Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin
Date: 2000-06-29
Institutions: Council of the European Union
Subjects: European social policy, equal treatment, ethnic discrimination, racial discrimination

L 180/22

EN

Official Journal of the European Communities

19.7.2000

COUNCIL DIRECTIVE 2000/43/EC

of 29 June 2000

implementing the principle of equal treatment between persons irrespective of racial or ethnic
origin

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Having regard to the opinion of the Economic and Social
Committee (3),

(5)

(6)

Having regard to the opinion of
Regions (4),

the Committee of

the

(7)

Whereas:

(1)

(2)

(3)

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

liberty, democracy, respect

In accordance with Article 6 of the Treaty on European
Union, the European Union is founded on the principles
of
for human rights and
fundamental freedoms, and the rule of law, principles
which are common to the Member States, and should
respect fundamental rights as guaranteed by the Euro-
pean Convention for the protection of Human Rights
and Fundamental Freedoms and as they result from the
constitutional traditions common to the Member States,
as general principles of Community Law.

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
forms of Discrimination Against
Elimination of all
Women, the International Convention on the Elimina-
tion of all forms of Racial Discrimination and the United
Nations Covenants on Civil and Political Rights and on
Economic, Social and Cultural Rights and by the Euro-
pean Convention for the Protection of Human Rights
and Fundamental Freedoms, to which all Member States
are signatories.

(4)

It is important to respect such fundamental rights and
freedoms, including the right to freedom of association.
It is also important, in the context of the access to and
provision of goods and services, to respect the protec-

(1) Not yet published in the Official Journal.
(2) Opinion delivered on 18.5.2000 (not yet published in the Official

Journal).

(3) Opinion delivered on 12.4.2000 (not yet published in the Official

Journal).

tion of private and family life and transactions carried
out in this context.

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

The European Union rejects theories which attempt to
determine the existence of separate human races. The
use of the term ‘racial origin’ in this Directive does not
imply an acceptance of such theories.

The European Council
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.

(8)

(9)

The Employment Guidelines 2000 agreed by the Euro-
pean Council
in Helsinki, on 10 and 11 December
1999, 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.

Discrimination based on racial or ethnic origin may
undermine the achievement of the objectives of the EC
Treaty, in particular the attainment of a high level of
employment and of social protection, the raising of the
standard 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.

living and quality of

(10)

The Commission presented a communication on racism,
xenophobia and anti-Semitism in December 1995.

(11)

(12)

The Council adopted on 15 July 1996 Joint Action
(96/443/JHA) concerning action to combat racism and
xenophobia (5) under which the Member States under-
take to ensure effective judicial cooperation in respect of
offences based on racist or xenophobic behaviour.

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 including social security and health-
care, social advantages and access to and supply of
goods and services.

(4) Opinion delivered on 31.5.2000 (not yet published in the Official

Journal).

(5) OJ L 185, 24.7.1996, p. 5.

19.7.2000

EN

Official Journal of the European Communities

L 180/23

(13)

(14)

(15)

(16)

(17)

(18)

(19)

To this end, any direct or indirect discrimination 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, but does not
cover differences of treatment based on nationality and
is without prejudice to provisions governing the entry
and residence of third-country nationals and their access
to employment and to occupation.

(20)

(21)

The effective implementation of the principle of equality
requires adequate judicial protection against victimisa-
tion.

The rules on the burden of proof must be adapted when
there is a prima facie case of discrimination and, for the
principle of equal treatment to be applied effectively, the
burden of proof must shift back to the respondent when
evidence of such discrimination is brought.

In implementing the principle of equal treatment irres-
pective of racial or ethnic origin, the Community should,
in accordance with Article 3(2) of the EC Treaty, aim to
eliminate inequalities, and to promote equality between
men and women, especially since women are often the
victims of multiple discrimination.

The appreciation of the facts from which it may be
inferred that there has been direct or indirect discrim-
ination is a matter
judicial or other
competent bodies, in accordance with rules of national
law or practice. Such rules may provide in particular for
indirect discrimination to be established by any means
including on the basis of statistical evidence.

for national

It is important to protect all natural persons against
discrimination on grounds of racial or ethnic origin.
Member States should also provide, where appropriate
and in accordance with their national traditions and
practice, protection for legal persons where they suffer
discrimination on grounds of the racial or ethnic origin
of their members.

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, and such measures may permit organ-
isations of persons of a particular racial or ethnic origin
where their main object is the promotion of the special
needs of those persons.

In very limited circumstances, a difference of treatment
may be justified where a characteristic related to racial
or ethnic origin constitutes a genuine and determining
occupational requirement, when the objective is legiti-
mate and the
is proportionate. Such
circumstances should be included in the information
provided by the Member States to the Commission.

requirement

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 engage, as the Member States so deter-
mine, either on behalf or in support of any victim, in
proceedings, without prejudice to national
rules of
procedure concerning representation and defence before
the courts.

(22) Member States need not apply the rules on the burden
of proof to proceedings in which it is for the court or
other competent body to investigate the facts of the
case. The procedures thus referred to are those in which
the plaintiff is not required to prove the facts, which it is
for the court or competent body to investigate.

(23) Member States should promote dialogue between the
social partners and with non-governmental organ-
isations to address different forms of discrimination and
to combat them.

(24)

(25)

Protection against discrimination based on racial or
ethnic origin would itself be strengthened by the exis-
tence of a body or bodies in each Member State, with
competence to analyse the problems involved, to study
possible solutions and to provide concrete assistance for
the victims.

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

(26) Member States should provide for effective, propor-
tionate and dissuasive sanctions in case of breaches of
the obligations under this Directive.

(27)

(28)

The Member States may entrust management and
labour, at their joint request, with the implementation of
this Directive as regards provisions falling within the
scope of collective agreements, provided that
the
Member States take all the necessary steps to ensure that
they can at all times guarantee the results imposed by
this Directive.

In accordance with the principles of subsidiarity and
proportionality as set out in Article 5 of the EC Treaty,
the objective of
this Directive, namely ensuring a
common high level of protection against discrimination
in all the Member States, 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 does not go
beyond what is necessary in order to achieve those
objectives,

L 180/24

EN

Official Journal of the European Communities

19.7.2000

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

The purpose of this Directive is to lay down a framework for
combating discrimination on the grounds of racial or ethnic
origin, with a view to putting into effect in the Member States
the principle of equal treatment.

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 in a comparable situation on grounds
of racial or ethnic origin;

(b) indirect discrimination shall be taken to occur where an
apparently neutral provision, criterion or practice would
put persons of a racial or ethnic origin at a particular
disadvantage compared with other persons, unless that
provision, criterion or practice is objectively justified by a
legitimate aim and the means of achieving that aim are
appropriate and necessary.

3.
Harassment shall be deemed to be discrimination within
the meaning of paragraph 1, when an unwanted conduct
related to racial or ethnic origin takes place with the purpose
or effect of violating the dignity of a person and of creating an
intimidating, hostile, degrading, humiliating or offensive envir-
onment. In this context, the concept of harassment may be
defined in accordance with the national laws and practice of
the Member States.

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

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

vocational
retraining,

(c) employment and working conditions, including dismissals

and pay;

(d) membership of and involvement

in an organisation of
workers or employers, or any 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;

(h) access to and supply of goods and services which are

available to the public,

including housing.

2.
This Directive does not cover difference of treatment
based on nationality and is without prejudice to provisions and
conditions relating to the entry into and residence of third-
country nationals and stateless persons on the territory of
Member States, and to any treatment which arises from the
legal status of the third-country nationals and stateless persons
concerned.

Article 4

Genuine and determining occupational requirements

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 consti-
tute discrimination where, by reason of
the
particular occupational activities concerned or of 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 propor-
tionate.

the nature of

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 linked to racial or ethnic origin.

Article 3

Scope

Article 6

Minimum requirements

1. Within the limits of
the powers conferred upon the
Community, this Directive shall apply to all persons, as regards
both the public and private sectors, including public bodies, in
relation to:

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.

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

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.

19.7.2000

EN

Official Journal of the European Communities

L 180/25

CHAPTER II

Article 10

REMEDIES AND ENFORCEMENT

Dissemination of information

Article 7

Defence of rights

Member States shall take care that the provisions adopted
pursuant to this Directive, together with the relevant provisions
already in force, are brought to the attention of the persons
concerned by all appropriate means throughout their territory.

1. Member States shall ensure that judicial and/or adminis-
trative procedures, including where they deem it 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, organ-
isations or other legal entities, which have, in accordance with
the criteria laid down by their national law, a legitimate interest
in ensuring that the provisions of this Directive are complied
with, may engage, either on behalf or in support of
the
complainant, with his or her approval, in any judicial and/or
administrative procedure provided for the enforcement of obli-
gations under this Directive.

3.
Paragraphs 1 and 2 are without prejudice to national
rules relating to time limits for bringing actions as regards the
principle of equality of treatment.

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 treat-
ment.

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

Article 11

Social dialogue

1. Member States shall, in accordance with national tradi-
tions and practice, 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. Where consistent with national traditions and practice,
Member States shall encourage the two sides of the industry
without prejudice to their autonomy to conclude, at the appro-
priate 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
implementing measures.
relevant national

Article 12

Dialogue with non-governmental organisations

Member States shall encourage dialogue with appropriate non-
governmental organisations which have,
in accordance with
their national law and practice, a legitimate interest in contri-
buting to the fight against discrimination on grounds of racial
and ethnic origin with a view to promoting the principle of
equal treatment.

CHAPTER III

BODIES FOR THE PROMOTION OF EQUAL TREATMENT

3.

Paragraph 1 shall not apply to criminal procedures.

Article 13

Paragraphs 1, 2 and 3 shall also apply to any proceedings

4.
brought in accordance with Article 7(2).

5. Member States need not apply paragraph 1 to proceed-
ings in which it is for the court or competent body to investi-
gate the facts of the case.

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

1. Member States shall designate a body or bodies for the
promotion of equal treatment of all persons without discrim-
ination on the grounds of racial or ethnic origin. These bodies
may form part of agencies charged at national level with the
defence of human rights or the safeguard of individuals' rights.

2. Member States shall ensure that the competences of these
bodies include:

— without prejudice to the right of victims and of associa-
tions, organisations or other legal entities referred to in
Article 7(2), providing independent assistance to victims of
discrimination in pursuing their complaints about discrim-
ination,

— conducting independent surveys concerning discrimination,
— publishing independent reports and making recommenda-

tions on any issue relating to such discrimination.

L 180/26

EN

Official Journal of the European Communities

19.7.2000

CHAPTER IV

FINAL PROVISIONS

Article 14

Compliance

Member States shall take the necessary measures to ensure that:

(a) any

laws,

and administrative provisions
contrary to the principle of equal treatment are abolished;

regulations

(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
profit-making or non-profit-making associations, and rules
governing the independent professions and workers' and
employers' organisations, are or may be declared, null and
void or are amended.

Article 15

Sanctions

Member States shall lay down the rules on sanctions applicable
to infringements of the national provisions adopted pursuant
to this Directive and shall take all measures necessary to ensure
that they are applied. The sanctions, which may comprise the
payment of compensation to the victim, must be effective,
proportionate and dissuasive. The Member States shall notify
those provisions to the Commission by 19 July 2003 at the
latest and shall notify it without delay of any subsequent
amendment affecting them.

Article 16

Implementation

Member States shall adopt the laws, regulations and adminis-
trative provisions necessary to comply with this Directive by
19 July 2003 or may entrust management and labour, at their
joint request, with the implementation of this Directive as
regards provisions falling within the scope of collective agree-
ments. In such cases, Member States shall ensure that by 19
July 2003, management and labour introduce the necessary
measures by agreement, Member States being required to take
any necessary measures to enable them at any time to be in a

position to guarantee the results imposed by this Directive.
They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. The
methods of making such a reference shall be laid down by the
Member States.

Article 17

Report

1. Member States shall communicate to the Commission by
19 July 2005, and every five years thereafter, all the informa-
tion necessary for the Commission to draw up a report to the
European Parliament and the Council on the application of this
Directive.

The Commission's report shall

2.
take into account, as
appropriate, the views of the European Monitoring Centre on
Racism and Xenophobia, as well as the viewpoints of the social
partners and relevant non-governmental organisations.
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. In the light of the
information received, this report shall
if necessary,
proposals to revise and update this Directive.

include,

Article 18

Entry into force

This Directive shall enter into force on the day of its publica-
tion in the Official Journal of the European Communities.

Article 19

Addressees

This Directive is addressed to the Member States.

Done at Luxembourg, 29 June 2000.

For the Council

The President

M. ARCANJO