New anti-discrimination Directives proposed by Commission

A new anti-discrimination package of proposals was issued by the European Commission on 25 November 1999. Based on Article 13 of the Amsterdam Treaty, the new proposals aim to help combat discrimination on a much wider range of grounds than existing EU legislation.

TheEuropean Commission issued an anti-discrimination package of measures on 25 November 1999 (EU9912216N), following some weeks of speculation. The package consists of four elements:

Context

At international level, a variety of international instruments already exist which seek to provide for a right not to suffer discrimination, notably ILO Convention No. 111 on discrimination in employment and occupation and the Council of Europe's Convention for the Protection of Human Rights and Fundamental Freedoms. However, the Commission notes that although most EU Member States have, or are in the process of, ratifying these instruments, they do not provide a legally enforceable right to individuals.

At European level, anti-discrimination legislation to date concentrates on prohibiting discrimination on the grounds of sex, in the form of the 1976 equal treatment Directive (76/205/EEC), the 1986 Directive on equal treatment in self-employment (86/613/EEC) and the 1975 equal pay Directive (75/117/EEC). As yet, there is no legal instrument prohibiting discrimination on a wider range of grounds, although the principle of eliminating all forms of discrimination is included in the 1989 Community Charter of the Fundamental Social Rights of Workers.

In addition, a variety of actions in the area of prohibiting race discrimination have been initiated, such as the 1997 European Year against Racism (TN9706201S), during which it was acknowledged by institutions such as the European Parliament and the Commission that some legislative action was needed in this area.

During the negotiation of the Amsterdam Treaty, attention become more focused on the issue of devising a more solid legal framework for anti-discrimination initiatives. The result of this was that the new EC Treaty, which was concluded in June 1997 (EU9707135F) and came info force on 1 May 1999, contained a new anti-discrimination article - Article 13. At the time, there was some criticism of this Article due to the fact that it does not have direct effect and so cannot be relied upon directly by those bringing a case of discrimination, and because any proposal based on this Article is subject to unanimity in Council. However, despite these shortcomings, the development does represent a considerable step forward in that, for the first time, there is a legal base upon which the Commission may issue legislative proposals prohibiting discrimination on a wide range of grounds.

It was widely expected that the Commission would speedily issue new proposals based on Article 13. However, although the former social affairs Commissioner,Pádraig Flynn, had indicated his willingness to do so earlier in 1999, the whole process was put on hold following the previous Commission's resignation in March 1999. Although that Commission continued to hold office in a caretaker capacity until the new Commission was chosen (EU9907185N) and took office in September 1999, this state of affairs effectively put the formulation of any new proposals on hold for many months.

However, the new social affairs Commissioner, Anna Diamantopoulou, appears to have lost little time in issuing these proposals. She notes that the two new draft Directives are intended to stand alone and so may be adopted independently of one another. She also states that the Commission believes that legislation should be underpinned by concrete action, which is why the two Directives are accompanied by a six-year action programme.

Proposed framework Directive on equal treatment

The aim of this proposal is to establish a general framework for the respect of the principle of equal treatment between persons, irrespective of race or ethnic origin, religion or belief, disability, age or sexual orientation, thus covering all the grounds (with the exception of sex discrimination) referred to in Article 13 of the EC Treaty. Discrimination based on sex was not included in this proposal as the Commission believes that Article 141 of the Treaty is the appropriate legal base for action in that area and that sex discrimination is adequately covered by existing Community legislation.

In terms of the scope of the proposal, it applies to:

  • access to employment, self-employment and occupation, including selection criteria, recruitment conditions and promotion;
  • access to all types and levels of vocational guidance, vocational training, advanced vocational training and retraining;
  • employment and working conditions, including dismissals and pay; and
  • membership of, and benefits from, any workers', employers' or professional organisation.

The proposal covers both direct and indirect discrimination, giving a definition of direct discrimination as a situation where" one person is treated less favourably than another is, has been or would be treated" and indirect discrimination as "where an apparently neutral provision, criterion or practice is liable to adversely affect a person ... unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving it are appropriate and necessary".

However, the proposal does state that some differences of treatment may be allowed by Member States if they are based on a genuine occupational qualification which is strictly necessary for the performance of the activities concerned. In addition, the proposal provides a non-exhaustive list of instances where differences of treatment on grounds of age would not be discriminatory. This includes instances such as where special provisions would apply to young people on the grounds of their protection.

The proposal also contains a positive action clause, allowing Member States to undertake positive actions to compensate for disadvantages in the case of certain groups of people. However, it notes that any such measures should be interpreted strictly within the light of currentEuropean Court of Justice (ECJ) case law in this area, notably the Kalanke (C-450/93) and Marschall (C-409/95) cases.

In terms of enforcement, the proposal states that Member States must ensure that appropriate judicial and/or administrative enforcement procedures are available to all those who consider themselves to have been a victim of discrimination. In the case of the infringement of these provisions, Member States should provide for sanctions which are "effective, proportionate and dissuasive".

Member States would have two years, from the date of the proposal's adoption, to comply with its provisions.

Proposed Directive on equal treatment irrespective of racial or ethic origin

This proposal is, in its wording, in many ways similar to the abovementioned draft framework Directive. However, it differs both in focus and in scope. Its focus is solely the implementation of the principle of equal treatment between people of different racial or ethnic origins and therefore sets out a minimum framework for the prohibition of such discrimination, while also providing for a minimum level of legal protection for victims of this type of discrimination.

Its scope is wider than the draft framework Directive. It covers all of the four employment-related areas mentioned by the draft framework Directive, in addition to the following areas:

  • social protection and social security;
  • social advantages, such as concessionary travel on public transport, reduced prices for access to cultural or other events and subsidised school meals for children from low-income families;
  • education, including the award of grants and scholarships;
  • access to the supply of goods and services; and
  • cultural activities.

The proposal covers both direct and indirect discrimination in these areas, but allows Member States to provide that differences of treatment would be allowable if "based on a relevant characteristic related to racial or ethnic origin". Examples of this would include a situation where a person of a particular racial or ethnic origin is required for reasons of authenticity in a dramatic performance.

Member States are also allowed to take positive actions in order to compensate for disadvantages suffered by members of groups of a particular racial or ethnic origin.

The proposal obliges Member States to set up an independent body to promote the principle of equal treatment between people of different racial or ethnic origins. The remit of these bodies should include receiving and pursuing complains from individuals and initiating investigations or surveys. These bodies should also publish reports and make recommendations on issues relating to this kind of discrimination.

Member States would have two years, from the date of this proposal's adoption, to comply with its provisions.

Action programme

These two draft Directives are accompanied by a proposal for a Council Decision to set up a six-year action programme to run from 1 January 2001 to 31 December 2006. Also based on Article 13 of the Treaty, the programme would aim to support Member States in their efforts to develop policies and practices in the area of prohibiting discrimination. The Commission hopes that the programme will "add EU value" to existing local, regional and national initiatives in Member States.

The Commission states that the objectives of the Programme are threefold:

  • to help to analyse and evaluate the extent and nature of discrimination in the Community and the effectiveness of measures designed to combat it;
  • to help to build up the capacity of those people and organisations which are active in the fight against discrimination; and
  • to help to promote and disseminate to practitioners and opinion-formers the values and practices underlying the fight against discrimination.

In accordance with this, the activities of the programme will be divided into the following three main areas:

  • the improvement of the understanding of issues related to discrimination, through the development of statistical bases, benchmarks and indicators to assess the effectiveness of anti-discrimination policies;
  • the development of the capacity of the relevant actors to tackle discrimination effectively. This will include promoting the "civil dialogue" and supporting the transnational exchange of information and good practice. This will enable the provision of core funding to major European-level networks of organisations working in the field of non-discrimination; and
  • the promotion of awareness of the EU dimension of the fight against discrimination. The results of the programme will be made public, with the aim of raising the awareness of opinion-formers, "with a view to promoting change in society".

Commentary

This package of proposals was the subject of an initial presentation to the 29 November 1999 Labour and Social Affairs Council of Ministers (EU9912215N), where Ministers took note of the texts. No official discussions on this issue have yet taken place and it will be up to the incoming Portuguese Presidency of the first half of 2000 to move the debate forward. It is impossible to predict the likely fate of the two Directives - as they are based on Article 13, which is subject to unanimity in Council, it would need the opposition of only one Member State to block their progress through the EU legislative machinery.

It is also difficult to evaluate the initial reactions of Member States, which may or may not want to see the adoption of legislation which would serve to considerably widen the scope of EU anti-discrimination law. The initial reaction of the UK government at least appears to be positive, with both theDepartment for Education and Employment (DfEE) and the Department of Trade and Industry (DTI) immediately issuing press releases welcoming the proposals. UK Education and Employment Secretary David Blunkett said that: "This Government is firmly committed to combating discrimination. The UK has a good record in this area and I am confident that we can help develop anti-discrimination practices across Europe." While it is true that the UK has more comprehensive anti-discrimination legislation than many Member States, particularly in the area of race discrimination, the new proposals, should they be adopted, would require the UK to tighten up legislation in other areas, such as age discrimination, where the government has opted for a voluntary code of practice, in preference to legislation (UK9906110N).

More broadly, all Member States will no doubt be looking to their current domestic situation regarding anti-discrimination legislation and trying to decide what the impact the Commission's proposals would have. It is to be supposed that this will be one of the main factors upon which their support or lack of it will be based.

If the proposals are adopted, their importance should not be underestimated, as they will, for the first time, provide a legal framework at EU level which will give Member States' citizens a right not to be discriminated against not only on grounds of sex but also on a much wider range of grounds. (Andrea Broughton, IRS)

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