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complex social phenomenon that is sometimes hard to grasp, the European
legislator has tried to define it in the most precise possible manner in a series of
legal instruments. However, this very precision may have jeopardized the unity
(and consequent understanding) of the concept. As a result, that which is
considered to be an instance of forbidden discrimination differs depending on
which protected ground (e.g., race or age). We refer to this varying
conceptualization and protection as the
asymmetrical scope
of EU anti-
discrimination law.
In comparison, the object of data protection legislation (i.e., personal data)
appears to be much clearer. In the EU legal order, its definition can be traced back
to the
Data Protection Directive
. Here, personal data is “
any information relating
to an identified or identifiable natural person
”,
8
whereas the processing of
personal data can be defined as “
any operation or set of operations which is
performed upon personal data
”.
9
Hence, the processing of personal data must
respect the several principles enshrined in the Directive. However, like any legal
concept, the notion of personal data is not void of controversies.
10
As will be further explored (
infra
, section 4.5), one possible explanation for the
conceptual controversies surrounding anti-discrimination is that this legal regime
deals with the qualification of a difference of treatment, and
not
with the
specificities of the practice leading up to the discriminatory or non-discriminatory
'end result'. Thus, anti-discrimination law is not tied to only one specific locus or
field. A forbidden differential treatment can take many shapes and materialise
itself in virtually any type of action, which is why anti-discrimination law is not
limited to a certain kind of practice or behaviour: there are many roads that can
lead to an instance of 'prohibited discrimination'. Moreover, anti-discrimination
law is not one unified entity but a landscape filled with a variety of 'towns' and
'villages' of different size, shape and constitution. Data protection, on the
contrary, is tied to one particular practice, namely the processing of personal data.
Its focus is processual (it will prohibit the
process
of opaque handling of personal
data without any legitimate aim, even if there are seemingly no direct adverse
effects
) and oriented towards one particular, clearly defined field.
One could object that in the case of reverse discrimination, i.e. when a
differential treatment of a protected group follows from a so-called 'affirmative'
or 'positive' action (art. 5
RE
) the focus is
not
on the end result but on the
preceding actions: though there is no unfair result the preceding action can be
qualified as 'discriminatory'. Following this line of thought the case of reverse
discrimination seems to be an exception to the rule that anti-discrimination law
(
AD
) is more engaged with the result rather than the process. However, one could
also argue the opposite: that reverse discrimination confirms the focus of
AD
on
the
end result
, as it focuses on the enhancement of
substantial
equality (“equality
of results” on a group level, which is opposed to formal equality, that is, the
“consistent treatment of likes” on an individual level). (Fredman, 2002, p. 11) Yet
it should be noted that, although the promotion of substantive equality (e.g. by
8
Article 2(a).
9
Article 2(b).
10
Cf.
infra.
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