European anti-discrimination legislation: context, evolution and scope

Walker — Thu, 03 Dec 2009 19:50:54 +0000

The concepts of equality
Discrimination can detract from the values of democracy in which equality is the key. The protection of equality is essential in the context of national and international security since the first agreements related to the rights and treatment of minorities were introduced in peace agreements to consolidate the world after the Second World War. First, equality can be formal. This means everyone has to be treated alike, otherwise we have direct discrimination. However, an apparently neutral criterion, practice or situation could be discriminatory, hence there is indirect discrimination.
Anti-discrimination legislation: from denial to recognition
Discrimination was first to be found in gender matters. The principle of sex equality is enshrined in the Treaty of Rome. Article 141 asserts the principle of equal pay for equal work. The United Kingdom was particularly concerned by gender equality and influenced EU Directives with the Sex Discrimination Act 1975 and the Equal Pay Act 1970. Indeed, a part of the drafting of its legislation on gender discrimination occurred before its adhesion to the EC. It inspired the integration of the concept of unintentional indirect discrimination in Directive 75/117 and extended the scope of application of the principle of equal treatment in Directive 76/207. The EU also focussed on equal treatment between national and European citizens within the principle of free movement of persons guaranteed by Article 39. Article 12 of the EC Treaty provides that ‘…any discrimination on grounds of nationality shall be prohibited’. Free movement and mobility allows workers to improve their living conditions, so they have the right to be treated in all member states like every national would be. The original struggle against discrimination on ground of gender or nationality may be seen as a logical answer to the EU objective of implementing the common market. That is why it was not the EU’s role to intervene in social policies. However, it was difficult to deny that social considerations had impacted the common market. The EU acknowledged there was a convergence between economy and fairness.
The year 2000 turning point
The new millennium marked the beginning of new legal activity to combat discrimination. Article 13 of the Treaty of Amsterdam empowered the council ‘to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. This provision is not sufficiently clear, precise and unconditional to have direct effect. It is only a basis for a wider European legislation. It resulted from lobbying pressure of NGOs such as the British Racial Equality Commission, which was more active than French organisations. The Directives 2000 are based on Article 13 of the Amsterdam Treaty and were implemented within the Racial Equality Directive 2000/43/EC. Then the Employment Equality Directive 2000/78/EC extended the principle of equal treatment to discrimination on grounds of age, disability, religion and sexual orientation only in work and vocational training. The former created a real framework for anti-discrimination policies. Moreover, the Racial Equality Directive envisaged the establishment of a specialised body to promote equality to assist victims of discrimination. Those provisions will have direct effect if they are considered to be clear, precise and unconditional. The EU also supports back-up measures to improve the effectiveness of compliance of national legislations with European anti-discrimination law, through community programmes like PROGRESS, which targets employment and social solidarity. This area of law is in perpetual movement and a project of new directive COM (2008)426 of July 2008, aiming to complete the actual anti-discrimination device outside the employment sphere, has been recently adopted by the Commission.
Hélène Evrard is taking a jointly supervised PhD at University of Kent, Canterbury and Université Paris Ouest Nanterre Défense

The Argument » Anti-discrimination

European anti-discrimination legislation: context, evolution and scope