WRITTEN QUESTION E-3421/01 by Charles Tannock (PPE-DE) to the Commission. The application of the Commission's discrimination directives.
Date: 2001-12-21
Institutions: European Parliament, Provisional data
Subjects: anti-discriminatory measure, application of EU law, equal treatment, free movement of workers, job access, labour law, right of establishment

6.6.2002

EN

Official Journal of the European Communities

C 134 E/231

described by the Honourable Member is to restrict the free movement of workers and the freedom of
establishment within the European Union, this is only compatible with the rules of the EC Treaty if it
applies equally to nationals of the host Member State and those from other Member States, satisfies
overriding reasons relating to the public interest, is a suitable means of achieving the objective pursued,
and does not go beyond what is necessary to attain that objective.

As such, the requirement for compulsory membership of a professional dentists’ association and the
associated pension scheme is not therefore contrary, in principle, to the free movement of workers laid
down in Article 39 of the EC Treaty and the freedom of establishment set out in Article 43 of the EC
Treaty.

In the case of a national who is already established as a dentist in a Member State and who wishes to open
a second practice in another Member State, the host Member State should, of course, take into account the
obligations he/she has already fulfilled in the country in which he/she was first established, including
affiliation to a pension scheme in that Member State.

(2002/C 134 E/245)

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

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Official Journal of the European Communities

EN

6.6.2002

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.

(2002/C 134 E/246)

WRITTEN QUESTION E-3448/01

by Mark Watts (PSE) to the Commission

(21 December 2001)

Subject: Export of live animals to third countries

Will the Commission please state how many of the live cattle exported from the Community to third
countries in 2000:

1. were for (a) slaughter, (b) further fattening and (c) breeding;

2. how many in each of these categories were exported from each Member State;

3. how many in each of these categories did each exporting Member State send to each individual third-

country destination?