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)
Date: 2000-05-31
Institutions: European Commission
Subjects: anti-discriminatory measure, application of EU law, equal treatment, racial discrimination, type of business

31.10.2000

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Official Journal of the European Communities

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Amended proposal for a Council Directive implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin (1)

(2000/C 311 E/09)

(Text with EEA relevance)

COM(2000) 328 final (cid:151) 1999/0253(CNS)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 26 April 2000)

(1) OJ C 116 E, 26.4.2000.

INITIAL PROPOSAL

AMENDED PROPOSAL

THE COUNCIL OF THE EUROPEAN UNION,

Unchanged

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

Having regard to the proposal from the Commission,

Having regard to the Opinion of the European Parliament,

Having regard to the Opinion of the Economic and Social
Committee,

Having regard to the Opinion of
Regions,

the Committee of

the

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 funda-
mental 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
the protection of Human Rights and
Convention for
of
general
Fundamental
Community Law.

Freedoms,

principles

as

(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
forms of Racial
Convention on the Elimination of all
Discrimination and the United Nations Covenants on
Civil and Political Rights and on Economic, Social and
Cultural Rights, of which all Member States are signa-
tories.

(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
forms of Racial
Convention on the Elimination of all
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.

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INITIAL PROPOSAL

AMENDED PROPOSAL

(a) The European Parliament has adopted a number of
racism in the
fight

against

resolutions on 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.

Unchanged

(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.

the objectives of

(7) Discrimination based on racial or ethnic origin may
the
undermine the achievement of
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.

The Commission presented a Communication (1) on
Racism, Xenophobia and Anti-Semitism in December
1995.

(8) The Commission presented a Communication (1) on
Racism, Xenophobia and Anti-Semitism in December
1995.

(a) The Council adopted on 15 July 1996 a Joint Action
concerning action to combat
racism and xeno-
phobia (2), which undertakes
effective
to ensure
judicial co-operation in respect of offences based on
racist or xenophobic behaviour.

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

___________
(1) COM(95) 653 final.

___________
(1) COM(95) 653 final.
(2) OJ L 185, 24.7.1996.

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INITIAL PROPOSAL

AMENDED PROPOSAL

(9) To ensure the development of democratic and tolerant
societies which allow the participation of all persons irres-
pective 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
social
protection and social
social advantages and
access to and supply of goods and services.

such as education,

security,

(10) To this end, any direct or indirect discrimination based on
racial or ethnic origin as regards the areas covered by this
Directive
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.

throughout

prohibited

should

be

Unchanged

(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 intimi-
dating, hostile, offensive or disturbing environment
should be deemed to be discrimination.

Unchanged

(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 char-
acteristic 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, or legal entities should also be
empowered to exercise the rights of defence on behalf
of any victim.

(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 in civil matters
against victimisation and an adjustment of the general
rules on the burden of proof.

(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.

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INITIAL PROPOSAL

AMENDED PROPOSAL

(16) Member States should provide adequate information on

the provisions adopted pursuant to this Directive.

any

that

laws,

(17) Member States should take the necessary measures to
ensure
administrative
provisions, collective agreements, internal rules of under-
takings 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.

regulations,

(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.

Unchanged

(18) Member States should promote social dialogue between
the social partners to address different forms of discrimi-
nation and to combat them.

(18) Member States should promote dialogue between the
social partners and among non-governmental organi-
sations 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 study possible
to analyse the problems
solutions and to provide concrete assistance for
the
victims.

involved,

Unchanged

(20) This Directive lays down minimum requirements,

thus
giving the Member States the option of introducing or
maintaining more favourable provisions. The implemen-
tation 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 obli-
gations under this Directive.

(22) In accordance with the principles of subsidiarity and
proportionality as set out in Article 5 of the Treaty estab-
lishing 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
achieve those objectives and does not go beyond what
is necessary for that purpose,

to the minimum required in order

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INITIAL PROPOSAL

AMENDED PROPOSAL

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

Unchanged

The purpose of
in the
this Directive is to put
Member States the principle of equal treatment between indi-
viduals irrespective of racial or ethnic origin.

into effect

The purpose of
Member States
persons irrespective of racial or ethnic origin.

this Directive is to put
the principle of equal

into effect
in the
treatment between

Article 2

Unchanged

Concept of discrimination

For the purposes of this Directive, the principle of equal
1.
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 liable
to affect adversely a person or a group of persons of a
particular racial or ethnic origin 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.

criterion or practice

(b) indirect discrimination shall be taken to occur where an
apparently neutral provision,
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.

Unchanged

4.
An instruction or
persons on grounds of
deemed
to be
paragraph 1.

incitement
to discriminate against
racial or ethnic origin shall be
discrimination within the meaning of

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INITIAL PROPOSAL

Article 3

Material scope

AMENDED PROPOSAL

Unchanged

Within the
Community, this Directive shall apply to:

the powers

limits of

conferred upon the

Within the
Community,
public and private sectors and public bodies to:

limits of
conferred upon the
this Directive shall apply as regards both the

the powers

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

(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
the
professional hierarchy, including promotion;

levels of

(b) access to all types and to all levels, of vocational guidance,
training and

advanced vocational

training,

vocational
retraining;

(b) access to all types and to all levels, of vocational guidance,
training and

vocational
retraining, including practical work experience;

advanced vocational

training,

(c) employment and working conditions, including dismissals

Unchanged

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 and social security;

(e) social protection including social security and healthcare;

(f) social advantages;

Unchanged

(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.

(h) access to and supply of goods and services,

including

housing.

Article 4

Unchanged

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.

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INITIAL PROPOSAL

Article 5

Positive action

AMENDED PROPOSAL

This Directive shall be without prejudice to the right of the
Member States to maintain or adopt measures intended to
prevent or compensate for disadvantages suffered by a group
of persons of a particular racial or ethnic origin.

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

Article 6

Unchanged

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.

The implementation of

2.
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

Unchanged

1. Member States shall ensure that judicial and/or adminis-
trative 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.

for

1. Member States shall ensure that judicial and/or adminis-
including where appropriate conciliation
trative procedures,
procedures,
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.

the enforcement of obligations under

2. Member States shall ensure that associations, organi-
sations 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 obli-
gations under this Directive.

Unchanged

Article 8

Burden of proof

1. Member States shall take such measures as are necessary,
judicial systems, to ensure
in accordance with their national
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
it shall be for the respondent to
or indirect discrimination,

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INITIAL PROPOSAL

AMENDED PROPOSAL

prove that there has been no breach of the principle of equal
treatment.

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

Paragraph 1 shall not apply to criminal procedures,

3.
unless otherwise provided by the Member States.

Paragraphs 1, 2 and 3 shall

4.
proceedings commenced in accordance with Article 7(2).

apply to any legal

Article 9

Victimisation

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

to legal proceedings

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
enforcing
aimed at
complaint or
compliance with the principle of equal treatment.

to legal proceedings

Article 10

Unchanged

Dissemination of information

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

territory, and in particular

their

2. Member States shall ensure that competent public auth-
orities are informed by appropriate means as regards all
national measures taken pursuant to this Directive.

2. Member States shall ensure that competent public auth-
orities 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

Unchanged

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 moni-
toring of workplace practices, collective agreements, codes of
conduct,
research or exchange of experiences and good
practices.

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INITIAL PROPOSAL

AMENDED PROPOSAL

the
2. Member States shall encourage the two sides of
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 appro-
priate 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

Unchanged

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
level with the
defence of human rights or the safeguard of individuals’ rights.

independent agencies charged at national

2. Member States shall ensure that the functions of these
independent bodies include receiving and pursuing complaints
from individuals about discrimination on grounds of racial or
ethnic
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.

investigations

commencing

origin,

or

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

Unchanged

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.

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INITIAL PROPOSAL

AMENDED PROPOSAL

(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 adminis-
trative provisions necessary to comply with this Directive by
31 December 2002. They
forthwith inform the
Commission thereof.

shall

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

the date mentioned in Article 15, all

Member States shall communicate to the Commission, within
two years of
the
the Commission to draw up a
information necessary for
report to the European Parliament and the Council on the
application of this Directive.

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 indi-
cations 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.

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INITIAL PROPOSAL

AMENDED PROPOSAL

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
report shall
include,
update the directive.

the information received,

the Commission’s
if necessary, proposals to revise and

Article 17

Entry into force

Unchanged

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.