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still applicable to the other fundamental freedoms (except precisely for data
protection, see also (Fredman 2006, p. 41). For a wide range of reasons, this
approach has not been as successful in the case of discrimination as with other
fundamental rights (Ringelheim 2010, p. 163; Fredman 2005, p. 372; 2009).
Pursuant to these unsatisfactory results, the EU has decided to complement the
first approach with an
ex ante
(or proactive) approach
23
, leading to the adoption of
new principles and mechanisms, i.e., the so-called mainstreaming approach,
24
and
the different administrative procedures and mechanisms. Rather than fighting
discrimination by repression, i.e. by imposing a judicial sanction upon
infringements, the ultimate goal of the new preventive or proactive approach is to
put an end to systemic factors of discrimination; therefore creating the necessary
conditions whereby it is no longer possible for discriminating practices to exist
(Fredman, 2009, p. 3). Hence, the need for policies that tackle the root factors of
discrimination and for a binding decentralised administrative system that
guarantees the equality between citizens in a quasi-automatic manner. The current
EU anti-discrimination legal framework is therefore composed of policies that
promote equality within society on the one hand (mainstreaming), and on the other
hand, of a set of procedural mechanisms that strive for the immediate stop of
discriminatory behaviour,
inter alia
, by empowering discrimination subjects and
by relying upon a supervisory body (see Gellert & De Hert, 2012).
25
Understanding the logic at work in the evolution of anti-discrimination
legislation leads us to support the affirmation that the current differences between
the two legislations are not irremediable, and they could be mitigated in the
future.
26
Future developments of anti-discrimination legislation might thus feature
new types of subjective rights that are fully-fledged, and not simply ancillary.
Such a stance is supported by the fact that in both cases supervisory bodies have
been granted similar powers.
Furthermore, the convergence between the two rights can also be observed
from the reversed perspective. As far as data protection is concerned, it seems that
the recent focus has been put upon the enforcement of the legislative framework.
So whereas anti-discrimination appears to be going in the direction of more
subjective rights, data protection appears to emphasise the need for enforcement
23
This move has not only been undertaken at EU level; see also, e.g., the UN Convention
on the rights of people with disabilities (2006).
24
According to the EU, mainstreaming can be defined as “
a social justice-led approach to
policy making in which equal opportunities principles, strategies and practices are
integrated into the every day work of government and public bodies”
, available on the
following website, http://ec.europa.eu/social/main.jsp?catId=421&langId=fr.
25
It seems to us that data protection and anti-discrimination share the awareness that part of
the solutions lie in changing the very structures. In the case of anti-discrimination, it
concerns social structures, and it is achieved through policies of mainstreaming, whereas
in the case of data protection it concerns technical structures and is achieved through
design (e.g., privacy by design).
26
According to De Hert and Ashiagbor (2011), equality bodies devote an important part of
their workload into activities of counselling to discrimination victims, and/or into dispute
settlement, thereby importantly reducing the role of traditional courts and tribunals in
matter of discrimination.
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