The Curious Absence of Race Discrimination Litigation in EU Law

Despite the existence of pervasive racial inequity and ongoing racial discrimination within most European Union Member States, and despite the fact that the EU over 25 years ago adopted a robust legal instrument (the Race Equality Directive, RED) prohibiting race discrimination across multiple sectors, the number of race discrimination cases coming to the EU Court of Justice (CJEU) from national courts has been surprisingly low. The low number is puzzling, in particular when compared with the flow of litigation to the CJEU challenging sex discrimination and age discrimination. Drawing on data concerning anti-discrimination litigation before the national courts and bodies of selected Member States, we explore what the reasons for the paucity of cases before the CJEU might be. Amongst the questions canvassed are whether the low level of EU litigation on race discrimination simply reflects low litigation rates on the issues at national level; or instead an unwillingness on the part of national courts to make references to the CJEU; whether it reflects a preference on the part of litigants for other remedies, instruments or forums within national and international law, and if so why; whether EU law’s obscuring of the intersectional nature of race discrimination might explain the small amount of case law on the topic; whether disillusionment or disappointment on the part of potential litigants with the CJEU’s approach to date could be part of the answer; or whether many individuals and communities most affected by race discrimination lack the incentives, means or support to pursue litigation. We reflect also on other possible reasons for the limited use so far of the EU’s Race Discrimination legislation such as post-colonial ‘colour-blindness’ or uneasiness about the category of race in Europe, including the reluctance of governments to gather the kind of ethnically or racially disaggregated data which is important for demonstrating structural inequality or discrimination.