BusinessEurope calls on EU to rethink its anti-discrimination legislation strategy

In light of the current economic crisis, European employers are raising questions about the value of pursuing anti-discrimination legislation. According to BusinessEurope, further regulations will undermine European companies’ ability to remain competitive. Thus, the employers call on the EU to withdraw the proposal for an anti-discrimination directive. However, the European Trade Union Confederation has welcomed further developments in the anti-discrimination legislation.

New anti-discrimination legislation proposed

In the past decade, the European Union (EU) has been firmly committed to fighting discrimination. The passing of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/EC establishing the general framework for equal treatment in employment and occupation represent major advances in promoting equal opportunities. In 2004, the President of the European Commission, José Manual Barroso, indicated that anti-discrimination would remain a top priority for the Commission.

The recent [anti-discrimination proposal](http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT TA P6-TA-2008-0212 0 DOC XML V0//EN&language=EN), a directive on equal treatment irrespective of religion or belief, age or sexual orientation, was presented by the Commission in July 2008. Since then, the Commission has received the backing of the European Parliament, with the Members of the European Parliament (MEPs) voting in favour of a resolution on 2 April 2009 for a Council directive to further develop equal opportunities. In contrast to previous legislation, however, the new proposed measures do not directly involve the labour market. The current text clearly states that:

legislation should prohibit direct and indirect discrimination, multiple discrimination and discrimination by association based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation or gender in a range of areas outside the labour market, including social protection, education and access to and supply of goods and services, such as housing, transport, associations and health.

EU social partner views on anti-discrimination legislation

Views of employers

The Confederation of European Business (BusinessEurope), however, has voiced its opposition to this most recent move to promote anti-discrimination. In a letter to the European Competitiveness Council, the Director General of BusinessEurope, Philippe De Buck, argued:

Today’s crisis does not allow for a ‘business as usual’ attitude to regulatory policy. New legislative proposals that risk creating an extra burden on companies should be avoided. Here, we call for the anti-discrimination directive to be withdrawn and for ideas about introducing legislation on EU collective redress to be dropped.

Reaction of trade unions

The European Trade Union Confederation (ETUC), in contrast, has welcomed the move to further develop anti-discrimination legislation. The recent proposals would fall very much in line with John Monks’ statement in a press release in April 2009 that:

A broad directive covering all the grounds mentioned in Article 13 of the Treaty would give a strong message to the Member States of the EU and their citizens that we cannot build a modern and cohesive society on discrimination.

Various commentators have questioned whether any eventual new legislation will undermine European companies’ competitiveness. Not only do the new proposals focus on non-labour market areas, but it is claimed that costs incurred by existing equal opportunities legislation have been greatly exaggerated by employers.

Question of collective redress

At one level, such opposition is quite surprising considering how many European employers are now firmly committed to promoting diversity management practices. BusinessEurope’s main concern would appear to involve the possible move towards collective redress, something that non-governmental organisations (NGOs) and trade unions are firmly in favour of. In November 2008, the Commission published a Green Paper on Consumer Collective Redress (COM(2008) 794 final (75Kb PDF)). Collective redress involves the possibility of claimants jointly taking legal action and claimants being represented by a third party. Although these are currently quite separate issues, the emergence of collective redress could greatly change the legislative landscape of the EU. For example, the proposed anti-discrimination directive in conjunction with the option of collective redress would represent a powerful instrument in combating discrimination.

Parliament acknowledges that more needs to be done

In addition, such a move could set a dangerous precedent that could be included in any eventual revision of earlier anti-discrimination legislation. In reviewing the effectiveness of Directive 2000/43/EC and Directive 2000/78/EC, the European Parliament notes, for example, that more should be done to support individual victims of discrimination. In fact, trade unions have long claimed that the equality directives could be greatly improved if they were empowered with the collective right to represent victims of discrimination.

Is anti-discrimination still on the agenda?

The election of a new European Parliament in June 2009, in which the centre-right political group has made major inroads, raises questions about the future of European anti-discrimination legislation. Certainly, European businesses welcomed the election results, aware that the centre-right political groups in the European Parliament voted against a consultation report on the anti-discrimination legislation. With the balance of power shifting to the right, the new Parliament is likely to be quite accommodating of employers’ interests.

The European Association of Craft, Small and Medium-Sized Enterprises (Union Européenne de l’artisanat et des petites et moyennes enterprises, UEAPME) has already called on the new Parliament to promote a more open European economy. This is a subtle way of demanding less and not more regulations. Certainly, the much feared renovations of restaurants required to conform with the proposed new legislation, such as installing wheelchair ramps, might no longer be top of the EU’s agenda.

Commentary

The EU has made great progress in fighting discrimination over the past decade. Nevertheless, the former Parliament’s review of the existing equal opportunities directives indicates that much remains to be done in this area. Undoubtedly, the current political climate suggests that it might be more difficult to promote equal opportunities in the future. However, the then parliamentary rapporteur on the anti-discrimination proposal, Kathalijne Buitenweg from the Greens and European Free Alliance (ALE) group, has asked in response to BusinessEurope’s position: ‘What if it would cost money? Are we going to say we should keep discriminating? Ending discrimination is in the wider interest of society?’

Michael Whittall, Technical University Munich