EN Official Journal of the European Union CE 84/624

(2004/C 84 E/0697)

WRITTEN QUESTION P-0549/04

by Baroness Sarah Ludford (ELDR) to the Commission

(19 February 2004)

Subject: Equal treatment in employment and occupation

Are EU Member States or service providers in breach of European legal provisions upholding individual liberty equal treatment irrespective of race or religion, or freedom of religious expression contained in:

— the European Union and/or European Community Treaties, especially Article 6 TEU and Article 13 TEC,

— Equal Treatment Directive 2000/78/EC (1),

— the European Convention of Human Rights, especially Articles 9 and 10,

— the EU Charter of Fundamental Rights, especially Articles 10 and 11,

if governments impose a ban on students or employees wearing religious or cultural symbols such as the Muslim hijab (headscarf), the Jewish kippa (skullcap), Sikh turban or Christian cross, or if service providers' people discriminate against people wearing such items?

If the answer to any of the above questions is affirmative, what action does the Commission intend to take to enforce European law?

Answer given by M. Dimas on behalf of the Commission

(6 April 2004)

The Commission is monitoring the situation and has asked the Member States to inform it of specific developments on this matter.

Council Directive 2000/78/EC of 27 November 2000 (2) puts in place a framework for equal treatment in employment and occupation, and prohibits discrimination on grounds of age, disability, religion or belief or sexual orientation. The Directive covers access to employment and vocational training. It does not cover ordinary primary or secondary education nor the provision of goods and services. The Member States had to transpose the Directive by 2 December 2003.

Whether or not measures to ban the wearing of religious symbols are deemed to constitute unlawful discrimination under the terms of Directive 2000/78/EC will depend on the concrete terms of the relevant legislation and on what justification is put forward by the Member States in question under the terms of the Directive.

However, Article 4 of Directive 2000/78/EC provides that a difference in treatment based on a characteristic related to the listed grounds of discrimination may not be discriminatory if ‘by reason of the nature of the particular occupational activities concerned or by the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate’. Similarly, Article 2(b) (i) provides for possible justification for situations of indirect discrimination where ‘the provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessar’.

Directive 2000/78/EC also provides specifically that it ‘shall be without prejudice to the measures laid down in national law which are necessary in a democratic society … for the protection of the rights and freedoms of others’ (Article 2(5)). A Member State may only invoke this argument if its restrictions are laid down in national law.

(1) OJ L 303, 2.12.2000, p. 16.

(2) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000.