WRITTEN QUESTION E-3421/01

by Charles Tannock (PPE-DE) to the Commission

(21 December 2001)

Subject: The application of the Commission's discrimination directives

Will the European Commission be subject to Council Directive 2000/43/EC(1) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/EC(2) establishing a general framework for equal treatment in employment and occupation, and, if so, who will have responsibility for setting-up the relevant tribunals?

Is it correct that following the incorporation of the concept of indirect discrimination into the directives an employer may be found guilty of discrimination even if the employer is able to demonstrate that employment was given on the basis of results or scores achieved in public examinations (such as the concours) or on the basis of skills that are manifestly necessary for the job, such as the ability of a combat soldier to demonstrate sufficient strength to carry a wounded comrade to safety?

In the case of Council Directive 200/78/EC will the concept of indirect discrimination be applied on the basis of the numbers of men and women of working age or will it be sufficiently flexible to take account of the fact that large numbers of women choose for certain periods of their lives to leave work so that they can bring up children and are accordingly unavailable for work?

Finally, if an employer discovers that the selection procedures instituted in the employment of staff has led to a situation in which that employer is liable to be taken before a tribunal on grounds of indirect discrimination, how can the employer protect himself from prosecution without resorting to clear and direct discrimination on grounds of race or gender which is contrary to the provisions of the European Treaties and which Member States are obliged by treaty to prevent?

(1) OJ L 180, 19.7.2000, p. 22.

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

Answer given by Mrs Diamantopoulou on behalf of the Commission

(30 January 2002)

Both Council Directives 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation are addressed to the Member States and not to the Community institutions(1). However, the Commission is committed to the principles of equal treatment for all its officials and has taken steps, in the reform process, to further ensure the equal treatment of its staff. Article 1a of the Staff Regulations

already entitles officials to equal treatment without reference, direct or indirect, to race, political, philosophical or religious belief, sex or sexual orientation. Amendments are proposed to the Staff Regulations in order to also cover the other grounds of article 13 under this provision. In case of a dispute a complaint may be submitted to the appointing authority under Article 90 of the Staff Regulations. If this complaint is rejected, an appeal to the Court of First Instance of the European Communities may be introduced under the conditions of article 91.

These principles are also applied in the Commission's relations with the public. The Code of good administrative behaviour for staff of the Commission in their relations with the public provides in particular for equal treatment of the public irrespective of nationality, gender, racial or ethnic origin, religion or beliefs, disability, age or sexual orientation. Complaints for the violation of this Code can be lodged directly with the Secretariat-General of the Commission, or with the European Ombudsman.

Recital 17 of Directive 2000/78/EC states clearly that the Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training without prejudice of the obligation to provide reasonable accommodation for people with disabilities. An employer will be able to provide a defence against a charge of discrimination if he is able to demonstrate that employment was given on the basis of results achieved in public examination provided that such examinations were designed to test skills that are required for the job. Regarding the example of a combat soldier cited by the Honourable Member, it should be noted that Member States may choose not to apply the provisions of Directive 2000/78/EC concerning disability and age to all or part of their armed forces, in order to safeguard their effectiveness.

The third part of the Honourable Member's question refers to discrimination on the ground of sex, which is not covered by Council Directive 2000/78/EC.

The Commission understands the last part of the question to refer to the possibility for an employer to carry out affirmative action in favour of some disadvantaged group, for instance in the event he discovers that there is a clear under representation of such a group in his company. Both Directives explicitly allow Member States to maintain or adopt specific measures to prevent or compensate for disadvantages linked to any of the grounds covered by the Directives. The possibility for an employer to adopt special measures promoting disadvantaged groups in his company will thus depend on the relevant Member State decision in that respect. Positive measures adopted at national level must nevertheless comply with Community law.

(1) Article 19 of Council Directive 2000/43/EC and Article 21 of Council Directive 2000/78/EC.