Discrimination on the grounds of racial or ethnic origins
Discrimination on the grounds of racial or ethnic origins is outlawed by Council Directive 2000/43/EC of 29 June 2000. The Directive implements the principle of equal treatment between persons irrespective of racial or ethnic origin. Article 2 defines the concept of discrimination and states that it encompasses direct and indirect discrimination, harassment and instructions to discriminate. ‘Direct discrimination’ occurs where one person is treated less favourably than another has been or would be treated in a comparable situation on the grounds of racial or ethnic origin. ‘Indirect discrimination’ occurs where ‘an apparently neutral provision, criterion or practice’ would put a person of racial or ethnic origin at a particular disadvantage compared with other persons, unless objectively justified by a legitimate aim and where the means of achieving it are appropriate and necessary. ‘Harassment’ refers to any unwanted conduct related to racial or ethnic origin with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. The protection also covers workers who are not discriminated against due to their own racial or ethnic origins, but because they refuse to comply with an instuction to discriminate against others on these grounds.
Article 3 of the Directive applies to persons in both the public and private sectors, covering conditions for access to employment, self-employment and occupation, access to all types and levels of vocational training, employment and working conditions, membership of organisations of workers or employers, social protection, social advantages, education, and access to and the supply of goods and services. The Directive requires that Member States ensure that appropriate remedies and enforcement are in place. The European Union Agency for Fundamental Rights (Fundamental Rights Agency) provides assistance and expertise to the EU and its Member States on issues of fundamental rights, including those protected by the Directive. While not empowered to deal with individual complaints, it can refer individuals for advice and support to organisations in Member States.
The origins of the Directive can be traced to Article 6 of the Treaty on European Union, which recognised the requirement on Member States to respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Directive is also informed by the Universal Declaration of Human Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. Its immediate history dates from December 1995, when the European Commission presented a Communication on racism, xenophobia and anti-Semitism. The following year, the Council adopted the Joint action to combat racism and xenophobia, suggesting that Member States ensure effective judicial cooperation in respect of offences based on racist or xenophobic behaviour. This was followed at the meeting of the European Council in Tampere on 15–16 October 1999 by an invitation to the European Commission to come forward with proposals on implementing Article 13 of the EC Treaty (now Article 19 TFEU). Employment guidelines 2000 were also agreed by the Council in 1999, which stressed the need to foster conditions for a socially inclusive labour market by formulating a coherent set of policies aimed at combating discrimination against groups such as ethnic minorities.
In 2008 the European Court of Justice handed down its first landmark ruling based on the Directive. In the case of Centre pour l’égalité des chances et la lutte contre le racisme/Centruum voor gelijkheid van kansen en voor racismebestrijding, the court ruled that an employer could still be held to have violated discrimination law even where there was no identifiable victim, in a situation where the employer’s employment practices were targeted towards excluding individuals on the grounds of racial or ethnic origin.