The Discrimination Grounds of Article 14 of the European Convention on Human Rights

The Court's case law on the applicability of the prohibition of discrimination of Article 14 of the European Convention on Human Rights has always been ambivalent. From the 1970s onwards, there are two parallel lines of case law, one allowing complaints about almost all differences in treatment, regardless of their grounds, and another allowing only complaints about discrimination based on personal status or personal characteristics. Although the Court tried to bring its case law together in the cases of Carson and Clift, an analysis of subsequent cases makes clear that its approach is still confused. It is argued here that the inconsistencies in the definition of grounds of discrimination reflect a fundamental ambivalence as to the theoretical principles underlying Article 14. The article sets out two different rationales for non-discrimination law that may provide a sound basis for a certain approach towards the definition of grounds of discrimination. Both rationales have important but radically opposed consequences for the way Article 14 is applied as well as for the position of the Court. Although the Court may not want to do so, and although both conceptions are defensible, it will need to make a choice in order to guarantee a transparent and predictable non-discrimination case law.