti-Discrimination Law beyond Gender, although there were no early attempts by the European Community and later by the EU to regulate basic rights and freedoms, including the principles of equality and non-discrimination, legislative achievements in this field eventually began to accumulate. The EU is thus not only an inspiration for the principles of equality and non-discrimination, but also a guarantor of Member States’ adherence to them. In the book, edited by Uladzislau Belavusau and Kristin Henrard, a group of recognised experts on EU anti-discrimination law comprehensively scrutinise the current state of protection from discrimination guaranteed under EU law.
Thankfully the book is not restricted to an examination of gender discrimination. Although this particular form of discrimination is by no means a relic, the debate on this subject, in both academia and in the political and social spheres, is already prominent and producing important effects. It is thus commendable that the contributors chose to focus on other aspects of what is essentially one and the same phenomenon, looking at refusals of equal treatment and non-discrimination based on disability (Luísa Lourenço and Pekka Pohjankoski), age (Rachel Horton and Beryl Ter Haar), ethnicity and race (Mathias Möschel) and religion (Eugenia Relaño Pastor). The authors go beyond simply noting the prohibition of discrimination under EU law, tackling issues such as multiple discrimination (Raphaële Xenidis), the burden of proof in discrimination cases (Kristin Henrard) and the relationships between the relevant EU and United Nations regulations (Lisa Waddington). This culminates in the revealing chapter titled The Impact of the 2000 Equality Directives on EU Anti-Discrimination Law: Achievements and Pitfalls, in which the editors of the volume outline the landscape as it is today, and the Epilogue: The Limits of a Transformative Change in European Equality Law, in which Bruno de Witte points to the limits of the transformative process contained in the two directives of 2000. All of the problems dealt with are richly illustrated with references to the case law of the Court of Justice of the EU (CJEU). It goes without saying that—as is usually the case with such extremely broad-ranging publications—one would like to see more being said on some issues, such as discrimination by association, the consequences of selective implementation of EU directives into national legal systems, or the emergence of new, sensitive groups which require stronger anti-discrimination protection. That said, the idea of compiling such an encompassing, in-depth and academically outstanding work to coincide with the eighteenth ‘birthday’ of the ‘twin directives’ (as de Witte describes them)—and the work that went into producing it—deserves nothing but the highest praise.
Arguably, the most important observations and conclusions are those made when the authors take a critical view of the solutions adopted by the EU, as these prompt further reflection on ways of reforming and improving the existing system and acknowledging potential threats to it. In his chapter When Equality Directives Are Not Enough: Taking an Issue with the Missing Minority Rights Policy in the EU, Dimitry Kochenov points to several key issues, such as the lack of consensus on and definitions of a minority, the fact that the relevant directives do not provide for the means necessary to accord sufficient protection to (ever more diverse) minorities, and, last but not least, the inconsistent approach of the EU itself. Also noteworthy is Anna Śledzińska-Simon's contribution on the issue of religious clothing under EU regulations and case law. She perceives the real threat to the consolidation of anti-discriminatory law and the very idea of anti-discrimination as coming from the populist and illiberal tendencies of many Member States. These tendencies stem from a general enmity towards efforts to shore up the principles of equality and non-discrimination with legislation, especially in relation to the sexual orientation and gender identity issues. To give just one of many examples illustrating this trend, Poland's Constitutional Court recently ruled that a printing shop may refuse to print an advertising banner, however innocuous, if the order is placed by an organisation promoting equal rights for sexual minorities (discussed in the book by Alina Tryfonidou and Phillip M. Ayoub).
The anti-discrimination protection system based on EU directives is no doubt the most powerful legal system of its kind in the world. It appears, however, that its custodians have rested on their laurels. The promulgation of the so-called ‘horizontal directive’ is nowhere to be seen and the system itself is far from perfect, chiefly as a result of the lack of cohesion in CJEU case law and Member States’ practices of cherry-picking the provisions to be implemented in their national law. Notwithstanding Möschel's conclusion in his chapter on the Race Equality Directive that ‘anti-discrimination enthusiasm has waned after the adoption of the relevant EU directives’ (159), the very existence of the anti-discrimination protection system must be ranked among the greatest achievements of the EU. The critical attitude displayed towards this system by the vast majority of the authors of the anthology does nothing to diminish this assessment.
The academic literature on anti-discrimination is abundant, but no other recent publication can rival EU Anti-Discrimination Law beyond Gender in terms of diversity and the importance of perspectives. The well thought through structure of this anthology, the excellent choice of authors, and the clear message on the potential ways of empowering the concept and tools of EU law make the book extremely important reading for scholars, practising lawyers, experts and NGO activists.
