Dr Charilaos Nikolaidis, Lecturer in Law, University of Essex
Equality requires us to treat like cases alike. But who are the like cases? Does equality require similarity in the factual situation of those compared? Treating like cases alike is not necessarily as restrictive a formula as is often understood to be; neither does the comparator requirement have to be one of the problematic aspects of applying that formula. Much depends on how we choose to interpret the notion of likeness. This paper aims to propose an interpretation that is based not on the similarity of the situations, but on the similarity of the claims at hand. It does so with reference to the relevant case-law of the European Court of Human Rights. The basic goal is to show that such an alternative understanding of what likeness entails can prove particularly helpful both in terms of comprehending previous instances of the case-law of the Court as well as in terms of allowing for a more principled approach to prevail in the future.
The analysis unfolds in four main steps. The first step argues that the classic formulation of formal equality does not really require, as a matter of necessity, the tracking down of an “analogously situated” comparator and then it proposes a different normative framework for understanding “likeness”. The second step demonstrates how the proposed framework allows us to navigate through the (very close) interaction between the comparability and the justification stages without conflating the two. The third step deals with the way in which the approach advanced in this paper helps us bring the formal conception of equality closer to what is known as substantive equality, simply by enabling us to look at the requirement for “likeness” from a different angle. Finally, the fourth step explains how the perception of likeness as similarity in the weight of the legitimate interests involved can help provide clearer answers when the court faces difficult questions.
This post is based on: Charilaos Nikolaidis, ‘Rethinking Likeness and Comparability in Equality Claims Brought Before the European Court of Human Rights’, Public Law, Issue 3, July 2020, pp. 448-467. The full text is available for download below.
This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in Public Law as ‘Rethinking Likeness and Comparability in Equality Claims Brought Before the European Court of Human Rights’, Public Law, Issue 3, July 2020, pp. 448-467 and is reproduced by agreement with the publishers.