Housing Segregation as Discrimination: A European Law Approach

A fundamental distinction should be made in the analysis between segregation deliberately created by state policies and de facto segregation. Each of these situations raises different conceptual questions and points towards different state obligations. The first two parts of the paper will examine each type of segregation in turn, seeking to clarify in each case the defining elements of segregation and the implications of its prohibition for state authorities. The next two sections will discuss two further issues. Residential segregation itself can become a source of discrimination for the inhabitants of segregated neighbourhoods. The ECJ decision in the CHEZ case provides a remarkable example of how this phenomenon can be addressed through anti- discrimination law. Finally, some anti-segregation policies may themselves prove in tension with anti-discrimination norms or with the right to freely choose one’s place of residence. The policy implemented in the city of Rotterdam in the Netherlands, which gave rise to the Garib v. the Netherlands case before the European Court of Human Rights, illustrates this problem.