Originary
Originary legislation
- The European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in 1950 by the Council of Europe, is an international treaty aimed at protecting human rights and fundamental freedoms in Europe. The Convention established the European Court of Human Rights, aimed at protecting people from human rights violations. Any person whose rights have been violated in the framework of the Convention by a State party can, therefore, refer to the Court, in the absence of other remedies within the State of which he is a citizen.The Article n.14 of the ECHR recognises the prohibition of discrimination with a very broad formula. Specifically, it provides that the enjoyment of the rights and freedoms recognized by the Convention must be guaranteed without any discrimination – in particular those based on sex, race, color, language, religion, political opinions or other opinions, national or social origin, belonging to a national minority, wealth, birth or any other condition.
- The Protocol n. 12 annexed to the ECHR, which entered into action on 1 April 2005, expands the scope of the prohibition of discrimination by guaranteeing fair treatment in the enjoyment of all types of rights (including those provided under national law). The aim is to strengthen protection from all forms of discrimination, considering the real obstacle to the full protection of human rights. In particular, the art. 1 provides that: «1. The enjoyment of all rights under the law must be assured without any discrimination, in particular those based on sex, race, color, language, religion, political or other opinions, national or social origin, ‘belonging to a national minority, wealth, birth or any other condition. 2. No one may be discriminated against by any public authority for the reasons mentioned in paragraph 1.”
- The principle of non-discrimination is the subject of further documents issued by the European Council. First of all, the European Social Charter, as amended in 1996, which includes both the right to equal opportunities and that to fair treatment in terms of employment and employment, protecting against gender-oriented forms of discrimination. Furthermore, protection against different and specific forms of discrimination is provided by the Framework Convention for the Protection of National Minorities, the Convention on Combating Trafficking in Human Beings and a reference to protection against discrimination is also found in the Additional Protocol on the Convention of Cybercrime.
- Going to the specific EU context, the Charter of Fundamental Rights of the European Union – which recognises a range of personal, civil, political, economic and social rights of EU citizens and residents – with the entry into force of the Lisbon Treaty in 2009, it acquired the same binding legal effect as the European Union treaties. The Charter aims to bring together in a single document the rights that were dispersed in various legislative instruments. If the art. 20 of the Charter states the principle of equality before the law, art. 21 places a general prohibition on discrimination based on sex, race, skin color or ethnic or social origin, genetic characteristics, language, religion or belief, political opinions or any other nature, belonging to a national minority, heritage, birth, disability, age or sexual orientation and also on citizenship.
- The Treaty on the Functioning of the European Union (TFEU) is, together with the Treaty on European Union (TEU), one of the fundamental treaties of the EU. In the TFEU, there are numerous references to the principle of non-discrimination. Article. 10 states that the European Union, in the definition and implementation of its policies and actions, aims to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article. 18 prohibits any form of discrimination based on nationality and provides that the European Parliament and the Council, acting through the ordinary legislative procedure, may establish rules to prohibit such discrimination. Article. 19 provides, in paragraph 1, that – without prejudice to the other provisions of the Treaties and within the powers conferred on them by the Union – the Council, acting by unanimity in accordance with a special legislative procedure and after approval by the European Parliament, may take appropriate measures to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. By way of derogation from paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt the basic principles of the Union’s incentive measures, excluding any harmonization of the laws and regulations of the Member States, intended to support the actions of the Member States to contribute to the achievement of the objectives set out in paragraph 1 of the law.