“Without prejudice to the other provisions of this Treaty and within
the limits of the powers conferred by it upon the Community, the
Council …. may take appropriate action to combat discrimination
based on sex, racial or ethnic origin, religion or belief, disability, age
or sexual orientation.”
61.
Article 13 has been responsible for some well-known, if in some respects
controversial case-law. The Court of Justice has accepted that, although the Treaty
contemplates that the general principle of non-discrimination underlying article 13
will be implemented by directives, Member States will be bound thereby to
discontinue, disregard or set aside measures so far as they involve discrimination
on a basis contrary to article 13 at least after the time for transposition of such a
directive: Case C-555/07 Kükükdeveci v Swedex GmbH & Co KG [2010] 2 CMLR
33, para 61 and perhaps even when legislating in the area of the directive during
the period for transposition: Case C-144/04 Mangold v Helm [2005] ECR I-9981.
62.
However, for the general principle of non-discrimination to apply, the
context must fall within the scope of Community or now Union law: see Mangold,
para 75, Case C-427/06 Bartsch v Bosch und Siemens Hausgeräte (BSH)
Altersfürsorge GmBH [2008] ECR I-7245, para 25, Kükükdeveci, para 23, Case C147/08 Römer v Freie und Hansestadt Hamburg [2013] CMLR 11, para 70, and
Craig and de Burca, EU Law: Text, Cases and Materials [OUP: 4th ed, 2008, p
891]. The only difficulty about Eman and Sevinger is to identify the link with
European law, once one has rejected the conclusion that European law recognises
all EU citizens as having under European law an individual right to vote in
European Parliamentary elections (paras 56 to 58 above). The general principle
was simply stated to be applicable in a context where, and on the basis that,
Netherlands nationals, who were under article 17.1 EC Union citizens, were being
treated unequally in comparable situations in relation to European Parliamentary
elections, having regard to the difference in treatment of Netherlands nationals
resident, on the one hand, in the Netherlands Antilles and Aruba and, on the other
hand, in other non-EU member countries: see in particular paras 45, 56 to 58 of the
Court’s judgment.
63.
It is however a general principle of Strasbourg law under article 14 of the
Convention that additional rights falling within the general scope of any
Convention right for which the state has voluntarily decided to provide must in
that event be provided without discrimination: Belgian Linguistics Case (No 2)
(1968) 1 EHRR 252, 283, R (Clift) v Secretary of State for the Home Department
[2006] UKHL 54, [2007] 1 AC 484, paras 12, 17-18. This principle in my opinion
clearly underlies Eman and Sevinger. As the Court noted (para 53), article 19 EC
(now article 22 TFEU) only covered nationals resident in another Member State.
But the Dutch legislator had chosen to extend the right to vote to its nationals
resident outside any Member State – but not in the Dutch Antilles or Aruba. There
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