Considerations Regarding the Contribution of the Court of Justice of the European Union in Clarifying the Content of Non Discrimination Concept

• Author: Associate Professor Alina Livia Nicu, PhD
• Position: University of Craiova

1. Introductive considerations

The role of the Court of Justice of the European Union in the unitary application of the community law

The pattern of social organization named the European Union - uncompleted pattern, in permanent evolution- has determined the delineation of a new defining feature for the judge: as researcher. The statement refers to the contribution of the judge brought to the situations in which the regulation is not clear or is missing and when the interpretation of the principles of European community law or the correlated interpretation of several regulations is the sole instrument used in the Judgment making process. The legal truth contained in some Judgments of the Court of Justice of the European Union often contains prior conceptual clarifications, definitions or rephrased definitions. Such a state of facts has determined the phrasing in the literature (Alexandru et all., 2005, pp. 90-94) (Alexandru, I., 2008, pp. 229-234) of the opinion that "due to the incomplete nature of the written law, the jurisdiction of the Court of justice of the European Union has a special signification especially in establishing principles of the European administrative law" exemplifying with the jurisprudence on uniform interpretation, the principle of autonomous interpretation and the principle of loyalty towards the community.

Regarding the principle of autonomous interpretation of the community law, the judges of the Court of Justice of the European Union have asserted, in Judgment no. 49/71 on February 1^st 1972, at point no.1 in the Summary [1] that the terms used in community law "must be uniformly interpreted and implemented throughout the community, except when an express or implemented reference is made to national law". Also, in Judgment no. 327/82 [2], point 1 in the Summary, the Court held that "the need for a uniform application of community law and the principle of equality that the terms of a provision of community law which makes no express reference to the law of the member states for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the community; that interpretation must take into account the context of the provision and the purpose of the relevant regulations" and that "however, where the community legislature incorporates into a regulation an implied reference to national customs and practices, it is not for the Court of Justice to give a uniform community definition of the terms used".

In what concerns the principle of autonomous interpretation, in Judgment no. 12/73[3], point 1 in the Summary, the court held that "In the absence of any express reference to the laws or customs of a third country provision must be interpreted in relation to and in context of its own sources. Nevertheless, the Tribunal of First Instance, in the Judgment on December 18^th 1992[4], in point 2 of the second thesis of the Summary, completed this assertion indicating that "the terms of a provision of Community law which makes no express reference to the laws of member states for the purpose of determining its meaning and scope must normally be given an independent interpretation, which must take into account the context of the provision and the purpose of the relevant regulations. In the absence of an express reference to the laws of the member states, the application of community law, the application of community law may sometimes necessitate a reference to the laws of the member states where the community court cannot identify in community law criteria enabling it to define the meaning and scope of such a provision by way of independent interpretation".

Regarding the principle of loyalty towards the community, principle that has been expressly regulated in the Union's treaties, the Court held, in Judgment no. 48/71[5], point 1 in the Summary, that "the attainment of the objectives of the community requires that the rules of community law established by the treaty itself or arising from procedures which it has instituted are fully applicable at the same time and with identical effects over the whole territory of the community without the member states being able to place any obstacles in the way" and on point 2 in the Summary that "the grant made by member states to the community of rights and powers in accordance with the provisions of the treaty involves a definitive limitation on their sovereign rights and no provisions whatsoever of national law may be invoked to override this limitation. In what concerns the clarification of the concepts, the Court had important contributions in defining or refinement in defining some concepts of community law. For example, the "direct effect", "priority in community law", "direct applicability", "primacy of community law" (Manolache, 2001, pp. 17-41).

2. Aspects on the content of the concept of discrimination and its variety of positive discrimination

Non discrimination is a fundamental concept in the Treaty on European Union and the Treaty Establishing the European Community, both in the old form as well as in the form resulted after the comming into force of the Lisbon Treaty. Thus, in article 1a[6] of the Treaty on European Union it is underlined that "the Union is based on the values: respecting human dignity, democracy, equality, lawful state, as well as respecting the human rights, here comprising the rights of the minorities. These values are common to the member states in a society characterized by pluralism, non discrimination, tolerance, justice, solidarity and equality between men and women" while article 2, paragraph 3, second thesis mentions that the Union 'fights against social exclusion and discrimination and promotes justice and social protection, equality between men and women, solidarity between generations and protection of children's rights" [7].

The Treaty Establishing the European Community, renamed the "Treaty on the functioning of the European Union" [8] by the Lisbon Treaty in article 5, third[9] states that: "In defining and putting into practice of its policies and actions, the Union seeks to combat any discrimination based on sex, race or ethical origin, religion or beliefs, a handicap, age or sexual orientation". Therefore, the social practice in the Union's member states should non discrimination have as fundamental value, including in what concerns equal opportunities in any domain. The social reality indicates a very different scene. After the positive discrimination pattern created in the United States of America and promoted the first time by the president John Fitzgerald Kennedy (Bachran, 2005, p. 137) under the name "affirmative action" in different states of the world and more and more in Europe, ways to breach the principle of equality have been created, under the pretext of the positive result of these breaches. Thus, in The United states of America (Gérard, 2010) beginning with the 70's positive discrimination was applied in education, regarding the access of public education institutions but starting with 1978- when the Supreme Court condemned the application of positive discrimination at the Faculty of Medicine at the University of California- positive discrimination was criticised and forbidden gradually in all public universities in California, Florida, the state of Washington, Michigan, Nebraska, Texas, Mississippi and Louisiana and on June 28^th, 2007 the Supreme Court of the United States banned positive discrimination when going to American public schools. In Brazil, positive discrimination in higher education is applied since 1995 and starting with 2008, this phenomenon has spread (Gérard, 2010). In France, positive discrimination is applied both in education as well as in social policies. In the United Kingdom (Cambon, D., Vanlerberghe, C., Mével J.-J., 2008) positive discrimination is prohibited by law, starting with 1976, but in the social practice there are situations when the defining elements of positive discrimination are manifested when recruiting personnel. The historical conditions of South Africa have made necessary the practice of positive discrimination regarding the labour market concerning women and people with different handicaps (Rossouw, 2007).

Romania could not have been an exception from this tendency. In the social practice of the past twenty years, Romania has gradually asserted the concept of positive discrimination becoming a reality in legislation especially in education. In consequence, any responsible citizen asks the question: what is positive discrimination and how big is the social good that any citizen can feel so that a fundamental principle of community law and Romanian law can be breached, namely the principle of...