A Comparative Analysis of Anti-Discrimination and Data Protection Legislations - Discrimination and Privacy in the Information Society - page 61

rights with a general scope and direct effect. Article 8 of the Charter guarantees
the protection of personal data, and Title III is dedicated to equality and is
composed of a general provision on anti-discrimination (art. 21 EUCFR), and of
provisions regarding specific 4 groups of people (art. 22-26 EUCFR). Furthermore,
both rights are also incorporated in specific provisions of the Treaty on the
Functioning of the European Union (data protection in art. 16 TFEU; anti-
discrimination in art. 18-25 TFEU).
In addition to this, these two rights are further developed and implemented by
specific legislations in a similar design. As far as data protection law is concerned,
the main piece of legislation is Directive 95/46/EC commonly known as the Data
Protection Directive . Since the publication of this seminal piece of legislation data
protection has evolved significantly, which has resulted in the adoption of several
additional instruments such as the Data Protection Regulation (45/2001/EC), the
e-privacy Directive (2002/58/EC), or the Council Framework Decision on Third
Pillar (police and judicial cooperation) Data Processing (2008/977/JHA).
Similarly, anti-discrimination legislation in the EU has undergone a long evolution
of expansion giving content to the general principle of equality and non-
discrimination. 5 The EU legislative framework is composed of the Race Equality
Directive (2000/43/EC), the Employment Equality Directive (2000/78/EC); the
Gender Recast Directive (2006/54/EC), prohibiting gender discrimination in
employment and occupation and, also regarding gender, the Gender Goods and
Services Directive (2004/113/EC). Finally, and to a lesser extent, one can mention
the Council Framework Decision 2008/913/JHA of 28 November 2008 on
combating certain forms and expressions of racism and xenophobia by means of
criminal law , and the Proposal for a Council Directive of 2 July 2008 (Proposal
COM (2008) 426) on implementing the principle of equal treatment between
persons irrespective of religion or belief, disability, age or sexual orientation .
4.3 Discrimination, a Concept in Search of Unity; Data
Protection, a Fairly Stabilised Notion
In the field of EU anti-discrimination law one has to distinguish between
legislation relating to discrimination on specific protected grounds (e.g., race,
gender, disability or age) and the general principle of equal treatment. This
general principle can be understood as rooted in the classic Aristotelian idea that
similar situations must not be treated differently and different situations must not
be treated in the same way unless such treatment is objectively justified. However,
the conformity to this general principle, which follows from the constitutional
traditions of the member states, international human right treaties, in particular the
4 Articles 22-26 EUCFR are respectively dedicated to cultural, religious and linguistic
diversity; equality between women and men; the rights of the child, of the elderly, and of
persons with disabilities.
5 For a comprehensive description of this evolution, see Bribosia (2008). When mentioning
anti-discrimination legislation, we will designate any of the aforementioned directives,
since their structure and their provisions are identical as far as our argument is concerned.