Ethnic Engineering by Other Means? The The Danish Ghetto Law Before the ECJ

Introduction

On 18 December 2025, the Court docket of Justice of the European Union (ECJ) delivered its judgment in Case C-417/23, addressing the compatibility of Denmark’s so-called ‘Ghetto Bundle’ with EU anti-discrimination legislation. The case involved legislative measures that topic designated ‘transformation areas’ to improvement plans aimed toward lowering social housing, primarily based on standards that embrace the proportion of residents outlined as ‘immigrants and their descendants from non-Western nations’. While the Danish authorities frames the package deal as a technique to fight segregation and promote ‘integration’, human rights our bodies have condemned it as discriminatory and stigmatising.

Though the Court docket didn’t discover direct discrimination per se, it held that such ethnic classifications fall inside the scope of Directive 2000/43/EC (Racial Equality Directive) and should end in oblique discrimination. This publish argues that, regardless of recognising the ethnicised nature of Denmark’s ‘Ghetto Bundle’, the Court docket fell in need of offering sturdy judicial safety in opposition to discriminatory housing legal guidelines, leaving key questions of ethnic discrimination to nationwide courts.

From ‘Ghettos’ to ‘Parallel Societies’

The Danish authorities started to make use of the time period ‘ghetto’ in official coverage papers by the late Nineties, but its conceptual family tree in political discourse dates again no less than to the Nineteen Sixties. Since 2010, the Ministry of Social Affairs and Housing has been publishing an annual ‘ghetto checklist’ figuring out social housing areas that met no less than two out of 4 socioeconomic indicators (excessive unemployment, excessive prison conviction charges, low training ranges and low earnings), and the place greater than 50% of residents had been ‘non-Western immigrants or their descendants’. The definition of ‘non-Western’ consists of all nations in Africa, South and Central America, Asia, all nations in Oceania (apart from Australia and New Zealand), Russia, many Jap European nations and stateless individuals. 

The authorized and coverage penalties of designation are extreme. As soon as an space stays on the ghetto checklist for 5 consecutive years, it’s categorised as a ‘onerous ghetto’, triggering necessary improvement plans aimed toward lowering the proportion of social household housing to a most of 40% by 2030. This sometimes entails large-scale evictions, compelled relocations and the demolition or sale of public housing blocks. Extra measures embrace necessary language testing and ‘values-based’ daycare for youngsters as younger as one 12 months, and particular surveillance powers for police and housing authorities. These interventions had been premised on the concept ‘parallel societies’ allegedly pose a menace to nationwide cohesion.

In 2021, following mounting home and worldwide criticism, the Danish authorities rebranded the coverage. The time period ‘ghetto’ was formally dropped and changed with ‘parallel society’, while ‘onerous ghetto’ grew to become ‘transformation space’. Nevertheless, the substantive standards remained unchanged. What started as a social cohesion initiative has morphed right into a system of ethnicised territorial governance. 

The authorized query – whether or not these classifications quantity to illegal discrimination beneath EU legislation – finally reached the ECJ in Case C-417/23. The preliminary reference stemmed from 5 disputes involving tenants in two ‘transformation areas’ topic to redevelopment plans primarily based on socioeconomic standards and a threshold of over 50% ‘non-Western’ residents. Difficult the termination of their leases, the tenants prompted the Excessive Court docket of Jap Denmark to ask whether or not: 1) the idea of ‘ethnic origin’ beneath Directive 2000/43/EC encompasses individuals categorised beneath Danish legislation as ‘immigrants and their descendants from non-Western nations’; 2) the contested legislative scheme constitutes direct or oblique discrimination beneath EU legislation. 

The Opinion of Advocate Normal Ćapeta

On 15 February 2025, Advocate Normal (AG) Tamara Ćapeta delivered a remarkably forthright Opinion, concluding that the Danish scheme amounted to direct discrimination beneath Directive 2000/43/EC.

Drawing on settled case legislation (CHEZ Razpredelenie Bulgaria, C‑83/14; Feryn, C‑54/07), AG Ćapeta adopted a broad and useful interpretation of ethnic origin – an idea rooted in ancestry, geographical origin and perceived cultural distinction – and rejected the Danish authorities’s framing of the ‘non-Western’ classification as merely statistical. 

AG Ćapeta then characterised the Danish scheme as direct discrimination: as a result of the designation of a ‘transformation space’ will depend on the proportion of residents with a ‘non‑Western’ background, the antagonistic penalties flowing from that designation (reminiscent of unilateral termination of leases and stigmatisation) are inseparably linked to ethnic origin (paras 125-126 and 148).

The Opinion sparked necessary scholarly commentary, which interrogated each its strengths and potential limitations. For instance, Eklund famous that the AG appeared to sidestep the advanced entanglements between ethnicity and citizenship, doubtlessly reinforcing an understanding of nationwide membership that excludes these racialised as ‘non-Western’, even after they maintain Danish citizenship. This omission, she argues, dangers obscuring the extent to which the legislation constructs hierarchies inside citizenship itself. In the meantime, Ganty and de Vries located the Ghetto Regulation inside a broader authorized structure that systematically targets low-income, racialised people throughout coverage domains.

The Judgment of the Court docket

In its judgment of 18 December 2025, the Court docket of Justice took a markedly extra cautious path than that proposed by AG Ćapeta. While it broadly endorsed her conclusions on the applicability of Directive 2000/43/EC and the idea of ethnic origin, it finally declined to seek out direct discrimination and left the evaluation of proportionality to the referring courtroom.

First, the Court docket meticulously established that the Danish public housing regime falls inside the materials scope of the Racial Equality Directive. Drawing on CHEZ and Maniero, the Court docket reiterated that the Directive should be interpreted broadly, given its operate as a particular expression of Article 21 of the Constitution of Elementary Rights of the EU, which prohibits ethnic discrimination (para 52). The housing scheme, though operated by non-profit public suppliers, nonetheless qualifies as an ‘financial exercise’ as a result of tenants pay hire, nevertheless lowered, and companies are rendered for remuneration (paras 54-57).  That the housing is managed with out revenue motive is immaterial. As such, the Court docket held that it constitutes a provide of ‘companies’ inside the that means of Article 57 TFEU and due to this fact falls beneath ‘entry to and provide of products and companies’ inside the that means of Article 3(1)(h) of Directive 2000/43/EC (para 58). This detailed reasoning rebutted the Danish authorities’s argument that the housing laws constituted social coverage or city improvement outdoors the attain of EU legislation.

On the definitional query (i.e., the that means of ethnic origin), the Court docket adopted a cautious method, acknowledging that the time period ‘immigrants and their descendants from non-Western nations’ could fall inside that idea when assessed in context. Drawing earlier judgments (e.g., Jyske Finans), the Court docket defined that ethnic origin will not be outlined within the Directive, however stems from a cluster of traits (reminiscent of nationality, faith, language, cultural and conventional background) which are each goal and subjective in nature (paras 72-74).

While neither nationality nor nation of start can alone suffice to ascertain ethnic origin, each might be related indicators when mixed with different social markers (paras 84-85). The Court docket emphasised that the notion of ethnic origin should be interpreted bearing in mind additionally worldwide devices such because the Worldwide Conference on the Elimination of All Types of Racial Discrimination and Article 14 of the European Conference on Human Rights (ECHR), as construedby the European Court docket of Human Rights (ECtHR).

Thus, in line with the ECJ, while the ‘non-Western’ classification can’t be presumed to equate to ethnic origin, it will possibly – when used as a part of a coverage that treats a socially constructed class as a foundation for differential remedy – set off the applying of Article 2(2) of the Directive. 

Nevertheless, the Court docket adopted a considerably extra cautious stance than AG Ćapeta in its authorized characterisation of discrimination.

On direct discrimination, the Court docket restated {that a} distinction in remedy constitutes direct discrimination beneath Article 2(2)(a) of Directive 2000/43 if one particular person is handled much less favourably than one other in a comparable state of affairs ‘on grounds of ethnic origin’ (para 87). The essential level, for the Court docket, is that the Danish Housing Regulation imposes the duty to undertake redevelopment plans solely in so-called ‘transformation areas’, that are outlined decisively by the criterion that greater than 50% of residents are ‘immigrants and descendants from non-Western nations’. Quite the opposite, for these areas assembly the identical socioeconomic standards however during which the proportion of ‘immigrants from non-Western nations and their descendants’ residing there has not exceeded 50% (known as ‘susceptible residential areas’), the identical legislation doesn’t impose an obligation to undertake such a improvement plan or, consequently, to scale back the share of public household housing items (para 89). However this, it’s the nationwide courtroom that should decide whether or not this quantities to a distinction on ethnic grounds (para 94).

Moderately than asserting a breach itself, the Court docket affords a roadmap for the nationwide courtroom to ascertain a presumption of discrimination. If such a presumption is established, beneath Article 8(1) of the Directive, the burden of proof then falls on the Ministry of Social Affairs, Housing and Senior Residents, which must show that there was no infringement of that precept and that the adoption of the Regulation on Public Housing will not be in any means primarily based on the ethnic origins of nearly all of the inhabitants of these areas, however solely on goal components unrelated to ethnic origin (para 128). Past this procedural instruction, the Court docket additionally offers substantive steerage as to what a ‘much less beneficial remedy’could consist in, stressing that residents of ‘transformation areas’ are uncovered to an elevated threat of early lease termination and lack of dwelling, which can itself quantity to drawback beneath Article 2(2)(a) (paras 113, 116, 120 and 123). It additional clarifies that this evaluation will not be affected by the truth that terminations are chosen on ostensibly impartial standards, nor by whether or not the person tenants involved fall inside the ‘non‑Western’ class (paras 124-125).

Importantly, the Court docket makes clear that discrimination could also be primarily based on a broad class, even when it encompasses a number of ethnicities, as long as it reproduces drawback ‘on the grounds of ethnic origin’ (paras 101-104). Using stereotypical or stigmatising language in preparatory paperwork could additional assist the conclusion of discriminatory remedy (paras 105 and 127).

However, on oblique discrimination, the Court docket held that, if the nationwide courtroom doesn’t discover direct discrimination, it should nonetheless assess whether or not that laws could represent oblique discrimination inside the that means of Article 2(2)(b). To ensure that a measure to return inside the scope of that provision, it’s adequate that, even when it makes use of impartial standards not primarily based on protected traits, it’s more likely to drawback specifically individuals possessing these traits (para 133).

Nevertheless, the Court docket doesn’t categorically exclude the likelihood that oblique discrimination could possibly be justified by reliable public pursuits – reminiscent of social cohesion and integration – pursued in a constant and systematic method (para 161), offered that the precept of proportionality is strictly noticed and the means employed to pursue such goals are mandatory and acceptable (para 131), in addition to correctly balanced with elementary rights (paras 166-168) – together with these assured by Article 7 of the Constitution (Respect for personal and household life). 

Therefore, the ECJ’s judgment doesn’t declare the Danish legislation incompatible with EU legislation. As an alternative, it units up a framework obliging the nationwide courtroom to hold out a rigorous proportionality assessment.

Conclusion

The Danish ‘Ghetto Bundle’ represents one of the vital controversial experiments in territorial governance in up to date Europe. By tying authorized obligations to classifications primarily based on ‘non-Western’ origin, the measures problem the boundaries of lawful governance beneath EU legislation by imposing ‘inclusion’ and assimilation through a mannequin of factual ethnic exclusion masqueraded as ‘integration’. In Case C-417/23, each AG Ćapeta and the Court docket recognised that these classifications fall inside the scope of the Racial Equality Directive. But, while the AG categorised the scheme as direct discrimination, the Court docket adopted a extra deferential posture, tasking the nationwide courtroom with conducting a layered, fact-sensitive proportionality assessment.

Importantly, the judgment units a excessive evidentiary commonplace for justifying ethnicised housing insurance policies. It additionally confirms that anti-discrimination legislation captures not solely particular person rights infringements, however broader patterns of structural exclusion (e.g., disadvantages created by authorized or coverage regimes that systematically marginalise sure populations) and symbolic hurt (i.e., stigmatisation). Though the Court docket averted a definitive ruling on the legality of Denmark’s scheme, it despatched a sign: insurance policies that depend on aggregated ethnic indicators and produce racialised results will set off heightened judicial scrutiny beneath EU legislation.

But, the mere undeniable fact that the ultimate evaluation is deferred to the nationwide courtroom leaves open the likelihood that the underlying system of classification – and the social harms it generates – could persist beneath the guise of impartial governance. The case thus exemplifies a type of ethnic engineering by different means: a technocratic, legalised and bureaucratised copy of inequality that dangers turning into entrenched until checked in opposition to a strong utility of anti-discrimination legislation. Whether or not the Danish courts will rise to that problem stays to be seen.

Marzia Genovese is a Publish-Doctoral Fellow in Public Regulation on the College of Pau (France). She holds a PhD in European Regulation from the College of Bologna (Italy) and an LLM in European Regulation from the College of Edinburgh (UK). She has additionally labored as a Authorized Guide for NGOs in Latin America and Europe on a variety of issues, together with environmental justice and authorized protection of indigenous communities.