They Not Like Us

On 13 February 2025, AG Ćapeta delivered a milestone opinion on racial discrimination and migration in the EU when she found the Danish ‘Ghetto Law’ in violation of the Race and Ethnic Equality Directive. She determined that the differentiation between “Western” and “non-Western” immigrants and their descendants in the Danish legislation creates a perceived “ethnic ‘Other’” vis-à-vis the majority population that falls under the anti-discrimination ground of “ethnic origin”. I will explain how her opinion challenges this form of legalized ‘othering’ in migration law, based on the underlying sentiment of ‘us’ vs. ‘them’, as it goes against Art. 2 TEU and the vision of a democratic, tolerant, and anti-racist European society.

The Danish Integration Model

It is no exaggeration to claim that migration, migration management, and integration policies have become a central dividing line for the Union, also seeping into societal conflict across its Member States. While most attention by legal scholars is devoted to the mass dying at its external borders, whether in the Mediterranean or the Belarusian forests, enabled or at least ignored by EU law, and questions of the acquisition of citizenship, for instance via so-called golden visas, rules and practices of migrant integration have received far less judicial scrutiny (see recently on the “Bezahlkarte” in Germany Seidl). Yet, those are even more fundamental for structuring belonging in and to the European society.

Denmark has long developed a tougher position on immigration than other European states, using its opt-out under the Maastricht Treaty. The AG’s opinion concerns the so-called Danish ‘Ghetto Law’, a controversial set of measures aimed at reducing the amount of ‘parallel societies’, particularly in low-income immigrant neighborhoods. Initiatives to counter ‘ghettoization’ have been developed by several Danish government coalitions since the early 2000s, ranging from centre-right to social democratic ones. They focus primarily on using the Danish public housing sector, one of the largest in Europe amounting to more than one-fifth of all housing, to induce assimilation of immigrants, particularly “non-Western” and “non-White” ones, into Danish society by imposing legislation that aims at creating socially mixed communities.

On “Non-Western Ghettos”

Starting from 2010 (until 2021), the Danish government considered districts as “ghettos” when, according to statistical data, they fulfilled two of the following three conditions:

1.  more than 40% of residents aged 18-64 are neither employed nor in education,
2.  more than 2.7% of adults are convicted of a crime, or
3.  more than 50% are non-Western immigrants and their descendants.

In 2018, further legislation, the so-called Parallel Society Package, was introduced which adopted a new differentiation between “vulnerable residential areas” and “ghettos”. A housing district of around 1000 people is considered a “ghetto” when the proportion of immigrants and descendants from “non-Western” countries exceeds 50% and where at least two of the following four criteria are met:

1. more than 40% of residents aged 18-64 are neither employed nor in education over the last two years
2. the proportion of residents that are convicted of a crime is at a minimum three times the national average over the last two years
3. more than 60% of all residents aged 30-59 only have basic education levels
4. the average gross income of taxpayers aged 15-64 in the area (excluding students) is less than 55 percent of the average gross income of a comparable group

A district’s denomination as a “ghetto” has severe consequences on the lives of its residents. Children born into families from “non-Western backgrounds” in state-designated ghettos must attend a special daycare for a minimum of 25 hours per week from the age of one where they will be taught Danish values and language (non-compliance can be punished through the reduction of welfare payments). Housing associations generally must not assign apartments to “non-Western” individuals in the area if they, or their dependents, are receiving welfare benefits. Crimes committed in these areas are penalized more harshly, up to twice the regular amount, even for petty crimes. If districts are considered “ghettos” for more than five years, they are listed as “hard ghettos”. In this case, the authorities can adopt even more severe measures such as a reduction of public housing to 60% until 2030 via demolition or sales. According to experts, this potentially could affect 11,000 public housing tenants.

A central problem concerns the designation of “non-Western”, which Danmarks Statistik, an agency under the auspices of the Ministry for Economic and Interior Affairs, defines as anyone whose “ethnic origin” is not from the EU, the European Free Trade Association states, the United States, Canada, Australia, and New Zealand. This characterization also extends to the descendants of immigrants, including Danish-born individuals with one migrant parent, as well as naturalized citizens. It is thus unmistakably clear that “‘non-Western’ disproportionately refers to Denmark’s non-white, non-European ethnic populations.”

While the Danish government considers the policy highly effective and publicly announced that the number of “ghettos” (since 2021 officially called “parallel societies”) was reduced from 12 to 8 in 2024, international, regional, and domestic human rights organizations have called out the Danish policy as discriminatory, stigmatizing, and in the case of forced evictions, a severe human rights violation. For instance, the Committee on Economic, Social, and Cultural Rights in 2019 “urge[d] the State party to adopt a rights-based approach to its efforts to address residential segregation and to enhance social cohesion” and repeal the discriminatory defining characterization of “non-Western ghettos”.

The CJEU and the Race and Ethnic Equality Directive

Tenants who faced eviction from two “hard ghettos” (since 2021 called “transformation areas”) in Slagesle and Copenhagen had challenged this on the basis of the Danish legislation on public housing. The Eastern High Court, one of Denmark’s two highest courts, referred the case Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge v MV, EH, LI, AQ and LO to the CJEU on 6 July 2023, asking whether the term “ethnic origin” in the Race and Ethnic Equality Directive also covers “immigrants and their descendants from non-Western countries”.

The Race and Ethnic Equality Directive, originally adopted in 2000 under then-Art. 13 EC, was a surprising development at the time it was adopted. The first Directive to expressively combat racism in the EU, its inclusion of discrimination in the social sector such as education, healthcare and housing marked an expressive turn from the primarily labour market-focus of anti-discrimination law in the EU (see also Dube on intersectional blindness in EU equality law). It was passed in the rapid speed of six months, driven in part by the EU enlargement towards the East which included several new member states with a large Roma population. As a Commission official stated (as cited in Brown), the Directive sends “a clear message for the candidate countries that the acquis of the Community is also an acquis about the respect of fundamental rights”. Other scholars argued that it was the success of Jörg Haider’s far-right Freedom Party in joining the Austrian governing coalition that increased the need for adopting the Directive. The Directive was thus as much a civilizational achievement as well as civilizing tool. Interestingly, it has only been invoked in a handful of preliminary references to the CJEU.  So far, the Court has only found discrimination based on racial grounds in two of them: First, in 2008, when a Belgian company announced that it would not employ Moroccan workers, and second, in 2015, when electricity meters had been installed at an inaccessible height in Roma communities in Bulgaria.

AG Ćapeta on ‘Othering’

Following hearings in September 2024, AG Ćapeta’s opinion is particularly noteworthy in two respects: First, she provides guidance for the understanding of “ethnic origin” in the Race and Ethnic Equality Directive, and, secondly, she explains how this legal othering by the Danish state runs counter to the values of the Union.

The Race and Ethnic Equality Directive does not define “ethnic origin”. The Danish authorities thus claim that the individuals affected by the legislation do not share any “common features in terms of nationality, language, cultural and traditional origins and backgrounds, or common customs, beliefs, traditions and characteristics stemming from a common or presumed common past” (para 21) and thus do not constitute a shared ethnicity. Ćapeta acknowledges that in contrast to earlier cases featuring e.g. Roma, the communities affected by the Danish “Ghetto Law” are characterized by ethnic diversity. Yet, she convincingly argues that it is in fact the imposed designation of “non-Western” by the Danish authorities that creates a common characteristic that is shared among all members of the group. The authorities define this diverse group exclusively based on their shared alterity; defined negatively as something those countless people from many ethnic backgrounds all lack. “Non-Western” migrants and their descendants are thus considered as fundamentally different, alien, and, at least implicitly, inferior to “Western” migrants and communities.

Ćapeta explains how this legalized ‘othering’ of non-Western migrants and their descendants does not need to be based on factual differences but can equally relate to perceived differences that effectively create a binary ‘us’ vs. ‘them’ differentiation:

“In such a context, the notion of ‘ethnic origin’ may be understood as referring to a perception of a person or of a group of persons as strangers or foreigners. As such, a division on the ground of ‘ethnic origin’ can be understood as a division between ‘us’ and ‘them’; the dividing line being dependent on certain physical and socio-cultural characteristics or, at least, on the perception that differences in those characteristics exist.” (para 73)

Accordingly, this “perceived ethnic ‘otherness’” (para 92) that the Danish legislation creates makes the Race and Ethnic Equality Directive applicable. Excluding “non-Western” immigrants and their descendants from accessing public housing and unilaterally terminating their leases thus amounts to direct discrimination.

Yet, Ćapeta does not stop there. Throughout the opinion, she capably centres the experiences of marginalized and discriminated communities, relying on UN human rights reports to show how the legislation has significantly contributed to further “stereotyping and stigmatization” (para 152). Pertinently, she forcefully spells out how racial and ethnic discrimination runs counter to the values of Art. 2 TEU (para. 70). She emphasizes how Recital 12 of the Directive aims to “ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin” (para 71). Most importantly, she turns the perspective upside down – instead of focusing on the alterity of the “non-Western” migrant and emphasizing its challenges and deficiencies, she advocates that it is in fact acceptance of diversity and plurality that must characterize the European society under Art. 2 TEU:

“The development of a society that is tolerant to ethnic differences would entail the recognition of equal rights for ‘them’, despite the belief or perception that ‘they’ possess different characteristics to ‘us’.” (para 74)

“Westernness” as Proxy

This is not the first case in which the CJEU is confronted with “Westernness” as a proxy for “Whiteness”, or, more generally, Eurocentric understandings of values, lifestyles, and conduct. Most recently, in K, L v Staatssecretaris van Justitie en Veiligheid two young girls from Iraq claimed subsidiary protection due to their adoption of a “Western lifestyle”. When answering the question of whether this would make them part of “a particular social group” that deserves protection under the Qualification Directive, the CJEU struggled to avoid the question of what constitutes “Westernness”, interpreting the girls’ claim of “westernized” behavior as a “genuine belief” in the equality of men and women (see also critically Mair). But how should national authorities assess this “genuine belief”? Could a female person wearing a headscarf and living in a majority Muslim neighbourhood also demonstrate this “genuine belief” in gender equality?

In contrast, AG Ćapeta does not only reject this proxy, she flips the table. She demonstrates how EU law can be used as a possible remedy towards domestic legislation that imposes Western Eurocentrism through racialisation (see also recent research on racial capitalism in the EU by Schrauwen and Loxa). Turning to Art. 2, she demonstrates how approaching migration from a societal perspective requires a shift in the way we conceive of the obligations involved. It is, in fact, not only the migrant who must adapt and integrate into the majority society; but it is also the responsibility of a European society to live up to its values of democracy and pluralism by not discriminating towards its most vulnerable members.

This contribution builds on common research with Jenny Orlando-Salling, forthcoming in European Law Open, to whom I owe all inspiration, encouragement, and insights into the critical study of EU law in the last years. Many thanks also go to Armin von Bogdandy, Anja Bossow, Iris Canor, and Emanuel Towfigh for helpful comments and feedback.