CJEU, 18 December 2025, Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge, C-417/23, EU:C:2025:1017

Access to Public Housing in Denmark Before the CJEU: A Missed Opportunity To Fight Racial and Ethnic Discrimination?

Equal treatment between persons irrespective of racial or ethnic origin – Directive 2000/43/EC – Concepts of “ethnic origin” – Direct discrimination and indirect discrimination – Housing policies concerning areas with high proportions of non-Western immigrants – Social cohesion and integration – Proportionality.

This case note examines the judgment of the Court of Justice of the European Union in Slagelse Almennyttige Boligselskab (C-417/23) concerning the Danish “ghetto law” and its compatibility with Directive 2000/43/EC. The case raises the question whether housing policies targeting areas with high proportions of “non-Western immigrants and their descendants” amount to direct or indirect discrimination based on ethnic origin.

The comment analyses the Court’s interpretation of “ethnic origin” and its cautious approach, leaving the final assessment to the national court. It argues that the judgment, while significant, represents a missed opportunity to more firmly address structural discrimination in EU law. 

Serena Greco

A. Introduction

On 18 December 2025, the Court of Justice of the European Union (CJEU, “the Court”) delivered its judgment in Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge (C-417/23). 

The case addressed whether the criteria applied in Denmark’s social mixing policy under the Law on Public Housing (LPH) amounted to direct or indirect discrimination based on ethnic origin under Article 2(2)(a) and (b) of Directive 2000/43 which implements the principle of equal treatment between persons irrespective of racial or ethnic. Grounded in Article 19 TFEU, Directive 2000/43 reflects the principle that racial and ethnic discrimination undermines the objectives of the European Union. It extends protection beyond the workplace, covering employment, education, social protection, healthcare, and access to goods and services, including housing (Farkas, 2017).

In particular, according to Article 2 of Directive 2000/43, direct discrimination occurs when a person is treated less favourably than another in a comparable situation on grounds of racial or ethnic origin; indirect discrimination arises when a seemingly neutral provision, criterion, or practice places persons of a particular racial or ethnic origin at a specific disadvantage, unless objectively justified by a legitimate aim and proportional means.

The judgment is particularly significant against the backdrop of the persistent scarcity of case law on Directive 2000/43 (De Burca & Passalacqua, 2025).

Within the EU legal order, anti-discrimination law has developed asymmetrically: while gender equality litigation has generated a substantial body of transformative jurisprudence, racial discrimination cases remain marginal. Scholars describe this imbalance as a form of “structural asymmetry,” highlighting how the enforcement and transformative potential of EU law have not been realised evenly across all protected grounds.

This structural gap is compounded by contested understandings of race and by the reluctance of many Member States to collect ethnic or racial data. It also reflects a broader institutional hesitation to acknowledge racial inequalities, sometimes described as European “colour-blindness” (Kundnani, 2023). 

As a result, even well-documented racial disparities in employment, education, and access to services rarely translate into judicial action. This persistent gap between the formal protections offered by the Directive and the limited case law underscores the challenges of enforcing anti-discrimination norms and ensuring meaningful access to justice for victims of racial and ethnic discrimination. 

In 2019, the UN Committee on Economic, Social and Cultural Rights had already expressed deep concern regarding the so-called Ghetto Law, noting that its classification based on “non-Western” origin is inherently discriminatory. This case also highlights the need for the Court to consider not only legal definitions but also the real-world impact of policies on marginalised communities (Üzeyir Tireli, 2024).

1. Facts of the Case 

The case originates from disputes pending before Danish courts regarding legislation that requires urban development plans for public housing in areas predominantly inhabited by “immigrants and their descendants from non-Western countries.” 

In particular, Danish law classifies public residential areas based on demographic and socio-economic criteria related to the characteristics of the resident population, such as employment rate, crime rate, level of education, and average income. 

A “vulnerable residential area” is defined as an area meeting two of the above criteria. By contrast, a “parallel society” (previously referred to as a “ghetto”) is an area that meets two of the four socio-economic criteria, like a vulnerable residential area, but where more than 50% of the residents are “immigrants and their descendants from non-Western countries.” Finally, a “transformation area” (previously a “high-ghettoisation area”) is an area that met the criteria for classification as a parallel society for the previous five years.

The term “ghetto” was officially dropped and replaced with “parallel society,” whilst “hard ghetto” became “transformation area”. However, the substantive criteria remained unchanged. 

The referring court derived the distinction between “Western” and “non-Western” from documents issued by Statistics Denmark. The term “non-Western country,” as developed by Danmarks Statistik (Statistics Denmark), includes all countries outside the European Union, as well as Andorra, Iceland, Liechtenstein, Monaco, Norway, San Marino, Switzerland, the United Kingdom, the Vatican City State, Canada, the United States, Australia, and New Zealand. According to this office, an “immigrant” is defined as a person born abroad whose parents were neither both born in Denmark nor both Danish nationals. A “descendant” is defined as someone born in Denmark whose parents were neither both born in Denmark nor both Danish nationals, or whose parents, even if born in Denmark and holding Danish nationality, still retain another nationality.

In 2018, following amendments to the Public Housing Act, housing associations managing public residential buildings and municipal councils are required to specify in their urban development plans how the proportion of public housing in “transformation areas” will be reduced to 40% by 1 January 2030. The aim of these urban plans is to discourage residential and social ghettoisation, preventing the concentration of residents who are considered to have weak ties with Danish society. Measures may include the sale of buildings to private owners, demolition, or conversion of dwellings, which can lead to the termination of rental contracts. Municipalities must offer affected residents alternative housing and cover the related costs.

In the present case, several public housing leases in Ringparken (Slagelse) and Mjølnerparken (Copenhagen) were unilaterally terminated. The referring court questioned whether these terminations, linked to the criterion of “immigrants from non-Western countries and their descendants,” constitute discrimination under Directive 2000/43. 

The referring court observed that it is unclear from Article 2(2)(a) and (b) of Directive 2000/43, or from the Court’s case law—including CHEZ Razpredelenie Bulgaria (16 July 2015, C-83/14), Jyske Finans A/S v Ligebehandlingsnævnet (6 April 2017, C-668/15)—whether the concept of “ethnic origin” encompasses a group defined as “immigrants from non-Western countries and their descendants.” It is also uncertain whether the national legislation at issue constitutes direct or indirect discrimination under the Directive.

The distinction between “Western” and “non-Western” groups is crucial to the law’s coercive effect, as the risk of forced relocation is directly tied to the demographic composition of the targeted neighbourhood—a practice some have described as a form of “ethnic engineering” (Marzia Genovese, 2026).

The court therefore requested clarification from the Court of Justice on whether such a definition of “ethnic origin” applies in the circumstances of the case, and if so, whether the resulting discrimination should be classified as direct or indirect under Article 2(2)(a) and (b) of Directive 2000/43/EC.

2. Opinion of Advocate General Ćapeta

Before examining the Court’s reasoning, it is useful to consider the Opinion of Advocate General Ćapeta, handed down on 13 February 2025, which offers an important interpretative framework for understanding the concept of “ethnic origin” under Directive 2000/43 (Iyiola Solanke, 2025).

The Advocate General argued that the distinction between “Western” and “non-Western” immigrants and their descendants in Danish legislation produces a perception of ethnic “otherness” in relation to the majority population. In her opinion, such categorisation falls within the scope of discrimination based on ethnic origin.

Importantly, she emphasised that the lack of homogeneity within the group classified as “non-Western” is not decisive. What matters is whether the criterion used by the law relies on characteristics that construct a perception of ethnic difference. As she explained, the notion of ethnic origin may refer to the perception of certain individuals or groups as outsiders or foreigners, thereby creating a division between “us” and “them” (§ 73).

From this perspective, the Danish legislation establishes a form of direct discrimination based on ethnic origin: because the designation of a “transformation area” depends on the proportion of residents with a “non‑Western” background, the adverse consequences flowing from that designation (such as unilateral termination of leases and stigmatisation) are inseparably linked to ethnic origin (§§ 125–126 and 148).

More broadly, the Advocate General reframes the issue by shifting attention away from the supposed deficiencies of the “non-Western” migrant and toward the responsibility of European societies to embrace diversity and pluralism. In her view, a tolerant society must recognise equal rights for those perceived as different (§ 74) (Silvia Steininger, 2025). 

Building on established case law (CHEZ Razpredelenie Bulgaria, C-83/14; Feryn, C-54/07), AG Ćapeta embraced a wide and functional understanding of ethnic origin—a notion linked to ancestry, geographic background, and perceived cultural distinctions—and dismissed the Danish government’s portrayal of the “non-Western” category as a purely statistical classification.

This interpretative approach therefore highlights a broader understanding of discrimination—one that situates the Danish housing policy within a framework of legally constructed ethnic differentiation. In any case, this approach has not been without criticism. Her framing sidestepped an important aspect of the case that the Court should consider in its deliberations, namely that in Denmark people classified as “non-Western immigrants and their descendants” can be Danish citizens. The case therefore raises a broader question about whether EU law should tolerate the emergence of a stratified form of citizenship, in which certain citizens are treated differently because of their perceived ethnic background (Hanna Eklund, 2025).

As the following section shows, the Court ultimately adopted a more cautious position.

3. The Court’s Reasoning 

Although the Grand Chamber did not fully adopt the Advocate General’s conclusions, much of her reasoning is reflected in the judgment. At the same time, the Court’s ruling provides a somewhat ambivalent response to the questions raised by the referring court.

As a preliminary matter, the Court held that the Danish public housing system falls within the scope of Directive 2006/123/EC on services in the internal market. Consequently, the disputes in the main proceedings also fall within the material scope of Directive 2000/43 under Article 3(1).

As noted by Advocate General Ćapeta, the Danish public housing system is managed by non-profit housing associations and is open to anyone aged 15 or over who registers on a waiting list. Tenants pay rent below market level, covering only operating and maintenance costs. In these circumstances, the provision of housing in exchange for rent constitutes a “service” for remuneration within the meaning of Article 57 TFEU and Article 4(1) of Directive 2006/123.

The Court then turned to the interpretation of the concept of ethnic origin in order to determine whether the national legislation could fall within the scope of Directive 2000/43. 

According to settled case law, ethnic origin refers to social groups characterised by a set of factors such as common nationality, religion, language, and cultural or traditional origins (CHEZ Razpredelenie Bulgaria, § 46; Jyske Finans, § 17). These elements are indicative rather than exhaustive, and no single factor is decisive. In particular, a person’s country of birth may be relevant insofar as it is linked to nationality, culture, religion, or language. However, it cannot alone justify a presumption that an individual belongs to a specific ethnic group, since a sovereign state cannot be assumed to correspond to a single ethnic origin (Shreya Atrey, 2018).

This interpretative step is particularly relevant in the present case, as the Danish legislation relies on the classification of residents as “immigrants from non-Western countries and their descendants,” raising the question whether such a category can fall within the concept of ethnic origin under the Directive.

In the Court’s view, a person’s country of birth may be connected to their nationality, religious faith, language, cultural and traditional origins or even their living environment and is thus one of the factors which may be taken into account in order to determine whether a person belongs to an ethnic group, provided that it forms part of a body of evidence relating to the concept of “ethnic origin.” 

By contrast, the criterion of a person’s country of birth cannot, on its own, give rise to a presumption of belonging to a particular ethnic group. Indeed, it cannot be presumed that each sovereign state has one, and only one, ethnic origin (Jyske Finans, § 21). As a result, even though neither the criterion of a person’s nationality nor that of his or her country of birth is sufficient, in itself, to justify such a presumption of belonging to an ethnic group, both may be taken into account, together with other factors, for the purpose of assessing whether there is direct discrimination on the basis of “ethnic origin” within the meaning of Directive 2000/43 (§§ 84–86).

The Court further stressed that the concept of ethnic origin should be interpreted in light of international instruments, including the International Convention on the Elimination of All Forms of Racial Discrimination and Article 14 of the European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights (ECtHR) (Karin de Vries, Sarah Ganty, 2026).

Thus, according to the ECJ, whilst the “non-Western” classification cannot be presumed to equate to ethnic origin, it can—when used as part of a policy that treats a socially constructed category as a basis for differential treatment—trigger the application of Article 2(2) of the Directive (Marzia Genovese, 2026).

The Court then examines whether the Danish legislation may give rise to direct discrimination. 

In that context, the Court notes that residents of transformation areas face an increased risk of early termination of their leases and possible displacement, a burden not borne by residents of comparable areas. It is therefore for the referring court to determine whether the criterion referring to “immigrants from non-Western countries and their descendants” establishes a difference in treatment based on ethnic origin. In making that assessment, the national court may also take into account the wording of the preparatory works and determine whether the legislation relies on stereotypes or prejudices concerning those groups (§§ 105 and 127).

If the referring court were to find a presumption of direct discrimination based on ethnic origin, the burden of proof would shift to the Ministry of Social Affairs, Housing and Senior Citizens pursuant to Article 8(1) of Directive 2000/43. The Ministry would then be required to demonstrate that the public housing legislation—particularly the designation of transformation areas and the obligation to adopt development plans for them—is based exclusively on objective, non-discriminatory factors and not on the ethnic composition of the residents, in line with the case law of the Court, including CHEZ Razpredelenie Bulgaria (§ 128).

Should the referring court conclude that no direct discrimination exists, it must examine whether the legislation gives rise to indirect discrimination. Such discrimination arises where an apparently neutral provision places persons of a particular ethnic origin at a specific disadvantage. However, this will not amount to discrimination if the measure is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

In that regard, the Danish government argued that the contested provisions pursue the objective of combating the emergence of “parallel societies” and promoting social cohesion and integration. The Court recognises that such objectives may constitute legitimate aims and that Member States enjoy a broad discretion in adopting urban development and housing policies aimed at social cohesion. However, the Court also observes that the concept of “immigrants from non-Western countries and their descendants” includes persons who are nationals of Member States, including Danish nationals, which may undermine the justification based on the integration of third-country nationals.

Consequently, it is for the referring court to verify whether the measure at issue satisfies the requirements of proportionality, namely, whether it is appropriate, necessary, and proportionate in the strict sense. The national court must also assess whether the objective pursued could be achieved through less restrictive measures and whether the disadvantages imposed on residents of transformation areas are disproportionate to the aims pursued.

The Court concluded that national legislation requiring development plans in areas where the proportion of “non-Western immigrants and their descendants” exceeds 50% may fall within the scope of discrimination prohibited by Directive 2000/43/EC. 

Such legislation may constitute direct discrimination if it is based on the ethnic origin of residents and results in less favourable treatment, or indirect discrimination if a formally neutral measure places certain ethnic groups at a particular disadvantage and cannot be justified as proportionate to a legitimate public interest objective. Alternatively, it may constitute indirect discrimination where the measure, although formally neutral, places persons belonging to certain ethnic groups at a particular disadvantage and cannot be justified as proportionate to the legitimate public interest objective pursued.

Based on the Court’s reasoning, it is now for the national court to carry out this assessment.

B. Conclusion

As noted above, the Court of Justice has had relatively few opportunities to interpret Directive 2000/43, largely due to the limited number of preliminary references concerning racial and ethnic discrimination. Against this background, the judgment in Slagelse Almennyttige Boligselskab represents a significant addition to the Court’s case law on the concept of ethnic origin and the scope of the Race Equality Directive.

Early commentaries on the Danish legislation had already observed that, in 2021, following increasing domestic and international criticism, the Danish government revised the terminology used in the policy. The term “ghetto” was officially replaced with “parallel society,” while “hard ghetto” became “transformation area.” Despite these linguistic changes, the substantive structure of the policy remained largely unchanged. What had initially been presented as an initiative aimed at fostering social cohesion gradually developed into a system of territorial governance structured around ethnicised demographic indicators (Marzia Genovese, 2026).

In its judgment of 18 December 2025, the Court adopted a more cautious approach than that proposed by Advocate General Ćapeta. Rather than directly qualifying the Danish legislation as discriminatory, the Court opted for a contextual interpretation of the concept of ethnic origin and left the final assessment to the national court. At the same time, the judgment signals that policies relying on aggregated indicators related to “non-Western origin” may fall within the scope of Directive 2000/43 and therefore require careful judicial scrutiny. In this sense, the Court has opened the door for the referring judge to rule in favour of the tenants, noting that “non-Western and their descendants” used in the Danish measure is connected to “ethnic origin,” albeit in a more implicit way, while still echoing AG Ćapeta’s concluding observation that the measure ultimately reflects a distinction framed as “them versus us” (Boris Belortaja, 2026).

The judgment can therefore be read from two complementary perspectives. On the one hand, the Court’s reasoning expands the potential reach of EU anti-discrimination law by recognising that categories such as “non-Western immigrants and their descendants” may be linked to ethnic origin when used as a basis for differential treatment. On the other hand, by leaving the decisive assessment to the national court, the Court adopts a relatively deferential stance that limits the immediate transformative potential of the ruling (Karin de Vries, Sarah Ganty, 2026).

Several commentators have therefore characterised the judgment as a missed opportunity to clarify further the meaning of ethnic origin under EU law and to engage more explicitly with the role of racialisation and territorial stigma in the assessment of discrimination (Lucía López Zurita, 2026; Risager, 2022).

More broadly, the case illustrates the challenges that EU anti-discrimination law faces when addressing structural forms of exclusion embedded in social and urban policies. Although the Court acknowledges that the Danish scheme may produce less favourable treatment for residents of transformation areas, it does not fully engage with the systemic and material consequences of such policies, including displacement and the disruption of long-standing communities. In this respect, the judgment risks approaching the issue at a relatively abstract level, without fully integrating the social context in which the contested measures operate (Serde Atalay, 2026).

This cautious approach leaves unresolved a number of broader questions concerning the relationship between migration, citizenship, and equality in contemporary European societies. The Danish legislation applies not only to third-country nationals but also to individuals who hold Danish nationality while being classified as “non-Western.” This raises concerns about the emergence of stratified forms of belonging, in which formal citizenship does not necessarily guarantee equal treatment. As several scholars have argued, such dynamics reflect a broader process of racialisation within European welfare states (Sarah Ganty, 2026), where policies formally justified in terms of integration or social cohesion may in practice disproportionately affect minority communities (Sarah Ganty, Karin de Vries, 2025). The Court’s approach may also contribute to reinforcing a two-tier structure of protection: EU citizens benefit from stronger legal safeguards, while third-country nationals remain more vulnerable, reflecting what Étienne Balibar (2003) has described as an “apartheid européen” (Sarah Ganty, 2026, Kristian Kriegbaum Jensen, 2019).

From this perspective, the Danish housing scheme can be understood as a form of “ethnic engineering” implemented through technocratic and legal instruments rather than explicit racial classifications (Marzia Genovese, 2026). The judgment of the Court does not fully confront this dimension, but it nonetheless establishes an important framework for national courts to examine the discriminatory effects of such policies under EU law.

In this context, the Court could more actively embrace its role as a forum for constitutional self-reflection. Conceptualising Europe as a society of immigration would help foster a constitutional discourse grounded in pluralism, mutual respect, and interaction (Anuscheh Farahat, 2024). Such an approach would also imply recognising that integration cannot be framed solely as the responsibility of migrants. Rather, European societies themselves must uphold their democratic and pluralistic commitments by ensuring effective protection for their most vulnerable members.

Ultimately, the case highlights the continuing tension between the formal guarantees of equality contained in Directive 2000/43 and the difficulties of addressing structural and systemic discrimination through judicial review. Whether the Danish courts will use the interpretative guidance provided by the Court of Justice to scrutinise the policy more rigorously remains to be seen. More broadly, the judgment raises a wider question for the future of EU equality law: to what extent can anti-discrimination law effectively address forms of exclusion that are embedded not in explicit racial classifications, but in seemingly neutral governance mechanisms that nonetheless produce racialised outcomes?

In this sense, the case illustrates how EU anti-discrimination law may serve as a forum for constitutional reflection on the challenges of social inclusion within European societies and on the effective protection of the principle of equality, guaranteed by Article 21 of the Charter of Fundamental Rights of the European Union.

C. Suggested reading 

To read the case:  CJEU, 18 December 2025, Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge, C-417/23, EU:C:2025:1017.

Case Law: 

• CJEU, 16 July 2015, CHEZ Razpredelenie Bulgaria, C-83/14, EU:C:2015:480.
• CJEU, 6 April 2017, Jyske Finans A/S v Ligebehandlingsnævnet, C-668/15, EU:C:2017:278.

Doctrine:  

• Satalay, S., “When Context Disappears: A Critique of the CJEU’s Judgment in Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge”, VerfBlog, 5 January 2026.
• Balibar, E., We, the People of Europe?: Reflections on Transnational Citizenship, Princeton University Press, 2004.
• Bertolaja, B., “When Judicial Prudence Pushes Anti-Discrimination Law Forward: The Court’s Judgment in the Danish ‘Ghettos’ Case (C-417/23)”, EU Law Live, 12 January 2026.
• Binder, C., “Comment on the Danish Law on Public Housing Case”, College of Europe Research Paper, 2/2025.
• De Burca, G. and Passalacqua, V., “The Curious Absence of Race Discrimination Litigation in EU Law”, EUI Law Working Paper, 2025/15.
• de Vries, K. and Ganty, S., “Race, Housing, and the Limits of EU Anti-Discrimination Law: A Commentary on the CJEU’s Judgment in the Danish ‘ghetto law’ case”, EU Law Analysis, 10 March 2026.
• Eklund, H., “Ethnically Stratified Citizenship: What the Advocate General Sidestepped, and the Court Should Note before Deciding the Danish Ghetto Area Case”, VerfBlog, 24 October 2025.
• Farahat, A., “Re-Imagining the European (Political) Community through Migration Law”, VerfBlog, 4 March 2024.
• Farkas, L., The Meaning of Racial or Ethnic Origin in EU Law: Between Stereotypes and Identities, European Commission, January 2017.
• Ganty, S., “Racialized, but Equal?: Denmark’s Housing Law before the CJEU”, VerfBlog, 21 January 2026.
• Ganty, S. and de Vries, K., “Manufacturing Integration: Ethnic Engineering in the Danish ‘Ghetto Case’”, VerfBlog, 25 March 2025.
• Genovese, M., “Ethnic Engineering by Other Means? The Danish Ghetto Law Before the ECJ”, European Law Blog, 16 January 2026.
• Kundnani, H., Eurowhiteness: Culture, Empire and Race in the European Project, Hurst Publishers, 2023.
• López Zurita, L., “Race Discrimination and Access to Public Housing: the Court of Justice’s Slagelse Decision”, Eurojus, 16 February 2026.
• López Zurita, L., “This is Discrimination… If You Think So Too: The Court’s Ruling on the Danish ‘Ghetto’ Case (C-417/23)”, EU Law Live, 7 January 2026. 
• Risager, B. S., “Territorial Stigmatization and Housing Commodification under Racial Neoliberalism: The Case of Denmark’s ‘Ghettos’”, Environment and Planning A: Economy and Space, 4 December 2022.
• Shreya, A., “Race discrimination in EU law after Jyske Finans”, Common Market Law Review, 2018, 55(2), pp. 625–641.
• Steininger, S., “They Not Like Us: Why the Danish ‘Ghetto Law’ violates EU law”, VerfBlog, 10 March 2025.
• Üzeyir, T., “Shaping Strict Migrant Policies through Housing Strategies in Denmark”, Migration and Diversity, 2024.

To cite this case note: S. Greco, “Access to public housing in Denmark before the CJEU: a missed opportunity to fight racial and ethnic discrimination?”, Cahiers de l’EDEM, avril 2026.