(Explaining the Dearth of) Racial Discrimination Litigation in EU Law

This paper seeks to advance our knowledge of the circumstances in which and reasons for which a social claim fails to transform into a legal claim before the courts. The paper focuses on the striking case of the Racial Equality Directive 2000/43 (RED) that, although proposed and designed by civil society actors, turned out to be very sparingly mobilized. The RED and its sister Employment Directive 2000/78 are known as Equality Directives and have been adopted after a decade-long campaign by civil society organizations that wanted to send a strong signal to resurgent far-right parties and to give minorities a concrete tool to defend themselves from discrimination. However, while the Employment Directive was widely litigated before the Court of Justice, especially to fight age discrimination, only a small number of cases raised issues of race. This is rather puzzling given the pervasive racial discrimination within most countries of the EU and the fact that the RED was designed to be broad and easily enforceable by individuals and civil society. This study posits that to understand patterns of EU litigation, we need to analyse litigation before domestic courts. Relying on data on anti-discrimination litigation before the national courts of selected Member States, the study explores whether the paucity of EU litigation reflects low litigation rates at the national level. Conversely, in the case of relatively higher levels of racial discrimination litigation before domestic courts, we ask whether the low number of preliminary references reflects a preference for other remedies or instruments in national and international law, and if so why this might be.