A Comparative Analysis of Anti-Discrimination and Data Protection Legislations - Discrimination and Privacy in the Information Society - page 64

positive action, proactive measures and the prohibition of indirect discrimination)
slowly gains in importance (see e.g. Fredman, 2009), formal equality is still the
dominant approach in anti-discrimination law.
4.4 Differences in the Scope of EU Data Protection and
Anti-Discrimination Legislation
The scope of data protection law is not as difficult to define as that of anti-
discrimination law. In principle, the point of departure within the Data Protection
( DP ) Directive is that it applies to any “processing of personal data wholly or
partly by automated means, and to the processing otherwise than by automated
means of personal data which form part of a filing system or are intended to form
part of a filing system” (art. 3(1)). There are two main exceptions to this general
rule: firstly the scope of DP does not include “processing operations concerning
public security, defence, State security [...] and the activities of the State in areas
of criminal law” (art. 3(2)) 11 , and secondly there is the so-called 'household
exception,' which exempts any processing “by a natural person in the course of a
purely personal or household activity” 12 (art. 3(2)).
Why is data protection conceptually unified, while anti-discrimination law
consists of a patchwork of legislative documents with asymmetrical protective
scopes? As mentioned above (4.3), next to the general principle of equality, the
EU has developed anti-discrimination laws relating to specific grounds. In the
early days of the European Community such specialized anti-discrimination laws
were not conceived as a fundamental rights in themselves, but as tools to facilitate
mobility and the functioning of the internal market: combating discrimination
among EU-citizens based on nationality (art. 18 TFEU ) and gender in labour
related matters were ways to enhance the efficiency of the common market and to
prevent discrimination on grounds that are economically inefficient (More, 1999).
However, in the last decade the scope of anti-discrimination law has been
broadened beyond mere economic considerations and the list of grounds for
unlawful discrimination has been extended with the entry into force in 1999 of
article 13 TEC 13 (Meenan, 2007). This provision has given rise to several new
directives. These directives have differing protective scopes, which we will now
look at in more detail.
Firstly, with regard to race, there is Directive 2000/43/EC ( Race Equality
Directive ) which provides a very wide protection against discrimination based on
11 However, this is the very object of Council Framework Decision 2008/877/JHA of 27
November 2008. Furthermore, these processing operations are also encompassed by
Council of Europe Convention 108 (1981), which is applicable in the legal order of every
EU member state.
12 A “purely personal or household activity” should be interpreted in a restrictive manner.
See Lindquist , ECJ, C-101/01, 6 November 2003.
13 The Lisbon Treaty (2009) has amended the Treaty Establishing the European Community
( TEC , 1997) into the Treaty on the Functioning of the Union ( TFEU , 2008), and
consequently ex article 13 TEC has become article 19 of the TFEU .