The concept of discrimination by association and its application in the EU Member States

‘Discrimination by association’ was first introduced into the EU legal order by the Court of Justice of the European Union with the Coleman case. Its introduction is a positive development for EU non-discrimination law as this concept attaches liability to the discriminatory act, regardless of whether the victim possesses one of the protected (against discrimination) characteristics. Even though Coleman concerns disability, the Court’s interpretation of Directive 2000/78/EC67 suggests that the concept is applicable to all grounds contained in the Directive, i.e. religion or belief, disability, age or sexual orientation.

However, in the absence of clarification by the Court, it remains unclear whether the concept applies to all grounds listed in the Directive, or even to other fields besides employment and occupation. Moreover, other issues arise concerning the definition of the ‘association’ and whether the concept applies to cases of indirect discrimination.

This article examines how the concept is interpreted and applied by the EU Member States through a qualitative analysis of the Country Reports drafted by the members of the European Network of Legal Experts in the Non-Discrimination Field. It aims to evaluate whether the concept, as introduced in Coleman, is applicable in the EU Member States. It starts by analysing the concept and its foreseeable implications.

Subsequently, it examines whether and how the EU Member States have implemented the concept in their national legislation and case law. Finally, it assesses the concept’s applicability, whether the foreseeable implications have occurred in practice and how the Member States have dealt with those issues. This provides valuable input on the applicability of the concept and its future development so as to effectively impose liability for acts of discrimination by association.

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