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Integrating or Reshaping Harmonized Law? The National Background Influence on the National Application of EU Non-discrimination Law

Jule Mulder

This paper analysis and compares how German and Dutch courts integrate the European equality framework within their national systems highlighting the national (historic, cultural, and legal) factors which influence the application and effectiveness of the harmonised law and are often echoed in the national courts' reasoning. Within the EU, the principle of non-discrimination is well developed and prohibits vertical as well as horizontal discrimination in order to foster substantive equality. Today, it is one of the key elements of the EU human rights policy and covers a wide range of protected grounds including characteristics like age which reflects the demographic changes within the Member States. As a result, national courts cannot ignore the EU equality framework. However, the reception of EU non-discrimination law on national level and, in particular, the national courts' responds to the European challenge to readdress national equality concepts, which often focus on vertical relationships alone, still depends on the national legal and cultural background and national identity. The comparison between Germany and the Netherlands can be of particular interest here, as both countries take a rather different approach towards equality law, while both being civil law systems with a similar employment law framework. This paper evaluates how and to what extend the EU non-discrimination law framework had an impact on the national approaches towards equality (and other human rights) and how harmonised law is reframed once it enters the national legal arena. As such, it highlights the variety of different influences within different Member States and the manifold challenges the harmonisation process is confronted with.

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