The non-discrimination principle requires the equal treatment of an individual or group irrespective of their particular characteristics, and is used to assess apparently neutral criteria that may produce effects which systematically disadvantage persons possessing those characteristics.
The principle of non-discrimination has been affirmed by Article 21 of the 2000 Charter of Fundamental Rights of the European Union and has been included into primary Union law via Article 6 TEU. In the context of employment and industrial relations in the EU, the principle has two applications in the TFEU : Article 18 TFEU which prohibits discrimination on the grounds of nationality, and Article 157 TFEU with its requirement for ‘equal pay for female and male workers for equal work’.
The principle of non-discrimination on the basis of nationality was essential for the establishment of a common labour market in Europe (Article 45 TFEU). The principle of equal pay for women and men was considered similarly significant for ensuring that fair competition among employers in different Member States was not distorted by different regulatory labour standards involved in the implementation of the principle of equal pay.
However, there has been uncertainty over the applicability of the general principle of non-discrimination beyond common market objectives relating to employment and industrial relations. This uncertainty was remedied by the insertion of a new Article 13 into the Treaty of Amsterdam (now Article 19 TFEU) which stated that: ‘Without prejudice to other provisions of this Treaty and within the limits of the powers conferred by it on 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’. Directives now exist to combat discrimination in employment on the grounds of religion or belief, disability, age or sexual orientation (Article 1 of Directive 2000/78 of 27 November 2000) as well as discrimination on the grounds of racial or ethnic origin in and beyond employment and occupation (Articles 1 and 3 of Directive 2000/43 of 29 June 2000). Clauses embodying the non-discrimination principle have also been inserted in directives on part-time work (Directive 97/81/EC of 15 December 1997, Clause 4) and fixed-term work (Directive 1999/70/EC, Clause 4).