The Danish legislation on public housing in so-called "transformation areas" constitutes direct discrimination based on ethnicity, the European Court of Justice recently ruled.
As previously reported by The Brussels Times, residents in a neighbourhood in Copenhagen filed a lawsuit in May 2020 against the Danish government seeking a declaration that evictions under the country’s ‘Ghetto Package’ contradict EU law and the European Convention on Human Rights.
The package required immigrants to comply with certain conditions in order to receive social assistance. It also included a plan to reduce social housing in vulnerable “ghettos” with socio-economic problems to 40% by 2030. The transformation of the areas may include the sale of properties to private developers, demolition, or conversion of family housing into housing for young people.
The plan was approved by the Danish Ministry of Transport and Housing in September 2019 after elections which brought the social-democratic party to power.
In for example Copenhagen’s Mjölnerparken, the government earmarked over 200 apartments for sale. Thousands of others faced eviction under similar plans across Denmark. What upset the residents in Mjölnerparken was that the government had classified their neighbourhood as a “ghetto” because it has 50 % or more residents of “non-Western” background.
After tenants in two of the affected areas challenged the legality of the development plans, a Danish court referred the case to the European Court of Justice (ECJ) for a preliminary ruling as to whether the legislation was compatible with EU law.
Discrimination based on ethnic origin
In her ruling of 13 February, the Advocate-General recalled that direct discrimination occurs when adverse treatment is based directly on ethnic origin. She found that the division between ‘Western’ and ‘non-Western’ immigrants and their descendants is based on this criterion.
Although ‘non-Westerners’ are an ethnically diverse group, what unites that group is not a commonality of factors that form ‘ethnicity’ within that group, but rather the perception by the Danish legislature that this group does not possess the characteristics of the other group, the ‘Westerners’.
Direct discrimination has occurred, the Advocate General explains, because the Danish legislation puts tenants in the ‘non-Western’ group in a precarious position in relation to security of their right to a home, thus resulting in a less favourable treatment compared to tenants in other neighbourhoods, where the majority of the population is of ‘Western’ origin.
Furthermore, the criterion used by Danish legislation stigmatises the ‘non-Western’ group, thus curtailing rather than enhancing their chances to integrate into society.
“The Advocate General’s opinion is a hugely significant milestone for the residents, who have been fighting for years to save their homes and community, and for recognition that what has happened to them and thousands of others across Denmark is unlawful,” commented Susheela Math, Senior Managing Litigation Officer at the Open Society Justice Initiative.
The Justice Initiative has been providing legal and advocacy support to one affected group of tenants, from the Mjölnerparken area in Copenhagen.
Mjölnerparken in Copenhagen, credit: Brooke Havlik
Strong signal to EU Member States
“The opinion is a strong signal that Denmark should finally do the right thing and end this outrageous racial discrimination now. Any other European countries with copycat plans should also pay careful attention, as the opinion is a very good indicator that the racialisation and penalisation of Muslims and other minority groups in this way will not be tolerated by the EU,” she added.
The Advocate General’s Opinion is not binding on the Court of Justice (ECJ). The Judges of the Court are now beginning their deliberations in the case and the final judgment on the interpretation of EU law will be given at a later date.
However, the ECJ does not decide the dispute itself. It is up to the Danish national court to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts before which a similar issue is raised.
The stated aim of the Danish legislation, under which the development plan was made, is the eradication of “ghettos” by 2030. This was based on a concept of “parallel societies” according to socio-economic factors defined by the Danish government. The purpose of the law was also to promote integration of immigrants.
The Danish Ministry of Transport and Housing tried first to have the case dismissed in the national court on technical matters, claiming that the residents do not have legal interest in the approval and cannot challenge it, Susheela Math told The Brussels Times. The Advocate General's opinion now affirms the residents' charges but the ministry continues to maintain its position.
What has happened to the residents since 2020? “A number of them felt forced to move out of the area following their eviction notices. Some have been rehoused in Mjölnerparken. Some are still in their homes with active objections to their eviction notices. A number of those who left wish to return although the housing association has been proceeding with the sale of their apartments.”
