A Commentary on the CJEU’s Judgment within the Danish ‘ghetto regulation’ case – Cyber Tech

Karin de Vries (professor of basic rights regulation, Utrecht College)
and Sarah Ganty (JSD candidate, Yale Regulation Faculty;
FNRS Put up doc fellow, UCLouvain)

Photograph credit score: Kristoffer Trolle, by way of Wikimedia
Commons

The so-called Danish ‘ghetto regulation’
case has been probably the most carefully watched judgments of 2025 earlier than the
Court docket of Justice of the European Union (CJEU), lengthy awaited by attorneys working
in EU anti-discrimination regulation and past. Its resonance has prolonged effectively
past authorized circles, attracting sustained consideration from the media
and NGOs.

A lot has already been written on
the judgment, from completely different views (for instance, right here, right here,
right here
and right here).
The main focus of this contribution is on how the judgment shapes the definition of racial
discrimination in EU regulation, together with the rising stress between goal and
social understandings of ethnic origin, the Court docket’s software of the ideas
of direct and oblique discrimination and its reticence to deal with the
structural racism on the roots of the Danish housing coverage. Earlier than continuing
to our evaluation we first provide a short define of the case and the Court docket’s
reasoning.

Background:
the Danish ‘ghetto regulation’

On the coronary heart of the case lies a
follow of state-driven gentrification as a part of the Danish housing coverage. The
Danish Regulation on public housing seeks to cut back the proportion of
public housing in sure designated neighbourhoods, formally labelled
“transformation areas”. Below the scheme, authorities might promote buildings to
personal builders, demolish current housing, or convert household dwellings into
lodging for younger individuals. These measures might entail the unilateral
termination of tenants’ leases, ensuing of their compelled displacement.

To find out
which neighbourhoods are topic to restructuring, an earlier model of the
Regulation on public housing launched the labels of “ghettos” and “arduous ghettos”. These
labels have since been changed by the much less overtly but nonetheless stigmatising phrases
“parallel societies and “transformation areas”, with out nonetheless incurring any
substantive adjustments to the scheme. A neighbourhood classifies as a parallel
society when it satisfies at the very least two out of 4 socio-economic
standards—referring to unemployment, training ranges, felony convictions, and
common gross earnings—and at the very least 50 per cent of its residents are “immigrants
and their descendants from non-Western nations”. The place such a classification
persists for 5 consecutive years, the world is classed as a
“transformation space” and turns into topic to the abovementioned far-reaching
restructuring measures. The Regulation on Public Housing additionally identifies “susceptible areas”,
neighbourhoods that meet the identical socio-economic standards as parallel societies
however should not have a majority of “non-Western” residents. These areas usually are not
eligible for restructuring. Therefore, the opportunity of restructuring turns
explicitly on the “Western”/“non-Western” distinction, making the danger of
compelled relocation contingent upon the demographic composition of a
neighbourhood.

The candidates
are residents of designated “transformation areas” within the municipalities of Slagelse
and Copenhagen. The candidates from Slagelse challenged the termination of
their leases, whereas the candidates from Copenhagen sought invalidation of the
ministerial determination approving the event plan for his or her neighbourhood. Each
circumstances reached the Excessive Court docket of Japanese Denmark, which referred two preliminary
inquiries to the Court docket of Justice First, whether or not the criterion “non-Western
immigrants and their descendants” constitutes a distinction primarily based on ethnic origin
throughout the that means of the Race Equality Directive
(RED); and second, whether or not the Danish laws offers rise to direct or
oblique discrimination.

The Judgment

The Opinion
of the Advocate Basic (Ćapeta) answered each questions within the
affirmative, concluding that the excellence is predicated on ethnic origin and that
the distinction in remedy quantities to direct discrimination, though it might
even be certified as oblique discrimination. Whereas the Grand Chamber doesn’t
absolutely undertake the AG’s Opinion, a lot of its reasoning is mirrored within the
judgment. The CJEU, to start with, concurs with the AG {that a} public housing scheme
similar to that current in Denmark is able to falling throughout the materials scope
of the RED (§ 66). It then proceeds to look at whether or not the Danish laws
constitutes direct ethnic discrimination. Whereas leaving it to the referring
court docket to finally resolve this concern, the Court docket provides detailed pointers which
permit little or no room for a damaging reply. Nonetheless, in case the referring
court docket ought to conclude that there was no direct discrimination, the CJEU
additionally gives pointers to find out whether or not there was oblique discrimination.
Right here the Court docket interprets the requirement of Article 2(2)(b) RED that individuals
of a racial or ethnic origin have to be put at a ‘explicit drawback’, as
effectively as the factors for goal justification. The Court docket leaves to the
referring court docket to resolve, notably, if the Danish laws places individuals
belonging to sure ethnic teams at a specific drawback (§ 143) and, if
that’s the case, if the restructuring measures are acceptable, mandatory and
proportionate in relation to the general public curiosity of selling social cohesion
and integration (§§ 164-165).

On ethnic origin:
a step ahead however not fairly there but

A central concern within the judgment is
whether or not the class of “non-Western immigrants and their descendants” falls
throughout the prohibited floor of racial or ethnic origin below the RED. The
Court docket of Justice has lengthy displayed an uneasy relationship with the ideas of
“race” and ethnic origin — most notably with the previous, which it has
historically been reluctant to invoke expressly. In CHEZ, the
Grand Chamber held that ethnic origin ‘has its origin within the concept of societal
teams marked particularly by frequent nationality, non secular religion, language,
cultural and conventional origins and backgrounds’ (§ 46). Whereas this definition
in itself will not be unnecessarily restrictive, its software in subsequent circumstances
demonstrated a really restrained understanding of the idea. In Jyske Finans in addition to Land Oberösterreich v KV the Court docket’s
focus was on establishing the presence of goal traits quite than
figuring out social processes of racialisation (right here) and othering by
which such traits achieve social that means and develop into markers of racialized
social hierarchy. Furthermore, it was recommended that the requirement of a
‘explicit’ drawback in Article 2(2)(b) RED meant that solely ethnically
homogeneous teams might search safety below the Directive, thus excluding
differential remedy of heterogeneously composed teams similar to
‘third-country nationals’. This strategy has been broadly criticised within the
literature (for instance right here,
right here,and
right here).
Commentators have argued that the Court docket’s understanding of ethnic origin risked
hollowing out the protecting scope of EU anti-discrimination regulation and didn’t
account for the lived realities of racialised exclusion suffered by migrants in
explicit.

Regardless of AG Ćapeta’s invitation
(Opinion, § 69) the Court docket doesn’t expressly acknowledge ‘ethnic origin’ as a socially
constructed class. It confirms, nonetheless, that the time period ‘racial or ethnic
origin’ within the RED have to be understood in gentle of the Worldwide Conference
on the Elimination of All Types of Racial Discrimination (ICERD) and of Article
14 European Conference of Human Rights (ECHR) and the case regulation of the European
Court docket of Human Rights (ECtHR). This confirms the Court docket’s rising tendency to
interact with exterior sources, particularly its Strasbourg counterpart, at the same time as EU
accession to the European Conference on Human Rights stays pending. The
reference to ECtHR case regulation is furthermore vital as that court docket has
beforehand espoused a much less inflexible understanding of ethnicity, notably within the
Grand Chamber judgment in Biao v. Denmark the place it held that ‘Danes of international origin’ had been topic to
ethnic discrimination. The CJEU additionally recollects the ECtHR’s constant
qualification of racial discrimination as a ‘significantly invidious type of
discrimination which, in view of its perilous penalties, requires […]
particular vigilance and a vigorous response’ (§ 79). It thus makes clear that the
concern at stake is considered one of racial discrimination and that no related distinction
exists on this regard between the ideas of “race” and ethnic origin. Nonetheless,
it fails to attract any sturdy doctrinal penalties from this acknowledgement in
the type of a extra explicitly social conception of racial discrimination.

A really welcome side of the case is the Court docket’s
clarification that ethnic origin—as beforehand outlined in CHEZ—needn’t be decided by reference to a single or homogeneous
ethnic group (§§101-104; §§134-140). Returning to its first judgment on the
RED, Feryn
(§103), the Court docket clarifies that the notion of ethnic origin might apply to
broadly formulated standards similar to ‘allochtones’, ‘foreigners’ or, certainly,
‘non-Western immigrants’. Nonetheless, it continues to insist, because it did in Jyske Finans, {that a} single
attribute similar to nationality or nation of beginning, can by no means be indicative
of ethnic origin (§ 86). As a substitute, ethnic origin should all the time be decided primarily based
on a mix of things. As we argued earlier, this insistence on a number of traits
denies the truth of racial discrimination through which a single characteristic (similar to
somebody’s nationality, surname or pores and skin color, for that matter) could be the
motive for differential remedy if that characteristic capabilities, within the given
context, as a marker of “race” or ethnicity. The Court docket thus
retains open a major loophole in EU anti-discrimination regulation—one which Member
States might exploit by designing exclusionary measures round formally
non-protected standards, whereas shielding them from scrutiny below the
prohibition of racial and ethnic discrimination.

Within the
current case, nonetheless, the one attribute requirement doesn’t stand in
the best way of a discovering of ethnic discrimination. The Court docket is happy that the
criterion of ‘immigrants from non-Western nations and their descendants’ is
primarily based on a ‘complicated mixture of standards’, together with nation of beginning, the
nationality and nation of beginning of the dad and mom and whether or not these nations of
beginning and/or nationality are thought of, below Danish regulation, as ‘non-Western’
nations (§ 100).

On direct and oblique discrimination

A
distinction primarily based on ethnic origin constitutes direct discrimination if it
entails an individual being handled much less beneficial than one other in a comparable
scenario (Artwork. 2(2)(a) RED). In keeping with the AG’s Opinion, the Court docket identifies
two forms of much less beneficial remedy that would outcome from the Danish
laws. The primary is that tenants of public household housing in
“transformation areas” face a better probability of getting their lease terminated
in comparison with tenants with an analogous lease in “susceptible residential areas”,
that are similar to “transformation areas” in socioeconomic phrases however the place
“non-Western immigrants and their descendants” don’t type greater than half of
the inhabitants. It follows from the judgment that the danger of a lease being terminated early is, in itself, ample to
represent much less beneficial remedy, there isn’t a requirement that this threat
will need to have materialised. The Court docket furthermore confirms what it had already determined
in CHEZ, particularly that there’s direct
discrimination when much less beneficial remedy outcomes from a distinction primarily based
on ethnic origin, even when amongst these affected there are individuals who don’t
belong to the focused ethnic group (§ 107). In spite of everything, tenants who usually are not
themselves “non-Western” immigrants face the identical threat of shedding their properties as
their “non-Western” neighbours. What’s at stake here’s a type of
discrimination by affiliation, though this idea will not be talked about
explicitly by the Court docket.

In addition to the
threat of getting their leases terminated, the Court docket notes a second type of hurt
that the candidates might have suffered, which is stigmatisation. Right here the Court docket
reveals itself way more deferential to the Danish courts: it’s as much as the
referring court docket to research if ‘the very title “transformation space”, which
for the residents of areas categorized as such offers rise to an elevated threat
of early termination of their lease, and which changed the title ‘arduous ghetto
space’ is, at nationwide degree, offensive and stigmatising’ (§ 126). It’s
attention-grabbing that, at this level, the Court docket does present consciousness of the actual fact
that the that means of sure phrases is socially constructed and might due to this fact
differ over time and place, on this case leaving the Danish courts in a greater
place to find out the stigmatising connotations of the notion of
“transformation areas”.

After
having thus utilized a broad definition of direct discrimination, which acknowledges
each redistributive and recognitional hurt, the Court docket strikes on to look at the
chance of oblique discrimination. In accordance with the Court docket itself, this
evaluation is important in case ‘the referring court docket concludes that the nationwide
laws at concern […] doesn’t represent direct discrimination’ (§ 130). Whereas
this may occasionally at first sight appear a logical step to take, the Court docket’s consideration
of oblique discrimination turns into much less apparent whether it is taken into consideration
that the earlier a part of the judgment leaves little or no to no room for the
referring court docket to search out that there has not been any direct discrimination. Certainly, as soon as direct discrimination is established, the evaluation can finish
there: discrimination is both direct or oblique, however not each, at the very least not
on the identical floor.

This transfer is troubling. The
scheme at concern is plainly not considered one of oblique discrimination, and introducing
this layer of research dangers producing confusion quite than readability for
nationwide courts. For one, if the referring court docket concludes that there isn’t a
direct discrimination as a result of, in spite of everything, the criterion regarding “non-Western
immigrants and their descendants” doesn’t lead to differential remedy
primarily based on ethnic origin, this may elevate the query of what would then be the
ethnic group (or teams) that might be put at a specific drawback, as
required by Article 2(2)(b) RED. This can be a query on which the judgment
stays silent. The chance of confusion is additional exacerbated by the truth that
the Court docket’s personal conceptualization of oblique discrimination is fraught with
difficulties, as illustrated most clearly by its case regulation on non secular symbols
and headscarves (see right here
and right here).

On the upside, the judgment does
present beneficial clarification as to how the case must be assessed if considered
by the lens of oblique discrimination. This will likely show virtually
vital, as expertise reveals that even the place direct discrimination is
formally eliminated, discriminatory results typically re-emerge—consciously or
unconsciously—by ostensibly impartial standards. One can simply think about, for
occasion, that the Danish legislator would possibly sooner or later abandon the express
reference to “non-Western immigrants and their descendants”, whereas persevering with
to focus on particular neighbourhoods by socio-economic indicators that may,
in follow, place that very group at a specific drawback. Some key
takeaways from The Court docket’s evaluation are: 1) that the intention of “making certain
profitable integration of third-country nationals (TCNs)” is respectable in
precept; 2) the potential of the Danish scheme to really promote social
cohesion and integration is considered as uncertain, not least as a result of it doesn’t
apply to “susceptible residential areas” which are socioeconomically comparable
to “transformation areas” however with no majority “non-Western” inhabitants (§§
162-163); 3) along with the necessities of appropriateness and necessity,
that are expressly talked about in Article 2(2)(b) RED, the Court docket examines the
measures’ proportionality stricto sensu,
one thing that has not generally performed earlier than (see right here and
right here);
4) relating to this proportionality stricto
sensu, it have to be taken into consideration that the fitting to respect for the house
is a basic proper protected by the EU Elementary Rights Constitution (Article
7) and that, in response to ECtHR case regulation, the lack of one’s house constitutes “a
most excessive type of interference” (§ 170).

Structural discrimination

In sum, there’s a clear
suggestion that the Danish scheme would additionally must be thought of as
not directly discriminatory – at the very least if a specific drawback to 1 or
extra ethnic teams will be established. The judgment can thus be readily
certified as an essential blow to Denmark’s “ghetto” coverage. Nonetheless, from a
perspective of structural equality a number of problematic points stay – we
spherical off this weblog by mentioning two of them. The primary, already raised by one
of us elsewhere,
is that the judgment entrenches the present distinction between EU residents
and third-country nationals whereby solely the latter are deemed in want of
integration. This turns into evident within the oblique discrimination evaluation,
the place it’s identified that “integration” is a respectable public curiosity solely
the place third-country nationals are involved (§ 151) – the subtext being that EU
residents are by definition already built-in.

Second, the Court docket appears to depart
open the chance that, below sure circumstances, “gentrification”
measures similar to these imposed by Denmark is likely to be proportionate. This
suggestion is troubling, provided that these measures replicate a discriminatory
logic that runs even deeper than the
use of stereotypes in legislative paperwork or the hurt suffered by particular person
tenants who’re compelled to depart their properties. On the foundation of Denmark’s (or
maybe any) integration coverage lies the rationality of Goldberg’s
‘racial state’ – the notion that at its core the fashionable state serves to guard
public order by excluding the racialised different. It follows that any
proportionality evaluation can’t meaningfully summary from the truth that the coverage
is premised on the stigmatization of racialised and impoverished communities. But
is appears that the Court docket didn’t recognise this, not like in CHEZ the place it expressly acknowledged
the offensive and stigmatising nature of the follow at concern (§§84 and 108).

Briefly, there are a number of
optimistic factors to be famous in regards to the judgment. These are, particularly, the
Court docket’s acknowledgement that race discrimination doesn’t activate the presence
of a homogeneous ethnic group, its recognition of the stigmatisation inherent
within the so-called ‘ghetto regulation’ and its engagement with worldwide devices
and proportionality within the oblique discrimination evaluation. Nonetheless, the Court docket
stops wanting addressing the central concern at stake: the systemic and
structural character of racialised exclusion. By avoiding a direct
confrontation with structural racism, the Court docket finally doesn’t get to the
backside of what makes the Danish ‘ghetto regulation’ so deeply problematic.