Thematic feature - implementation of the EU framework equal treatment Directive

This article examines the Danish situation, as of August 2003, with regard to the implementation and impact of the 2000 EU Directive establishing a general framework for equal treatment in employment and occupation, which seeks to combat discrimination on the grounds of religion or belief, disability, age and sexual orientation.

The EU Directive establishing a general framework for equal treatment in employment and occupation (Directive 2000/78/EC) was adopted in November 2000 (EU0102295F). The Directive seeks to lay down a general framework for combating discrimination, as regards employment and occupation, on the grounds of: religion or belief; disability; age; and sexual orientation. It is to be implemented by the EU Member States by 2 December 2003 (with a possible later deadline for the provisions on age and disability discrimination, if Member States see this as necessary).

A Community Action Programme to combat discrimination 2001-6 was also adopted in November 2000 (EU9912218F). It supports activities combating discrimination on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. Its priorities are: analysis and evaluation, developing the capacity to combat and prevent discrimination, and raising awareness.

In August 2003, the EIRO national centres in each EU Member State (plus Norway), were asked, in response to a questionnaire, to assess how the framework equal treatment Directive is being implemented in each country, and the responses of the state and social partners. The Danish responses are set out below (along with the questions asked).

Existing situation

What was the legislative situation and the policy position of the state as at December 2000 (ie when the Directive was adopted) concerning employment discrimination in the areas of: age; disability; religion or belief; and sexual orientation?

Discrimination on the grounds of religion or belief and sexual orientation is covered by the Act on prohibition of discrimination on the labour market of 12 June 1996 (Lov nr 459 om forbud mod forskelsbehandling på arbejdsmarkedet mv), which also covers race, skin colour, political orientation and national, social or ethnic origin. The Act provides that an employer may not discriminate against employees on these grounds in connection with recruitment, dismissal, transfer or promotion, or with regard to pay and working conditions. Furthermore, the Danish Constitution states in Article 70 that: 'No person shall for reasons of his creed or descent be deprived of access to complete enjoyment of his civic and political rights, nor shall he for such reasons evade compliance with any common civic duty.' Article 71(1) states that: Personal liberty shall be inviolable. No Danish subject shall in any manner whatever be deprived of his liberty because of his political or religious convictions or because of his descent.

At the time of the Directive's adoption, there was no specific legislation banning discrimination on grounds of age (TN0010201S) or disability (TN0102201S), and this is still the case at present.

State response

How has the state responded to the Directive since December 2000 in terms of:

• legislation concerning discrimination and draft legislation on the grounds of age, disability, religion or belief and sexual orientation (please specify details of title, date and main provisions and exclusions). With respect to age and disability, please specify if the state has opted to take the option of extending the deadline for implementation of the Directive and, if so, on what grounds;

• broader policy response, consistent with the Action Programme, for example: support for anti-discrimination activities; analysis of the extent and nature of the discrimination; arrangements for monitoring and enforcement; positive action; information and dissemination activities; and promotion of social dialogue and anti-discrimination collective agreements.

With bans in place already in place on discrimination on grounds of religion/belief and sexual orientation, the main change required to implement the framework Directive is the addition of age and disability to the prohibited grounds for discrimination. The government will propose legislation to this effect (DK0102113N) and has taken advantage of the Directive's extended deadline for implementation of its age and disability provisions, planning to legislate in December 2004. The Danish anti-discrimination law will also have to be amended to incorporate the shift in the burden of proof in discrimination cases provided for by the Directive. While the Danish tradition is for EU Directives in the employment area to be implemented by means of collective agreements (DK0001164F), in this case supplementary legislation is necessary if the prohibition of discrimination is to be 100% effective.

In terms of the broader policy agenda, anti-discrimination activities in the areas referred to in the Directive and the EU Action Programme are not currently high on the agenda of the coalition government of the Liberal Party (Venstre) and Conservative Party (Det Konservative Folkeparti). In spring 2002, the government cut public funding to various advisory boards, councils and centres dealing with discrimination-related issues, regarding them as mere 'arbiters of taste' in the public debate rather than bodies of objective experts. One of the two main official anti-discrimination bodies, the Documentary and Advisory Centre on Racial Discrimination (Dokumentations- og rådgivningscenteret om racediskrimination, DRC) lost its state funding. However, as DRC is a non-governmental organisation (NGO) and not a statutory body, it has continued as an independent organisation, mainly through financed projects. The state funding it received, DKK 2 million, covered legal aid, which is now provided on a voluntary basis.

In the first round of funding cuts in 2002, the fully state-funded statutory Danish Board for Ethnic Equality (Nævnet for etnisk ligestilling, NEL) was not abolished, as it fulfilled statutory duties under EU Directive (2000/43/EC) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (EU0006256F) - which provides in Article 13 that 'Member States shall designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin.' It also acted as the 'national focal point' for the EU's European Monitoring Centre on Racism and Xenophobia (EUMC) and European Racism and Xenophobia Information Network (RAXEN). Compared with other European organisations forming part of EUMC, the former Danish NEL was regarded as concentrating more on lower-key events in its campaigning, such as its annual 'baton conference', at which batons were given to companies, municipalities, organisations or state institutions, which thereby took on the obligation to work to promote ethnic equality and combat discrimination inside their organisation.

As part of a parliamentary deal over the 2003 state budget between the government and the opposition Danish People's Party (Dansk Folkeparti), it was agreed that NEL and the Danish Centre of Human Rights would be merged along with other bodies into a Danish Centre for International Studies and Human Rights (Dansk Center for Internationale Studier og Menneskerettigheder, DCISM). NEL was thus dissolved from January 2003. The new body inherits NEL's role under Article 13 of the EU race Directive. DRC now operates as the Danish national focal point for EUMC/RAXEN. In 2003, it published reports on an 'NGO action plan in combating racism, ethnic discrimination and xenophobia' and an examination of employment discrimination cases since 1996.

Though not specifically introduced as an anti-discrimination campaign, the government is implementing an action plan on 'bringing more people into employment' (DK0210102F), as part of an overall programme for raising employment levels, which focuses on the possibility and necessity of recruiting and retaining older workers, workers with disabilities and migrants. These measure form part of a wider plan on a more flexible labour market established by the previous Social Democrat-led government, with the involvement of the social partners and municipalities, in order to address demographic imbalances in the labour force in the decades to come (DK0104117N). These initiatives might be seen as an 'indirect anti-discrimination campaign', through more in line with the National Action Plan (NAP) on employment than the framework Directive and anti-discrimination Action Programme.

Social partner response

What have been the views and policy response of the social partners to (a) the Directive and (b) its transposition into national law? How has social dialogue proceeded on the issues covered by the Directive? Have there been any collective agreements on the issues covered by the Directive since December 2000 in terms of age, disability, religion or belief, or sexual orientation (please give examples, including reasons and bases for introduction)?

The 1996 anti-discrimination law states that where the provisions of collective agreements meet at least the minimum requirements of the law, the agreements take precedence. The 1996 law itself was seen at least partly as the result of the slowness and reluctance of the social partners to take up anti-discrimination issues themselves in collective agreements, in line with the normal way of regulating the Danish labour market. The government took action to legislate after pressure from anti-discrimination NGOs.

The provisions of the EU framework Directive do not yet appear to have been incorporated into collective agreements at any level. The current collective agreement for the industry sector - Denmark's largest bargaining unit - was concluded in 2000 (DK0002166N) before the adoption of the Directive, and it will be interesting to see if implementation of the Directive is taken up during the next bargaining round in spring 2004. General anti-discrimination provisions are included in a number of public sector collective agreements, while some agreements, notably in local government, contain special provisions on the employment of older and disabled workers.

Impact

What has been the impact of any initiatives in your country in the areas covered by the Directive? Are there monitoring arrangements in place, and if so, what experiences do they report in response to the Directive?

The Directive's provisions on age and disability have yet to be implemented in Denmark and, while provisions banning discrimination on grounds of religion/belief and sexual orientation have been in place since 1996, no information is available on their impact. There are no specific monitoring arrangements covering these areas, though evidence suggests persistent discrimination in areas such as age (DK0307104F). Monitoring on race and ethnic discrimination is conducted by the Documentary and Advisory Centre on Racial Discrimination (DRC) and the new Danish Centre for International Studies and Human Rights. Both organisations provide information and conduct advisory and legal activity. Individuals may complain to the Danish Centre for International Studies and Human Rights about discriminatory acts, but the Centre has not been given the authority to deal with complaints concerning discrimination in employment (eg relating to recruitment or dismissals). Indeed, as yet there is no body that plays this role. (Carsten Jørgensen, FAOS)