Amended proposal for a COUNCIL DIRECTIVE implementing the principle of equal treatment between persons irrespective of racial or ethnic origin

(presented by the Commission pursuant to Article 250 (2) of the EC-Treaty)

EXPLANATORY MEMORANDUM

I. Introduction

On 25 November 1999, the Commission adopted a package of proposals, under Article 13 TEC, to combat discrimination. The Committee of the Regions adopted its opinion on the package on 12 April 2000 and the Economic and Social Committee on 25 May. The European Parliament adopted its opinion on the draft directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin on 18 May 2000.

In the light of those opinions, the Commission has now modified its original proposal.

II. Amendments

The Commission has clarified that the directive can apply to legal as well as natural persons by replacing the term 'individuals' by 'persons' throughout the text.

The definition of indirect discrimination has been brought closer to the jurisprudence of the European Court in the O'Flynn case.

Incitement to discriminate has been clearly deemed to be discrimination.

On the material scope, the text has been amended to make clear that it applies in the public and private sectors, including public bodies, and additions have been made to clarify the coverage of unpaid and voluntary work, practical work experience, healthcare and housing.

The provision on positive action has been brought more closely into line with Article 141.4 of the Treaty.

The value of conciliation procedures to the defence of rights has been highlighted.

The article on information has been supplemented to tackle the problem of differences of treatment based on nationality, religion or belief being a disguised form of discrimination on grounds of racial or ethnic origin.

The article on social dialogue has been extended to cover non-governmental organisations.

The activities of the independent bodies have been clarified.

The reporting system has been strengthened, with account being taken of the role of the European Monitoring Centre on Racism and Xenophobia.

Finally, the recitals have been modified to bring them into line with the changes in the body of the text, to refer to past acts of the Council and the European Parliament and to highlight the importance of integrating the fight against discrimination on grounds of gender.

1999/0253 (CNS)

Amended proposal for a COUNCIL DIRECTIVE implementing the principle of equal treatment between persons irrespective of racial or ethnic origin

(Text with EEA relevance)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community and in particular to Article 13 thereof,

Having regard to the proposal from the Commission [1],

[1] COM(1999) 566 final

Having regard to the Opinion of the European Parliament [2],

[2] 18.05.2000

Having regard to the Opinion of the Economic and Social Committee [3],

[3] 25.05.2000

Having regard to the Opinion of the Committee of the Regions [4],

[4] 12.04.2000

Whereas:

(1) The Treaty on European Union marks a new stage in the process of creating an ever closer union among the peoples of Europe.

(2) The European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to all Member States. In accordance with Article 6(2) of the Treaty on European Union, the Union should respect fundamental rights as guaranteed by the European Convention for the protection of Human Rights and Fundamental Freedoms, as general principles of Community Law.

(3) The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms of Discrimination Against Women, the International Convention on the Elimination of all forms of Racial Discrimination and the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and the European Convention on Human Rights and Fundamental Freedoms, of which all Member States are signatories.

(a) The European Parliament has adopted a number of resolutions on the fight against racism in the European Union.

(4) Article 13 of the Treaty establishing the European Community empowers the Council to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

(5) The European Council, at its extraordinary meeting in Tampere, on 15 and 16 October 1999, invited the Commission to come forward as soon as possible with proposals implementing Article 13 of the EC Treaty as regards the fight against racism and xenophobia.

(6) The 1999 Employment Guidelines agreed by the European Council in Vienna on 11 December 1998 stress 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.

(7) Discrimination based on racial or ethnic origin may undermine the achievement of the objectives of the Treaty, in particular the attainment of a high level of employment and of social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity. It may also undermine the objective of developing the European Union as an area of freedom, security and justice.

(8) The Commission presented a Communication [5] on Racism, Xenophobia and Anti-Semitism in December 1995.

[5] COM(95) 653 final.

(a) The Council adopted on 15 July 1996 a Joint Action concerning action to combat racism and xenophobia [6], which undertakes to ensure effective judicial co-operation in respect of offences based on racist or xenophobic behaviour.

[6] OJ L 185, 24.7.1996.

(b) In implementing the principle of equal treatment irrespective of racial or ethnic origin, the Community should aim to eliminate inequalities, and to promote equality, between men and women, especially since women are often the victims of multiple discrimination.

(9) To ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin, specific action in the field of discrimination based on racial or ethnic origin should go beyond access to employed and self employed activities and cover areas such as education, social protection and social security, social advantages and access to and supply of goods and services.

(10) To this end, any direct or indirect discrimination against natural or legal persons based on racial or ethnic origin as regards the areas covered by this Directive should be prohibited throughout the Community. This prohibition of discrimination should also apply to nationals of third countries. This prohibition does not apply to differences of treatment based on nationality.

(11) Harassment on grounds of racial or ethnic origin of a person or group of persons which produces an intimidating, hostile, offensive or disturbing environment should be deemed to be discrimination.

(12) The prohibition of discrimination should be without prejudice to the maintenance or adoption of measures intended to prevent or compensate for disadvantages suffered by a group of persons of a particular racial or ethnic origin.

(13) A difference of treatment may be justified where a characteristic related to racial or ethnic origin constitutes a genuine occupational qualification.

(14) Persons who have been subject to discrimination based on racial and ethnic origin should have adequate means of legal protection. To provide a more effective level of protection, associations, organisations or other legal entities should also be empowered to exercise the rights of defence on behalf of any victim.

(15) The effective implementation of the principle of equality requires adequate judicial protection against victimisation and an adjustment of the general rules on the burden of proof in civil and administrative matters.

(16) Member States should provide adequate information on the provisions adopted pursuant to this Directive in particular by stressing the need to ensure that differences of treatment based on nationality, religion or belief are not a disguised form of discrimination on grounds of racial or ethnic origin.

(17) Member States should take the necessary measures to ensure that any laws, regulations, administrative provisions, collective agreements, internal rules of undertakings or rules governing independent occupations, professions, or trade organisations which are contrary to the principle of equal treatment should be declared null and void or should be amended.

(18) Member States should promote dialogue between the social partners and among non-governmental organisations to address different forms of discrimination and to combat them.

(19) Protection against discrimination based on racial or ethnic origin would itself be strengthened by the existence of an independent body in each Member State, with competence to analyse the problems involved, to study possible solutions and to provide concrete assistance for the victims.

(20) This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State.

(21) Member States should provide for effective, proportionate and dissuasive penalties in case of breaches of the obligations under this Directive.

(22) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty establishing the European Community, the objective of this Directive, namely ensuring a common high level of protection against discrimination in all the Member States of the European Union, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the proposed action, be better achieved by the Community. This Directive confines itself to the minimum required in order to achieve those objectives and does not go beyond what is necessary for that purpose,

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I: GENERAL PROVISIONS

Article 1

Purpose

The purpose of this Directive is to put into effect in the Member States the principle of equal treatment between persons irrespective of racial or ethnic origin.

Article 2

Concept of discrimination

1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin.

2. For the purposes of paragraph 1:

(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated on grounds of racial or ethnic origin;

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice is intrinsically liable to affect persons of a particular racial or ethnic origin and if there is a consequent risk that it will place those persons at a particular disadvantage, unless that provision, criterion or practice is objectively justified by a legitimate aim which is unrelated to the racial or ethnic origin of a person or group of persons and the means of achieving that aim are appropriate and necessary.

3. Harassment of a person or group of persons related to racial or ethnic origin, which has the purpose or effect of creating an intimidating, hostile, offensive or disturbing environment in any of the areas covered in Article 3, shall be deemed to be discrimination within the meaning of paragraph 1.

4. An instruction or incitement to discriminate against persons on grounds of racial or ethnic origin shall be deemed to be discrimination within the meaning of paragraph 1.

Article 3

Material scope

Within the limits of the powers conferred upon the Community, this Directive shall apply as regards both the public and private sectors and public bodies to:

(a) the conditions for access to employment, self-employment and occupation, unpaid and voluntary work, including selection criteria and recruitment conditions, whatever the sector or branch of activity and at all levels of the professional hierarchy, including promotion;

(b) access to all types and to all levels, of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;

(c) employment and working conditions, including dismissals and pay;

(d) membership of and involvement in an organisation of workers or employers, or any other organisation whose members carry on a particular profession, including the benefits provided for by such organisations;

(e) social protection including social security and healthcare;

(f) social advantages;

(g) education, including grants and scholarships, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity;

(h) access to and supply of goods and services, including housing.

Article 4

Genuine occupational qualifications

Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to racial or ethnic origin shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine occupational qualification.

Article 5

Positive action

With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages regarding persons of a particular racial or ethnic origin.

Article 6

Minimum requirements

1. Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.

2. The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive.

CHAPTER II: REMEDIES AND ENFORCEMENT

Article 7

Defence of rights

1. Member States shall ensure that judicial and/or administrative procedures, including where appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.

2. Member States shall ensure that associations, organisations or other legal entities may pursue, on behalf of the complainant with his or her approval, any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.

Article 8

Burden of proof

1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

3. Paragraph 1 shall not apply to criminal procedures, unless otherwise provided by the Member States.

4. Paragraphs 1, 2 and 3 shall apply to any legal proceedings commenced in accordance with Article 7(2).

Article 9

Victimisation

Member States shall introduce into their national legal systems such measures as are necessary to protect persons from any adverse treatment or adverse consequence as a reaction to a complaint or to legal proceedings aimed at enforcing compliance with the principle of equal treatment.

Article 10

Dissemination of information

1. Member States shall ensure that adequate information on the provisions adopted pursuant to this Directive is provided throughout their territory, and in particular in vocational training and educational bodies and in the workplace.

2. Member States shall ensure that competent public authorities are informed by appropriate means as regards all national measures taken pursuant to this Directive. They shall in particular stress the need to ensure that differences of treatment based on nationality, religion or belief are not a disguised form of discrimination on grounds of racial or ethnic origin.

Article 11

Social dialogue

1. Member States shall take adequate measures to promote the social dialogue between the two sides of industry with a view to fostering equal treatment, including through the monitoring of workplace practices, collective agreements, codes of conduct, research or exchange of experiences and good practices.

2. Member States shall encourage the two sides of the industry to conclude, at the appropriate level, including at undertaking level, agreements laying down anti-discrimination rules in the fields referred to in Article 3 which fall within the scope of collective bargaining. These agreements shall respect the minimum requirements laid down by this Directive and the relevant national implementing measures.

3. Member States shall also encourage dialogue with appropriate non-governmental organisations which have a legitimate interest in contributing to the fight against discrimination on grounds of racial and ethnic origin with a view to promoting the principle of equal treatment.

CHAPTER III: INDEPENDENT BODIES FOR THE PROMOTION OF EQUAL TREATMENT

Article 12

Independent bodies

1. Member States shall provide for an independent body or bodies for the promotion of equal treatment of persons of different racial or ethnic origin. These bodies may form part of independent agencies charged at national level with the defence of human rights or the safeguard of individuals' rights.

2. Member States shall ensure that the functions of these independent bodies include assisting victims of discrimination in pursuing their complaints, about discrimination on grounds of racial or ethnic origin, commencing investigations or surveys concerning discrimination based on racial or ethnic origin and publishing reports and making recommendations on issues relating to discrimination based on racial or ethnic origin.

CHAPTER IV: FINAL PROVISIONS

Article 13

Compliance

Member States shall take the necessary measures to ensure that:

(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished.

(b) any provisions contrary to the principle of equal treatment which are included in individual or collective contracts or agreements, internal rules of undertakings, rules governing lucrative or non-lucrative associations, and rules governing the independent professions and workers' and employers' organisations, are declared null and void or are amended.

Article 14

Penalties

Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by the date specified in Article 15 at the latest and shall notify it without delay of any subsequent amendment affecting them.

Article 15

Implementation

Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2002. They shall forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

Article 16

Report

Member States shall communicate to the Commission, within two years of the date mentioned in Article 15, and every five years thereafter, all the information necessary, including indications of the viewpoints of the social partners and relevant non-governmental organisations, for the Commission to draw up a report to the European Parliament and the Council on the application of this Directive. In accordance with the principle of gender mainstreaming, this report shall, inter alia, provide an assessment of the impact of the measures taken on women and men. This report shall also take into account as appropriate the views of the European Union Monitoring Centre on Racism and Xenophobia, held in its annual report on the situation regarding racism and xenophobia in the Community, especially, as regards its conclusions and opinions for the Community and its Member States. In the light of the information received, the Commission's report shall include, if necessary, proposals to revise and update the directive.

Article 17

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.

Article 18

Addressees

This Directive is addressed to the Member States.

Done at Brussels,

For the Council

The President

IMPACT ASSESSMENT FORM IMPACT OF THE PROPOSAL ON COMPANIES AND IN PARTICULAR ON SMALL AND MEDIUM SIZED ENTERPRISES (SMEs)

Title of the proposal

Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin

Document Reference:

Number 99010

Proposal

1. Taking account of the principle of subsidiarity, why is Community legislation necessary in this field and what are its principal objectives-

The European Union is founded on the principles of human rights and fundamental freedoms. Its commitment in this field has been reinforced by the Treaty of Amsterdam, in particular through amendments to Articles 6, 7 of the TEU and the introduction of Article 13 of the TEC, the last of which provides a specific power to take action to combat discrimination on the grounds of, inter alia, racial and ethnic origin.

The prime responsibility for combating racism lies with the Member States. As noted in the Explanatory Memorandum, most Member States have included in their constitutional and/or legal order provisions which assert the right not to be discriminated against on grounds of racial or ethnic origin. However, the scope and the enforceability of such provisions - and the ease of access to redress - vary greatly from one Member State to another. European legislation is required to ensure a common minimum level of legal protection, including rights to redress, for the fundamental right not to be discriminated against on grounds of racial or ethnic origin.

European legislation must, of course, respect the limits of the powers conferred on the Community by the Treaty. The proposed Directive therefore lays down general principles, providing a common minimum level of protection within the limits of Community competence, while allowing Member States to maintain a higher standard of protection in accordance with their political and historical choices and traditions.

The choice of a Directive strikes a balance between the need for European intervention and the need to respect the differences between the existing Constitutions, laws and legal procedures of the Member States. It sets common goals to be achieved while allowing the flexibility needed by the different Member States to achieve them. The legislative intervention is therefore limited to a number of general principles that do not go beyond a minimum level of protection.

The principal objectives of the proposal are:

- to provide a Community-wide definition of discrimination on grounds of racial and ethnic origin on the basis of which equal treatment can be assured;

- to define a minimum number of areas of life, within the scope of the Treaty, in which the principle of equal treatment must be ensured;

- to provide for a minimum level of protection and rights to redress for people who believe they have suffered discrimination;

- to ensure appropriate arrangements for the monitoring of discrimination in enterprises and in society more widely.

Impact on enterprises

2. Who will be affected by the proposal-

All enterprises will be subject to the national legislation required by the Directive.

3. What steps will enterprises have to take to comply with the proposal-

Enterprises will need to ensure that decisions on recruitment, promotion, access to training, working conditions including dismissals and pay and membership of workers' and employers' organisations and professional bodies are taken in conformity with the principle of equal treatment on grounds of racial and ethnic origin. In principle, this is already the case in all Member States. The Directive will therefore reinforce existing requirements rather than introduce entirely new provisions.

4. What economic effects is the proposal likely to have-

In the field of employment, legislation protecting individuals from discrimination on arbitrary grounds has three main effects. First, it contributes to securing social participation and avoiding social exclusion by ensuring that people have the opportunity to fulfil their potential in economic terms, thus being able to provide for themselves and their dependants to best effect and to reduce their dependence on the state. Secondly, it ensures that enterprises have at their disposal the best qualified employees, thus contributing to the competitiveness and the strength of the firm and of the economy more widely. Third, it requires employers to justify their decisions about matters such as recruitment, promotion, access to training and other working conditions.

Evidence [7] from the Member States shows that unemployment among communities of different racial and ethnic origins varies by a factor of up to 2 to 3 times the average for the labour market as a whole.

[7] Not available for all Member States: some Member States collect data only on the basis of nationality, not racial or ethnic origin.

Discrimination on racial or ethnic grounds - particularly when it is cumulative - can lead to a cycle of disadvantage which is frequently passed from one generation to the next. For example, if educational facilities, housing, health services, environmental conditions and job opportunities for a particular group are all poor, the next generation will grow up less well equipped to deal with the difficulties facing them and will find themselves trapped in poor jobs, in poor housing and with poor health.

This proposal, by discouraging discrimination, will lead to greater economic and social participation and a reduction in social exclusion. This will have direct benefits for economic growth by reducing public expenditure on social security and assistance, by improving the purchasing power of individual households and by promoting the competitiveness of companies by ensuring that they make the best use of all the resources available in the labour market.

(a) What will be the impact

- on employment-

The Directive will contribute to the promotion of employability of workers of all racial and ethnic origins, as required by the European Employment Strategy. As a result, it will contribute to the improvement of the quality of employment and, in the medium term, may be expected to lead to increased levels of employment resulting from the improved competitiveness of European companies.

- on investment and the creation of new businesses-

The Directive will ease the conditions for the creation of businesses by people of different racial and/or ethnic origins.

- on the competitive position of companies-

As noted above, the Directive will strengthen the competitiveness of European companies by ensuring that they have at their disposal a wider pool of skills and resources than at present and that use is made of those skills without distinction on the basis of racial or ethnic origin.

(b) Do any new administrative procedures have to be put in place-

Companies will need to be able to justify decisions on subjects such as recruitment, promotion, access to training and other working conditions to show that they have not been made on the basis of racial or ethnic origin. This is already the case in about half of the Member States. It will be in the interest of companies to keep limited records on these decisions where this is not currently existing practice.

(c) Costs and benefits in quantitative and/or qualitative terms-

Some limited short-term costs will fall to companies both in terms of the training required for decision-makers within the company on the implementation of the principle of equal treatment where this is not already done and in terms of contesting complaints about discrimination. Adaptation to the new requirements in those Member States where equivalent provisions to combat racial and ethnic discrimination do not yet exist will be eased by the familiarity of companies with the Community framework for equal opportunities between women and men, which has been in existence for over twenty years.

In the medium term, companies will benefit from the increased commitment of employees of all racial and ethnic origins and from increased competitiveness flowing from an improved use of resources (see above).

(d) What costs will flow from the Directive-

The Directive fixes a flexible, general framework for the implementation of the principle of equal treatment on grounds of racial and ethnic origin and it will be for the Member States and the social partners to fix the precise means of putting this into practice. The costs however will be limited (see above).

(e) What will companies be required to do in terms of monitoring and evaluation-

The Directive does not directly require companies to monitor and evaluate their compliance with the Directive. However, it would be in the interest of companies to keep records of decisions about recruitment, promotion, access to training and other working conditions to show that they were taken without reference to racial and/or ethnic origin. Larger companies may wish to carry out more structured monitoring to ensure that the principle of equal treatment is applied at all levels.

5. Does the proposal contain measures to take account of the specific situation of small and medium sized enterprises (reduced or different requirements etc.)-

The proposal makes no distinction based on company size, given that discrimination on grounds of racial and ethnic origin exists across all companies, regardless of the number of employees. However, the Directive lays down only minimum standards based on a flexible framework of principles. It is therefore open to the Member States and the social partners to vary the requirements on firms of different sizes, while respecting the requirements of the Directive.

Consultation

6. List of the organisations which have been consulted and presentation of the principal elements of their position

The Commission has consulted the representative organisations of the European level social partners [8] and the European Platform of social non-governmental organisations in the framework of a series of meetings at Community level.

[8] The Commission consulted a range of organisations, including representatives of small and medium-sized enterprises, in accordance with the Commission Communications on the implementation of the Social Protocol (COM(93) 600 of 14 December 1993) and on adapting and promoting the Social Dialogue (COM(1998) 322 final of 20 May 1998).

All the organisations consulted recognised the importance of the issue and the value of laying down standards at Community level. However, there were different points of view on some elements of the proposal.

The NGO and trade union representatives welcomed the proposal, but regretted that the scope was not wider, wanting to tackle the full range of economic, social, cultural and political fields. They insisted on the maintenance of the provisions on the burden of proof and on representative actions, believing these to be essential to the defence of the rights of the victims of discrimination.

Representatives of the employer organisations expressed doubts, however, about the shifting of the burden of proof, believing that this would create difficulties for employers by encouraging frivolous claims. The Commission notes that the proposed provision is based on that already adopted at Community level, and already implemented by many Member States, with regard to discrimination on grounds of sex (Council Directive 97/80/EC on the Burden of Proof in Sex Discrimination Cases) and that identical rules have already been applied without apparent difficulty to cases of race discrimination in some Member States. The Commission believes, therefore, that the employers concerns on this point are not founded.