Advocate General Opinion: Denmark’s “Ghetto Package” in Breach of EU’s Race Discrimination Law

NEW YORK—The Open Society Justice Initiative welcomes the opinion of the Advocate General of the Court of Justice of the European Union (CJEU) that provisions of Denmark’s so-called “ghetto package” of legislation breach the EU’s race discrimination law.

The opinion from one of the Court’s top legal advisers—whose opinions, though not binding, often shape a final ruling by the Court’s judges— found that Denmark’s scheme, which is based on a concept of “non-Western” background, is directly racially discriminatory and therefore unlawful under the EU’s Race Equality Directive. 

In particular, Advocate General Capeta found that:

1.   the division between “Western” and “non-Western” immigrants and their descendants is based on ethnic origin; and that

2.   direct discrimination has occurred because the legislation puts residents in a precarious position in relation to security of their right to a home and because it stigmatizes them.

She further emphasized that this discriminatory treatment curtails rather than enhances the residents’ chances of integration into society.

The cases before the Court focus on a legal requirement introduced by the Danish government in 2018 to reduce not-for-profit housing in targeted areas. This formed part of a bundle of over 20 legal changes dubbed “the ghetto package” at the time. The stated aim of the program is to “eradicate” by 2030 neighborhoods originally termed “ghettos” by the government. The determining factor in a “ghetto” designation is whether the majority of residents are labeled as being of “non-Western” background—a classification which three UN human rights experts highlighted as particularly impacting upon non-White and Muslim populations.

The requirement to reduce not-for-profit housing has led to the loss of thousands of family homes, including through sales, demolitions, and forced evictions. The Justice Initiative has been providing legal and advocacy support to one affected group of tenants, from the Mjølnerparken area of Copenhagen, who challenged the approval of a “Ghetto Package” development plan in their community in the Danish courts, which led to the referral of the issue to the CJEU.

“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. Their case is supported by the Danish Institute for Human Rights as well as two UN Special Rapporteurs—and now the Advocate General, whose views are also completely in line with a number of international legal bodies including UN Committees,” said Susheela Math, Senior Managing Litigation Officer at the Open Society Justice Initiative. “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 racialization and penalization of Muslims and other minority groups in this way will not be tolerated by the EU,” she added.  

The residents are represented by attorneys Eddie Omar Rosenberg Khawaja and Petra Fokdal from Rosenberg Khawaja Law Firm, who have worked closely with the Justice Initiative on the case. “The Advocate General’s opinion highlights everything that is problematic with the Danish regulation on so-called Ghetto Areas which targets citizens in Denmark based on their ethnic, religious and cultural background. As the AG pinpoints this cannot be disguised by using a proxy term referring to non-western immigrants or descendants. On behalf of my clients, I am happy that the AG echoes their and my view, that this is nothing but clear and blatant illegal discrimination. I am confident that the judges of the CJEU will follow that conclusion in the judgment that is now to follow,” commented Mr Khawaja.  

Majken Felle, an affected resident and plaintiff in the case said, “After years of struggle against the injustice brought upon us by Danish legislation, I am very pleased that the Advocate General’s opinion supports our viewpoint. What we have known and experienced as being unlawful discrimination with a huge negative impact on our lives has now been validated as such. This fight is not just for the residents in Mjølnerparken, but for all citizens in Denmark to make the state respect our rights as citizens and make sure that this kind of discrimination will never happen again.”

Lamies Nassri, Project Manager at The Centre for Muslims’ Rights in Denmark, said: “Danish politics has taken an extreme turn to the right, shaping a political discourse fueled by prejudice and discrimination. This rightward shift has legitimized state-led Islamophobia and discriminatory legislation, most notably the so-called ‘Ghetto Law.’ Today, the residents who have felt the consequences of state racism, Islamophobia, and discriminatory policies have been granted justice, as well as everyone who has ever been labelled a ‘non-Westerner.’ We hope the final ruling will follow the same path.”

Tobias Gregory of Almen Modstand (the resistance movement against this issue) also commented, “The Advocate General’s opinion is an indication of how all people should be treated and an example of why international institutions should be treated with respect and adherence from member states. Denmark is a small nation which needs to embrace and respect all individuals’ differences and not feed into foreign hostility. Political hardliners against especially minorities have spun irreversible damage to many peoples’ lives and we hope to see the Advocate General’s opinion to be followed by the courts.”

A ruling from the CJEU judges generally follows within two or three months of an opinion from the Advocate General.