The European Commission on 27 June sent formal requests to 14 EU Member States to fully implement EU rules banning discrimination on the grounds of race or ethnic origin (2000/43/CE). The countries concerned Spain, Sweden, Czech Republic, Estonia, France, Ireland, United Kingdom, Greece, Italy, Latvia, Poland, Portugal, Slovenia and Slovakia have two months to respond, failing which the Commission can take them to the European Court of Justice. The Race Equality Directive was agreed in 2000 with a deadline for implementation into national law by 2003.
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EU Directive or the Race Equality Directive prohibits discrimination on grounds of race and ethnic origin. It covers the fields of:
- employment & occupation
- vocational training
- membership of employer and employee organisations
- social protection, including social security and health care
- education
- access to goods and services which are available to the public, including housing
Under this Directive all Member States must have, or create, a specialised body for the promotion of equal treatment on grounds of race and ethnic origin.
The legislation sets out requirements. Member States may therefore provide for a higher level of protection against discrimination in national legislation.
The Directive was adopted, unanimously, by the Member States in 2000.
It had to be transposed into national law by by the 15 “old” Member States (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands; Portugal, Spain, Sweden, United Kingdom), by by the 10 “new” Member States (Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia), and by for Romania & Bulgaria.
All the Member States have now transposed the Directive into national law.
The Commission, as “Guardian of the Treaties”, is studying the national legislation of all the Member States in detail to see if it correctly reflects the requirements of the Directive. If it does not, the Commission launches infringement procedures against the Member State/s concerned.
Definitions of discrimination which diverge from the Directive (in particular, in terms of indirect discrimination, harassment and instructions to discriminate);
Article 2 defines four types of discrimination:
Direct discrimination
Indirect discrimination – where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate (i.e. a food factory bans male workers from having beards. This rule impacts particularly on Sikh men. Although the aim is legitimate to avoid hair in the food can that aim be achieved in a less discriminatory manner? Yes, the men with beards had to wear a type of hair net.
Harassment – when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.
Instruction to discriminate
i.e. where the personnel manager is told not to hire any people of Roma origin.
Problem with Article 2:
- Lack of one or several definitions (EE, FR)
- Definitions in the law are incorrect: (FR, EL, IE, IT, PL, SK, SE, UK) main issue is that the definition of indirect discrimination does not cover future or possible events
- Definition of harassment too limited (FR, SW, SK)
- Instructions to discriminate too limited (UK, DK)
Article 3 – Scope
- conditions for access to employment, to self-employment and to occupation,
- vocational training,
- employment and working conditions, including dismissals and pay;
- membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations;
- social protection, including social security and healthcare;
- social advantages;
- education;
- access to and supply of goods and services which are available to the public, including housing
- social protection, including social security and healthcare;
- social advantages;
Problems with Art. 3:
§ Exclusion of public sector (ES)
§ Exclusion of certain employment relationships of a private nature (IE, NL)
§ Scope of national law limited to employment (EE, LV, PL, SI) or reduced (SK)
§ Prohibition of discrimination in access to goods and services only applicable to commercial activities and not to individuals (SE)
§ Prohibition of discrimination in access to goods and services doesnt apply to services of a private nature or to rooms of ones one house which are rented out (IR, NL)
Art 4: Exceptions to the prohibition of direct discrimination are broader than allowed by the Directive (EE, PL, SI, SK, SE) or extended outside employment (PT).
Art 7: Limitations of the right of associations to engage in legal procedures (FR, IE, PT, SI, SE) to help victims of discrimination
Art 8: No Reversal of the burden of proof (IT)
Art 9: Lack of protection against victimization in certain sectors (ES, FR, IE, IT, PT, SI).
No definition of victimization (EE, PL)
No. Although the Commission is at the reasoned opinion stage with those 14 Member States, it is still examining the legislation of the other Member States, so any possible infringement procedures are at a less advanced stage. In some cases new legislation has just entered into force and there has not been time to study it fully (for example in Belgium). In other cases, new problems have been identified which means that a “complementary” letter of formal notice has to be sent, and a reasoned opinion would only come at a later stage, if at all.
Victims of discrimination must take their cases under the national law, before the national courts. Both Directives provide for a in the burden of proof (Art 8). This means that if a person claims to have been discriminated against, then if falls to the defendant to show that he did not discriminate unlawfully against the person.
The national body for the promotion of equal treatment on grounds of race or ethnic origin must be able to give independent assistance to victims of discrimination. Associations and organisations working in the anti-discrimination field must also be allowed to help victims of discrimination take their cases before the national courts.
Reports on the application of the Race Equality Directive and other anti-discrimination legislation in all 27 Member States is available on the European Commission’s anti-discrimination website
Every year the Commission publishes an Annual Report on anti-discrimination.
In addition, in 2006 the Commission drafted a specific report on the application of the Race Equality Directive (COM (2006) 643 final).
First, the Commission sends what is called a “letter of formal notice” explaining in general why it thinks the Member State has incorrectly implemented the Directive into its national law.
The Member State then has two months to reply. If it does not reply, or if the Commission is not convinced by the reply, the Commission can go to the next step of the infringement procedure by sending a “reasoned opinion”. This sets out in much more detail the legal arguments. Again, the Member State has two months to reply.
If the Commission still thinks the Member State has incorrectly transposed the Directive, it can at this point refer the case to the European Court of Justice in Luxembourg.
At each stage, a formal decision must be taken by the Commission.
