For an analogous application of the national non-discrimination provisions in cases of harassment, regardless whether the harassing conduct is related to any of the EU prohibited grounds

Abstract

An analogous application of the definitions as well as the legal consequences of the non-discrimination EU Directives in cases of harassment that are not related to explicitly prohibited grounds has been generally rejected. This viewpoint is mostly founded on an apparent prohibition of analogy of the non-discrimination European legislation beyond the numerus clausus of the prohibited grounds, which can be attributed to the decision of the ECJ of the 11.7.2006 C – 13/05 (Chacόn Navas). Nevertheless, no prohibition of analogy can be concluded from the ECJ’s jurisprudent. In the case Chacόn Navas the ECJ has actually not examined whether the prerequisites of an analogy were granted or not. In any case, even if a prohibition of analogy were to be acknowledged in the framework of the European Union legal system, this would not mean necessarily the imposition of an equivalent prohibition regarding the national legal systems of the member-states. According to the herby advocated viewpoint, not only the principle of equality and the nature of things, but also a need for legal certainty demands an analogous application of the national non-discrimination provisions in cases of harassment, regardless whether the harassing conduct is related to any of the prohibited grounds in terms of the European Union’s non-discrimination legislation.