reflected in EU legislative measures on, amongst other things, race, ethnicity and religious discrimination.206 Nevertheless, the concept of indirect discrimination has its limits. Though prohibiting conditions that disadvantage certain groups, it does not require positive measures to ensure that any existing disadvantage or difference is overcome or accommodated. Additionally, only “unjustified” discriminatory conditions are prohibited. Racial profiling as indirect discrimination207 Racial profiling is the inclusion of race, ethnicity, nationality or religion in the profile of a person considered likely to commit a particular crime or type of crime. It occurs when police, or the security services, create databases, investigate, stop, frisk, search or use force against a person based on such characteristics rather than on evidence of a person’s criminal behaviour. Although historically associated with black communities, since 11 September 2001, other racial and ethnic groups have also been increasingly subjected to such profiling. Racial profiling may be used in ways that are directly discriminatory, but it is more likely to be applied in an indirectly discriminatory manner. For example, police may have stop-andsearch powers applicable to everyone; however, the practice of “stop and search” would be indirectly discriminatory if it were applied disproportionately to certain groups, say those perceived as Arab or South Asian. The German Constitutional Court has held in a case challenging racial and other profiling that such profiling could be compatible with Germany’s basic law only if there is a “concrete” danger to highly protected rights such as the life and security of the German Federation, or the life of a specific person. The Court, therefore, held that racial profiling could not be used preventively to avert danger in the absence of a concrete and identifiable risk to either the person or the state. The Court went on to hold that the general level of threat since 11 September 2001 was not, in and of itself, sufficient to justify the use of racial profiling. The Court also held that the threat must be specific and relate to the preparation or realization of actual terrorist attacks.208 Using positive action to tackle entrenched discrimination An obligation to bring about change by the imposition of a positive duty to tackle structural disadvantage goes further towards securing equality of treatment. Such an approach may be controversial because positive duties, or affirmative action, are sometimes regarded as “reverse discrimination” that violates conventional principles of equal treatment. However, a 206 Article 2.2(b), EU Council Directive 2000/43/EC of 29 June 2000 Implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin, OJ L 180, 19 July 2000, p. 22 and Article 2.2(b), Council Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Occupation, OJ L 303, 2 December 2000, p. 16. 207 See CERD, General recommendation XXXI on the prevention of racial discrimination in the administration and functioning of the criminal justice system (2005). 208 BVerfG, 1 BvR 518/02 vom 4.4.2006, Absatz-Nr. (1-184), available at http://www.bverfg.de/entscheidungen/ rs20060404_1bvr051802.html (German only). 84 Countering Terrorism, Protecting Human Rights