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It is a commonplace that ‘non‐discrimination’ is a fundamental principle of Community Law. If the principle is taken to express a broader commitment to equality, however, there appears to be something quite unusual about it. When compared with the standards set by modern constitutional law, the commitment to equality is, at least with respect to Member State action, less extensive; in the context of indirect gender discrimination, however, the principle acquires remarkable scope. Although this ‘vanguard moment’ of Community Law is tacitly acknowledged in the practice of the ECJ, it is, at the same time, subdued; the resources of the principle might be tapped, however, by moving toward a constitution for antidiscrimination. The article explores both the philosophical presuppositions and the institutional context of what could become a constitutionalisation of antidiscrimination at the level of Community Law.
