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Discrimination

Article 12 TEC forbids any discrimination on the grounds of nationality (Photo: European Commission)

Article 12 TEC forbids any discrimination on the grounds of nationality. The Council may adopt rules to prohibit such discrimination by qualified majority and with co-decision of the European Parliament.

Article 13 TEC allows actions to combat discrimination "based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation". The Council decides by unanimity.

Under the Treaty of Nice, incentive measures that do not require the adjustment of the laws of member states (harmonisation) can be decided by qualified majority vote in the Council and co-decision with the European Parliament.

To make member state laws consistent (harmonisation) would require a unanimous decision from the member states. These articles are of a constitutional nature and cover very wide areas of life.

Notes

• The EU Court of Justice in Luxembourg has used the ban on discrimination to support a female German soldier’s right to take part in military matters on the same basis as men (the Tanja Kreil case). At that time – 2000 – the military area was clearly outside the scope of the EU treaties. This did not prevent the EU Court from declaring that, under EU law, she had a fundamental right to be equal in military matters.
• By using this Article on discrimination it may also be possible for the Court to decide on such issues as female clergy, the right of establishment of state churches, the legalisation of abortion, gay marriages and the adoption of children by homosexual couples in various EU member countries.
• It is possible for member states to be excluded from such activity by special opt-outs (derogations) in the relevant EU treaties.
• Ireland and Malta have special opt-outs (derogations) on abortion.

The Future

The discrimination clause in Art. 12 TEC will become Art. 18 TFEU. The legal base for legislating against discrimination in Art. 13 TEC will become Art. 19 TFEU in the Lisbon Treaty.

The EU Charter of Fundamental Rights is likely to extend the competence of the EU Court in human rights matters when it is made legally binding by Art. 6 TEU in the Lisbon Treaty. Discrimination is forbidding by Art. 21 and 22 in the Charter.

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