By Susheela Math, Lead of the Open Society Justice Initiative’s work challenging the 'Ghetto Package'.
On 13 February 2025, Advocate General Ćapeta issued her highly anticipated opinion on the application of the Race Equality Directive to Denmark’s “Ghetto Package” of legislation. The opinion has significant and extensive implications not just for Denmark but also for discrimination law and the right to housing across the European Union.
Read the full article here.
Background
The opinion followed a hearing that took place on 30 September 2024 before the Grand Chamber of the Court of Justice of the European Union on two joined cases, one of which was brought by residents from Mjølnerparken, Copenhagen.[1]
As previously reported in Housing Rights Watch, the residents are challenging ministerial approval of a development plan entailing the sale of over 200 family homes in their neighbourhood. The plan was imposed under Denmark’s “Ghetto Package” of laws. This legislation was passed in 2018 with the stated aim of “eradicating ghettos”, residential areas with the hallmark feature that the majority of their residents are classed as being of “non-Western” background.
One of the Package’s key provisions is a requirement to reduce “common family housing” (independent, not-for-profit housing) in “tough ghettos” (areas that have met the criteria of a ghetto for five years) to a maximum of 40% by the year 2030. 15 areas including Mjølnerparken were classed as “tough ghettos” when the legislation was introduced.
The reduction can take place through means such as demolition and sale. This has led to thousands of people across the country losing – or being in the process of losing – their homes, including through evictions.
A long and rocky road…
Around 50 Danes made the journey to the hearing in Luxembourg, most of them by way of a lengthy bus trip. The tireless efforts and bravery of residents, activists, campaigners, and community organisations to stand up to racial discrimination and economic injustice were on full display both outside and inside the courthouse.
The bus journey was symbolic of the long and rocky road to this stage of the litigation. The hearing was the culmination of years of work, with the Open Society Justice Initiative’s involvement having commenced back in the summer of 2018. The Mjølnerparken residents’ case, supported by the Open Society Justice Initiative along with local counsel Eddie Khawaja and later also Petra Fokdal, was filed almost five years ago in May 2020. It seeks declaratory relief that the Ministry’s approval of the development plan is racially discriminatory and that it violates other fundamental rights, including the right to respect for home under Article 8 of the European Convention on Human Rights.
Much progress was made along the way, including:
- condemnations from domestic and international treaty and human rights bodies, including United Nations (“UN”) Committees and the European Commission against Racism and Intolerance (“ECRI”);
- early victories in the Danish Eastern High Court confirming that the residents have legal standing, and that the loss of a home is a fundamental intrusion of rights;
- an urgent appeal from three UN Special Rapporteurs asking the Danish State to halt the sale in Mjølnerparken pending resolution of the case; and
- third party interventions in favour of the residents’ position by the Danish Institute for Human Rights, the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and the UN Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context.
Nevertheless, successive Danish governments insisted on pushing ahead with the implementation of the legislation, with devastating impacts on residents including those of Mjølnerparken.[2] The sale has proceeded and all residents within the two targeted blocks have received eviction notices. The majority have experienced great distress, and for some who are former refugees, re-traumatisation. For all of them, their lives will never be the same.
In particular, despite having repeatedly referred to “ethnic origin” outside of court including in legislative documentation and the media, the State’s position in the litigation has been to deny that “non-Western” background has anything to do with ethnic origin. The residents thus sought a reference to the Court of Justice of the European Union (“CJEU”) for a preliminary ruling on the correct application of the Race Equality Directive (“Directive”). This was granted by the Danish Eastern High Court in 2022, with the referral questions focusing on whether:
- “non-Western” background constitutes “ethnic origin” under the Directive; and, if so, whether
- the legislative scheme is directly or indirectly racially discriminatory.
What did the Advocate General conclude?
The Advocate General’s opinion firmly supports the residents’ position that both of the referral questions must be answered in the affirmative. Namely, she is of the view that “non-Western” background constitutes ethnic origin and that the scheme requiring the reduction of housing is directly racially discriminatory.
Read on for the five key takeaways worth noting and next steps here.
[1] Case C‑417/23 Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge v MV, EH, LI, AQ and LO, joined parties: BL – Danmarks Almene Boliger,Institut for Menneskerettigheder and XM, ZQ, FZ, DL, WS, JI, PB, VT, YB, TJ, RK v Social-, Bolig- og Ældreministeriet, joined parties: Institut for Menneskerettigheder, FN særlige rapportør E. Tendayi Achiume, FN særlige rapportør [Balakrishnan Rajagopal]
[2] While the terminology of “tough ghettos” has been changed to “transformation areas,” the substance of the law remains the same and the indication in the explanatory documentation was that the terminology changes were not for the benefit of existing residents but rather to attract others to these areas. The legislation was also expanded with the goal of having a maximum of 30% of those of “non-Western” background in any housing estate.
