In Case C‑417/23, Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge, the Eastern High Court of Denmark (Østre Landsret) made a reference for a preliminary ruling to the Court of Justice of the European Union (the Court).
The case concerns the compatibility of national legislation in Denmark on ‘transformation areas’ (formerly ‘ghettos’) in public housing with the Race Equality Directive (Directive 2000/43/EC). The referring court sought clarification on whether the use of ethnic origin, specifically, the classification of residents as ‘immigrants and their descendants from non-Western countries’, in determining redevelopment plans constitutes unlawful discrimination under EU law.
In her Opinion delivered on 13 February 2025, Advocate General Ćapeta concluded that the national legislation constitutes direct discrimination on the grounds of ethnic origin within the meaning of Article 2(2)(a) of the Directive. She emphasized that the classification based on ‘non-Western’ origin functions as a proxy for ethnicity. In her view, this amounts to direct discrimination, which is automatically prohibited under the Directive. Such discrimination, she stressed, cannot be justified, regardless of the policy’s stated aims of integration or social cohesion.
Background and Facts
National law in Denmark 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 the 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.’
Two such areas – Schackenborgvænge in Slagelse and Mjølnerparken in Copenhagen – became focal points of legal challenge. Tenants affected by the development plans argued that the law discriminated against them based on ethnic origin.
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. Denmark is trying to defend the law, saying the manner it which it executes itself serves as a legitimate tool for promoting integration and social cohesion.
The Eastern High Court of Denmark (Østre Landsret) referred the matter to the Court of Justice of the European Union, asking whether the national legislation violated the Race Equality Directive, particularly its provisions on direct and indirect discrimination.
Opinion of the Advocate General
In her Opinion, AG Ćapeta situated the case within the broader framework of the Race Equality Directive. She emphasised that the Directive’s scope is broad and includes public housing policies.
She argued that while ‘non-Western’ is not a traditional ethnic category, it functions as a proxy for ethnicity in the Danish context. As she put it, in the context of the Court’s case-law,
‘What unites…[such a]…group,…is not a commonality of factors that form ‘ethnicity’ within the group; it is rather the perception by the Danish legislature that this group does not possess the characteristics of the other group, that is, of ‘Westerners’. The group is thus formed on the basis of the exclusion of ‘non-Westerners’ from the ‘Western’ group.’ (para 86).
This perception-based classification, she argued, is sufficient to bring the legislation within the scope of the Directive, stressing that ethnic origin under EU law must be interpreted broadly, encompassing not only race or nationality, but also cultural and geographic identifiers when used to differentiate groups.
She then turned to the distinction between direct and indirect discrimination, finding with ease that the national law in question constituted direct discrimination. Her reasoning was that the criterion of non-Western origin was explicitly ethnic in nature. Even if the law did not target individuals directly, it uses an ethnic classification to trigger legal consequences. Moreover, the consequences – forced relocation, loss of housing security – were severe and targeted. These measures disproportionately affect residents of non-Western origin, placing them in a precarious position compared to residents in similar socio-economic conditions but of ‘Western’ origin.
For her, such direct discrimination cannot be justified. As she put it,
‘The most important consequence of finding that a rule or practice results in direct discrimination is that such a rule or practice cannot, in principle, be justified, whereby it is automatically prohibited’ (para 110).
Therefore, she recommended that the Court rule declare that, as constituted, the national law is precluded by the Directive. As she put it,
‘(1) The term ‘ethnic origin’ in Articles 1 and 2 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin must be interpreted as covering a group of persons defined as ‘immigrants and their descendants from non-Western countries’.
(2) The scheme that uses concepts such as ‘immigrants and their descendants from non-Western countries’ for the categorisation of a neighbourhood in which a number of public housing units is to be reduced must be interpreted as direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/43.’
Read the Opinion
The Opinion of Advocate General Ćapeta in Case C-417/23, Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge, delivered on 13 February 2025 in a case referred to the Court by the Eastern High Court of Denmark (Østre Landsret) can be read here.