The Eastern High Court of Denmark (Østre Landsret) has referred a case to the Court of Justice of the European Union, Case C-417/23, Slagelse Almennyttige Boligselskab – Afdeling Schackenborgvænge, on the compatibility of Danish law with the Directive 2000/43 (the Race and Ethnical Equality Directive).
Danish law provides that municipalities (kommune) must, within their developments plans (approved by a government minister) for social housing areas, designate ‘transformation areas’ (previously, ‘hard ghetto’ areas), which is a housing area which meets at least two of four criteria relating to:
- residents’ attachment to the labour market,
- level of criminality,
- educational attainment,
- and average income,
and
- where more than 50% of the residents are ‘immigrants and their descendants from non-Western countries
Each municipality must set out how the proportion of social family housing in the housing area will be reduced to a maximum of 40% of the total number of dwellings by 2030. This will result in the leases of the tenants in the social housing area being terminated. In other words, people who fall into this category risk having their leases on their housing terminated on the grounds of race and ethnicity.
Denmark has the following characteristics that define ‘Western countries’: the EU, Andorra, Australia, Canada, Iceland, Liechtenstein, Monaco, New Zealand, Norway, San Marino, Switzerland, the UK, the USA and the Vatican City State.
It characterises the following as ‘Non-Western countries’: Albania, Belarus, Bosnia and Herzegovina, Kosovo, Macedonia, Moldova, Montenegro, Russia, Serbia, the Soviet Union, Türkiye, Ukraine and Yugoslavia. All countries in Africa, South and Central America and Asia. All countries in Oceania (other than Australia and New Zealand) and stateless persons.
Denmark categorises people into the two categories according to information from its Statistical Agency (Danmarks Statistik), on the basis of,
- a person’s place of birth, and,
- the place of birth, and/or nationality of the person’s parents.
The case essentially is asking whether national measures on development plans, as stated above, that wishes to reduce social family housing in ‘transformation areas’ entail discrimination on grounds of ethnic origin, as prohibited by Directive 2000/43 (the Race and Ethnical Equality Directive).
Article 2(2)(a) and (b) of Directive provides,
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
In the national proceedings, both the Danish Institute of Human Rights (Institut for Menneskerettigheder) and a number of UN Special Rapporteurs have intervened, arguing that the Danish law constitutes both direct and indirect discrimination.
The case has been referred to the Court of Justice by the Eastern High Court of Denmark (Østre Landsret), yet there are other ongoing cases before national courts, including both first instance courts, and the Supreme Court (Højesteret), who have stayed those proceedings, pending the outcome of this referred case.
An oral hearing before the Court will likely be held in Spring 2024.
More information in Case C-417/23, Slagelse Almennyttige Boligselskab – Afdeling Schackenborgvænge can be found here.