WRITTEN QUESTION E-2648/01

by Charles Tannock (PPE-DE) to the Commission

(28 September 2001)

Subject: The legality of the Commission's discrimination directives

Leaving aside the libertarian issue of whether it is appropriate in a free society for the Commission or national governments to tell employers who they should and should not employ, and also the legal and efficiency costs of compliance, which led employers' organisations across Europe to oppose the implementation of the directives in their current form, could the Commission confirm whether or not a company which has been brought before a tribunal set up under the terms of the directives introduced by Commissioner Diamantopoulou will be presumed innocent and legally entitled to expect that it will not be found guilty of infringing the terms of either directive unless the company is clearly shown to have breached the directive, even if the company chooses not to offer any defence, and, if not, how are the directives compatible with Article 6.2 of the Convention For The Protection Of Human Rights And Fundamental Freedoms (1950), with the Consolidated Treaties or, indeed, with Article 48(1) of the Charter of Fundamental Freedoms?

Can the Commission also clarify who will have responsibility for setting up the relevant tribunals and that such persons will not have an institutional interest in initiating prosecutions?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(31 October 2001)

The Commission would firstly recall that Council Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin(1), and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation(2) were agreed unanimously by all Member States, on 29 June and 27 November 2000 respectively, following strong endorsement of the Commission's proposals by the Parliament.

It should be noted that, as in Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex(3), the provisions of the Directives concerning the sharing of the burden of proof do not apply when Member States choose to provide redress for cases of alleged discrimination through a criminal procedure or through proceedings in which it is for the Court or competent body to investigate the facts of the case. As Article 6(2) of the European Convention of Human Rights concerns only those charged with a criminal offence, there is no incompatibility with the Directives.

With regard to the Honourable Member's last question on the establishment of relevant tribunals, the framework Directives set general principles for minimum standards. The Member States therefore remain free to use existing administrative or judicial procedures to provide redress for the victims of discrimination, or to introduce a new procedure, provided that the procedure adopted meets the requirements of

the Directives. The Member States have until 19 July 2003 to transpose Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and until 2 December 2003 to transpose Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (with a possibility of an extension of up to a further three years for the provisions on discrimination on grounds of disability and age).

(1) OJ L 180, 19.7.2000.

(2) OJ L 303, 2.12.2000.

(3) OJ L 14, 20.1.1998.