Netherlands: US export control, legal exception of prohibited discrimination

On 20 June 2023, College voor de Rechten van de Mens (Netherlands’ Human Rights Institute) published the News Release, referring to its judgement of 16 June 2023 in connection to the discrimination in ASML’s hiring policy based on nationality for export control reason.

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Why does ASML discriminate against applicants from certain countries for some positions?

ASML is a Dutch company, situated in Veldhoven, Netherlands, manufactures machines that make computer chips. Its operation uses the techniques that are of American origin for both civilian and military purposes. Therefore, the company has to comply with the U.S. Export Administration Regulations, prohibiting the export of these techniques to certain countries, defined in E:1 list (https://www.bis.doc.gov/index.php/documents/regulation-docs/2255-supplement-no-1-to-part-740-country-groups-1/file). As a result, ASML cannot hire the persons, whose nationality is in this group for certain positions, having the access to American dual-use items without export licence from the U.S. government.

Are export control regulations a legitimate exception of anti-discrimination principles?

Actually, yes, it is. Even if these regulations are not Dutch legislations, they are still generally binding regulations within the meaning of Art. 2(5) General Equal Treatment Act. Therefore, the said Human Right Institute concluded that the company can legally make such direct discrimination on the ground of nationality.

(ASML Principles of Ethical Business Conduct)

In practice, this exception may complicate the fairness metrics and algorithms designing the recruitment process, using AI-based systems. We cannot choose where we come from but I believe that there are always doors or at least one door to be opened and to open for the ones who do not give up. This post cannot express the complicated reflection of my own thoughts but I hope that it may make clear some exception grounds of discrimination, at least maintaining the transparency of recruitment procedure.

Sources:

Judgement: https://oordelen.mensenrechten.nl/oordeel/2023-66

Press Release: https://www.mensenrechten.nl/actueel/nieuws/2023/06/20/college-oordeelt-over-aannamebeleid-asml

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