Commission staff working document accompanying the proposal for a Council directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation - Impact assessment {COM(2008) 426 final} {SEC(2008) 2181}
Date: 2008-07-02
Institutions: European Commission
Subjects: age discrimination, anti-discriminatory measure, discrimination based on disability, discrimination on the basis of sexual orientation, equal treatment, impact study, religious discrimination

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 2.7.2008 
SEC(2008) 2180 

COMMISSION STAFF WORKING DOCUMENT 

accompanying the 

Proposal for a  

COUNCIL DIRECTIVE  

on implementing the principle of equal treatment between persons irrespective of 
religion or belief, disability, age or sexual orientation 

Impact Assessment 

{COM(2008) 426 final} 
{SEC(2008) 2181} 

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TABLE OF CONTENTS 

DRAFT COMMISSION STAFF WORKING DOCUMENT  

1. 

2. 

3. 

3.1. 

3.2. 

Executive summary...................................................................................................... 4 

Background and institutional context .......................................................................... 6 

Procedural issues and consultation of interested parties .............................................. 7 

Organisation and timing............................................................................................... 7 

External expertise and information gathering .............................................................. 8 

3.2.1.  Public consultation....................................................................................................... 8 

3.2.2.  Business sector consultation ........................................................................................ 9 

3.2.3.  Civil society organisations ........................................................................................... 9 

3.2.4.  Social partners............................................................................................................ 10 

3.2.5.  Equality bodies........................................................................................................... 10 

3.2.6.  Consultation of the Impact Assessment Board .......................................................... 10 

4. 

4.1. 

4.2. 

Problem Definition..................................................................................................... 11 

An outline of the problem .......................................................................................... 12 

Nature and impact of discrimination.......................................................................... 13 

4.2.1.  Discrimination based on disability............................................................................. 13 

4.2.2.  Discrimination based on age ...................................................................................... 15 

4.2.3.  Discrimination based on sexual orientation ............................................................... 17 

4.2.4.  Discrimination based on religion or belief................................................................. 19 

4.3. 

4.4. 

5. 

6. 

6.1. 

6.2. 

6.3. 

6.4. 

Legal context.............................................................................................................. 20 

Likely development of the situation in the absence of EU action (baseline scenario)23 

Objectives................................................................................................................... 26 

Policy options............................................................................................................. 27 

No new action at EU level ......................................................................................... 27 

Non-legally binding measures.................................................................................... 27 

Legally binding measures .......................................................................................... 28 

Preliminary screening of options ............................................................................... 29 

6.4.1.  Legally non-binding measures ................................................................................... 29 

6.4.2.  Legally binding measures .......................................................................................... 30 

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7. 

7.1. 

7.2. 

7.3. 

7.4. 

7.5. 

7.6. 

8. 

9. 

9.1. 

9.2. 

9.3. 

Analysis of Impacts.................................................................................................... 32 

Option 1: No new action at EU level ......................................................................... 33 

Option 2: Self–regulation........................................................................................... 35 

Option 3: Specific Commission recommendation ..................................................... 37 

Option 4: General Commission recommendation...................................................... 39 

Option 5: Single-ground directive.............................................................................. 40 

Option 6: Multi-ground directive ............................................................................... 47 

Comparison of options ............................................................................................... 51 

Monitoring and evaluation arrangements................................................................... 54 

Possible indicators...................................................................................................... 54 

Monitoring ................................................................................................................. 55 

Transposition.............................................................................................................. 56 

ANNEX I: Summary of the consultation of the European level NGOs and social partners.... 57 

ANNEX II: Legal Framework.................................................................................................. 61 

ANNEX III: Legal Situation in the Member States ................................................................. 65 

ANNEX IV: EPEC Study – methodology and effects and impacts of discrimination ............ 74 

ANNEX V: UN Convention on the Rights of Persons with Disabilities ................................. 82 

ANNEX VI: International Instruments .................................................................................... 85 

ANNEX VII: Proposals for indicators and sources of information ......................................... 87 

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1. 

EXECUTIVE SUMMARY 

The right to equal treatment is a general principle of Community law1. Article 13 of 
the Treaty specifically allows action to combat discrimination based on sex, racial or 
ethnic  origin,  religion  or  belief,  disability,  age  and  sexual  orientation.  Yet 
discrimination  still  exists  in  many  areas,  such  as  access  to  goods  and  services, 
housing, education, social services and health care. 

The  present  EC  legal  framework2  provides  much  more  extensive  protection  from 
discrimination  on  grounds  of  race  or  ethnic  origin  than  from  discrimination  on  grounds  of 
religion  or  belief,  disability,  age  or  sexual  orientation.  The  current  Commission  committed 
itself early in its mandate to examining the case for extending the legal framework based on 
Article  13  EC,  starting  with  the  2004  Green  Paper  'Equality  and  non-discrimination  in  an 
Enlarged European Union' and continuing through to its 2008 legislative work programme3. 

–  This  Impact  Assessment  Report  shows  evidence  of  discrimination  outside  the  labour 
market on grounds of religion or belief, disability, age and sexual orientation, based on a 
study  commissioned  by  the  Commission  and  evidence  gathered  during  an  extensive 
consultation process. A substantial number of people in the European Union suffer from or 
are  at  risk  of  discrimination,  which  can  limit  greatly  their  ability  to  participate  fully  in 
education  or  work,  and  can  lead  to  isolation,  poverty  and  welfare  dependency.  Some  of 
these effects can be quantified, some have a clear financial costs, others are equally serious 
but subjective. The legal protection people can expect varies according to the grounds for 
discrimination concerned, to whether it takes place in employment or in other areas of life, 
or to where they live. 

The table below summarises the existing legal framework at European level: 

Grounds 

Race 

Religion 

Disability 

Age 

Sexual 
orientation 

Sex 

Yes + 

Yes 

Yes 

Yes 

Yes 

Yes + 

Field 

Employment 
&  vocational 
training 

Equality body 

Education 

Yes + 

Goods 
services 

and 

Social 
protection 

Equality body 

Yes + 

Equality body 

Yes + 

Equality body 

No 

No 

No 

No 

No 

No 

No 

No 

No 

No 

No 

No 

Equality body 

No 

Yes + 

Equality body 

Yes + 

Equality body 

This  difference  in  protection  from  discrimination  at  EU  and  national  level  has  practical 
consequences: it means that the incidences of discrimination identified in this Report are not 
addressed in a coherent manner. It means that victims of discrimination have unequal means 
of  redress  depending  on  their  Member  State.  It  also  means  that  differences  in  protection 

1 

2 
3 

Case 203/86 Spain v Council, (paragraph 25, and Case C-15/95 EARL de Kerlast, paragraph 35), Case 
C-144/04 Mangold (paragraph 75). 
Directives 2000/43/EC, 2000/78/EC and 2004/113/EC. 
COM (2007) 640. 

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afforded  by  the  Member  States  may  affect  people's  mobility  as  well  as  the  cross-border 
marketing of goods and services. How should these issues be tackled? 

The  objectives  of  any  action  would  be  to  step  up  the  protection  of  individuals  from 
discrimination, achieve greater social inclusion and full participation by all groups in society 
and  the  economy,  and  provide  a  clear  legal  framework  across  the  Member  States  that  can 
stimulate cross-border trade and unfetter movement. 

A number of possibilities were looked at, and then narrowed down to a list of six options to 
be examined more fully: 

•  no new action at EU level 

•  self-regulation dealing with insurance and/or financial services 

•  a  recommendation  dealing  specifically  with  the  competences  of  the  equality  bodies  and 

multiple discrimination 

•  a  general  recommendation  encouraging  the  Member  States  to  increase  the  level  of 

protection against discrimination outside employment 

•  a directive prohibiting discrimination based on disability  

•  a  directive  prohibiting  discrimination  based  on  age,  disability,  sexual  orientation  and 

religion or belief 

Each  option  is  analysed  to  assess  the  extent  to  which  it  can  meet  the  objectives.  As  far  as 
possible, figures are provided to illustrate costs and benefits to individuals, providers of goods 
and services, and society as a whole, although it should be pointed out that reliable data on 
discrimination and the related costs can be difficult to find.  

The conclusion is that not acting is not an option: society, individuals and the economy would 
continue  to  bear  the  costs  of  discrimination.  The  most  effective  way  to  achieve  the  stated 
objectives  would  be  new  legislation  at  EU  level,  since  relying  solely  on  national 
developments may result not only in those differences in the levels of protection being left in 
place but also in their widening. The experience with the existing Directives was positive and 
resulted in a much higher level of protection against discrimination in many Member States 
than was the situation previously, or would have been without the impetus of EU action. 

Taking  into  account  the  results  of  the  consultation  process  and  the  extent  of  discrimination 
reported,  the  option  of  a  Directive  prohibiting  discrimination  outside  the  employment 
sphere based on religion or belief, disability, age or sexual orientation is considered to be 
the most appropriate response. Any new legislation would build on the concepts contained 
in  the  existing  EU  non-discrimination  legislation.  As  with  those  directives,  justified 
exceptions  and  limitations  of  scope  would  be  allowed.  Member  States  which  already  have 
extensive non-discrimination legislation would need to make only minor, if any, changes.  

A new Directive cannot tackle the problem shown by the table above that no Equality Body 
exists  for  certain  types  of  discrimination  in  certain  fields,  and  in  addition,  the  protection  of 
people  who  suffer  from  discrimination  on  more  than  one  ground  is  unclear.  This  could  be 
achieved by replacing or amending the existing legislation. However, that would bring legal 
uncertainty  to  economic  operators  and  public  authorities  who  are  now  implementing  the 

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legislation  as  well  as  overburdening  the  EU  and  the  national  legislative  process  and  so  this 
approach  is  not  recommended.  Rather,  new  legislation  should  be  coupled  with  an 
encouragement  from  the  Commission  to  Member  States  to  act  in  these  areas  as  well  as  the 
launch  of  a  dialogue  with  the  insurance  and  banking  sectors  about  perceived  discrimination 
which could possibly lead to self-regulation.  

2. 

BACKGROUND AND INSTITUTIONAL CONTEXT 

In  2004,  five  years  after  the  Amsterdam  Treaty  came  into  force,  the  Commission  issued  a 
Green  Paper4  to  take  stock  of  achievements  in  the  area  of  non-discrimination  policy  and  to 
gather input from a broad range of stakeholders on the way ahead. In 2005 the Commission 
adopted  a  framework  strategy  on  non-discrimination  and  equal  opportunities  for  all5  on  the 
basis of the feedback received. 

The  strategy  established  a  set  of  priorities  to  strengthen  action  against  discrimination, 
including  support  for  effective  implementation  of  the  existing  legislation,  such  as  through 
training for lawyers and judges; increasing general awareness of legal rights, for example by 
designating 2007 as the European Year of Equal Opportunities for All; and assessing the need 
for further action to supplement the existing legal framework. 

On this last point, the Commission acknowledged there was a strong call for action to address 
differences in the level and scope of protection from discrimination on the different grounds. 
While  it  concluded  that  the  time  was  not  yet  ripe  for  proposing  new  legislation,  the 
Commission undertook to carry out a study into the relevance and feasibility of new measures 
to supplement the current legal framework.  

That study6, completed in late 2006, looked both at existing national legislative measures in 
tackling  discrimination  outside  employment  and  at  their  impact.  It  showed  that,  on  the  one 
hand, most countries provide legal protection in some form that goes beyond the current EC 
requirements in most of the areas examined, and on the other hand, there was a good deal of 
variety  between  countries  as  to  the  degree  and  nature  of  the  protection.  It  also  showed  that 
very few countries carried out ex-ante impact assessments on non-discrimination legislation. 

On  the  basis  of  that  information  and  in  line  with  its  earlier  commitment  to  the  European 
Parliament,  the  Commission  announced  its  intention  in  the  2008  Annual  Policy  Strategy  to 
'propose  new  initiatives  designed  to  prevent  and  combat  discrimination  outside  the  labour 
market  based  on  gender,  religion,  belief,  disability,  age  or  sexual  orientation'.  This  was 
confirmed  in  the  Commission's  legislative  work  programme7  adopted  on  23 October  2007, 
and a road map8 was prepared for this priority initiative9. The Parliament has repeatedly called 
on  the  Commission  to  present  a  proposal  to  complete  the  non-discrimination  legislative 
package, most recently in May 200810.  

4 
5 
6 
7 
8 
9 
10 

COM (2004) 379 final 'Equality and non-discrimination in an Enlarged European Union'. 
COM (2005) 224 final. 
http://ec.europa.eu/employment_social/fundamental_rights/pdf/pubst/stud/mapstrand1_en.pdf 
COM(2007) 640 
http://ec.europa.eu/atwork/programmes/docs/clwp2008_roadmap_priority_initiatives.pdf  
Work Programme reference: 2008/EMPL/017. 
P6_TA(2008)0212 

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For its part, the Employment and Social Affairs Council meeting in December 2007 adopted a 
resolution  on  the  follow-up  to  the  European  Year  and  noted  the  calls  from  the 
Parliament  and  civil  society to extend legal protection from discrimination to areas 
beyond employment and occupation; in this document, the Council of the European 
Union  also  invited  Members  States  and  the  European  Commission,  in  accordance 
with  their  respective  competencies,  to  strengthen  efforts  to  prevent  and  combat 
discrimination based on sex, race or ethnic origin, religion or belief, disability, age or 
sexual orientation, inside and outside the labour market11; 

At  its  February  2008  meeting,  the  Council12  invited  the  Commission  to  step  up  efforts  to 
prevent and combat discrimination based on disability both on the labour market and outside 
it.  It  also  called  an  examination  of  any  gaps  that  may  exist  in  the  current  Community 
legislative  framework  of  protection  against  discrimination,  in  particular  on  the  grounds  of 
disability, and for appropriate and targeted responses to be considered. 

3. 

PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES 

3.1. 

Organisation and timing 

In preparing this initiative, the Employment, Social Affairs and Equal Opportunities DG has 
sought  to  associate  all  stakeholders  with  a  potential  interest.  Within  the  Commission,  an 
Interservice  Group  was  established13  following  the  February  2007  agreement  within  the 
Group  of  Commissioners  on  Fundamental  Rights,  Anti-Discrimination  and  Equal 
Opportunities  to  launch  an  impact  assessment.  Bilateral  meetings  were  also  held  with  the 
departments most closely concerned. 

With  regard  to  external  stakeholders,  the  Commission  has  combined  targeted  consultation 
with an open public consultation in line with the timetable set out below. 

June 2007 

Member  States  informed  of  public  consultation  and  invited  to  provide 
updated information on non-discrimination measures 

July/August: 2007 

European Business Test Panel consultation  

July/October 2007  

Public on-line consultation 

July/October 2007  

Consultation of NGOs and social partners 

October/December 2007  Consultation of European Network of Equality Bodies (Equinet) 

November/December 
2007 – February 2008  

Consultation of specific sectors (insurance, tourism, hotels) 

In  parallel,  the  European  Year  of  Equal  Opportunities  for  All  provided  many  occasions 
throughout 2007 for the Commission to draw the attention of a broad range of audiences in 
different Member States to the fact that the Commission was considering new measures and 

11 
12 

13 

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:308:0001:0005:EN:PDF 
Resolution  of  the  Council  of  the  European  Union  and  the  representatives  of  the  governments  of  the 
Member States, meeting within the Council, on the situation of persons with disabilities in the European 
Union (2008/C 75/01), formally adopted on 17 March 2008 
SG, SJ, ECFIN, EAC, JLS, TREN, ESTAT, MARKT and SANCO. 

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was interested in their views. In addition, the Commission held a conference at the European 
Parliament  in  October  2007  with  a  range  of  stakeholders  on  the  implementation  of  existing 
non-discrimination  laws  and  on  evidence  of  discrimination  in  access  to  goods  and  services 
and in education and social protection. 

3.2. 

External expertise and information gathering 

The study commissioned by the Commission in 2005, referred to above on existing national 
measures going beyond the EU requirements and their impact was received, in 2006. In June 
2007  the  Commission  wrote  to  the  Member  States  to  draw  their  attention  to  the  study, 
announcing  the  public  consultation,  and  asking  them  to  provide  further  information  on 
measures taken or planned to go beyond the 2000 Directives.  

To supplement that information, the Commission commissioned a further study14in 2007 from 
the European Evaluation Policy Consortium. The result, entitled "Study on discrimination on 
grounds  of  religion  or  belief,  age,  disability  and  sexual  orientation  outside  of  employment" 
(hereinafter  "the  EPEC  study"),  looks  at  the  nature  and  extent  of  discrimination  outside 
employment  in  the  EU,  and  the  potential  (direct  and  indirect)  costs  this  may  have  for 
individuals  and  society.  Annex IV  gives  more  details  of  the  study,  its  methodology  and 
findings.  

In  addition,  this  Report  takes  account  of  the  reports  from  the  European  Network  of 
Independent  Experts  in  the  non-discrimination  field,  and  in  particular  their  overview 
‘Developing Anti-Discrimination Law in Europe‘15. It also takes into account a specific study 
prepared  for  the  Commission  on  ’Tackling  Multiple  Discrimination:  practices,  policies  and 
laws’16. Also relevant to this Report are the results of a special Eurobarometer survey carried 
out  in  February/March  2008  on  discrimination  and  inequality  in  Europe17  and  a  more 
narrowly focussed Eurobarometer flash survey in February 200818. 

3.2.1.  Public consultation 

A  public  on-line  consultation19ran  from  4 July  to  15 October  2007.  There  were  5378 
responses,  four  fifths  coming  from  individuals  and  the  remainder  from  organisations.  The 
main points to note are that: 

•  35% of respondents claimed to have suffered discrimination in education, social protection 
or  health  care  on  grounds  of  age,  disability,  religion  or  sexual  orientation;  and  20% 
claimed they had experienced discrimination in access to goods, services or housing.  

14 

15 
16 
17 

18 

19 

EPEC, Study on discrimination on grounds of religion or belief, age, disability and sexual orientation 
outside of employment, available at: 
http://ec.europa.eu/employment_social/fundamental_rights/org/imass_en.htm 
http://ec.europa.eu/employment_social/fundamental_rights/public/pubst_en.htm#leg 
http://ec.europa.eu/employment_social/fundamental_rights/pdf/pubst/stud/multdis_en.pdf 
Special Eurobarometer Survey 296on discrimination in the EU, to be published in July 2008 on the 
following web pages: http://ec.europa.eu/employment_social/fundamental_rights/public/pubst_en.htm 
and http://ec.europa.eu/public_opinion/archives/eb_special_en.htm 
Flash 
232; 
http://ec.europa.eu/public_opinion/flash/fl_232_en.pdf 
The full results of the consultation can be accessed at: 
http://ec.europa.eu/employment_social/fundamental_rights/news/news_en.htm#rpc 

Eurobarometer 

available 

results 

online 

full 

the 

are 

at: 

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•  69% said that the lack of uniform protection against discrimination would influence their 

decision to visit or work in another Member State. 

•  90%  felt  that  everyone  in  the  European  Union  should  enjoy  the  same  level  of  protection 
from discrimination on grounds of age, disability, religion or belief and sexual orientation. 

•  91%  of  respondents  agree  that  more  money  should  be  spent  on  eliminating  physical 

obstacles which make the lives of those who have a disability difficult 

3.2.2.  Business sector consultation 

A representative cross-section of the business sector was consulted from 11 July to 31 August 
2007 via the European Business Test Panel. 512 responses were received20.The main points to 
note are that: 

•  63%  of  those  who  answered  thought  it  mattered  that  there  were  different  levels  of 
protection between the Member States from discrimination in access to goods, services and 
housing.  

•  26% thought a difference in the level of protection from discrimination would affect their 

ability to do business in another Member State.  

•  89% thought the EU should legislate to guarantee the same level of protection; and 69% 

did not believe such new rules would have a financial impact on their firms. 

The Commission contacted the European-level organisations representing the business sectors 
which could be affected by the initiative, in particular CEA (Comité européen d'assurance) for 
the insurance sector, the EBIC (European banking industry committee) for the banking sector, 
HOTREC  (Confederation  of  national  hotel  associations  in  the  EC  and  EEA),  ECTAA  (the 
European  Travel  Agents  and  Tour  Operators  Association),  BITS  (bureau  international  du 
tourism  social)  and  ETAG  (European  travel  and  tourism  action)  for  the  tourism  and 
hospitality  sectors.  The  Commission  also  outlined  the  initiative  to  representatives  of  all 
Member States' finance ministries at the November 2007 meeting of the European Insurance 
and  Occupational  Pensions  Committee.  A  summary  of  the  views  received  from  the  specific 
sectors is given in Annex I. 

3.2.3.  Civil society organisations 

The  main  EU-level  NGOs  active  in  the  field  of  discrimination  were  consulted  in  writing, 
followed by a round-table meeting on 23 October 2007. In short, all the organisations were in 
favour  of  legislative  action  to  supplement  the  framework  for  protection  under  Article 13. 
There  were  different  views  on  whether  this  should  involve  a  single  directive  or  directives 
covering  specific  grounds.  Most  favoured  a  single  directive,  while  the  representatives  of 
people  with  disabilities  and  of  women  advocated  respectively  a  disability-specific  directive 
and a gender-specific directive. A number of NGOs submitted their own draft directives. In 
parallel,  the  main  EU-level  NGO  representing  people  with  disabilities  presented  a  petition 
calling for legislation signed by more than 1.3 million people.  

A summary of the NGOs' views is given in Annex I, while their written submissions, which 
contained evidence of discrimination, are available online. 

20 

The full results are available at: http://ec.europa.eu/yourvoice/ebtp/consultations/2007_en.htm  

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3.2.4. 

Social partners 

Since  the  legal  framework  already  prohibits  discrimination  on  the  labour  market,  any  new 
proposal will have no impact on the social partners in their employer/employee relationship 
and no effect on recruitment practices or labour costs. Nonetheless, it was decided to involve 
the  social  partners  in  the  consultation,  initially  at  a  meeting  on  17 April  2007.  At  that  and 
subsequent  meetings,  the  business  organisations  were  encouraged  to  consider  any  sectoral 
impact  of  a  new  initiative.  A  written  consultation  of  the  social  partners  was  followed  by  a 
round-table meeting on 23 October 2007. 

The  trade  unions  were  in  favour  of  a  new  directive  prohibiting  discrimination  outside  the 
labour  market  on  grounds  of  age,  disability,  religion  or  sexual  orientation,  and  pointed  out 
that discrimination outside the labour market affected their members' ability to work (owing 
to  a  lack  of  accessible  transport  for  disabled  workers,  problems  in  finding  housing  close  to 
work, unaffordable insurance for older workers etc.). 

The  business  representatives  were  against  new  legislation  in  principle,  which  they  saw  as 
increasing  red  tape  and  costs.  BusinessEurope  took  the  view  that  there  is  no  evidence  of 
discrimination on any of the grounds covered by Article 13 of the Treaty against which people 
have  no  legal  protection.  The  public-sector  representatives  and  UEAPME21,  however, 
acknowledged that there was discrimination in access to goods and services but did not think 
that binding legislation was necessarily the best way to tackle it.  

A summary of the social partners' views is given in Annex I and their written submissions are 
available on line. 

3.2.5.  Equality bodies  

Equinet22,  the  European  network  of  specialised  equality  bodies,  brings  together  the  equality 
bodies  of  24  Member  States  for  the  exchange  of  legal  expertise,  enforcement  strategies, 
training and good practice. In response to the Commission's consultation, Equinet provided an 
opinion in January 200823. As well as setting out the areas where they believe discrimination 
to  be  most  widespread,  they  were  in  favour  of  new  legislation,  which  should  require  the 
Member States to promote equality and mainstream equality positively in all policy-making, 
and  to  prohibit  multiple  discrimination  explicitly.  The  Equality  and  Human  Rights 
Commission of Great Britain also sent a separate submission, in which they gave evidence of 
discrimination and explained why they were in favour of new legislation at European level. 

3.2.6.  Consultation of the Impact Assessment Board 

The Impact Assessment Board’s observations have been taken into account, notably 
by:  

•  Providing more information on the scope and effect of the UN Convention on the 
Rights of Persons with Disabilities and the EU Charter of Fundamental Rights as 
part of the baseline scenario; 

21 
22 
23 

Union Européenne de l'artisanat et des petites et moyennes entreprises 
http://www.equineteurope.org 
http://www.equineteurope.org/publications/2698.html 

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•  More  detailed  presentation  of  the  concept  of  ‘reasonable  accommodation’, 
including  more  information  on  the  costs,  as  well  as  practical  examples,  and 
information on mitigating factors; 

•  Providing  more  information  on  the  cross  border  aspects  of  the  problem,  with 

examples; 

•  Emphasising the added value of EU action by pointing to the positive effect of a 
coherent  implementation  of  parts  at  least  of  the  UN  Convention,  as  well  as  the 
positive  effect  of  the  transposition  of  the  previous  directives  in  improving  the 
level of protection against discrimination;  

•  Making clearer the limits of EC competence and the areas that a directive could 
not cover, such as the organisation and content of education, questions of marital 
status and family law; 

•  Making  clearer  the  transposition  aspects  of  a  new  directive  (concepts  and 

deadlines) for the Member States; 

•  Clarifying for each option the impact on the baseline scenario.  

4. 

PROBLEM DEFINITION 

Before looking in turn at the various types of discrimination, the population affected, the legal 
context  and  foreseeable  developments  if  no  new  action  is  taken,  a  word  is  needed  on  the 
availability of data in the field of discrimination. 

Policies and practices in all areas of life, including political, administrative and business life, 
should  be  based  on  objective  and  reliable  data.  Data  and  statistics  are  also  essential  to 
individuals seeking redress, particularly in the area of indirect discrimination24. Yet collecting 
data  on  certain  grounds  of  discrimination  (for  example  on  grounds  of  race  or  ethnic  origin, 
disability, religion or belief, and sexual orientation) remains an extremely sensitive issue, and 
is not undertaken systematically by the Member States. The Commission has taken a number 
of initiatives to address this problem, in particular by co-financing the MERA25 project led by 
the  Finnish  Ministry  of  Labour,  which  resulted  in  the  drafting  and  publication  in  February 
2007  of  a  European  handbook  on  equality  data  which  seeks  to  improve  the  national 
compilation of equality data.26 Similarly, although comprehensive information on the impact 
and  cost  of  discrimination  is  not  readily  available,  the  EPEC  study  carried  out  for  the 
Commission made a first attempt to assess it. 

In the face of the lack of reliable data on discrimination the decision was therefore taken to 
look not just at reported instances of discrimination, but also at perceptions of discrimination 
(see  the  above  mentioned  Eurobarometer  surveys  that  were  commissioned  in  2007  and 
conducted in early 2008).  

24 
25 
26 

http://ec.europa.eu/employment_social/fundamental_rights/pdf/pubst/stud/hb07_en.pdf  
Making Equality a Reality with Adequate Data 
http://ec.europa.eu/employment_social/fundamental_rights/public/pubst_en.htm#stud 

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4.1. 

An outline of the problem  

The right to equal treatment is a general principle of Community law, and Article 13 EC gives 
power to adopt measures to prevent and combat discrimination based on sex, racial or ethnic 
origin,  religion  or  belief,  disability,  age  or  sexual  orientation  in  all  areas  within  its 
competence.  

However, the existence of the Treaty article does not, in itself, provide a basis for citizens to 
assert their right not to be subject to discrimination. Enacting legislation is necessary to make 
those  rights  enforceable.  While  legislation  banning  discrimination  does  not  automatically 
eliminate discrimination, it does provide the victims of discrimination with the possibility of 
redress  and  it  discourages  discriminatory  behaviour.  At  present,  legal  protection  from 
discrimination outside employment only covers sex and racial or ethnic origin. 

Unfortunately,  discrimination  on  the  other  four  grounds  persists.  A  major  EU-wide  survey 
carried  out  in  early  200827  showed  that  many  Europeans  believed  that  discrimination  was 
widespread,  in  particular  on  grounds  of  sexual  orientation  (51%)  and  disability  (45%),  age 
(42%)  and  religion  (42%).  In  terms  of  areas  beyond  the  labour  market,  a  January  2008 
survey28 found that discrimination was perceived to be most widespread in the housing area, 
but it was also significant in education on certain grounds. As for services, 40% felt people 
buying insurance policies were likely to face discrimination because of their age and as many 
felt  the  same  regarding  disability.  When  asked  whether  they  or  a  family  member  had 
experienced discrimination29, 16% of respondents said they had on grounds of their age, or a 
combination  of  factors,  14%  because  of  disability,  11%  on  grounds  of  religion  and  8  % 
because of sexual orientation.  

Although some evidence exists on the extent of discrimination in the different Member States, 
as explained in section 9 below, caution must be exercised when looking at such figures. A 
large number of complaints can mean that there is a lot of discrimination, or that the Member 
State  in  question  has  a  well  functioning  and  user  friendly  complaints  mechanism,  or  that 
people are more aware of their rights. It should also be borne in mind that people complain 
more readily about some types of discrimination than others. For example, the effect of losing 
a job is so great that people are much more likely to challenge a discriminatory dismissal in 
court than a case of discrimination in a shop or restaurant30.  

As  the  following  sections  explain,  there  is  clear  evidence  of  the  existence  of  discrimination 
and its effects on the well-being and life chances of the individuals concerned. These wider 
effects can be seen, for example, in the lower educational achievement and employment rates 
of people with disabilities and the rate of suicides and school drop-outs among young victims 
of homophobic bullying.  

27 

28 
29 
30 

Special Eurobarometer Survey 296on discrimination in the EU, to be published in July 2008 on the 
following web pages: http://ec.europa.eu/employment_social/fundamental_rights/public/pubst_en.htm 
and http://ec.europa.eu/public_opinion/archives/eb_special_en.htm 
Flash Eurobarometer 232 (http://ec.europa.eu/public_opinion/flash/fl_232_en.pdf) 
Flash Eurobarometer 232 (http://ec.europa.eu/public_opinion/flash/fl_232_en.pdf) 
For  example,  the  2007  Initial  Regulatory  Impact  Assessment  on  proposals  to  simplify  and  modernise 
discrimination  law  in  the  UK  found  that  there  was  an  annual  average  of  2000  employment  cases 
alleging disability discrimination, compared to an estimated 10-20 in the field of access to goods and 
services. 

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As  a  consequence,  in  addition  to  being  contrary  to  the  fundamental  values  of  the  European 
Union,  the  persistence  of  discrimination  undermines  the  Union's  social  cohesion  and  its 
economic interests. 

4.2. 

Nature and impact of discrimination 

4.2.1.  Discrimination based on disability 

An example: A user of a wheelchair was twice denied access to a nightclub. The first time the security 
guard informed him there were no more places in the club, whereas another person who had initially 
been together with the claimant was later on permitted to enter without any obstacle. Two weeks later 
the claimant accompanied by a television crew again attempted to enter the club; this time the reason 
given for the refusal was that it was a private party that night, but yet again another person was later 
permitted to enter freely.  

Source: Riga regional court, case No.04386004, C 20203. 

Directive  2000/78/EC  does  not  define  'disability'  but  the  European  Court  of  Justice  did  so 
partly  in  200631.  Depending  on  the  definition  of  disability  used,  the  percentage  of  disabled 
persons  in  the  total  population  has  been  estimated  at  around  16%  (covering  physical 
limitations  such  as  reduced  mobility,  sensory  limitations  such  as  hearing  and  seeing 
difficulties,  and  intellectual  and  mental-health  impairments)32.  According  to  a  Flash 
Eurobarometer  survey  conducted  in  February  2008,  14  %  of  Europeans  have  or  somebody 
from their closed-knit circle of family, friends, and acquaintances has personally experienced 
discrimination on the basis of disability33. 

As disability often occurs or increases with age, the current demographic trend will result in a 
higher percentage not only of older people in the population, but also of disabled people. The 
EPEC study estimates that average of 31% of people over 65 in the EU is disabled. 

The same study found four main types of discrimination on grounds of disability: (1) lack of 
adaptations; (2) lack of capacity-building for staff in contact with disabled people; (3) lack of 
awareness; and (4) deliberate discrimination.  

According  to  the  Special  Eurobarometer  survey  on  discrimination  in  the  EU  conducted  in 
February/March  2008,  45%  of  EU  citizens  believe  that  discrimination  against  people  with 
disabilities is very or fairly widespread in their country34. When it comes to areas beyond the 
labour market, 40% of EU citizens believe that discrimination against people with disabilities 
is very or fairly widespread in the area of housing, 37% of respondents think the same is true 
when buying insurance policies. 34% consider discrimination against people with disabilities 
to  be  widespread  in  education;  31%  think  the  same  is  true  about  buying  products  or  using 
services, and 15% share the same opinion about the health-care system35. 18% of those who 
replied  to  the  public  consultation  claimed  to  have  been  discriminated  against  on  grounds  of 

31 

32 

33 
34 
35 

Case C-13/05 Chacon Navas, para 43: "the concept of "disability" must be understood as referring to a 
limitation  which  results  in  particular  from  physical,  mental  or  psychological  impairments  and  which 
hinders the participation of the person concerned in professional life" 
The  EPEC  study  estimates,  on  the  basis  of  Eurostat  figures  on  the  prevalence  of  longstanding  health 
problems or disability, that the number of people affected is 84.4 million in EU-27, representing about 
17% of the total population. 
Flash Eurobarometer 232  
Special Eurobarometer Survey 296 on discrimination in the EU 
Flash EB 232  

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disability in access to goods and services, the figure being 20% for education, health care and 
social services.  

The submission from the European Disability Forum highlighted examples of discrimination 
in  access  to  goods  and  services  including  transport,  information  and  communication 
technologies, mainstream education, and care in the community.  

In  its  submission,  Equinet36  reported  that  the  discriminatory  issues  dealt  with  by  national 
equality  bodies  on  disability  grounds  included  access  to  and  participation  in  educational 
establishments,  access  to  health  services,  local  authority  services,  social  protection,  rented 
accommodation,  banking  and  financial  services,  insurance,  shops,  transport,  goods  and 
services, and stereotyping and access to decision-making. Complaints alleging discrimination 
outside  employment  on  grounds  of  disability  make  up  the  largest  share  of  complaints 
received by Equality Bodies on the grounds covered by this Report, representing on average 
9.2% of their workload. 

The  impact  of  discrimination  on  the  basis  of  disability  is  especially  severe  in  the  area  of 
education.  Member  States  have  different  approaches  and  policies  regarding  the  issue  of 
separate  or  integrated  education  of  children  with  disabilities,  and  Community  law  does  not 
interfere  with  these  choices.  However,  most  countries  already  favour  the  integration  of 
students  with  disabilities  into  mainstream  education,  whether  or  not  they  prohibit 
'discrimination'  in  this  context,  and  most  countries  make  provision  both  for  special  and 
integrated education for students with disabilities whether or not these are required by law37. 
It is estimated that about 2% of all pupils in Europe are educated in special schools38. 

People born with a disability tend to attain lower levels of education than those who acquire a 
disability later in life, and people with disabilities participate less in education and have lower 
educational qualifications than those without39. In the European Union, some 58% of disabled 
women had basic schooling only, compared with 38% of the non-disabled and only 10% of 
disabled women had tertiary-level education, compared with 21% of the non-disabled.  

While there is no evidence to attribute this discrepancy solely to discrimination, it seems very 
likely  that  discrimination  plays  a  role.  The  consequence  of  lower  educational  attainment  is 
that disabled people will find it much more difficult to reach their full potential on the labour 
market. The employment rate of disabled people (50%) remains below that for the rest of the 
population (65%)40. 

With respect to health care, disabled people often face health inequalities41 and may be less 
likely to be believed when they report their symptoms42. This seems to be especially the case 
for  people  with  mental-health  problems.  The  participation  of  persons  with  intellectual 

36 
37 
38 
39 

40 
41
42 

European Network of Equality Bodies 
2006 'mapping ' study: see footnote 5 
European Agency of Special Needs Education 
COM (2007)738 Situation of Disabled People in the European Union. Annex 1. See also Study on men 
and women with disabilities in the EU: statistical analysis of the LFS ad hoc module and the EU-SILC 
Published 2007 http://ec.europa.eu/employment_social/index/7002_en.html 
Ibid  
http://www.equalityhumanrights.com/en/publicationsandresources/Disability/Pages/Formalinvestigations.aspx  
Tackling  attitudes  of  health  care  professionals 
Http://www.bris.ac.uk/news/2005/810 

towards  disabled  people 

(October  2005) 

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disabilities  in  screening  programmes  for  the  general  population  is  reported  as  poor43.  The 
EPEC  study  identified  negative  or  biased  attitudes  of  health-care  providers  as  a  major 
problem.  Complaints  in  the  area  of  social  services  concern  difficulties  in  accessing 
information  in  appropriate  formats,  assumptions  that  disabled  people  are  dependent  and 
unable to operate independently, issues of degrading treatment for the mentally disabled and 
lack of integration with other social-service users.  

Transport  is  an  area  where  accessibility  problems  for  disabled  persons  and  other  persons 
with reduced mobility constitute a barrier to full participation in the economy and society. The 
case for EU-level action in this area underlay the adoption of Regulations covering the access 
of disabled persons and persons with reduced mobility to air44 and rail transport45. As many 
disabled  people  are  unlikely  to  drive  their  own  cars,  they  are  more  dependent  on  public 
transport  than  the  non-disabled.  The  results  may  be  unemployment,  welfare  dependency, 
poverty,  isolation  and  social  exclusion.  Research  for  the  European  Commission  has  shown 
that  restrictions  in  mobility  to  and  from  work  have  a  greater  effect  on  participation  in  the 
labour market than restrictions affecting the kind or amount of work46.  

The evidence points to a number of problems facing the disabled when accessing goods and 
services. In the insurance field, complaints often allege that a person's disability plays a role 
when quotes are given for insurance, even if it is totally irrelevant (for example, disability is 
irrelevant  to  home-contents  insurance,  but  might  be  relevant  for  health-insurance  purposes). 
Ordering  goods  and  services  over  the  Internet  can  be  very  difficult  for  people  with  certain 
disabilities, and a formal investigation by the previous UK's Disability Rights Commission47 
found that 81% of Internet sites failed to meet the most basic accessibility needs of disabled 
people.  A  recent  European  study48 
tested  a  similar  sample  of  key  public  and 
sectoral/commercial websites in each Member State, and only a very small percentage were 
found to meet accepted international accessibility standards. An overview of the effects and 
impacts  of  discrimination  on  grounds  of  disability  is  set  out  in  the  extract  from  the  EPEC 
study in Annex IV. 

4.2.2.  Discrimination based on age 

An example: A leading retailer offers  annual multi-trip insurance cover only  to travellers  up to the 
age of 70. For those aged 66 and over, there is a premium loading of 100 per cent. In contrast, the 
premium  loading  for  winter  sports  is  35  per  cent.  Frances,  from  Surrey,  used  to  get  family  travel 
insurance cover for £50. She reported: ‘As soon as my husband turned 65 it went up to £130. From 
one day to the other he’s no less fit!’ 

Source: AGE – the European Older People’s Platform 

43 

44 

45 

46 

47 

48 

2003  Manifesto  Basic  standards  of  health  care  for  people  with  intellectual  disabilities  Erasmus 
Universitair Medisch Centrum Rotterdam 
Regulation (EEC) No 1107/2006 of 5 July 2006 concerning the rights of disabled persons and persons 
with reduces mobility when travelling by air (OJ L 204, 26.7.2006) 
Regulation (EEC) No 1371/2007, of 23 October 2007 on rail passengers' rights and obligations (OJ L 
315, 3.12.2007) 
Study on men and women with disabilities in the EU: statistical analysis of the LFS ad hoc module and 
the EU-SILC Published 2007 http://eCeuropa.eu/employment_social/index/7002_en.html 
See: 
http://www.equalityhumanrights.com/Documents/DRC/Useful%20Documents/The%20Web_Access%2
0and%20inclusion%20for%20disabled%20people.pdf 
http://ec.europa.eu/information_society/activities/einclusion/library/studies/meac_study/index_en.htm 

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Discrimination  on  grounds  of  age  affects  younger  and  older  age  groups.  22%  of  the  EU-27 
population were below 19 on 1 January 2006 and 21% were 60 or over. The population of the 
European  Union  is  ageing,  and  according  to  Eurostat  projections,  the  share  of  the  total 
population over 80 will rise from 4% of the total population in 2006 to 6% in 2025 and 11% 
in 2050. According to the Flash Eurobarometer survey conducted in February 2008, 16 % of 
Europeans  have  or  somebody  from  their  closed-knit  circle  of  family,  friends,  and 
acquaintances has personally experienced discrimination on the basis of age49. 

42% of respondents in the EU think that discrimination on the basis of age is widespread in 
their  country50.  When  it  comes  to  areas  beyond  the  labour  market,  the  percentage  of  EU 
citizens who think there is very or fairly widespread discrimination based on age in the area of 
insurance  policies  is  40%;  31%  think  the  same  about  the  housing  area;  20%  about  buying 
products or services; 19% about using the health-care system and 17% about the educational 
system51.  

Age-Platform's submission highlighted examples of discrimination in access to insurance and 
financial  services,  and  to  health  care.  They  also  drew  attention  to  negative  comments  about 
older  people  in  the  media.  The  submission  from  the  European  Youth  Forum  highlighted 
stereotyping of young people and gave examples of age-based discrimination in education and 
health. 

Equinet  reported  discrimination  in  access  to  health  services,  social  protection  provision, 
private  rented  accommodation,  financial  services,  insurance,  goods  and  services  and 
stereotyping and access to decision-making. 

In  access  to  goods  and  services,  complaints  of  discrimination  based  on  age  are  primarily 
concentrated  in  the insurance and financial services  area.  Premiums  for  travel  insurance  are 
often very high for people over a certain age or within certain age groups (over 65, 65-70), 
and  one  fifth  of  customers  over  65  fail  to  find  any  company  prepared  to  sell  them  travel 
insurance52.  29%  of  attempts  by  people  aged  75  to  obtain  insurance  quotations  were 
unsuccessful, compared with 3% of those in the 30-4953 age group. 31% of those aged 80 and 
over  felt  discriminated  against  when  trying  to  obtain  quotations  for  motor  insurance,  travel 
insurance and car hire, compared with 2% of those in the 30-4954 age group. 

Age discrimination is also experienced in loan and mortgage services; for example, mortgages 
may not be available to persons under or over specific ages and persons above a certain age 
may be refused overdrafts, regardless of their financial circumstances. 

Complaints  about  differences  in  treatment  in  social  services  concern  financing  (seemingly 
less  money  spent  on  the  elderly  than  on  other  age  groups),  difficulties  in  accessing 

49 
50 

51 
52 

53 

54 

Flash Eurobarometer 232 (http://ec.europa.eu/public_opinion/flash/fl_232_en.pdf) 
Special  Eurobarometer  Survey  296  on  discrimination  in  the  EU,  to  be  published  in  July  2008  on  the 
following  web  pages:  http://ec.europa.eu/employment_social/fundamental_rights/public/pubst_en.htm 
and http://ec.europa.eu/public_opinion/archives/eb_special_en.htm 
Flash EB 232 (http://ec.europa.eu/public_opinion/flash/fl_232_en.pdf) 
Source: Association of British Insurers (ABI) report on Insuring Older People (March 2007) and Age 
Concern England: Discrimination - Does it matter? (response to European Commission Consultation on 
equality and discrimination, September 2007)  
Source:  Age  Concern  England:  Discrimination  -  Does  it  matter?  (response  to  European  Commission 
Consultation on equality and discrimination, September 2007) 1843 persons were consulted. 
ibid 

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information  about social  services  and the fact  that  the  limited  mobility  of  older  people  may 
not  be  sufficiently  taken  into  account  (services  difficult  to  get  to).  Health  care  is  a  further 
area where allegations of discrimination based on age seem to be backed up by evidence, in 
particular  in  the  area  of  mental  health.  There  appears  to  be  little  development  of  targeted 
services  for  mental  health  and  depression,  perhaps  because  it  is  assumed  that  older  people 
suffer from dementia alone. In addition, according to Age-Concern55, women over 70 are not 
invited for breast-cancer screening, and there is age-based rationing (whether covert or open) 
of certain treatments.  

It is clear that health problems will have a major impact on the individual concerned as well 
as on their immediate families, with diminished employment capacity and even the need for a 
full-time carer (often a female relative who gives up work) or private or public institutional 
care. The financial impacts on the individuals and the State of providing long-term care are 
significant. An overview of the effects and impacts of discrimination on grounds of age is set 
out in the extract from the EPEC study in Annex IV 

4.2.3.  Discrimination based on sexual orientation 

An example: “When I went back she [the doctor] took out my file as such and written across the top of 
the page, in big, bold print, capital letters, was ‘LESBIAN’. So I didn’t feel very good about that … 
you don’t want to be labelled and put into a box and everything else kind of irrelevant. This to me, to 
some degree, showed she didn’t really understand what it might be like coming in to see that”  

Source:  Irish  Equality  Authority  Report  on  'Recognising  LGB  Sexual  Identities  in  Health  Services' 
2008 

Sexual orientation is taken to cover homosexuality and bisexuality. Estimating the percentage 
of homosexual or bisexual people in the overall population is especially difficult for a variety 
of reasons and estimates range from 1.5% to 10%. The EPEC study uses 3% as the basis for 
assessing costs. 

According to the Flash Eurobarometer survey conducted in February 2008, on average 8% % 
of  Europeans  have  or  somebody  from  their  closed-knit  circle  of  family,  friends,  and 
acquaintances has personally experienced discrimination on the basis of sexual orientation56. 
51% of respondents in the EU think that discrimination on the basis of age is widespread in 
their  country57.  Outside  the  labour  market,  31%  of  EU  citizens  believe  that  there  is  very  or 
fairly widespread discrimination on grounds of sexual orientation in the housing area; 26% in 
the educational system; 22% when buying products or services; 14% in the health-care system 
and 13% when buying insurance policies58. 

The  EPEC  study  reported  that  discrimination  on  grounds  of  sexual  orientation  occurs  in  a 
number  of  areas,  but  its  effects  in  education  and  health  may  be  especially  severe. 
ILGA-Europe’s  submission  gave  examples  of  discrimination  in  these  and  other  areas,  in 
particular housing and access to services. 

55 
56 
57 

58 

Source: Age Concern England: Discrimination - Does it matter? 
Flash Eurobarometer 232  
Special Eurobarometer Survey 296 on discrimination in the EU, to be published in July 2008 on the 
following web pages: http://ec.europa.eu/employment_social/fundamental_rights/public/pubst_en.htm 
and http://ec.europa.eu/public_opinion/archives/eb_special_en.htm 
Flash EB 232  

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Equinet’s  members  reported  discrimination  in  social-welfare  provision,  harassment  in 
educational establishments, access to insurance and financial services, recognition for same-
sex  partners  and  the  consequences  of  non-recognition  in  areas  such  as  accommodation, 
taxation  and  social-welfare  provision,  succession  rights  and  State-sector  immigration 
functions. 

There is considerable evidence of discrimination on grounds of sexual orientation in schools, 
primarily involving homophobic bullying. Under the current directives, 'harassment' is a type 
of discrimination and is defined as conduct which has the purpose or effect of violating the 
dignity  of  a  person  and  of  creating  an  intimidating,  hostile,  degrading,  humiliating  or 
offensive  environment.  Bullying  can  therefore  be  seen  as  discrimination,  it  being  a  form  of 
harassment.  A  European-wide  study  found  that  61.2%  of  young  lesbian,  gay  or  bisexual 
(LGB)  people  in  Europe  had  experienced  discrimination  at  school59.  A  UK  study60  gave 
similar figures, and reported that seven out of ten young gay people said that bullying affected 
their school work, and half had skipped school to avoid bullying. A further UK study found 
that  82%  of  teachers  were  aware  of  verbal  homophobic  bullying,  and  26%  were  aware  of 
physical  homophobic  bullying,  and  that  these  incidences  lead  to  absenteeism,  limited 
achievement and a limited desire to stay on at school61. This may have a severe effect on the 
health and education of the individuals concerned, and may limit their future earning capacity.  

Discrimination  on  grounds  of  sexual  orientation  is  often  experienced  in  access  to  housing. 
People  are  denied  housing  where  they  are  perceived  to  be  gay  or  lesbian,  even  if  they  are 
not62. Close to two thirds of LGB people hide their sexual orientation from their neighbours 
and  at  least  half  do  so  even  though  they  live  with  a  same-sex  partner.  Amongst  those 
respondents  who  openly  admitted  their  sexual  orientation,  30%  had  experienced  problems 
connected  with  housing63.  This  discrimination  induced  people  to  live  where  they  might  not 
choose to or to pay more for housing. 

Complaints in the social-services area often seem to be related to questions of recognition of 
same-sex couples and/or non-typical families. For example, it may be very difficult for older 
same-sex couples to live together in residential care homes. 

In  the  health-care  area,  many  LGB  people  fear  stigma  and  prejudice  from  health-care 
providers64. The latter may treat LGB people in a degrading and demeaning manner that may 
even extend to the extreme of physical assaults65. One third of those who participated in the 
2006  investigation  by  the  Swedish  Institute  for  Public  Health  into  homo-  and  bisexuals’ 
health indicated that they had been subject to discrimination in the last 12 months owing to 

59 

60 
61 

62 
63 

64 

65 

2006  Europe-wide  survey  by  ILGA-Europe  in  partnership  with  the  International  Gay  and  Lesbian 
Youth Organisation (IGLYO), corroborated by the "Homophobia in the Educational System” research 
project in Spain (2005) and the Observatório de Educação in Portugal. 
The School Report–the experiences of young gay people in Britain's schools, Stonewall 2007. 
Homophobia,  sexual  orientation  and  schools:  a  review  and  implications  for  action,  Thomas  Coram 
Research Unit, Institute of Education, University of London 2004. 
Swedish Ombudsman on sexual orientation – http://www.homo.se. 
Source:  Report  on  the  situation  of  bisexual  and  homosexual  persons  in  Poland  2005  and  2006 
(Campaign against Homophobia and Lambda Warsaw Association, 2007). 
2005 ILGA-Europe Study: accessing health: the context and challenges for LGBT people in central and 
eastern Europe, available at: http://www.ilga-europe.org/europe/publications. 
Röndahl,  Gerd,  Heteronormativity  in  a  Nursing  Context.  Attitudes  toward  Homosexuality  and 
Experiences of Lesbian and Gay Men, Uppsala universitet, 2005. 

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their  sexual  orientation66.  Hesitancy  in  accessing  health  care  can  lead  to  long-term  health 
problems for LGB people, leading to loss of working capacity, as well as costs related to loss 
of earnings and reduced tax revenue, increased State health-care and social-security costs. 

Discrimination  occurs  in  access  to  goods  and  services,  for  example  where  hotels  refuse  to 
give  a  room  with  a  double  bed  to  LGB  couples.  A  Swedish  study  on  how  businesses  treat 
homosexual and bisexual customers found that 50% of those who participated were doubtful 
about  being  treated  well  as  customers  and  20%  could  give  examples  of  having  been  badly 
treated as customers67. A Stockholm court recently decided that a decision by a dog-breeder 
who refused to sell a dog to a lesbian (because she did not think homosexuals could be trusted 
to treat dogs correctly) was unlawful68. 

When  it  comes  to  buying  insurance  policies,  complaints  from  LGB  people  focus  on  their 
having to pay higher premiums because they are assumed to have higher health risks, rather 
than  on  the  insurance  companies'  looking  at  individual  customers.  In  this  connection,  the 
Association of British Insurers produced a Statement of Best Practice on HIV and Insurance69, 
and does not support exceptions to the principle of non-discrimination on the basis of sexual 
orientation. An overview of the effects and impacts of discrimination on grounds of disability 
is set out in the extract from the EPEC study in Annex IV 

4.2.4.  Discrimination based on religion or belief 

An example: A woman in France was refused a room in a hotel because she was wearing a headscarf: 
the equality body found the hotelier's behaviour to be discriminatory. 

Source : http://www.halde.fr/IMG/alexandrie/2326.PDF 

Figures  on  religious  affiliation  are  not  consistent.  According  to  the  Association  of  Religion 
Data Archives, in 2003, 84% of the EU population considered themselves Christian of various 
denominations, 1.7% Muslim and 0.2% Jewish. However, the European Union's Fundamental 
Rights  Agency  (FRA)  estimates  that  3.5%  of  the  EU  population  are  Muslim,  and  that 
thefigure varies depending on the Member State in question70. According to a Eurobarometer 
survey  of  June  2005,  18%  of  EU  citizens  do  not  believe  there  is  any  sort  of  God  or  life 
force71.  According  to  the  Flash  Eurobarometer  survey  conducted  in  February  2008,  on 
average 11% of Europeans have or somebody from their closed-knit circle of family, friends, 
and acquaintances has personally experienced discrimination on the basis of religion72. 

Assessing  the  nature  and  impact  of  discrimination  on  grounds  of  religion  or  belief  is 
complicated. Discrimination based on religion presents two distinct problems: the first issue, 
which ENAR pointed out, is the potential link between discrimination on grounds of ethnicity 
and  religion,  and  the  second  is  discrimination  based  solely  on  religion  or  belief.  The 

66 

67 

68 
69 
70 
71 
72 

Knöfel  Magnusson,  A:Det  syns  inte  utanpå  men  känns  inuti.OM  HETERONORMER  OCH 
DISKRIMINERING I HÄLSO- OCH SJUKVÅRDEN (Artikelnummer 06-060, HomO 2006). 
Kristina Börjeson: Våningssäng på bröllopsresan - En kartläggning av hur bra svenska företag är på att 
bemöta homo- och bisexuella kunder (RFSL 2007). 
http://www.homo.se/o.o.i.s/3656.  
http://www.abi.org.uk/Display/default.asp?Menu_ID=1140andMenu_All=1,946,1140andChild_ID=656  
For example, an estimated 10% of the population of France and Bulgaria are Muslim. 
Eurobarometer 225 on "social values, science and technology". 
Flash Eurobarometer 232  

EN 

19 

   EN 

 
                                                 
delimitation  of  'religion'  and  'belief'  may  prove  problematic73  where  it  is  closely  linked  to 
ethnicity,  either  because  a  religious  group  is  considered  to  have  an  ethnic  character,  or 
because members of a religion belong predominantly to particular ethnic groups.  

These and other methodological issues caused EPEC to decide against identifying the effects 
on  individuals  and  the  costs  to  society.  Instead  they  focused  on  identifying  types  of 
discrimination  on  the  basis  of  religion  or  belief  where  overlap  with  ethnic  or  racial 
discrimination was minimal. 

Nonetheless,  there  is  a  wide  public  perception  that  discrimination  on  grounds  of  religion  or 
belief is common. 42% of EU citizens consider discrimination on grounds of religion or belief 
is widespread in their country74. When it comes to areas beyond the labour market, a third of 
respondents  in  the  EU  believes  the  same  to  be  true  in  the  education  system  (35%)and  a 
quarter of respondents (27%) thought that discrimination on grounds of religion or belief was 
widespread  when  buying  products  or  services  (e.g.  when  going  shopping  or  to  restaurants, 
discos,  pubs  etc).  14%  thought  the  same  was  true  of  the  health-care  system  and  13% 
considered  such  discrimination  very  or  fairly  widespread  when  it  came  to  buying  insurance 
policies75. 

According to the EPEC study, nearly 5% of complaints lodged with national equality bodies 
concerned  discrimination  outside  the  employment  sphere  on  grounds  of  religion.  Equinet 
reported  discrimination  in  access  to  education,  the  State-sector  policing  and  immigration 
functions and stereotyping. 

In  education,  for  example,  complaints  have  been  made  in  many  Member  States  about  the 
exclusion  of  children  from  educational  institutions  because  they  adhere  to  or  practice  a 
particular  religion.  In  the  area  of  health,  discrimination  may  occur  because  health 
professionals lack knowledge about the way religious beliefs and associated behaviour have 
an impact on an individual's health. In housing, discrimination may take the form of a refusal 
to  rent  or  sell,  the  imposition  of  extra  conditions  to  secure  housing,  and  the  application  of 
discriminatory criteria in the allocation of social housing76. 

4.3. 

Legal context 

While  law  itself  cannot  stop  discrimination  occurring,  it  provides  effective  remedies  for 
victims,  and  has  a  preventative  effect.  The  EU  has  the  legal  power  to  act  on  discrimination 
under Article 13(1) of the EC Treaty. Under this article, unanimity in the Council is required, 
with the consultation of the Parliament. This will not change under the Lisbon Treaty.  

Three  Directives  have  been  adopted  under  Article 13(1) EC  to  prohibit  discrimination  on 
grounds  of  sex,  racial  or  ethnic  origin,  religion  or  belief,  disability,  age  and  sexual 
orientation77.  

73 

74 
75 
76 

77 

For example, in the UK some religious groups (Sikhs, Jews) are regarded as ethnic groups but others, 
such as Muslims, are not 
Special Eurobarometer Survey 296 on discrimination in the EU  
Flash EB 232 
See also 'European Islam: challenges for Public Policy and Society' Centre for European Policy Studies, 
Brussels 2007, especially Chapter 6: Muslims and Discrimination' by Tufyal Choudhury 
Directives  2000/43/EC  (racial  or  ethnic  origin),  2000/78/EC  (religion  or  belief,  disability,  age  and 
sexual orientation in employment and occupation) and 2004/113/EC (sex, in the access to or supply of 
goods and services) 

EN 

20 

   EN 

                                                 
The Commission proposed the first two directives in 1999 to give practical effect to the new 
Article  13,  following  the  entry  into  force  of  the  Amsterdam  Treaty  in  May  1999.  In  an 
accompanying  Communication78  the  Commission  explained  that  the  aim  was  to  achieve 
maximum  impact  in  the  area  of  employment,  where  discrimination  was  very  evident,  and 
where  it  was  very  damaging  to  individuals'  chances  of  success  in  society.  The  second 
proposal, on more extensive protection against discrimination based on race or ethnic origin 
reflected the consensus among the Member States to act beyond the employment sphere for 
race.  

As a result, race discrimination is the area where protection under EC law is greatest, covering 
not only employment but also social protection, education and access to goods and services, 
including  accommodation,  available  to  the  public.  There  is  no  equivalent  protection  at  EU 
level  from  discrimination  on  grounds  of  religion  or  belief,  disability,  age  and  sexual 
orientation other than in employment. However some Member States have gone further than 
EC  law  in  prohibiting  discrimination  on  all  grounds  in  all  non-employment  areas  (see 
Annex III for more details) and some others have plans to do so. 

As to sex discrimination, the Article 13 legal framework in this area is not as comprehensive 
as  for  race.  In  the  related  impact  assessment  in  2003  accompanying  the  Commission 
proposal,79the Commission concluded that the evidence relating to sex discrimination in fields 
such as education was less clear-cut. The Directive provides that the Commission will report 
on  its  implementation  no  later  than  December  2009  with,  where  appropriate,  proposals  to 
modify it. 

The transposition into national law of Directives 2000/43/EC and 2000/78/EC, dealing for the 
first time in EC law with discrimination on grounds of race, religion or belief, disability, age, 
and sexual orientation, has been very effective in improving the level of legal protection from 
discrimination in a large number of Member States, many of which did not previously have 
comprehensive non-discrimination legislation.  

The Commission has had to take proceedings against some Member States to ensure that their 
national laws accurately reflect the content of the directives. But, as important as they are, the 
issues  concerned  are  largely  technical  and  do  not  put  in  doubt  the  effectiveness  of  the 
Directives. Indeed, the Commission regularly receives evidence (from citizens, legal experts 
and equality bodies) which shows that national law transposing those two EC directives has a 
positive, tangible effect in combating discrimination in the Member States. As these directives 
form  part  of  the  acquis,  acceding  countries  were  required  to  adapt  their  legislation  and  this 
had  an  impact  on  the  development  of  non-discrimination  policies  in  many  of  the  Member 
States which joined in 2004 and 2007 and their alignment with the EU approach.  

In  addition  to  legal  protection,  EU-level  action  has  resulted  in  greater  assistance  to  victims 
through  the  establishment  of  'equality  bodies':  20 Member  States  had  no  such  body 
previously. Directive 2000/43/EC requires the Member States to establish a body (or bodies) 
to  promote  equal  treatment  of  all  persons  without  discrimination  on  grounds  of  racial  or 
ethnic origin. An equivalent obligation, in terms of gender equality, both in the employment 
sphere and beyond, is set out in Directives 2002/73/EC and 2004/113/EC.  

78 
79 

COM(1999)564 
SEC(2003) 1213 final. 

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21 

   EN 

                                                 
These equality bodies have proved to be drivers in combating and preventing discrimination, 
providing  victims  with  a  source  of  advice  and  help,  and  contributing  greatly  to  awareness-
raising. They play a vital role in facilitating access to justice80. However, no such obligation 
to set up an equality body exists under Directive 2000/78/EC, so victims of discrimination in 
the labour market on grounds of age, disability, religion or belief and sexual orientation may 
have no equality body to turn to. 

The EC legal framework is thus, inconsistent, both in the material scope, and in terms of 
the mandate of equality bodies.  

The  framework  is  not  adapted,  either,  to  deal  with  multiple  discrimination  -  that  is, 
discrimination  on  more  than  one  or  a  combination  of  the  Article 13 EC  grounds  -  is  not 
explicitly  prohibited  under  European  or  national  legislation.  Although  it  is  now  widely 
recognised  as  a  serious  problem81,  little  has  been  done  so  far  to  lay  down  coherent  rules  or 
specific  strategies  to  address  it.  The  legal  frameworks  in  the  United  States  of  America, 
Canada and Australia are more advanced in dealing with multiple discrimination, though three 
EU Member States82 have included specific provisions on ways of handling it in their national 
laws. In the absence of such provisions, legal counsel of victims of discrimination must apply 
a pragmatic and tactical approach by picking the 'strongest' grounds, e.g. race or gender, even 
where  the  two  are  inextricably  linked83.  Dealing  with  discrimination  on  multiple  grounds 
would  be  of  special  benefit  to  women,  since  most  cases  involve  a  combination  of 
discrimination  based  on  gender  and  on  other  grounds.  According  to  a  Flash  Eurobarometer 
survey  conducted  in  February  200884,  discrimination  based  on  a  combination  of  factors 
(religion  or  belief,  disability,  age,  sexual  orientation,  gender,  and  race  or  ethnic  origin)  has 
been personally experienced by a relatively high proportion of EU citizens. At 16%, this is the 
second highest percentage (following “age”) of the grounds for discrimination covered in the 
survey. In terms of specific areas outside the labour market, over a third (36%) of EU citizens 
believe that multiple discrimination is very or fairly widespread in the area of housing.  

Beyond  the  EC  Treaty,  mention  should  be  made  of  Article  21  of  the  EU  Charter  of 
Fundamental  Rights  which  provides  that  any  discrimination  based  on  any  ground  such  as 
sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political 
or  any  other  opinion,  membership  of  a  national  minority,  property,  birth,  disability,  age  or 
sexual orientation shall be prohibited. Furthermore, Article 26 states that the Union recognises 
and respects the right of persons with disabilities to benefit from measures designed to ensure 
their  independence,  social  and  occupational  integration  and  participation  in  the  life  of  the 
community.  As  such,  the  EU  Charter,  and  in  particular  its  Article  21,  does  not  provide  the 
European Union the competence to enact legislation in its spheres of competence. Rather, its 
application is limited to the EU institutions when proposing and adopting acts but also to the 
Member States when enacting or implementing EU law. However, despite some decisions of 

80 

81 

82 

83 
84 

See report “Catalysts for Change? Equality bodies according to Directive 2000/43/EC”, by Legal 
Experts’ Group available at: 
http://ec.europa.eu/employment_social/fundamental_rights/pdf/legnet/06catalyst_en.pdf 
See the Report referred to in footnote 15. See also Equinet opinion on European Commission Proposals 
for new initiatives designed to prevent and combat discrimination outside the Labour Market, January 
2008 
Austria,  Germany  and  Romania.  Spanish  law  does  refer  to  multiple  discrimination  but  does  not  give 
guidance on how to deal with cases. 
Cf Bahl v The Law Society, UK [2004]quoted ibid. 
Flash EB 232  

EN 

22 

   EN 

                                                 
the European Court of Justice or Tribunal of First Instance, for the time being the Charter has 
no legal force.  

Finally, the UN Convention on the Rights of Persons with Disabilities entered into force on 
3 May 2008 (See Annex V). This is the first human rights convention to which the European 
Community  is  a  party  and  it  has  already  been  signed  by  the  Community  and  26  Member 
States.  The  Convention  adopts  a  broad  definition  of  persons  with  disabilities  and  reaffirms 
that  all  persons  with  all  types  of  disabilities  must  enjoy  all  human  rights  and  fundamental 
freedoms.  It  clarifies  and  qualifies  how  all  categories  of  rights  apply  to  persons  with 
disabilities  and  identifies  areas  where  adaptations  have  to  be  made  for  persons  with 
disabilities to effectively exercise their rights and areas where their rights have been violated, 
and where protection of rights must be reinforced.  

The Convention sets out the general principle of non-discrimination and equality whereby it 
obliges State parties to ’prohibit all discrimination on the basis of disability and guarantee to 
persons  with  disabilities  equal  and  effective  legal  protection  against  discrimination  on  all 
grounds  and  to  take  all  appropriate  measures  to  ensure  that  reasonable  accommodation  is 
provided’  (Article  5).  In  addition,  it  poses  the  principle  of  non-discrimination  in  the 
enjoyment  of  a  number  of  human  rights  such  as  right  to  employment  (Article  27),  right  to 
education  (Article  24),  accessibility  (Article  9),  liberty  of  movement  (Article  18),  right  to 
health (Article 25), participation to cultural, recreation, leisure and sport (Article 30).  

In  accordance  with  the  General  obligations  (Article  4  of  the  Convention),  States  parties 
undertake  to  adopt  all  appropriate  legislative,  administrative  and  other  measures  for  the 
implementation of the rights recognised in the Convention; to take all appropriate measures, 
including  legislation,  to  modify  or  abolish  existing  laws,  regulations,  customs  and  practices 
that  constitute  discrimination  against  persons  with  disabilities;  and  to  take  all  appropriate 
measures to eliminate discrimination on the basis of disability by any person, organization or 
private enterprise. 

4.4. 

Likely  development  of  the  situation  in  the  absence  of  EU  action  (baseline 
scenario) 

The  way  the  situation  is  likely  to  develop,  all  other  things  being  equal  and  unless  new 
initiatives are taken, is the subject of this section.  

The current EC directives would continue to apply. Some but not all Member States would 
have  detailed  national  legal  provisions  protecting  people  who  experience  discrimination 
outside  the  labour  market,  others  have  much  more  general  constitutional  provisions.  While 
new  measures  may  be  adopted  at  national  level,  experience  based  on  the  existing  EC 
Directives  shows  that  in  the  absence  of  an  EU  obligation,  major  increases  in  the  level  of 
protection against discrimination seem unlikely.  

The  impact  of  the  UN  Convention  within  the  EU  will  largely  depend  on  the  pace  and  the 
comprehensiveness of Member State ratification and implementation through the adoption of 
national law. It covers a broad array of themes relevant to the rights and the quality of life of 
people with disabilities, some of which overlap with areas covered by the EC Treaty (such as 
employment, education or health) while others clearly fall outside (such as family rights) As 
with other public international law treaties, the Member States choose how and when to ratify, 
and  can  put  reservations  on  certain  parts  of  the  Convention  when  ratifying.  While  the 
principle of non-discrimination contained in the UN Convention is of immediate application, 
the  economic,  social  and  cultural  rights  set  out  in  the  Convention  are  to  be  implemented 

EN 

23 

   EN 

progressively  depending  on  available  resources.85  The  UN  Convention  on  the  rights  of 
persons  with  disabilities  is  part  of  the  baseline  scenario,  as  the  Member  States  will  have  to 
implement it whatever action is taken at EU level to tackle discrimination based on disability. 
Member  States  would  implement  the  UN  Convention  through  adopting  new  legislation  or 
amending  existing  national  legislation.  An  EC  Directive  can  therefore  be  seen  as  a  way  of 
facilitating implementation of parts of the Convention.  

Discrimination is likely to continue unchecked and to result in the continuing social exclusion 
of  groups  at  risk  of  discrimination,  with  no  impact  on  such  groups'  under-achievement  in 
education or reduced employment opportunities. 

If  no  action  is  taken  at  EU  level,  there  will  still  be  untapped  potential  for  businesses  to 
develop markets for services in other countries.  Providers of goods and services are faced 
with  a  complex  mosaic  of  differing  national  provisions  on  discrimination  when  operating 
across borders. 63% of the businesses consulted via the European Business Test Panel thought 
it mattered that there were different levels of protection existing between the Member States 
from  discrimination  in  access  to  goods,  services  and  housing,  and  26%  thought  that  a 
difference  in  the  level  of  protection  from  discrimination  would  affect  their  ability  to  do 
business in another Member State.  

Differing  levels  of  protection  from  discrimination  continue  to  influence  individuals' 
decisions to make use of their rights of free movement, for instance to travel, work or study in 
another Member State. 69% of those who replied to the public consultation said that differing 
levels  of  protection  against  discrimination  would  influence  their  decisions  to  go  to  another 
Member  State.  Examples,  some  based  on  the  evidence  submitted  during  the  consultation 
exercise,  and  some  more  anecdotal,  can  be  found  in  a  number  of  areas.  Difficulties 
experienced by older people in obtaining travel insurance or car hire can make it increasingly 
difficult  for  them  to  go  on  holiday  abroad.  A  blind  person  who  travels  to  another  Member 
State and finds that taxis in the host State are not obliged to accept guide dogs, will have great 
difficulty getting to his/her destination..  

Should the Lisbon Treaty be ratified, the Charter of Fundamental Rights, including Articles 
21  and  26,  will  be  an  integral  part  of  the  Treaty  and  will  be  applicable  not  only  to  the 
institutions  when  proposing  and  adopting  acts  but  also  to  the  Member  States  when 
implementing  EU  law  (with  the  exception  of  the  United  Kingdom  and  Poland).  Yet,  unlike 
Article 13 of the Treaty, the Charter of Fundamental Rights does not confer a competence to 
the European Union to act to combat discrimination on the grounds mentioned in Article 21. 
Consequently, such a provision could only be invoked by citizens to the extent that the facts 
disputed  entail  an  element  of  EU  dimension.  For  example,  citizens  could  invoke  Article  21 
before a national court to contest any difference of treatment based on age, for example, in the 
access to a service in another Member State, to the extent that such service is provided by a 
public  entity.  This  being  said,  Article  21  will  not  protect  citizens  against  discrimination  in 
accessing goods and services provided by domestic private economic operators.  

The promotion of non-legal measures to combat discrimination, such as raising awareness of 
discrimination  and  training  and  exchange  of  good  practice  under  the  Progress  programme, 
would continue86. However, these are primarily linked to the current EU legal framework, and 

85 
86 

See Article 4 paragraph 2 
Total  budget  of  €743.29  million  for 2007-13,  23%  of  which  is  earmarked  for  non-discrimination  and 
diversity. 

EN 

24 

   EN 

                                                 
while  activities  dealing  with  discrimination  outside  the  labour  market  on  grounds  of  age, 
disability,  religion  or  belief  or  sexual  orientation  could  be  funded,  this  might  be  of  limited 
practical value in the absence of new rights. 

EN 

25 

   EN 

If no action is taken at EU level: 

Baseline scenario 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

Differences  will  remain  in  the  level  of  protection  provided  at  EU  and  Member-State 
level  from  discrimination  on  grounds  of  age,  disability,  religion  or  belief  and  sexual 
orientation,  with  some  but  not  all  of  the  Member  States'  legal  systems  protecting 
individuals from discrimination in these areas and granting effective legal remedies. 

As  regards  discrimination  on  grounds  of  disability,  these  differences  are  likely  to  be 
exacerbated  by  the  varying  procedures  and  pace  of  national  processes  for  the 
ratification and implementation of the UN Convention on the Rights of Persons with 
Disabilities.  

Discrimination against individuals on grounds of age, disability, religion or belief and 
sexual  orientation  will  continue  to  occur,  creating  distress  for  the  individuals 
concerned and unnecessary costs and burdens for individuals, businesses and society 
as a whole. 

Differences in the Member States' legislation continue to inhibit cross-border mobility 
and the provision of services. 

The  Charter  of  Fundamental  Rights  will  not  substantially  increase  the  rights  of 
individuals to challenge discrimination. 

EU-funded non-discrimination measures will continue, such as awareness-raising and 
information campaigns to tackle prejudice and stereotyping. 

5. 

OBJECTIVES 

The  evidence  shows  that  people  face  discrimination  on  grounds  of  age,  religion,  sexual 
orientation and disabilities in a variety of non-employment contexts.  

As a consequence, the policy response needs to meet certain overall objectives: 

1. 

2. 

3. 

To  increase  protection  from  discrimination  on  grounds  of  age,  disability,  sexual 
orientation and religion or belief; 

To  ensure  legal  certainty  for  economic  operators  and  potential  victims  across  the 
Member States in terms of the extent of protection against discrimination outside the 
labour market on grounds of age, disability, sexual orientation and religion or belief; 

To enhance social inclusion and promote the full participation of all groups in society 
and the economy. 

In order to meet these overall objectives, specific objectives have been identified. 

Specific objectives 

1. 

Ensure  effective  remedies  are  available  to  victims  of  discrimination  on  grounds  of 
age, disability, sexual orientation and religion or belief; 

EN 

26 

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2. 

3. 

4. 

Ensure effective protection is provided from multiple discrimination; 

Ensure that national equality bodies can contribute to combating discrimination and 
providing  effective  assistance  to  victims  of  discrimination  on  grounds  of  age, 
disability, sexual orientation and religion or belief; 

Ensure  the  public,  service  providers  and  other  economic  operators  are  informed  of 
their rights and obligations regarding equality and non-discrimination. 

These objectives are consistent with the horizontal objectives of the European Union, and in 
particular with the Lisbon Strategy for Growth and Jobs and the objectives of the EU Social 
Protection and Social Inclusion  Process. They will help to further the fundamental rights of 
citizens,  will  reduce  discrimination  and  will  contribute  to  the  functioning  of  the  internal 
market by helping to increase mobility and cross-border trade in goods and services. 

6. 

POLICY OPTIONS 

This  section  outlines  the  policy  options  which  have  been  considered  for  addressing  the 
problems  and  meeting  the  objectives  identified  above.  It  screens  the  options  and  selects  a 
number for further examination. 

6.1. 

No new action at EU level 

Not  taking  new  EU  action  does  not  necessarily  mean  there  is  no  change.  The  existing 
Directives  lay  down  minimum  prescriptions,  so  the  Member  States  are  free  to  adopt  or 
maintain provisions affording greater protection and some Member States could, on their own 
initiative, step up the level of protection provided nationally. The UN Convention would be 
implemented.  Activities  currently  funded  to  combat  discrimination  and  fight  stereotypes 
would continue. 

6.2. 

Non-legally binding measures 

Under the circumstances described, a certain number of legally non-binding measures could 
be  contemplated,  either  alone  or  in  combination  with  legally  binding  measures,  to  step  up 
protection  from  discrimination,  increase  awareness  of  rights  and  obligations  among  the 
persons concerned, encourage the exchange of good practice and lay down sectoral guidelines 
and codes of conduct. Such measures could include the following: 

•  Commission Recommendation 

The Council can adopt a recommendation only if the Treaty legal base expressly provides for 
this, which is not the case with Article 13 EC. The Commission however has a general power 
to issue recommendations under Article 211 EC. 

A  general  recommendation  could  be  addressed  to  the  Member  States  to  step  up  protection 
against  discrimination  outside  the  labour  market  on  grounds  of  age,  disability,  sexual 
orientation and religion or belief, if necessary through new legislation – bearing in mind that 
some of them already have comprehensive legislation. The level of protection sought should 
be  as  extensive  as  that  afforded  in  the  case  of  discrimination  on  grounds  of  race  or  ethnic 
origin.  The  recommendation  would  request  the  Member  States  to  prohibit  multiple 
discrimination  and  provide  a  remedy  for  victims.  It  would  also  call  for  the  mandate  of  all 

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national  equality  bodies  to  be  broadened  to  cover  discrimination  on  and  outside  the  labour 
market on grounds of age, disability, sexual orientation and religion or belief. 

Should  a  Directive  be  proposed,  it  could  be  accompanied  by  a  more  limited  and  specific 
recommendation on multiple discrimination and on the powers of equality bodies beyond the 
scope of the proposed directive. This would avoid reopening the existing Directives. 

•  Self-regulation  

Self-regulation is defined as 'the creation of common guidelines by economic operators and/ 
other stakeholders' in the Single Market Review87, which regards it as a valuable complement 
or alternative to legislation. As the Review points out, measures set this way may be quicker 
to  adopt  and  may  lead  to  more  acceptable  results  for  stakeholders,  who  produce  the  rules 
themselves and may even use them as a 'marketing tool'. This could be an appropriate way to 
tackle discrimination in insurance and banking services and could lead to agreement on a code 
of conduct.  

•  Stronger focus on non-discrimination under Open Methods of Coordination (OMCs) 

The  objective  would  be  to  exploit  the  full  potential  of  existing  OMCs,  such  as  for  the 
European  Strategy  for  Growth  and  Jobs  or  for  social  protection  and  social  inclusion,  rather 
than introducing a new specific OMC. The Member States would agree to identify common 
goals  and  promote  their  most  effective  policies  in  the  field  of  non-discrimination,  with  the 
aim of learning from each others’ experiences. They would report annually on developments 
in eliminating discrimination on the various grounds and the Commission would comment on 
each Member State's progress.  

•  Dissemination of information and exchange of good practice 

Different measures could be considered, such as setting up a committee of high-level national 
civil servants, to assist the Commission in monitoring national non-discrimination policies, to 
exchange  good  practice  between  the  Member  States  and  the  Commission,  and  to  report 
annually to the Council on progress on non-discrimination, following  broad discussion with 
all stakeholders at the annual Equality Summit. In addition, networks such as Equinet could 
continue to be funded.  

•  Awareness-raising and capacity-building 

Existing  activities,  such  as  awareness-raising,  capacity-building  for  NGOs  and  combating 
stereotypes, could be extended beyond the scope of the current Directives. For example, the 
training of judges, lawyers and NGOs could be extended to cover non-discrimination outside 
employment. Such flanking measures have accompanied the existing Directives. 

6.3. 

Legally binding measures 

In  accordance  with  Article 249 EC,  recommendations  have  no  binding  force  (and  are 
therefore considered in Subsection 6.2 above) while regulations, directives and decisions do. 
To  date,  all  legal  texts  based  on  Article 13(1) EC  are  directives  but  that  Article  does  not 
impose a specific type of legal act.  

87 

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A decision, which is binding on those to whom it is addressed, could also be considered. A 
decision  could  address  issues  in  certain  regulated  sectors  where  it  is  possible  to  identify  all 
operators, such as insurance and financial services. 

A regulation is binding in its entirety and directly applicable in all Member States, without 
any need for transposing legislation. The Member States must follow the exact text, so they 
cannot go beyond its minimum requirements. 

A  directive  sets  down  a  minimum  framework  and  gives  the  Member  States  flexibility  in 
adapting the principles established to their domestic legal order.  

6.4. 

Preliminary screening of options  

The  initial  screening  of  the  possible  measures  has  taken  account  of  subsidiarity  (the  Union 
does not take action unless it is more effective than action taken at national, regional or local 
level),  proportionality  (the  extent  of  the  action  must  be  in  keeping  with  the  aim  pursued), 
efficiency, effectiveness and consistency (with fundamental principles and other Commission 
policies). 

6.4.1.  Legally non-binding measures 

Legally  non-binding  instruments  could  be  effective  in  increasing  the  level  of  protection 
against  discrimination  generally  as  well  as  in  specific  commercial  sectors  or  areas.  As  the 
Single Market Review pointed out, better results can be achieved by using non-binding tools 
as a supplement or alternative to legislation. 

As  far  as  achieving  the  objectives  set  out  in  Section 5  is  concerned,  an  OMC  is  based  on 
mutual  learning  and  is  not  a  tool  for  ensuring equal  treatment.  By  its very  nature  it,  cannot 
guarantee  a  clear  legal  framework  prohibiting  discrimination.  Nonetheless,  the  EPEC  study 
tackling  certain  problems,  such  as 
considers 
discrimination/bullying  in  education,  and  this  could  be  included  in  other  Commission 
initiatives. The reporting obligations it entails mean it will not be without administrative costs 
for the Member States and the Commission. In terms of subsidiarity, it allows each Member 
State to prioritise action where it sees fit, but does not put in place any EU minimum level. 

it  a  potentially  useful 

tool 

for 

Dissemination of information could be achieved through exchanges within a high-level group 
of  Member  State  representatives.  This  has  already  been  used,  for  example  in  the  area  of 
disability, and can provide a useful tool for promoting equality collectively and working on 
policies,  as  opposed  to  creating  individual  rights.  There  is  no  guarantee  that  the  level  of 
protection  from  discrimination  will  increase,  and  certainly  not  in  any  coherent  or  uniform 
manner. In terms of subsidiarity, it does not affect decision-making. (It should be noted that in 
parallel to the proposal for a new Directive, the Commission has decided to establish of a non-
discrimination governmental expert group to strengthen the exchange of information on non-
discrimination and equal opportunities.) 

Self-regulation has been used successfully by the Commission in a variety of areas in the past, 
for  example  through  codes  of  conduct  in  taxation  and  banking.  Self-regulation  could  be  an 
effective way of achieving the objectives identified in a specific sector, such as insurance and 
banking services. As section 4 above shows, this is an area which attracts many complaints of 
discrimination. This approach should be given further consideration, possibly in conjunction 
with a directive.  

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A  general  recommendation  would  lay  down  a  clear  framework  for  the  Member  States  on 
ways of stepping up protection from discrimination, for example by adopting new legislation, 
as  well  as  covering  multiple  discrimination  and  the  powers  of  equality  bodies.  A  specific 
recommendation could also cover multiple discrimination and the powers of equality bodies. 
A recommendation, whether general or specific, could be a good way to increase protection 
against discrimination either as an alternative to new legislation, or in addition to it (to deal 
with  points  that  would  or  could  be  difficult  to  cover  in  legislation).  This  option  should  be 
given further consideration, both separately and in conjunction with a directive. 

In conclusion, the best options for further analysis among legally non-binding measures are a 
recommendation  (general  and/or  specific)  and  self  regulation.  These  could  be  adopted  in 
conjunction with a directive or separately. Exchanges of information and good practice, and 
increased capacity building and awareness-raising will be stepped up in any event in the next 
phase of the EU's non-discrimination policy. 

6.4.2.  Legally binding measures 

A legally binding  instrument creates  a  clear  framework  of  rights  and  obligations, and is the 
only  way  to  ensure  all  victims  of  discrimination  in  the  EU  have  an  enforceable  remedy.  It 
clearly  increases  the  general  level  of  protection  from  discrimination.  Whilst  it  cannot,  of 
itself,  stop  discrimination,  it  can  have  a  preventative  effect  and  creates  a  clear,  transparent 
framework. 

A decision prohibiting discrimination would not achieve the above results because decisions 
are not of general application. A regulation would impose uniform obligations: using such a 
heavy instrument to achieve the objectives set would be disproportionate and contrary to the 
principle of subsidiarity. It would also create unnecessary difficulties for Member States that 
already have legal protection going beyond the EC directives.  

As to directives, the working hypothesis is that any new legislation: 

would  build  on  the  approach  and  concepts  of  the  existing  article  13  directives  and  notably 
2000/43/EC and 2000/78/EC, for examples the definitions of discrimination, the obligation to 
provide reasonable accommodation, as well as procedural rules; 

would only prohibit discrimination in the areas that fall within EC competence, so would not 
affect  the  organisation  or  content  of  education  (e.g.  special  needs  education),  questions  of 
marital status (e.g. same sex partnerships/marriages) or family law (e.g. adoption) or national 
rules on the secular nature of the State or its institutions; 

would lay down minimum prescriptions, so that Member States are free to adopt or maintain 
provisions  affording  greater  protection  and  some  Member  States  could,  on  their  own 
initiative, step up the level of protection provided nationally; 

would  not  affect  national  constitutional  provisions  requiring  equal  treatment  or  prohibiting 
discrimination;  

would not deal with protection from sex discrimination. The deadline for the transposition of 
Council Directive 2004/113/EC has only just passed and the Commission will report in 2010 
on its implementation and, if appropriate, propose modifications. The Commission will in any 

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event  press  ahead  with  its  efforts  to  achieve  progress  towards  gender  equality  through  the 
comprehensive programme set out in the Roadmap for Equality 2006-201088. 

Four different possibilities could be considered: 

•  a series of directives, delineated by ground  

Specific  directives,  proposed  either  concurrently  or  consecutively,  could  allow  the 
specificities  of  each  type  of  discrimination  to  be  addressed.  In  terms  of  legal  efficiency, 
however,  such  an  approach  is  likely  to  place  a  burden  on  the  decision-making  process  and 
produce an uneven outcome with respect to the grounds covered. Having a series of different 
instruments adopted at different times could make legal transposition complicated but on the 
other hand many of the concepts in each piece of legislation would be similar if not identical, 
as well as being based upon the existing Article 13 directives. 

•  a series of directives, delineated by field  

•  Specific directives could cover discrimination on all four grounds in specific fields, such as 
access to goods and services, social protection, education etc. Whilst this would allow the 
particularities of each area covered to be taken into account, it too implies a rather complex 
and cumbersome decision-making and transposition process. 

•  a directive replacing and consolidating the existing Article 13 directives 

A new directive could replace and recast the texts currently in force and extend the scope of 
protection  from  discrimination  outside  employment  on  grounds  of  age,  sexual  orientation, 
disability and religion or belief. This approach would have the advantage of legal clarity and 
would  be  in  line  with  the  better  regulation  agenda.  It  would  also  enable  issues  of  multiple 
discrimination  and  the  competence  of  equality  bodies  to  be  addressed.  But  re-opening  a 
general  discussion  on  the  directives  agreed  relatively  recently  runs  the  risk  of  creating 
unnecessary  legal  and  political  uncertainty.  The  current  directives  have  already  transposed 
into  national  law  and  the  Commission  is  discussing  aspects  of  the  transposition  with  some 
Member States. To withdraw, in effect, the current texts and replace them with a directive that 
would not have to be transposed for several years would leave a very unclear legal situation, 
for  Member  States,  economic  operators  and  citizens  in  the  interim  period.  This  therefore 
seems neither an advisable nor an effective approach. 

•  a directive to supplement the current legal framework 

The last possibility is a multi-ground directive prohibiting discrimination outside employment 
on grounds of age, sexual orientation, disability and religion or belief. Such a directive would 
address the main inconsistencies identified in the EC legal framework and would largely end 
the perception that there is a hierarchy of grounds. It could include common rules as well as 
specific  provisions  covering  discrimination  on  different  grounds  or  certain  parts  of  the 
material scope. It could make provision for extra time for transposition of certain provisions 
in  the  case  of  discrimination  on  certain  grounds  that  are  seen  to  be  more  difficult  or  more 
costly to tackle.  

Such a directive would be a first step towards tackling multiple discrimination and extending 
the  powers  of  the  equality  bodies,  but  a  comprehensive  approach  would  call  for  a  limited 

88 

COM(2006) 92 final. 

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revision  of  the  existing  directives.  A  more  gradual  way  to  deal  with  these  two  issues  could 
involve adopting a specific recommendation. 

In  conclusion,  a  multiground  directive  supplementing  the  current  legal  framework  and 
prohibiting  discrimination  outside  employment  on  grounds  of  age,  sexual  orientation, 
disability and religion or belief would be an effective way of increasing the level of protection 
against discrimination at EU level. However, individual directives covering discrimination on 
specific grounds could also be considered, if a step-by-step approach is preferred. 

A  directive  could  be  combined  with  a  specific  recommendation  covering  multiple 
discrimination  and  the  powers  of  the  equality  bodies,  or  a  more  general  one  covering 
discrimination on other grounds. These options should be selected for further analysis.  

7. 

ANALYSIS OF IMPACTS 

After  a  preliminary  screening  of  possible  policy  options,  six  have  been  selected  for  further 
analysis: 

•  no new action at EU level 

•  self-regulation dealing with insurance and/or banking services 

•  a  recommendation  dealing  specifically  with  the  competences  of  the  equality  bodies  and 

multiple discrimination 

•  a general recommendation 

•  single ground directive(s) 

•  a multi-ground directive 

Each option has been assessed for its economic, social and environmental impacts and on the 
extent  to  which  it  meets  the  objectives  defined  in  Section  5  as  well  as  to  broader  EU 
objectives and, finally, its cost-effectiveness and the impact on the baseline scenario. For the 
sake  of  simplicity  and  clarity,  the  options  have  been  analysed  separately,  but  this  does  not 
mean they cannot or should not be used in combination. 

Regardless of the option(s) retained, the Progress Programme, which will run until 2013, will 
continue  to  fund  activities  under  the  Commission's  non-discrimination  policy.  Relevant 
activities include training for NGOs, service-providers and networks (for example the Equinet 
network  of  the  national  equality  bodies),  and  awareness-raising  and  combating  stereotypes. 
This  would  be  a  good  way  to  increase  awareness  of  rights  (among  potential  victims  of 
discrimination) and of obligations (among service-providers and sellers of goods) and should 
constitute a flanking measure, whatever the approach is decided. 

Three observations apply to all options:  

–  Member States will in any event need to implement the UN Convention on the Rights of 
Persons  with  Disabilities.  This  is  likely  to  increase  protection  from  discrimination  on 
grounds of disability. Also, the costs linked to the obligation to provide accessibility and 

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make reasonable accommodation, as explained under Option 5, will occur in any event in 
the implementation of the Convention.  

–  As  set  out  in  Annex  III,  nearly  all  Member  States  have  national  legislation  which  goes 
beyond  the  existing  non-discrimination  framework  at  EU  level  to  some  degree.  The 
majority of Member States will therefore not need to implement major legislative changes 
to implement new rules at EU level. 

–  No impact outside the EU has been identified under any of the options.  

Finally  it  is  important  to  stress  that  it  is  difficult  to  provide  reliable  and  comprehensive 
information on the costs of discrimination or of the measures to combat it. The EPEC study 
gives  figures  on  the  possible  costs  to  society  if  discrimination  results  in  lower  educational 
attainment, lower employment rates, less taxes paid, greater health care costs etc. It also tries 
to assess the costs to individuals, for example of lower wages, higher accommodation costs, 
higher  transport  costs  etc.  It  should  be  borne  in  mind  that  other  consequences  of 
discrimination, such as stigmatisation, isolation and loss of self esteem, while impossible to 
quantify, can have a devastating effect on the individuals concerned.  

As to the costs associated with measures to combat discrimination, these are mainly related to 
disability-related  discrimination.  Measures  will  need  to  be  taken  by  Member  States  in  any 
event  in  respect  of  the  UN  Convention  and  notably  its  provisions  on  reasonable 
accommodation. By definition reasonable accommodation is subject to a test that it does not 
represent a disproportionate burden, and they cannot be measured in advance with any degree 
of accuracy. 

7.1. 

Option 1: No new action at EU level 

This option means that the current situation would continue to apply. The level of protection 
from  discrimination  outside  the  labour  market would  continue  to  be  determined  by  national 
legislation in each Member State. In some Member States, legislation would develop and the 
current level of protection from discrimination could be increased. However, in the absence of 
an  approach  agreed  at  EU  level,  this  cannot  be  guaranteed.  Past  experience  tells  us  that  the 
current level of protection from discrimination in most Member States has been the result of 
transposing the EC non-discrimination directives. 

As to subsidiarity, this option leaves it to Member States whether to take any new action to 
protect  people  from  discrimination  outside  the  labour  market  but  it  would  not  increase  the 
level of protection from discrimination in a coherent way.  

Economic impact 

Three  types  of  economic  costs—to  individuals,  to  providers  of  goods  and  services,  and  to 
society—have  been  identified.  Some  of  these  costs  are  quantifiable  while  others  are  very 
difficult to estimate. 

In terms of direct and indirect costs to individuals, the instances of discrimination outlined in 
the Section 4 and in Annex IV are likely to continue. For example, some consumers will not 
be able to benefit from the internal market as their ability to travel in Europe is reduced by 
difficulties in obtaining certain insurance products (e.g. travel insurance and motor insurance 
for older people). 

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The  EPEC  study  estimates  that  if  LGB  people  drop  out  of  school  early  because  of 
discrimination  on  grounds  of  sexual  orientation,  this  will  reduce  their  earning  capacity  by 
14.3%,  an  annual  loss  of  €452  million.  EPEC  estimates  that  discrimination  on  grounds  of 
sexual orientation in housing means that LGB people pay on average 10% more than the rest 
of the population, amounting to €4.1 billion extra for the LGB community.  

Without  knowing  what  sort  of  legal  obligations  might  apply  to  service  providers  under 
national  law,  it  is  impossible  to  estimate  economic  costs.  If  under  national  law  a  Member 
State required providers of goods and services to make reasonable accommodation, this would 
impose a cost, as set out under Option 5 below. Correspondingly, increasing access to goods 
and services for groups currently discriminated against could have positive financial effects. 

In terms of the economic costs to society, the consequences of failing systematically to tackle 
discrimination that has been shown to exist in various areas should be taken into account. For 
example,  people  will  continue  to  leave  school  early  because  of  homophobic  bullying,  and 
disabled people will continue to have lower educational qualifications than their non-disabled 
fellows.  Those  who  manage  to  enter  the  labour  market  find  themselves  in  less  qualified 
positions  than  if  there  were  no  discrimination.  This  has  negative  consequences  on  the 
individuals  concerned  and  on  society  as  a  whole  and  the  financial  loss  resulting  from 
increased welfare dependency and lower tax revenue will continue. The EPEC study puts the 
loss in GDP due to the lower earning capacity of disabled people at €40.3 billion a year. 

Social impact 

This option would perpetuate the inability (or limited ability) of certain persons or groups to 
participate  fully  in  the  labour  market  and  society,  and  would  continue  to  have  a  negative 
impact  on  the  job  quality  of  certain  persons  or  groups,  owing  to  their  lower  educational 
attainment as a result of discrimination. The risk of welfare dependency and social exclusion 
identified in the Section 4 would continue. 

No specific environmental impacts have been identified although if public transport remains 
inaccessible for many people, they will continue to have recourse to private car use. 

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Assessment of Option 1: no new action at EU level 

Objective to be achieved/problem 
addressed 

Comments 

Increase protection  

Legal certainty  
Enhance social inclusion  

Effective remedies for victims  

Protection against multiple discrimination  

Extension of Equality Bodies' competence  

Information on rights and obligations  

Consistency with EU's general objectives  

Cost effectiveness 

Impact on the baseline scenario 

7.2. 

Option 2: Self–regulation 

Uncertain.  Protection  might  increase  at  Member  State  level,  but  no 
guarantee.  
No. Current situation of varying levels of protection would continue 
No  though  implementation  of  UN  Convention  might  enhance  social 
inclusion of disabled people 
Possible  but  uncertain.  Improvements  at  national  level  are  possible, 
particularly for victims of discrimination based on disability, but cannot be 
predicted  as  the  UN  Convention  does  not  guarantee  an  effective  redress 
mechanism. 
No.  People  discriminated  against  on  two  or  more  grounds  in  access  to 
goods and services, for which the scope of protection is different, would, as 
at present, have no explicit remedy under EC law 
Unlikely.  Member  States  may  individually  decide  such  an  extension,  in 
particular  under  Article  33.2  of  the  UN  Convention  on  Rights  of  Persons 
with Disabilities, but no guarantee. 
Likely not to be enough. Existing awareness-raising and training activities 
could  increase  knowledge,  but  there  would  be  no  new  legal  duties  to 
increase awareness of equality legislation. In the case of disability rights the 
UN Convention addresses the obligation to provide information. 
No additional positive contribution to objectives of Partnership for Growth 
and  Jobs,  free  movement  of  persons  and  cross-border  trade  is  not 
stimulated, and no additional protection of fundamental rights 
Low.  Victims  of  discrimination  and  indirectly  the  whole  society  would 
suffer  an  economic  loss.  Economic  operators  in  general  would  not  have 
extra costs, but certain market opportunities could be lost. 
No change 

Self-regulation, e.g. in the form of codes of conduct, can be an effective way to address issues 
of  discrimination  in  a  particular  sector.  It  may  be  used,  separately  or  in  combination  with 
legislation,  to  target  very  specific  issues  for  which  the  general  nature  of  legislation  is  not 
always suitable. This approach is not appropriate for all sectors but it could be relevant in the 
area of insurance and banking services, sectors which are already highly regulated, and where 
it  is  possible  to  identify  the  main  economic  operators  involved.  As  noted  earlier,  there  is  a 
widespread perception that providers of these services use factors such as age to determine the 
nature and price of a service even when it is not relevant. 

In  some  Member  States,  codes  of  conduct  already  exist  this  area:  in  the  Netherlands,  for 
example,  the  Bankers'  Association  have  adopted  an  "Integrity  Code"  which  prohibits 
discrimination89 and in the UK the British Association of Insurance has established an Older 
Customers Task Force as well as adopting the Statement of Good Practice on HIV mentioned 
in Subjection 4.2.3.  

Thus,  as  these  industries  already  have  experience  of  codes  of  conduct,  and  it  is  an  area  in 
which there are a high number of complaints, self-regulation could be an appropriate means to 
encourage sectors to improve protection from discrimination while enabling the specificities 

89 

See for example: 
http://www.rabobank.com/content/about_us/corporate_social_responsibility/vision_and_mission/Codes
_and_guidelines.jsp 

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of  the  sector  to  be  taken  into  account.  In  particular,  a  mechanism  could  be  introduced  to 
confirm that age (and disability where appropriate) to be used as a factor in determining risk 
where it can be shown that age (or disability) really does increase risk and is not being used 
simply as a proxy. 

The  Single  Market  Review90  encourages  the  use  of  non-legislative  measures  but  notes  that 
there are potential drawbacks that must be managed, in particular the risk of anti-competitive 
collusion amongst industry members to the detriment of consumers, as well as the risk of non-
respect. To overcome these drawbacks, all stakeholders should be involved in drawing up the 
rules and monitoring and enforcement mechanisms should be included. 

The effectiveness of this tool depends on the degree of consensus among those operating in 
the sector in question. It calls for those most affected to be involved in drawing up the text 
and means that measures adapted to the sector are adopted.  

In  terms  of  subsidiarity,  this  option  provides  for  decision-making  at  the  level  of  the  sector 
concerned.  This  is  important,  in  particular  for  areas  that  are  both  technically  complex  and 
rapidly changing, such as insurance. In terms of proportionality, a code of conduct does not 
go further than necessary and can effectively achieve results in specific areas. However, there 
is a risk of incomplete sectoral and/or geographical coverage. In addition, the highly targeted 
nature  of  self-regulation  means  it  would  have  an  impact  only  on  certain  types  of 
discrimination. 

Economic impact 

For  providers  of  goods  and  services,  a  code  of  conduct  would  have  costs  linked  to  its 
implementation.  However,  the  costs  of  adopting  a  code  of  conduct  for  the  banking  and 
insurance sectors, for example, could be limited by an exception allowing age and disability 
to be taken into account where this is strictly relevant to the risk in question.  

There would be benefits: individuals would be able to obtain insurance or banking products 
which  they  were  not  able  to  previously,  or  at  a  lower  price,  since  costs  of  insurance  and 
banking products should more accurately reflect the risk individuals represent. Although it is 
difficult to quantify the economic effect this would have for consumers, increasing protection 
from  discrimination  in  specific  sectors  would  clearly  benefit  consumers.  For  example, 
according to the EPEC study, 38 million older people cannot currently obtain travel insurance. 

Social impact 

Self-regulation  should  have  the  effect  of  increasing  access  to  insurance  and  other  financial 
services for people who may have experienced difficulty in the past owing to discriminatory 
practices.  For  example,  motor  insurance  could  be  easier  to  obtain  and  would  have  a  direct 
effect on the ability of the individual concerned to participate in economic and social life. 

No specific environmental impacts have been identified.  

90 

COM 2007) 724 

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Assessment of Option 2 – Self-regulation 

Objective to be achieved/problem 
addressed 

Comments 

Increase protection  

Legal certainty  

Enhance social inclusion  

Effective remedies for victims  

Protection against multiple discrimination 

Extension of Equality Bodies' competence 
Information on rights and obligations  

Consistency with EU's general objectives 

Cost – effectiveness  

Impact on the baseline scenario 

Protection against discrimination would increase in field(s) covered by a 
code of conduct. 
No. Code of conduct would set in place an approach applying to whole 
sector across EU but is does not alter varying levels of general protection 
from discrimination in general among Member States. 
Possible  but  partial.  By  reducing  discrimination  in  a  specific  sector,  a 
code  of  conduct  could  help  some  people  participate  more  fully  in 
economic and social life. 
Uncertain. In the sector(s) covered by a code of conduct, an enforcement 
mechanism should provide remedies for individuals, but difficult to say 
how effective it would be. In general, improvements at national level are 
possible, but cannot be predicted. 
No.  People  discriminated  against  on  two  or  more  grounds  in  access  to 
goods and services, for which scope of protection is different, would, as 
at present, have no explicit remedy under EU law. 
No. 
Partial.  Information  on  code  of  conduct  would  have  to  be  disseminated 
by  sector  involved,  the  Member  State  and  Commission.  Existing 
awareness-raising  and  training  activities  could  increase  knowledge  of 
existing rights. 
Yes,  but  partial.  In  sectors  concerned,  there  could  be  a  positive 
contribution  to  objectives  of  Partnership  for  Growth  and  Jobs,  with 
encouragement of mobility and cross-border trade in services concerned. 
No additional protection of fundamental rights. 
Depends on degree of consensus of economic operators and stakeholders 
but potentially high for the sectors/grounds concerned.  
Positive for item 1 (level of protection)  

7.3. 

Option 3: Specific Commission recommendation  

A recommendation would supplement a directive and could be used to address the two limited 
points, multiple discrimination and the powers of equality bodies, which would be difficult to 
tackle fully in a directive. It would call on the Member States to ensure that protection from 
multiple discrimination also extended to situations covered by the existing directives adopted 
under Article 13(1) EC91. It would also ask the Member States to extend the powers of their 
equality bodies, so they could offer assistance to victims of discrimination on grounds of age, 
disability, sexual orientation and religion or belief where this is not already the case.  

If  protection  from  multiple  discrimination  were  improved  under  national  law,  people  would 
have  a  remedy  they  did  not  previously  enjoy.  In  addition,  extending  the  powers  of  equality 
bodies would give individuals greater access to advice and help with cases of discrimination. 
A  higher  level  of  protection,  and  of  access  to  justice,  would  ensue.  It  would  also  give 
economic operators as source of information and guidance on their obligations. 

If the recommendation were limited to these two issues, it would be highly focused but still 
leave  the  detail  to  the  Member  States,  so  they  could  take  suitable  targeted  action.  This 
complies  with  the  requirements  of  subsidiarity  and  makes  a  specific  recommendation  a 
proportionate instrument to accompany a directive. In addition, it is less burdensome than re-
opening the existing directives, as referred to in Subsection 6.4. But, on its own, this option 

91 

Directives 2000/43/EC, 2000/78/EC & 2004/113/EC  

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37 

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does  not  go  very  far  towards  addressing  the  overall  problem  of  the  different  levels  of 
protection from discrimination. 

Economic impact 

A  recommendation  dealing  specifically  with  multiple  discrimination  and  the  powers  of 
equality bodies in the Member States would have minimal economic impact on providers of 
goods and services, but Member States might face costs relating to the possible extension of 
the powers of equality bodies. This depends, however, on the specific action taken to increase 
the powers of equality bodies and on the mandate of existing equality bodies, so it cannot be 
calculated but is likely to be marginal. . 

Social impact 

Extending  protection  from  multiple  discrimination  should  improve  the  situation  for  people 
discriminated against on multiple grounds, who should therefore find they have better access 
to, say, education and health care, which should increase their ability to participate actively in 
society and avoid becoming a burden in welfare terms. 

Extending the powers of equality bodies to deal with discrimination, both in the labour market 
and  outside,  on  grounds  of  age,  disability,  sexual  orientation  and  religion  would  have  a 
positive effect in terms of combating and preventing discrimination as well as improving such 
bodies'  efficiency  and  effectiveness.  They  would  be  able  to  deal  with  workplace 
discrimination on grounds of age, disability, sexual orientation and religion or belief, which 
could have a positive effect on labour retention92. 

No specific environmental impacts have been identified. 

92 

According to a study by Lloyds TSB in the UK, the costs of maintaining in post a disabled manager are 
far less than the costs related to dismissing the person and hiring someone new. According to the Social 
Market  Foundation  in  the  UK,  improving  the  employability  of  disabled  workers  would  be  worth  £13 
billion to the British economy. 

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38 

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Assessment of Option 3 - Specific Commission recommendation 

Objective to be achieved/problem addressed 

Comments 

Increase protection  

Legal certainty  

Enhance social inclusion  

Effective remedies for victims  

Protection against multiple discrimination 

Extension of Equality Bodies' competence 
Information on rights and obligations  

Consistency with EU's general objectives  
Cost -effectiveness 

Impact on baseline scenario 

the  extent 

Possible  but  uncertain.  To  the  extent  that  Member  States  prohibited 
multiple  discrimination,  protection  against  discrimination  would  be 
increased. 
Partly. This option would encourage but not guarantee a levelling up of 
protection against multiple discrimination, and could contribute to close 
gaps in EC legal framework. 
Yes,  possible  but  uncertain.  In  prohibiting  multiple  discrimination, 
social exclusion should be reduced.  
Possible.  To 
that  Member  States  prohibit  multiple 
discrimination  and  widen  remits  of  their  equality  bodies,  effective 
remedies would be ensured  
Possible.  Recommendation  would  specifically  encourage  protection 
against multiple discrimination on all grounds. 
Possible, but would depend on Member States' follow up. 
Possible.  Member  States  could  be  encouraged 
to  disseminate 
information  on  new  rights  to  protection  from  multiple  discrimination 
and on new powers of equality bodies. 
Limited. May lead to additional protection of fundamental rights. 
Some  costs  related  to  extending  the  remits  of  the  equality  bodies, 
depending on Member State follow up 
Positive for item 1 (level of protection) but not assured 

7.4. 

Option 4: General Commission recommendation 

In  this  option,  the  Commission  would  recommend  Member  States  to  ensure  that  there  is 
adequate legal protection/remedy for victims of discrimination outside the labour market on 
the  grounds  of  age,  sexual  orientation  and  religion.  It  would  also  recommend  that  they 
provide  effective  protection  against  multiple  discrimination,  and  ensure  that  their  existing 
equality  bodies  are  empowered  to  help  all  victims  of  discrimination  on  Article 13 EC 
grounds.  For  those  Member  States  which  already  plan  changes  to  their  current  non-
discrimination  laws,  the  contents  of  the  recommendation  would  provide  them  with  a 
benchmark against which to assess their proposals. 

In  terms  of  subsidiarity,  a  Commission  recommendation  at  EU  level  backed  up  by  Council 
conclusions  would  show  that  there  is  an  agreed  approach  to  protecting  people  from 
discrimination across the Member States while leaving it to the Member States to decide the 
details and the pace of the adjustments.  

It  is  difficult  to  assess  the  effectiveness  as  it  cannot  be  known  to  what  extent  or  over  what 
timescale the Member States would give effect to the goals set out in the recommendation. If 
the  take-up  was  low,  there  would  be  very  little  increase  in  the  level  of  protection  against 
discrimination  on grounds of age, sexual orientation and religion outside the labour market. 
Despite  being  limited  by  its  non-binding  nature,  a  general  recommendation  could  be 
considered a proportionate instrument for achieving the objectives set, especially if Member 
States implemented the recommendation correctly and in a timely way. 

If a single ground directive were adopted, then a general recommendation would be a way to 
encourage an increase the level of protection against discrimination on the other grounds, in 
the absence of a consensus on binding Community wide measures.  

Economic impact 

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39 

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The economic impact of a general recommendation is difficult to assess in advance as neither 
the  extent  to  which  it  will  be  implemented  nor  the  timescale  for  implementation  can  be 
predicted  accurately.  Any  compliance  costs,  such  as  initial  spending  on  training  staff,  for 
example, would probably decline over time as non-discriminatory practices become routine. 
These costs would in any event be marginal since it can be expected that organisations would 
already have taken steps to ensure that their staff are trained in non-discriminatory practices in 
line with the current EU legal framework.  

The extension of the scope of the equality bodies would have a cost, in those Member States 
where  the  bodies  do  not  already  have  a  broad  scope,  but  the  cost  would  be  marginal  since 
these  bodies  already  exist.  Where  such  bodies  have  the  powers  to  mediate  solutions  to 
allegations of discrimination, they will reduce the costs for victims and economic operators of 
seeking redress through the courts.  

Social impacts 

Like its economic impact, the social impact of a general recommendation is difficult to assess 
effectively. Implementing the recommendation would have a beneficial impact upon the level 
of protection from discrimination, but this would vary in each Member  State, depending on 
which areas or actions were prioritised and to what extent they were complied with. 

No specific environmental impacts have been identified although if public transport remains 
inaccessible for many people, they will continue to have recourse to private car use. 

Assessment of Option 4 – General Commission recommendation 

Objective to be achieved/problem 
addressed 

Comments 

Increase protection  

Legal certainty  

Enhance social inclusion  
Effective remedies  

Protection against multiple discrimination 

Extension of Equality Bodies' competence  
Information on rights and obligations  

Consistency with EU's general objectives  

Cost – effectiveness  
Impact on baseline scenario 

 Could lead to increased legal protection at national level, but difficult to 
predict;  
Recommendation  could  improve  current  situation  of  varying  levels  of 
protection  from  discrimination  among  the  Member  States,  but  would 
depend on Member States follow-up. 
Uncertain. Depends on Member States' follow up. 
Possible  but  uncertain.  Improvements  at  national  level  are  possible,  but 
cannot be predicted  
Depends. If Member States effectively prohibited multiple discrimination, 
there could be positive impact, but no certainty. 
Depends on Member States follow up, no guarantee. 
Member States would be responsible for dissemination of information on 
action taken to implement recommendation; existing EU awareness-raising 
and training activities could increase knowledge of existing rights 
Possible positive contribution to objectives of Partnership for Growth and 
Jobs,  but  free  movement  of  persons  and  cross-border  trade  may  not  be 
stimulated. May lead to additional protection of fundamental rights. 
Likely low. It would depend on each Member State's follow-up. 
Potentially positive on items 1,2, 3, 4 and 5 but not assured 

7.5. 

Option 5: Single-ground directive  

Completing the legal framework at EU level and ensuring protection from discrimination on 
grounds  of  age,  disability,  sexual  orientation  and  religion  or  belief  could  be  achieved  by 
adopting individual directives on discrimination on specific grounds as part of a more gradual 
approach to addressing the inconsistencies in the legal framework.  

EN 

40 

   EN 

If it were decided to present only one ground specific directive at this stage, there are reasons 
to justify choosing disability: the population at risk is around 16% and this will increase as the 
population  ages.  Complaints  alleging  disability  discrimination  make  up  over  9%  of  all 
complaints  to  equality  bodies  (a  higher  percentage  than  for  discrimination  based  on  age, 
religion or belief and sexual orientation93). Disability discrimination is the area where there is 
most  information  available  on  the  impact  and  costs  of  implementing  legislation.  Lastly  the 
conclusions of the February 2008 Employment and Social Affairs Council meeting invited the 
Commission to step up efforts to prevent and combat disability discrimination94.  

It should also be recalled that the UN Convention on the Rights of Persons with Disabilities 
will need in any event to be concluded and implemented by the EC and the Member States. 
Although  there  is  no  obligation  to  use  EC-level  legislation  to  implement  the  rights  and 
obligations arising from the UN Convention, this would be a logical step, and this coordinated 
approach  was  confirmed  in  the  disability  Ministerial  meeting  of  May  200895.  Through 
transposing an EC directive prohibiting disability the Member States would implement those 
parts  of  the  Convention  which  are  included  in  the  directive,  such  as  the  prohibition  of 
discrimination  in  access  to  goods  and  services,  health  care,  education,  as  well  as  the 
obligation  to  provide  reasonable  accommodation.  Such  partial  implementation  of  the  UN 
Convention  by  EC 
the  risk  of  divergent  national 
implementation measures (see Section 4.4 above).  

legislation  could  help  mitigate 

These reasons, especially the need to implement the UN Convention, explain why disability 
could  be  chosen  for  a  single  ground  directive.  Equivalent  reasons  do  not  exist  for 
discrimination  based  on  age,  religion  and  belief,  and  this  Option  therefore  only  explores  a 
disability specific directive. 

A directive would set out specific rights and obligations, with a timetable for implementation, 
thus offering more certainty to disabled people and providers of goods and services. It would 
also provide scope for more effective legal redress for victims of discrimination. Prohibiting 
discrimination is usually a question of halting certain types of behaviour. However, tackling 
disability  discrimination  is  different  because  it  calls  for  positive  steps  to  be  taken  to 
accommodate the needs of the disabled person. Such an obligation can consist of adapting the 
environment  in  order  to  achieve  equal  treatment  to  the  extent  that  this  does  not  create  a 
disproportionate  burden.  A  specific  directive  on  disability  could  address  the  obligation  to 
improve  access  and  to  make  reasonable  accommodation.  As  with  the  existing  directives, 
positive  action  would  be  permitted,  allowing  the  Member  States,  in  accordance  with  their 
laws and practices, to pursue policies based on preferential treatment. 

A  ground-specific  directive  would  respect  the  principles  of  subsidiarity  (there  is  a  case  for 
European-level action on discrimination, as this report shows and already established with the 
adoption  of  three  Article  13  directives)  and  of  proportionality  (a  directive  leaves  the  widest 
latitude  to  the  Member  States).  Member  States which already have  detailed legal protection 
against discrimination on grounds of disability outside the  labour market would not need to 

93 

94 

95 

EPEC, Study on discrimination on grounds of religion or belief, age, disability and sexual orientation 
outside of employment, Annex, p. 49. 
Resolution  of  the  Council  of  the  European  Union  and  the  representatives  of  the  governments  of  the 
Member States, meeting within the Council, on the situation of persons with disabilities in the European 
Union (2008/C 75/01), formally adopted on 17 March 2008 
http://www.mddsz.gov.si/fileadmin/mddsz.gov.si/pageuploads/dokumenti__pdf/ns_invalidi_sklepi_220508_en.pdf 

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41 

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make major changes to their legislation, and many of the concepts would be identical to those 
in the existing Article 13 directives. 

Improving access and reasonable accommodation 

As pointed out above, positive steps may be required to ensure disabled people have access to 
goods and services on an equal footing with the non-disabled. This may be achieved in two 
complementary  ways.  A  provider  of  goods  and  services  could  take  measures  to  improve 
access, such as better access for wheelchairs, better website design for the visually impaired, 
access  for  guide  dogs,  etc.  As  far  as  possible  they  should  be  taken  in  advance.  However,  a 
directive would not address the specific solutions. 

Reasonable accommodation measures may be needed for a particular person with disabilities 
in order to allow them access to goods or services. These are measures needed in individual 
cases  to  allow  the  disabled  person  equal  and  effective  access  to  the  goods  or  services.  The 
requirement  to  make  reasonable  accommodation  may  imply  not  only  physical  changes  but 
also  an  alternative  means  of  providing  a  service.  For  example,  a  restaurant  could  decide  to 
produce  its  menus  in  Braille  or  its  staff  could  read  the  menu  to  blind  people.  Likewise,  a 
company  that  sells  solely  over  the  Internet  could  take  steps  to  adapt  its  website  for  people 
with  visual  impairments,  or  could  provide  an  alternative  service  by  telephone.  Another 
example  of  reasonable  accommodation  may  entail  pricing  adjustments:  for  instance,  where 
the  only  wheelchair  accessible  part  of  a  music  venue  is  at  the  front  by  the  stage  the 
management could make reasonable accommodation by offering tickets to wheel chair users 
at the normal price rather than a premium rate instead of physically altering the premises. 

The  concept  of  reasonable  accommodation  already  exists  in  the  employment  sphere  under 
Directive 2000/78/EC, and Member States and businesses therefore have practical experience 
in applying it under national law. Many, though not all, service providers are also employers, 
and will therefore have direct practical experience of implementing the concept of reasonable 
accommodation. 

Non-discrimination and specific sectors 

Applying the principle of non-discrimination to education would not mean that all disabled 
pupils  had  to  be  taught  in  mainstream  schools:  the  Member  States  alone  are  competent  to 
organise  their  education  systems.  In  the  transport  field  service  providers  would  have  to 
consider measures of accessibility and reasonable accommodation, but this would be subject 
to 
instruments  dealing  with 
discrimination  exist  in  a  particular  sector,  for  example  those  dealing  with  the  rights  of 
disabled persons when travelling by air96 or rail97, the parts of those instruments dealing with 
accessibility would take precedence over a new Article 13 directive. 

the  disproportionate  burden 

test.  Where  specific  EC 

For insurance and banking services, a directive would confirm that disability could continue 
to be taken into account in determining risk where a specific disability is a determining factor 
in  assessing  the  risk  for  specific  products,  such  as  private  health  insurance,  life  insurance, 
certain  types  of  accident  insurance  and  mortgages,  provided  the  determining  nature  of  the 
criterion was proven, on the basis of accurate and up-to-date data.  

96 
97 

Regulation (EEC) No 1107/2006. 
Regulation (EEC) No 1371/2007, adopted on 3 December 2007. 

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42 

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This could mean that some complaints of discriminatory practice would in fact be found not 
to be unlawful: the aim is to ensure that decisions are made in relation to the specific customer 
and that disability is not used as a blanket justification for charging higher rates.  

For example, a person with diabetes could be charged more health insurance if the company 
showed statistically that diabetics needed more frequent medical attention than other people. 
On the other hand, a case dealt with by the Hungarian Equal Treatment Authority illustrates 
what would not be acceptable; a blind client applying to his bank for a loan was categorised as 
a high-risk customer, which meant he had to sign a special paper before a notary. The Equal 
Treatment  Authority  found  that  there  was  no  reason  why  a  blind  person  should  present  a 
higher risk, and the bank agreed to stop the practice.  

It should be noted that the concept of relevant risk factor is not new: it was used in Directive 
2004/113/EC  on  equal  treatment  between  men  and  women  in  access  to  goods  and  services, 
which was to be transposed into national law by the end of 200798.  

Economic impact  

As noted at earlier, since by definition reasonable accommodation is subject to a test that it 
does not represent a disproportionate burden, then the costs of associating it can be assumed 
to be disproportionate – but they cannot be measured in advance with any degree of accuracy.  

However, experience shows that the costs of making reasonable accommodation need not be 
onerous. According to a study conducted for the Department for Work and Pensions99 in the 
UK (where the principle of non-discrimination already applies outside employment), 74% of 
companies said it had been easy to make physical adjustments, while only 9% said that costs 
were  an  issue.  In  another  study100  covering  1000  companies,  40%  had  made  some  sort  of 
adjustment and half of those had found it easy to do so. Other national experiences outside the 
EU show that the costs are not excessive and may represent an investment offering a return. In 
the United States101 a study covering over 1000 adaptations reported that more than 80% of 
reasonable  accommodation  adjustments  cost  less  than  US  $500  but  half  of  all  those 
accommodations cost practically nothing.  

A Swiss study102 into the costs of a 2004 law on accessibility of public and other buildings put 
them at 1% of overall annual building costs, or approximately CHF 60 (€37) per person per 
year. It found that the adjustments made benefited not only the disabled but also people with 
pushchairs/prams  and  the  elderly,  so  increasing  the  rental  possibilities  of  certain  buildings. 
The study also identified some objective costs, for example, that it costs 32€ a metre to install 
a hand-rail for the visually impaired, that a five-metre ramp with a hand rail costs 4,886€ and 
that  widening  an  existing  door  costs  1,221€.  This  study  also  shows  that  the  costs  of 
incorporating  accessibility  solutions  into  buildings  are  low  to  negligible  if  the  necessary 
transformations are taken into account at the planning stage. 

Education  providers  would  have  to  make  reasonable  accommodation  for  pupils  and  this 
would entail costs, such as for training personnel and making premises accessible. A Dutch 

98 

99 
100 

101 
102 

Article 5 of that Directive allows Member States to authorise the use of sex as a determining factor for 
the calculation of risk in insurance and related financial services, based on actuarial and statistical data.  
Research Report No 410: Organisations' responses to the Disability Discrimination Act. 
Costs and benefits to service providers of making reasonable adjustments under Part III of the Disability 
Discrimination Act. 
Accommodation Network of the US department of labour. 
Eidgenössische Technische Hochschule Zürich: http://www.hindernisfrei-bauen.ch/kosten_d.php 

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study into the impact of the Act on Equal Treatment on the grounds of Disability or Chronic 
Illness in primary and secondary education found that the initial forecast of an annual cost of 
20  million  euros  was  in  fact  an  overestimation103. As  far as the general  economic  impact is 
concerned,  however,  it  has  been  estimated  that  if  bringing  the  educational  level  of  disabled 
people across the EU up to that of disabled people in Germany would bring an economic gain 
in GDP of €40.3 billion104. 

In the area of on line web services, accessible web sites can bring significant benefits to their 
organisations.  According  to  the  RNIB105  when  the  UK  supermarket  chain  Tesco  spent 
£35 000  to  make  their  on-line  shopping  website  accessible  to  visually  impaired  people,  this 
resulted in revenue of over £13 million a year. 

Public  and  private  transport  providers  would  face  additional  costs,  but  there  would  also  be 
benefits.  Improved  access  would  increase  the  numbers  of  disabled  passengers  and  would 
facilitate  access  for  non-targeted  groups  (e.g.  the  elderly  and  persons  with  prams).  The 
passing-on  to  consumers  of  some  of  the  additional  operating  costs  cannot  be  ruled  out.  A 
study  for  the  Energy  and  Transport  DG  on  adapting  coaches  (long-distance  buses)  for 
disabled passengers estimated the cost of making coaches fully accessible to wheelchair users 
at 2.7% of the total industry revenue, of which 0.5% would be recouped by increased ticket 
revenue  from  wheelchair  users.  If  the  full  cost  were  passed  on  in  ticket  prices,  the  average 
fare (€15.79) would rise by €0.35.  

As  mentioned  above  in  Section  4.4  on  the  baseline  scenario,  a  directive  would  have  a 
narrower  scope  than  the  UN  Convention  and  it  is  reasonable  to  assume  that  the  additional 
costs of transposition would be relatively low, as they would be already covered by the costs 
of  implementing  the  Convention.  A  directive  would  therefore  not  entail  additional  cost.  In 
addition, by being precise about what factors can be taken into account in assessing whether a 
reasonable accommodation would be disproportionate or not, a directive sets out more precise 
parameters to costs than the Convention does.  

In general, the cost to business should be balanced against increased access for consumers to 
goods  and  services,  both  in  their  own  Member  States  and  elsewhere  in  the  EU.  A  study  on 
"Tourism for All" commissioned by the German Ministry of Economics and Labour106 found 
that disabled people spend 27 million € a year on holiday in Germany, leading to 65,000 full 
time  jobs.  So  while  the  immediate  beneficiaries  are  the  groups  currently  discriminated 
against, businesses will benefit from the spending power of disabled people. 

Mitigating factors 

As  said  before,  when  making  reasonable  accommodation,  the  provider  does  not  need  to  do 
anything  that  would  impose  a  disproportionate  burden  on  the  business.  A  directive  could 
give an indicative list of factors such as such as cost, company size and resources, benefit to 
disabled  people  etc  which  could  be  taken  into  account  in  assessing  whether  making 
reasonable accommodation would be disproportionate. Clearly, what would be appropriate for 
a  large  corporation  or  a  public  body  may  not  be  for  a  small  or  medium-sized  company.  A 
number of Member States, including Belgium, the UK and Cyprus have set out guidelines to 
help assess whether or not the burden is disproportionate. The criteria used to assess whether 

103 
104 

105 
106 

http://ec.europa.eu/employment_social/fundamental_rights/pdf/pubst/stud/mapstrand2_en.pdf, page 87 
EPEC, Study on discrimination on grounds of religion or belief, age, disability and sexual orientation 
outside of employment, p. 101-2. 
Royal National Institute of the Blind 
http://www.bmwi.de/BMWi/Navigation/Service/publikationen,did=28398.html 

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or  not  making  a  reasonable  accommodation  would  be  disproportionate  seem  to  be  well 
understood  at  Member  State  level  and  the  Commission  has  received  no  complaints  to  date 
from  providers  of  goods  and  services  that  they  have  been  obliged  to  make  accommodation 
that is too expensive, or that they are unclear about their obligations.  

If  banks  and  insurance  companies  could  prove  that  disability  were  a determining factor in 
the specific case, they could use it as such. The costs to the insurance and banking services 
sector  would  accordingly  be  limited.  The  Commission  would,  however,  encourage  the 
insurance  and  banking  industry  to  explain  the  rules  and  methods  it  applies  when  using 
disability  in  assessing  risk  on  the  basis  of  accurate  and  updated  data.  This  process  could 
involve setting up working groups with the industry and relevant stakeholders to look at the 
rules and methods for  using  disability as  a determining factor in assessing risk and price of 
particular products, while endeavouring to ensure that  coverage is as wide as  possible. This 
could eventually lead to self-regulation (see Option 2). 

A  further  mitigating  measure  could  be  to  allow  additional  time  to  the  Member  States  to 
transpose some of the legal obligations relating to discrimination on grounds of disability: this 
would allow economic operators to take account of the requirements when preparing medium-
term  business  plans  and  future  infrastructure  investment.  This  is  important  as  the  costs  of 
making  reasonable  accommodation  are  very  low  if  this  taken  into  account  at  the  design  or 
refurbishment stage. The Member States would have two years to transpose the directive into 
national law, and could, if they wanted to, avail themselves of the possibility of an extra four 
years to transpose the disability discrimination aspects. This follows the example of Directive 
200078/EC  under  which  up  to  three  extra  years  could  be  used  to  transpose  the  age  and 
disability  aspects.  Only  3  (France,  Denmark  and  the  UK)  of  the  original  15  Member  States 
made use of the extra time available to implement the disability discrimination provisions of 
that  directive,  and  none  of  the  new  Member  States  did107.  This  implies  that  for  the  vast 
majority  of  Member  States,  transposition  of  the  requirement  to  provide  reasonable 
accommodation was not seen as problematic, and this conclusion is borne out by the fact that 
no complaints have been received by the Commission (whether from employers or disabled 
people) about reasonable accommodation. 

Social impacts 

The  positive  effect  of  reducing  discrimination  in  education  has  been  noted  above.  In  the 
United States, the available data confirm that non-discrimination legislation, such as the 1990 
Americans  with  Disabilities  Act108,  has  had  a  positive  impact  in  the  education  field.  The 
proportion of first-time, full-time students with disabilities attending colleges and universities 
tripled between 1978 and 1994, rising from 2.6% to 9.2%. By 1998 students with disabilities 
had risen to 10.5% of the post-secondary student population. 

107 

108 

Report  on  the  Implementation  of  the  age  and  disability  discrimination  provisions  of  Directive 
2000/78/EC of 27 November 2000 SEC (2005)1176 
"The  Impact  of  the  Americans  with  Disabilities  Act:  Assessing  the  Progress  Toward  Achieving  the 
Goals of the ADA", U.S. National Council on Disability, 26 July 2007. This report describes a two-year 
retrospective study and review of the impact that such legislation had on the lives of Americans with 
disabilities over the previous sixteen years. The US National Council on Disability is an independent 
federal agency that makes recommendations to the President and Congress to enhance the quality of life 
for all Americans with disabilities and their families. This report can be found at the following website: 
http://www.ncd.gov/newsroom/publications/2007/ada_impact_07-26-07.htm 

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45 

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In  2004  a  survey  confirmed  that  more  people  with  disabilities  were  participating  in  higher 
education  than  before  the  Americans  with  Disabilities  Act.  40%  of  people  with  disabilities 
received  some  college  education  or  a  degree  (compared  with  52%  of  those  without 
disabilities). In 1986 only 29% of people with disabilities were attempting college (compared 
with  48%  of  people  without  disabilities).  The gap  between  those  with  disabilities  and  those 
without disabilities attending college narrowed from 19% points to 12% points. 

The same evaluation concludes that many young people with significant disabilities who were 
previously thought unemployable are working in competitive jobs as a result of the education 
they  have  received.  In  1999  nearly  60%  of  young  men  and  women  with  disabilities  were 
employed  within  five  years  of  leaving  school,  compared  with  only  33%  in  the  mid-1970s. 
One  of  the  priorities  of  the  European  Youth  Pact  adopted  by  the  March  2005  European 
Council  is  to  reduce  early  school  leaving109.  Poor  education  may  have  a  major  impact  on 
social exclusion, and according to Eurostat figures, the risk of social exclusion among young 
people is high110. 

In terms of health care, the EPEC study considers that prejudice and negative attitudes play a 
large role in the discrimination disabled people face, a situation which would be improved by 
the adoption of legislation.  

The  social  consequences  of  inaccessible  transport  are  significant  as  various  studies  have 
pointed  out111.  The  UK  Disabled  Persons  Transport  Advisory  Committee  (DPTAC)  survey 
found that disabled adults travelled a third less often than the non-disabled. Half of disabled 
people had turned down a job offer or job interview owing to lack of accessible transport, and 
about half said that lack of transport had restricted their choice of jobs. 21% of respondents 
felt  that  inaccessible  transport  had  limited  the range  of  adult  education  and  training  courses 
available to them. The EPEC study estimates that 5.7 million wheelchair users and 1.6 million 
people  with  visual  impairments  have  difficulty  in  accessing  public  transport.  If  public-
transport systems were obliged to improve accessibility for the disabled, there would be clear 
benefits in terms of employability and social inclusion, as mentioned above.  

The  explanatory  memorandum  to  the  Commission  proposal  for  a  regulation  on  disabled 
persons  and  persons  with  reduced  mobility  when  travelling  by  air  pointed  to  the  social 
benefits  of  making  transport  more  accessible,  noting  that  'Without  such  opportunities,  they 
would not only lose the direct benefits of air travel but also the indirect one of fuller inclusion 
in the economic and social life of the community112. 

Environmental impact 

If  more  disabled  people  were  able  to  use  public  transport,  this  would  have  a  positive 
environmental impact by reducing the use of private cars. 

109 
110 

111 

112 

Commission Communication on European Policies concerning Youth (COM (2005) 206 final). 
European Social Statistics Second report on ‘Income, poverty and social exclusion’ notes that ‘in 1997 
children  and  young  people  as  well  as  persons  of  retirement  age  had  poverty  risks  which  were 
approximately 25% higher than the average’ 2nd report. Data 1994-1997.  
Cited in ‘Evidence based review on mobility: Choices and barriers for different social groups’ (UK 
Department for Transport: 
http://www.dft.gov.uk/pgr/scienceresearch/social/evidence_base_review_on_mobility?page=5 
COM(2005)047 

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Assessment of Option 5 – single-ground directive 

Objective to be achieved/problem addressed 

Comments 

Increase protection  

Legal certainty  

Enhance social inclusion  

Effective remedies for victims  

Protection against multiple discrimination 

Extension of Equality Bodies' competence 
Information on rights and obligations  

Consistency  with  European  Union's  general 
objectives  

Cost – effectiveness  

Impact on baseline scenario 

Yes,  but  partial.  Protection  from  discrimination  would  increase  in 
field covered by the directive.  
Yes, but partial. Directive would prohibit one type of discrimination 
across  EU,  but  would  not  affect  different  levels  of  protection  from 
other types of discrimination among Member States  
Yes,  partly.  By  reducing  one  type  of  discrimination  a  specific 
directive would help some people participate more fully in economic 
and social life.  
Yes,  partly.  In  fields  covered  by  directive,  an  enforcement 
mechanism should provide remedies for individuals. 
Yes,  but  partial.  Directive  would  specifically  prohibit  multiple 
discrimination  on  grounds  covered,  but  would  not  solve  general 
problem of gap in explicit protection. 
Yes, but partial, only in respect of the ground concerned. 
Information  on  rights  contained  in  directive  would  have  to  be 
disseminated; 
this  could  be  done  by  Member  State  and/or 
Commission. 
There  would  be  some  additional  positive  contribution  to  objectives 
of Partnership for Growth and Jobs, some free movement of persons 
and  cross-border  trade  might  be  stimulated,  and  some  additional 
protection of fundamental rights. 
Higher costs for disability than for other grounds. Providers of goods 
and  services  would  face  costs,  but  would  also  benefit  from  the 
greater  economic  participation  of  disabled  people.  Effectiveness 
could  be  increased  by  providing  for  transitional  periods  &  specific 
exceptions. 
Positive on all items as regards disability 

7.6. 

Option 6: Multi-ground directive  

A multi-ground directive would supplement the existing legal framework and provide a clear 
legal  remedy  for  victims  of  discrimination.  Such  a  directive  would  prohibit  discrimination 
outside  employment  on  grounds  of  age,  disability,  sexual  orientation  and  religion  or  belief, 
thus leading to a clear increase in the level of protection. As was mentioned in Subsection 6.4, 
legislation cannot eradicate discrimination on its own, but it gives victims a remedy and may 
also have a preventative effect. There is no doubt that the existing EC directives had a major 
impact  in  the  Member  States  and  led  to  a  definite  increase  in  the  level  and  effectiveness  of 
protection from discrimination.  

This option could ensure a common approach in areas such as definitions of discrimination, 
procedures and remedies. As far as possible, a new directive would build on concepts used in 
the previous directives adopted under Article 13 EC. These concepts, such as the definitions 
of discrimination and harassment and procedural rules such as those on the burden of proof113 
and sanctions, are already part of the national anti-discrimination framework which economic 
operators  have  to  understand  and  observe.  From  the  information  available  and  through  the 
experience  of  the  transposition  exercise  for  the  previous  directives,  these  points  were  not 
particularly  problematic.  It  is  logical  to  apply  the  same  concepts  to  discrimination  on  all 

113 

Under which if the person alleging that their rights have been breached must present facts from which it 
may be presumed there has been discrimination, it then falls to the other party to provide that there has 
been no breach of the principle of equal treatment 

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47 

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grounds, as the issues are very similar and to do otherwise risks implying that some types of 
discrimination  are  more  worthy  of  protection  than  others.  This  greatly  limits  the  new  legal 
concepts  which  the  Member  States  will  have  to  transpose  into  national  law,  and  which 
economic operators will have to understand and observe. 

Although  its  horizontal  nature  could  imply  difficulty  in  dealing  with  the  specificities  of 
different types of discrimination, this was not a particular problem in Directive 2000/78/EC, 
the  previous  multi-ground  directive  adopted  under  Article  13  EC,  and  specific  provisions 
could  deal  with  the  different  types  of  discrimination  as  necessary.  As  with  that  directive,  it 
might be necessary to have longer transitional periods for some measures related to aspects of 
discrimination that are potentially difficult or costly to deal with, such as age and disability. In 
relation to the prohibition of discrimination based on disability, the discussion under Option 5 
on what might be required to improve access to goods and service for disabled people, as well 
as  the  economic  and  social  impacts  and  possible  mitigating  factors,  apply  equally  to  this 
option. 

A  new  directive  prohibiting  discrimination  on  grounds  of  age,  disability,  sexual  orientation 
and  religion  and  belief  outside  the  labour  market  could  address  certain  sensitivities  that 
became  apparent  during  the  infringement  procedures  related  to  Directive  2000/78/EC, 
covering the same grounds in the employment context. The most sensitive issues are around 
the  relationship  between  the  right  to  non-discrimination  and  the  enjoyment  of  other 
fundamental rights, such as the right to private life and freedom of religion. In addition, the 
scope  of  the  directive  could  be  limited,  in  relation  to  access  to  goods  and  services,  to 
commercial transactions as opposed to purely private ones. 

The EPEC study estimates that adopting EC legislation and making it a requirement for the 
Member  States  to  have  an  equality  body  to  help  victims  of  discrimination  could  reduce  the 
problems identified by anything from 5% to 20%. 16 Member States already have a body or 
bodies covering all forms of discrimination. 

A  directive  would  respect  the  principles  of  subsidiarity  (there  is  a  case  for  European  level 
action on discrimination is shown in this report and already established with the adoption of 
three Article 13 directives) and of proportionality. Member States which already have detailed 
legal protection from discrimination outside the labour market would not need to make major 
changes to their legislation.  

Economic impact 

In  terms  of  disability  discrimination,  there  are  costs  associated  with  making  "reasonable 
accommodation". These have been addressed under option 5. 

Discrimination  in  access  to  goods  and  services  may  have  a  direct  financial  impact  on 
individuals or a non-financial impact in terms of embarrassment and discomfort. The EPEC 
study estimates, for example, that across the EU, an estimated 652,000 openly gay or lesbian 
persons  may  experience  discrimination  in  hotels,  and  an  estimated  2,175,000  in  bars  or 
restaurants. It estimates too that up to 6 million people over 80 are excluded from consumer 
services.  If  discrimination  on  grounds  of  sexual  orientation  were  reduced  in  education,  the 
resulting loss of earning capacity, estimated at 14% in the EPEC study, would be reduced.  

Providers of goods and services would be prohibited from discriminating against customers 
on  grounds  of  age,  disability,  sexual  orientation,  religion  or  belief.  There  would  be  an 
obligation to ensure accessibility and provide reasonable accommodation for disabled people, 

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48 

   EN 

as explained in detail under option 5 above. Compliance costs would be marginal, except in 
the case of disability, for which, see option 5 above.  

In the insurance and banking sector, a directive would confirm that age and disability could 
be  maintained  as  factors  for  determining  risk  in  certain  types  of  products  where  age  and/or 
disability is a determining factor in assessing the risk for specific products. The explanation 
of  mitigating  factors  given  in  option  5  would  apply  equally  to  this  option,  as  would  the 
possibility of self-regulation.  

In  the  health  sector,  complaints  primarily  concern  the  'rationing'  of  treatment  based  on  the 
age  of  patients.  Any  legislative  proposal  would  need  to  make  it  clear  that  it  was  without 
prejudice  to  the  right  of  the  Member  States  to organise  their  social  security  and  health-care 
systems. This provision, together with a general exemption for differences of treatment where 
the aim is legitimate and the measures are necessary and proportionate, would shield health-
care providers from a significant financial impact.  

As to education, prohibiting discrimination on grounds of religion, sexual orientation and age 
in the fields where the EU can act would cost very little and could have a very positive effect: 
according to the EPEC study, discrimination in education on grounds of sexual orientation is 
an area where legislation could have a very beneficial effect at little cost. The potential impact 
of  prohibiting  discrimination  on  grounds  of  disability  in  the  education  sector,  and  Member 
States' competences, is dealt with under option 5. 

Concern  about  the  impact  of  new  age-discrimination  legislation  on  preferential  treatment 
has  been  raised  by  a  number  of  organisations  and  MEPs.  Preferential  treatment  is  often 
available  to  people  above  or  below  a  certain  age  and  exists  in  a  range  of  sectors,  such  as 
transport,  culture  and  education.  A  directive  would  specify  that  such  differences  treatment 
would not constitute discrimination, if, within the context of national law, they are objectively 
and  reasonably  justified  by  a  legitimate  aim,  and  if  the  means  of  achieving  that  aim  are 
appropriate  and  necessary.  It  is  less  clear  that  a  general  exception  should  be  granted  for 
preferential treatment provided by commercial providers as a marketing tool. However, if the 
measure  complies  with  the  legitimate  aim  requirement  and  the  means  of  achieving  that  aim 
are proportionate and necessary, then the difference in treatment might be acceptable.  

Social impact 

The  impact  of  legislation  on  improving  access  to  education,  explained  under  Option 5,  also 
applies to this option. The positive benefits of reducing discrimination in education accrue to 
individuals  and  society  as  a  whole.  Since  people  who  currently  suffer  from  discrimination 
would be better educated, they would get better jobs, and this would reduce the risk of social 
exclusion  and  welfare  dependency.  The  effect  of  homophobic  bullying  in  schools,  and  its 
consequences, was noted in Subsection 4.2.3 above. 

Good health is a prerequisite for participating fully in education, employment and society in 
general.  Poor  health  can  lead  to  unemployment,  welfare  dependency,  poverty,  isolation  and 
social exclusion. The EPEC study estimates that legislation prohibiting discrimination could 
have a very positive effect in this area and reduce problems by up to 20%. They estimate that 
the  direct  tax  revenue  foregone  due  to  the  reduced  wage-earning  capacity  of  LGB  persons 
caused by ill-health is €166 million a year, and put the figure for the disabled at €213 million.  

Discrimination  on  grounds  of  age  in  health  care  was  highlighted  in  the  submission  from 
Age-Platform.  Tackling  this  will  contribute  to  the  reduction  of  health  inequalities  which  is 

EN 

49 

   EN 

one of the goals of the recently adopted Second Programme of Community action in the field 
of health (2008-13)114. In its new health strategy (2008-13), the Commission has identified the 
need  to  foster  good  health  in  an  ageing  Europe  as  one  of  three  strategic  objectives115.  The 
importance  of  achieving  "active  ageing"  and  increasing  the  active  economic  and  social 
participation  of  the  older  population  were  underlined  in  the  Commission's  Communication 
’The demographic future of Europe – from challenge to opportunity’116. 

Environmental impact 

Any  measure  that  results  in  more  people,  in  particular  the  elderly  and  the  disabled,  using 
public transport would have a positive environmental impact through a reduction in the use of 
private cars. 
Assessment of Option 6 - Multi-ground directive  

Objective to be achieved/problem addressed 

Comments 

Increase protection  
Legal certainty  

Enhance social inclusion  
Effective remedies for victims  

Protection against multiple discrimination 

Extension of Equality Bodies' competence 
Information on rights and obligations  

Consistency with EU's general objectives  

Cost – effectiveness  

Impact on baseline scenario 

This option would achieve this objective. 
EC  legal  framework  would  be  completed,  with  protection  from 
discrimination on all grounds listed in Article 13. 
In prohibiting discrimination, social exclusion should be reduced. 
Yes. Effective remedies would be available to victims of discrimination 
on grounds of age, disability, sexual orientation and religion or belief. 
Yes, to a great extent. The directive would specifically prohibit multiple 
discrimination related to the grounds covered by the Directive. 
Yes 
Information  on  rights  contained  in  a  directive  would  have  to  be 
disseminated; this could be done by Member State and/or Commission. 
This option would further the goals of Partnership for Growth and Jobs, 
free  movement  of  persons  and  cross-border  trade  may  be  stimulated, 
and there is additional protection of fundamental rights. 
This  option  would  involve  comparatively  higher  benefits  and  higher 
costs.  Effectiveness  could  be  increased  by  using  justified  specific 
exceptions and transitional periods to reduce costs. 
Positive on all items 

114 

115 
116 

Decision 1350/2007/EC of the European Parliament and of the Council of 23 October 2007 establishing 
a second programme of Community action in the field of health (2008-13). 
COM (2007) 630 final. 
COM (2006) 571 final. 

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50 

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8. 

COMPARISON OF OPTIONS 

The  impact  of  the  options  examined  in  the  preceding  sections  are  summarised  in  the  table 
below: 

Overview table 

Objective to be 
achieved/problem 
addressed 

Increase 
protection  
Legal certainty  
Enhance social 
inclusion  
Effective 
remedies for 
victims  
Protection against 
multiple 
discrimination 
Extension of 
Equality Bodies' 
competence 
Information on 
rights and 
obligations  
Consistency with 
EU's general 
objectives  
Cost – 
effectiveness  
Baseline scenario 

No new 
action 

Self-
regulation 

Specific 
recommendation 

General 
recommendation 

Single-ground 
directive 

Multi-ground 
directive  

neutral 

positive 

positive 

positive 

positive 

positive 

neutral 
neutral 

neutral 
positive 

neutral 
positive 

negative 
positive 

positive 
positive 

positive 
positive 

neutral 

positive 

positive 

positive 

positive 

positive 

neutral 

neutral 

positive 

positive 

positive 

positive 

neutral 

neutral 

positive 

neutral 

positive 

positive 

neutral 

positive 

neutral/positive 

positive 

positive 

positive 

neutral 

positive 

neutral/positive 

positive 

positive 

positive 

neutral 

positive  

neutral/positive 

neutral/positive 

positive 

positive 

neutral 

positive 

neutral/positive 

neutral/positive 

positive 

positive 

The  option  of  not  taking  action  would  not  tackle  the  problems  which  have  been  identified, 
would mean that the economic and societal costs remain, and would run the risk of allowing a 
widening of the gap in legal protection. In view of commitments made by the Commission, 
Council  conclusions,  calls  from  the  European  Parliament,  and  the  expectations  of 
stakeholders, this option would also be difficult to defend politically. 

A combination of measures 

Among  the  courses  of  action  discussed,  no  single  option  can  meet  the  all  objectives  unless 
there  is  a  wholesale  revision  of  the  legal  framework  including  the  current  legislation.  This 
would  be  a  disproportional  response  given  the  degree  of  legal  uncertainty  it  would  create 
while a new framework was being negotiated.  

However a combination of binding and non-binding measures would represent an important 
step  forward,  building  on  what  has  already  been  achieved  with  the  current  Article  13 
directives and accompanying measures. An appropriate package could include a multi-ground 
directive,  a  recommendation  on  multiple  discrimination  and  on  equality  bodies,  and  the 
launch of a dialogue with specific economic sectors to develop a self-regulation approach to 
tackling discrimination in the provision of services.  

Whichever  combination  is  decided,  there  would  be  a  package  of  accompanying  measures 
including  the  establishment  of  a  more  structured  dialogue  and  exchange  between  Member 

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51 

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States  as  well  as  other  relevant  actors,  and  the  intensification  of  awareness-raising  and 
capacity building measures. 

As  already  noted,  the  adjustments  which  Member  States  would  need  to  make  to  their  laws 
will vary since some are more advanced than others. Moreover, new legislation would use the 
same principles as in the current laws (for example on definitions and types of discrimination, 
reasonable  accommodation,  role  of  equality  bodies,  procedural  rules  such  as  sharing  the 
burden of proof and right of interested associations to engage in legal procedures, and so on). 
So, where additional measures need to be taken by Member States, the related administrative 
and  compliance  costs  will  be  marginal  since  they  will  build  on  the  existing  framework  of 
legislation,  implementation  and  reporting.  In  the  case  of  companies,  it  is  to  be  emphasised 
that  administrative  costs  for  companies  would  also  be  marginal  since  there  would  not  be  a 
requirement to gather and transmit information to national or other authorities. 

The added value of EU action 

As  to  the  added  value  of  EU  action,  the  EU  has  a  clear  legislative  competence  in  this  area 
(Article  13  EC)  and,  as  shown  previously,  part  of  the  problem  derives  from  the 
incompleteness of the EU legal framework.  

The  EU  added  value  in  this  area  is  demonstrated  by  the  previous  intervention  of  the 
Community  legislator  in  this  field.  The  main  driver  for  the  adoption  of  the  present  non-
discrimination laws at national level was the need to transpose the current EC Directives. In 
the absence of new legislation at EU level, it thus seems unlikely that national laws will be 
greatly extended. So, while a particular form of discrimination could be challenged before a 
court of first instance in one Member State on the basis of a civil law claim, the same case of 
discrimination could be difficult to mount in Member States with only a general constitutional 
provision  prohibiting  discrimination  and  not  possible  at  all  in  others.  Member  State  action 
alone, based on national constitutional and legal frameworks, is unlikely to lead to an increase 
in the level of protection against discrimination.  

The reasons for previous legal acts remain valid and there is no reason to call into question the 
added  value  of  EU  action  in  this  form.  Indeed,  legal  experts117  as  well  as  the  European 
Parliament have confirmed it.  

Differences in implementation (in terms of timing and effectiveness) of the UN Convention 
on  the  rights  of  persons  with  disabilities  could  exacerbate  the  differences  in  the  level  of 
protection against disability discrimination across the Member States. Such differences could 
hinder the effective application of the freedom of movement of people but also of goods and 
services  and  thus  alter  the  functioning  of  the  internal  market.  Developing  a  consistent 
approach across the EU on what the principle of non-discrimination on grounds of disability 
entails  as  regards  the  rights  and  obligations  for  those  concerned  would  thus  bring  legal 
certainly and clarity to people with disabilities and economic operators. 

In  addition,  the  UN  Convention  does  not  oblige  a  State  Party  to  be  a  Party  to  the  Optional 
Protocol  that  provides  for  competence  of  the  Committee  on  the  Rights  of  Persons  with 
Disabilities to receive and consider communications from those subject to its jurisdiction who 
claim to be victims of a violation of the provisions of the Convention. The Committee on the 
Rights of Persons with Disabilities is not a judicial institution and its findings have no binding 

117 

See footnote 129 below 

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52 

   EN 

                                                 
force in law118. The mechanisms of enforcement and redress are therefore weak, and could be 
better guaranteed in EC legislation, which would provide a uniform and minimal protection 
with reference to some of the obligations of the UN Convention. 
At the informal ministerial meeting on disability issues in Slovenia in May 2008,119 Member 
States confirmed their commitment to implementing the Convention and to maintaining close 
cooperation at EU level in doing so. They identified areas of common interest including the 
compliance of non-discrimination legislation with the Convention’s provisions. 

Furthermore,  as  shown  in  the  baseline  scenario  (see  Subsection  4.4.),  EU  intervention  is 
needed in order to reach a level playing field which would allow citizens and businesses to 
exercise  their  internal  market  rights.  If  no  action  is  taken  at  EU  level,  there  will  still  be 
untapped potential for businesses to develop markets for services in other countries. Providers 
of  goods  and  services  are  faced  with  a  complex  mosaic  of  differing  national  provisions  on 
discrimination  when  operating  across  borders.  As  noted  earlier  in  the  Report,  two-thirds  of 
businesses consulted via the European Business  Test Panel think this matters. And differing 
levels of protection from discrimination influence individuals' decisions to make use of their 
rights of free movement, for instance to travel, work or study in another Member State. Again, 
two-thirds  of  those  who  replied  to  the  public  consultation  think  this  matters  and  it  would 
affect  their  decision  about  whether  to  go  to  another  Member  State.  The  need  for  a  level 
playing field also has an intuitive aspect - a person living in a country which has a high level 
of protection against discrimination is unlikely to go a country which has a much lower level 
of protection and would have no means of redress if they are discriminated against. 

•  In  addition,  the  Flash  Eurobarometer  survey  conducted  in  February  2008  120  highlighted 
that the majority of EU citizens (from 68 % to 77%) see a need in their country for specific 
legislation to protect people from discrimination in areas beyond the labour market such as 
education  (77%  in  favour),  healthcare  (76%),  housing  (71%),  when  buying  insurance 
policies (70%), when buying products or using services (68%).  

Non-discrimination is a fundamental value of the EU, and a general principle of Community 
law,  according  to  the  European  Court  of  Justice.  Given  the  general  right  to  equality,  there 
should  be  a  minimum  and  equivalent  level  of  protection  against  discrimination  outside  the 
employment sphere, for the different types of discrimination covered by Article 13 EC, across 
all the Member States. Despite the signature by the Member States of the UN Convention on 
the Rights of Persons with Disabilities, the only certain way to achieve an EU wide minimum 
level of protection is through an EC legislative act.  

118 
119 
120 

EN 

based on ECJ judgment of 17 February 1998 in Case C-249/96, par 46 on the Human Right Committee 
http://www.mddsz.gov.si/fileadmin/mddsz.gov.si/pageuploads/dokumenti__pdf/ns_invalidi_sklepi_220508_en.pdf 
Flash 
at: 
full 
http://ec.europa.eu/public_opinion/flash/fl_232_en.pdf 

Eurobarometer 

available 

results 

online 

232 

the 

are 

; 

53 

   EN 

                                                 
Conclusion 

As a community of people, based on shared values, the European Union has been given the 
means to combat discrimination on the grounds of race and ethnic origin, religion or belief, 
age, disability and sexual orientation in Article 13 EC-Treaty. Two directives were adopted in 
2000, which triggered important improvements in national legislation and put Europe at the 
forefront of the fight against discrimination. 

However, these two directives differ in their material scope, establishing a more far-reaching 
protection  against  discrimination  on  the  ground  of  race  and  ethnic  origin  than  for  the  other 
grounds,  thus  creating  a  de  facto  'hierarchy  of  grounds'  not  reflected  in  Article  13.  The 
question thus arises of how to match the scope of protection for all the grounds. This could be 
achieved  in  a  comprehensive  approach  with  one  single  legal  instrument  or  with  a  more 
progressive, discrimination ground by ground approach.  

After defining the main objectives of a new Community action - to increase protection against 
discrimination  on  grounds  of  age,  disability,  sexual  orientation  and  religion  or  belief,  to 
ensure  legal  certainty  and  to  guarantee  effective  remedies  -  this  impact  assessment  has 
considered  the  possible  effects  of  six  policy  options:  no  new  action  at  EU-level,  self-
regulation in specific sectors, a recommendation dealing specifically with the competences of 
the  equality  bodies  and  multiple  discrimination,  a  general  recommendation;  a  single  ground 
directive and a multi-ground directive. 

It comes to the conclusion that a legally binding measure at Community level extending the 
scope of protection against discrimination on grounds of age, disability, sexual orientation and 
religion or belief would be the best suited instrument to achieve the defined objectives.  

9. 

MONITORING AND EVALUATION ARRANGEMENTS 

9.1. 

Possible indicators 

Using  quantitative  indicators  in  assessing  the  existence  and  scale  of  discrimination  raises  a 
number  of  difficulties.  Discrimination  involves  complex  social  phenomena.  It  may  occur  in 
quite  different  environments—in  schools,  hospitals,  shops,  cinemas,  restaurants—and  in 
many  other  situations  and  settings  of  social  life.  In  addition,  assessing  the  existence  of 
discrimination implies a value judgment of the actual facts (for example, what is justified and 
what  is  not).  This  latter  exercise  is  usually  at  odds  with  the  normal  methods  for  collecting 
quantitative, aggregated data. What is more, it is often difficult to find reliable data, since this 
involves  personal  information  of  a  particular  delicate  nature  (such  as  a  person's  religion  or 
sexual orientation) and, owing to restrictive practices and rules in a large majority of Member 
States, data in this area are scarce. 

The isolated use of a single indicator can mislead. For example, the incidence and extent of 
discrimination may be gauged from the number of complaints of discrimination presented to 
national courts. But that figure may conceal the existence of victims who do not know their 
rights  and  do  not  make  complaints,  and  of  successful  mediation  arrangements  arrived  at  in 
cases  brought  before  equality  bodies.  Inversely,  a  sharp  rise  in  the  number  of  complaints 
brought before the courts, equality bodies or NGOs may simply indicate that action to raise 
awareness of the issues has been effective. 

EN 

54 

   EN 

 
Nonetheless, careful use of a combination of selected indicators can provide an accurate idea 
of  the  facts  with  a  view  to  suitable  monitoring  of  the  situation  and  correct  assessment  of 
measures taken. 

Several  indicators  of  different  types,  both  quantitative  (for  example,  the  number  of 
complaints)  and  qualitative  (for  example,  the  Commission's  assessment  of  national 
legislation's conformity with the directive), should therefore be used and relevant information 
collected  from  different  sources.  This  method  should  reduce  the  risk  of  overestimating  or 
underestimating  the  phenomenon.  A  cross-analysis  based  on  different  sources  should  also 
cancel out any bias on the part of the body collecting or collating the information.  

9.2.  Monitoring 

In line with the objectives set out above, Annex VII presents several proposals for indicators 
and  sources  of,  or  methods  for  collecting,  information  needed  for  purposes  of  monitoring. 
Such information is needed by the Commission as part of active follow-up to the transposition 
and implementation process in the Member States. 

These proposals also draw inspiration from experience gained in monitoring implementation 
of the existing Directives (Directives 2000/43/EC and 2000/78/EC). Monitoring of those two 
Directives was carried out with assistance initially from the Community action programme to 
combat  discrimination  (2001-06)  and  subsequently  from 
the  Progress  programme 
(2007-13)121. 

Under those programmes, the EU set up and funds the European network of legal experts in 
the  non-discrimination  field,  which  supports  the  Commission's  work  by  providing 
independent  information  and  advice  on  relevant  legal  developments  in  the  Member  States, 
and in particular on the implementation of the two existing non-discrimination Directives.  

In  addition,  the  Progress  programme  also  funds  Equinet,  the  European  network  of  EU 
equality  bodies.  It  seeks  to  develop  cooperation  between  specialised  equality  bodies  and  to 
facilitate effective exchange of experience and expertise. These bodies are and will continue 
to be sources of relevant information on implementation of the non-discrimination Directives, 
including that now proposed. 

While  other  activities  undertaken  under  the  two  programmes  mentioned  above  were  not 
designed primarily for information collecting, they may also provide useful data. This is the 
case,  for  instance,  of  training  activities  targeting  legal  professionals122,  which  provide  an 
opportunity  for  the  Commission  to  obtain  detailed  information  from  participants  on 
implementation of the Directives in their countries. 

Lastly, in accordance with the Commission Communication "A Europe of results – Applying 
Community law"123, the Commission suggests setting up an expert group of representatives of 
the Member States and the Commission (the "Legal Monitoring Group"), which would meet 

121 

122 

123 

Decision  No  1672/2006/EC  of  the  European  Parliament  and  of  the  Council  of  24  October  2006 
establishing a Community Programme for Employment and Social Solidarity — Progress, OJ L 315/1 
of 15 November 2006. 
For example, from 2003 to 2007, 781 people (471 judges and 310 lawyers and NGOs members), from 
33  European  countries,  participated  in  training  sessions  on  Directives  2000/43/EC  and  2000/78/EC 
organised by the European Law Academy of Trier. 
COM(2007) 502 final 

EN 

55 

   EN 

                                                 
to discuss issues concerning the transposition of the proposed directive, along the lines of the 
Legal  Working  Group  that  met  between  2001  and  2004  to  consider  the  implementation  of 
Directives 2000/43/EC and 2000/78/EC. The proposed expert group would ensure improved 
information  flow  between  EU  and  national  authorities  on  how  the  directive  is  implemented 
and is intended to help anticipate and resolve problems more effectively. By the same token, 
the Commission will also request that a contact point be designated for each Member State on 
the  implementation  of  the  proposed  directive.  In  the  case  of  a  disability  only  directive  the 
relevance  of  the  existing  Disability  High  level  group  and  the  forthcoming  mechanisms  to 
monitor the implementation of the UN Convention will need to be considered. 

9.3. 

Transposition  

The  time  limit  for  transposing  the  directive  would  be  two  years,  although  a  longer  period 
could  be  considered  for  certain  age  and  disability  provisions.  This  could  be  justified  by  the 
fact  that  a  directive  covering  discrimination  on  such  grounds  may  be  more  complex  for 
economic operators to put into effect in some areas. 

It  is  suggested  that  six  years  after  the  adoption  of  the  directive,  the  governments  of  the 
Member States and the national equality bodies send the Commission information for a report 
to  Parliament  and  the  Council  on  the  application  of  the  directive.  The  report  may  make 
proposals to revise and update the directive. 

When  drafting  the  report  the  Commission  will  also  take  due  account  of  the  opinion  of  and 
information provided by Parliament, relevant stakeholders (businesses, European NGOs, and 
social partners) and the EU Fundamental Rights Agency. The report should also take account 
of the results of the activities of the "Eurostat Task Force on discrimination statistics", set up 
recently with the overall aim of developing a general framework for the regular collection of 
statistics on the extent and impact of discrimination.  

EN 

56 

   EN 

ANNEX I: Summary of the consultation of the European level NGOs and social 
partners 

Organisation 

Main comments 

European Older People's Platform (AGE-Platform)  Directive prohibiting discrimination on grounds of age, 
sexual  orientation,  disability  and  religion  or  belief  in 
all  the  non-employment  areas  covered  by  directive 
2000/43,  but  with  special  provisions 
for  age 
discrimination. 

Differences  of  treatment  should  be  based  on  specific 
risks, not use age as a simple proxy. 

Stereotyping  and  negative  images  of  older  people  in 
the media should be tackled. 

Certain  types  of  preferential  treatment  should  be 
allowed, as should positive action. 

Protection  against  multiple  discrimination  should  be 
included. 

The provision of information on any new rights should 
be strengthened, and awareness raising is essential. 

An Equality Body should be established. 

Directive  prohibiting  discrimination  on  grounds  of 
disability in all the non-employment areas covered by 
directive 2000/43. 

The  prohibition  of  discrimination  should  also  cover 
access  to  information,  transport,  telecommunications, 
content  of  media,  the  built  environment  and  public 
space.  Goods  should  be  designed  with  accessibility 
features. 

Strengthening of positive action provisions. 

An  Equality  Body  should  be  established,  but  its 
expertise should not be "watered down" by in adequate 
resources  and  having  to  deal  with  all  types  of 
discrimination. 

of 

Protection 
against 
country 
discrimination  based  on  nationality,  in  particular 
concerning immigration and asylum. 

nationals 

3rd 

European Disability Forum 

(EDF) 

European Network Against Racism (ENAR) 

Protection  against  multiple  discrimination  should  be 
included. 

Need  to  tackle  institutional/structural  discrimination 
more effectively. 

Protection against discrimination in criminal justice. 

Strengthening of positive action provisions. 

Non-discrimination should be mainstreamed in all EU 

EN 

57 

   EN 

European Women's Lobby 

(EWL) 

International Lesbian and Gay Association 

(ILGA-Europe) 

BusinessEurope 

European  Centre  of  Enterprises  with  Public 
Participation  and  of  Enterprises  of  General 
Economic Interest (CEEP) 

policies. 

New  directive  prohibiting  discrimination  on  the  basis 
of gender. 

Education, health care, the media should be expressly 
covered,  as  well  as  social  advantages  and  social 
assistance. 

Protection  against  multiple  discrimination  should  be 
included. 

Equality  Bodies  should  be  specifically  required  to 
address issues concerning gender discrimination. 

Directive prohibiting discrimination on grounds of age, 
sexual  orientation,  disability  and  religion  or  belief  in 
all  the  non-employment  areas  covered  by  directive 
2000/43. 

Protection  against  multiple  discrimination  should  be 
included. 

Recognition  of  same  sex  couples,  and  removal  of 
exception for rules related to marital status. 

Equality  bodies  should  be  adequately  resourced  and 
should be proactive in preventing discrimination. 

A  European  Fund  for  litigation  to  support  test  cases 
should be established. 

Did not see any evidence of discrimination outside the 
labour market in respect of which people have no legal 
protection.  The  current  EU  and  national  frameworks 
are sufficient. 

All the non-discrimination rules are difficult to follow 
and should be explained simply. 

In  access  to  goods  and  services,  it  should  be  possible 
to tailor treatment to the client in question.  

EU  action  should  be 
to  exchanges  of 
experience  and  the  promotion  of  good  practice. 
Information  and  training  for  companies  would  be 
useful.  

limited 

Discrimination  does  exist  in  some  countries,  and 
people have no legal protection against it. 

The  cost  of  non-discrimination  largely  falls  on  public 
providers  (hospitals,  social  security,  public  housing 
etc), and lack of sufficient resources is a key obstacle.  

Awareness raising is essential to combat ignorance of 
the law.  

Equal  access  to  health,  education  and  housing  is 
essential to achieve greater social inclusion as well as 
employability and adaptability on the labour market. 

Need  to  look  at  situations  where  there  is  conflict 
between different types of discrimination.  

EN 

58 

   EN 

European Association of Craft, small and medium-
sized enterprises (UEAPME) 

Council  of  European  Professional  and  Managerial 
Staff (Eurocadres) 

European Trade Union Congress (ETUC) 

Mainstreaming of the principle of non-discrimination.  

There  is  a  gap  in  the  legislative  protection  against 
discrimination,  but  non-legislative  measures  such  as 
awareness-raising 
addressing 
discrimination and preventing it in the first place.  

crucial 

are 

in 

Member  States  and  professional  organisations  should 
provide support mechanisms and information for small 
businesses in particular. 

There  should  only  be  one  Equality  Body  in  each 
Member State (simpler, and would help tackle multiple 
discrimination). 

Did  not  see  any  particular  evidence  of  discrimination 
outside the labour market, although there was a lot of 
discrimination against older workers as regards senior 
positions.  

New  directive  prohibiting  discrimination  on  grounds 
of  age,  sexual  orientation,  disability  and  religion  or 
belief  in  all  the  non-employment  areas  covered  by 
directive 2000/43.  

Exclusion  of  discrimination  on  grounds  of  nationality 
should be reviewed.  

Tackling  discrimination  outside  employment  has 
strong links to the field of employment.  

Protection  against  multiple  discrimination  should  be 
included as well as positive action.  

Equality bodies should be independent and adequately 
resourced,  and  should  be  empowered  to  general 
investigations of specific sectors. 

Need  to  look  at  situations  where  there  is  conflict 
between different types of discrimination.  

EN 

59 

   EN 

Submissions  were  also  received  from  the  following  organisations  and  can  be  seen  on 
http://ec.europa.eu/employment_social/fundamental_rights/org/imass_en.htm 

Equinet 

Equality and Human Rights Commission GB 

COFACE (Confédération des organisations familiales de l'UE) 

Help the Aged UK,  

Age-Concern in the UK 

The Equality and Diversity Forum (UK) 

SOS Consumer Protection Association in the Czech Republic, 

"Verbraucherrecht" (consumer rights) in Austria 

The European Youth Forum 

The European Blind Union 

The Discrimination Law Association (UK) 

HOTREC (Confederation of national hotel associations in the EC and EEA) 

Association of British Insurers 

Assuralia , Belgium 

VV - Austrian insurance association 

Test Achats (Association Belge des Consommateurs) 

Care for Europe 

ECTAA - The European travel agents' and tour operators' associations 

Eurofinas – Specialised consumer credit providers in Europe 

EN 

60 

   EN 

ANNEX II: Legal Framework 

Antidiscrimination law in the EU 

International law 

UN Convention on the Rights of Persons with Disabilities 

EC-law 

Article 13  

European Convention on Human Rights 

Art. 13 (1) 

Directive 2000/43 

Directive 2000/78 

Directive 2004/113 

Art. 13 (2) 

incentive measures 

Member States 

Constitutional provisions 

Labour law 

Administrative law 

Penal law 

Social law 

Civil law 

(7) 

European Union 

Article  13(1)  of  the  EC  Treaty  empowers  the  Council  to  adopt  unanimously  measures  to 
combat  discrimination  on  the  basis  of  sex,  racial  or  ethnic  origin,  religion  or  belief,  age  or 
sexual  orientation.  This  is  a  closed  list.  Article  13(1)  does  not  give  a  free-standing  right  to 
non-discrimination  to  individuals,  nor  is  it  directly  applicable.  Three  directives  have  been 
adopted so far on the basis of Article 13(1) EC, Directives 2000/43/EC124, 2000/78/EC125 and 
2004/113/EC126.  All  three  Directives  prohibit  direct  discrimination,  indirect  discrimination 
and  harassment  as  well  as  instructions  to  discrimination,  which  are  considered  a  form  of 
discrimination. Article 13(2) of the Treaty allows the Council to adopt Community incentive 
measures to support action taken under Article 13127.  

Directive 2000/43 protects people against discrimination on grounds of racial or ethnic origin 
not  only  in  employment  and  vocational  training  but  also  in  the  fields  of  education,  social 
protection,  health  care,  social  security  and  access  to  goods  and  services  available  to  the 
public, including housing.  

Under  Directive  2000/78  protection  against  discrimination  on  grounds  of  age,  religion  or 
belief, disability and sexual orientation only applies in  employment and  vocational training. 
There  is  a  specific  exception  allowing  direct  discrimination  on  grounds  of  age  in  certain 

124 
125 
126 
127 

OJ L 180 of 19.7.2000, p.22. 
OJ L. 303 of 2.12.2000, p.16. 
OJ L 373 of 21.12 2004, p. 37. 
Article  13(2)  was  the  legal  base  used  for  the  decision  of  the  Parliament  and  Council  setting  up  the 
European  Year  of  Equal  Opportunities  for  All  (Decision  No  771/2006/EC)  as  well  as  the  Regulation 
establishing the European Institute of Gender Equality (Regulation (EC) nº 1922/2006) 

EN 

61 

   EN 

 
 
 
 
 
 
 
 
 
 
                                                 
circumstances.  Employers  are  obliged  to  provide  "reasonable  accommodation"  for  disabled 
workers  in  order  to  allow  them  access  to  a  job  they  are  qualified  for,  as  long  as  doing  so 
would not impose a disproportionate burden on the employer.  

There is a vast corpus of gender equality legislation at EC level, adopted under what is now 
Article  141  EC,  prohibiting  discrimination  between  men  and  women  in  employment,  social 
security and occupational pensions. Directive 2004/113 prohibits discrimination on grounds 
of gender outside employment in the supply of goods and services (excluding the content of 
media  and  advertising,  and  the  education  sector).  It  contains  a  specific  provision  allowing 
Member  States  to  permit  proportionate  differences  in  individuals'  premiums  and  benefits 
where the use of sex is a determining factor in the assessment of risk. 

Directive  2000/43  requires  the  Member  States  to  establish  a  body  (or  bodies)  to  promote 
equal  treatment  of  all  persons  without  discrimination  on  grounds  of  racial  or  ethnic  origin. 
The Directive lays down three minimum competences for this body: 

–  to provide independent assistance to victims of discrimination 

–  to conduct independent surveys concerning discrimination 

–  to  publish  independent  reports  and  make  recommendations  on  issues  relating  to 

discrimination 

An  equivalent  obligation,  in  terms  of  gender  equality,  both  in  the  employment  sphere  and 
outside it, is contained in Directives 2002/73 and 2004/113. The creation of equality bodies 
has proved to be a key factor in combating discrimination, providing victims with a source of 
advice  and  help,  as  well  as  contributing  greatly  to  awareness  raising.  In  terms  of  access  to 
justice the equality bodies play a vital role128. It should be noted that no such obligation exists 
under  Directive  2000/78,  with  the  result  that  victims  of  discrimination  on  grounds  of  age, 
disability, religion or belief and sexual orientation outside the labour market do not have an 
equality body to turn to for help. 

The following table gives an overview over the material scope of the three directives adopted 
on the basis of Article 13(1). 

128 

See report “Catalysts for Change? Equality bodies according to Directive 2000/43/EC”,by Legal 
Experts’ Group available at: 
http://ec.europa.eu/employment_social/fundamental_rights/pdf/legnet/06catalyst_en.pdf 

EN 

62 

   EN 

                                                 
Table: Overview of material scope of existing directives adopted on the basis of Article 13(1) 

Grounds 
Field 

Race 

Religion 

Disability 

Age 

Sexual 
orientation 

Employment 
& 
vocational training 

Education 

Yes 

Yes 

Goods and services  Yes 

Social protection 

Yes 

Yes 

Yes 

Yes 

Yes 

No 

No 

No 

No 

No 

No 

No 

No 

No 

No 

No 

No 

Sex 

Yes 

No 

Yes 

Yes 

The  presently  existing  regulatory  architecture  thus  creates  a  hierarchy  of  discrimination 
grounds,  whereas  Article  13  defines  all  discrimination  grounds  as  equally  important  and 
worthy  of  protection.  This  hierarchy  of  grounds  is  not  simply  a  legalistic  or  academic 
problem: it means that in practice individuals can bring cases of race discrimination outside 
the employment area before national courts while, for example, an analogous case involving 
discrimination  on  the  ground  of  religion  leaves  the  concerned  individual  without  a  legal 
redress. It can thus be said that the present law "lacks clarity, consistency and coherency" and 
makes  it  difficult  for  perpetrators  to  know  their  obligations  and  for  victims  to  know  their 
rights129. 

There are also detailed Community law rules on accessibility of air travel for passengers with 
reduced  mobility130  and  an  equivalent  measure  was  adopted  for  railways  on  3.12.2007131, 
which  require  transport  providers  to  give  all  necessary  assistance  to  individual  disabled 
passengers who have given notice that they will be travelling. 

The EU Charter of Fundamental Rights which forms part of the Treaty of Lisbon, provides 
in its Article 21 that any discrimination based on any ground such as sex, race, colour, ethnic 
or social origin, genetic features, language, religion or belief, political or any other opinion, 
membership of a national minority, property, birth, disability, age or sexual orientation shall 
be prohibited. Article 26 addresses the rights of persons with disabilities. 

(8)  Member States 

All  Member  States  have  transposed  directives  2000/43/EC  and  2000/78/EC  into  national 
law132 This required legislative changes in all Member States, and resulted in the introduction 
of  specific  protection  against  discrimination  in  areas  where  it  had  not  existed  before 
(primarily  the  non-employment  aspects)  and  for  certain  groups  which  had  not  previously 
enjoyed  protection  against  discrimination  (in  particular  with  respect  to  age  and  sexual 
orientation).  

Whereas prior to transposition of Directives 2000/43/EC and 2000/78/EC many EU Member 
States provided protection against discrimination through a patchwork of – largely declaratory 

129 

130 
131 
132 

UK Equality and Human Rights Commission, Contribution to the European Commission's consultation, 
2007.  
Regulation 1107/2006/EC 
Regulation 1371/2007/EC 
Report  from  the  Commission  on  the  application  of  Directive  2000/43:  COM  (2006)  643  final  and  on 
Directive 2000/78/EC; COM (2008) final. 

EN 

63 

   EN 

                                                 
–equality  clauses  in  a  series  of  legislative  instruments,  by  now,  most  have  adopted  more 
visible specific non-discrimination legislation133. 

To  some  extent,  all  the  Member  States  go  beyond  the  minimum  required  by  the  above-
mentioned  EC  directives,  whether  through  general  constitutional  provisions  or  detailed 
legislation covering prohibiting some or all types of discrimination. Five Member States have 
detailed legal protection against discrimination on grounds of age, religion or belief, disability 
and  sexual  orientation  in  all  the  non-employment  areas  listed  in  Directive  2000/43  (Ireland, 
Hungary, Luxembourg, Bulgaria and Slovenia). 

133 

Mark Bell, Isabelle Chopin, Fiona Palmer for the European Network of Independent Experts in the non-
discrimination field, Developing anti-discrimination Law in Europe, the 25 EU Member States 
compared, January 2007. 
http://ec.europa.eu/employment_social/fundamental_rights/pdf/legnet/07compan_en.pdf 

EN 

64 

   EN 

                                                 
ANNEX III: Legal Situation in the Member States 

Non-exhaustive comparison of legal protection beyond the existing directives 134 

Key: 
"L" = legislative protection against discrimination 
"C" = constitutional protection against discrimination 
"x" = partial protection against discrimination 

Member 
State 

Grounds of 
discrimination 

Social 
security 

Health 
Care 

Social 
advantages 

Education 

Goods & 
services 

Housing 

Austria 135 

Religion 

Age 

Disability 

Sexual Orient. 

Belgium136 

Religion 

Age 

Disability 

Sexual Or. 

Bulgaria 

Religion 

Age 

Disability 

Sexual Or. 

Cyprus 

Religion 

Age 

Disability 

Sexual Or. 

L 

L 

L 

L  

L 

L 

L  

L  

L x 

L x 

L x 

L x 

L  

L 

L  

L 

L  

L 

L 

L  

L x 

L x 

L x 

L x 

L  

L 

L 

L 

L 

L 

L  

L 

L x 

L x 

L x 

L x 

L  

L 

L 

L 

L x 

L x 

L  

L x 

L  

L 

L  

L 

L 

L 

L  

L 

L 

L x 

L x 

L  

L x 

L  

L  

L 

L 

L x 

L x 

L x 

L x 

134 

135 

136 

The  national  constitutional  or  legislative  protections  against  discrimination  may  be  weaker  than  the 
protection provided by Directives 2000/43/EC and 2000/78/EC (which includes prohibition of all types 
of  discrimination,  legal  standing  of  interested  associations,  share  of  the  burden  of  proof,  protection 
against  victimisation,  etc).  In  some  cases,  the  national  protection  may  also  be  subject  to  certain 
conditions and exceptions. 
Information  in  the  table  concerns federal  legislation only.  Meanwhile,  the  legislation of  some  Länder 
prohibits discrimination on grounds of religion, age, disability and sexual orientation outside the labour 
market. 
Information  in  the  table  concerns  federal  legislation  only.  Education  and  housing  are  regional 
competences. Regional legislation varies according to the Region or Community in question. 

EN 

65 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Key: 
"L" = legislative protection against discrimination 
"C" = constitutional protection against discrimination 
"x" = partial protection against discrimination 

Member 
State 

Grounds of 
discrimination 

Social 
security 

Health 
Care 

Social 
advantages 

Education 

Goods & 
services 

Housing 

Czech 
Republic137 

Religion 

Age 

Disability 

Sexual Or. 

Denmark138 

Religion 

Age 

Disability 

Sexual Or. 

Estonia 

Religion 

Age 

Disability 

Sexual Or. 

Finland 139 

Religion 

Age 

Disability 

Sexual Or. 

(L) 

(L) 

(L) 

(L) 

C 

C 

C 

C 

L  

L 

L  

L 

(L) 

(L) 

(L) 

(L) 

C 

C 

C 

C 

L 

L  

L  

L  

(L) 

(L) 

(L) 

(L) 

C 

C 

C 

C 

Lx 

Lx 

Lx 

Lx 

L  

L  

L  

L 

C 

C 

C 

C 

L  

L  

L 

L 

L 

L  

L  

L 

Lx  

(L) 

(L) 

(L) 

(L) 

Lx 

L x 

Lx 

C 

C 

C 

C 

Lx 

Lx 

Lx 

Lx 

C 

C 

C 

C 

Lx 

Lx 

Lx 

Lx 

137 

138 

139 

A  new  law  adopted  recently,  but  not  yet  in  force  as  of  25/4/2008,  prohibits  discrimination  on  the 
grounds of sex, race, religion, age, disability and sexual orientation covering the full material remit of 
Directive 2000/43/EC. The remit of the new law is indicated between brackets.  
Public  authorities  are  subject  to  the  unwritten  principle  of  equality  applicable  under  general 
administrative  law.  Protection  on  access  to  goods  and  services  does  not  cover  strictly  private  affairs, 
where an individual acts in a non commercial way. 
In  Finland,  laws  on  social  welfare  and  on  rights  of  a  patient  provide  for  a  general  prohibition  of 
discrimination. The criminal code also prohibits discrimination in a wide range of areas, under certain 
conditions. 

EN 

66 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Key: 
"L" = legislative protection against discrimination 
"C" = constitutional protection against discrimination 
"x" = partial protection against discrimination 

Member 
State 

Grounds of 
discrimination 

Social 
security 

Health 
Care 

Social 
advantages 

Education 

Goods & 
services 

Housing 

France140 

Religion 

Age 

Disability 

Sexual Or. 

Germany 141 

Religion 

Age 

Disability 

Sexual Or. 

Religion 

Greece  

Age 

Disability 

Sexual Or. 

Hungary 

Religion 

Age 

Disability 

Sexual Or. 

Ireland 

Religion 

Age 

Disability 

Sexual Or. 

C 

L 

L 

L  

L  

L 

L 

C 

C 

C 

C 

L  

L 

L  

L  

L  

L  

L 

L 

C 

L 

L 

L  

L 

L  

L 

C 

C 

C 

C 

L  

L 

L  

L 

L  

L 

L  

L 

C 

L 

L 

L 

L  

L  

L 

C 

C 

C 

C 

L  

L 

L 

L 

L  

L  

L 

L  

C 

L 

L 

L  

L  

L 

L  

C 

C 

C 

C 

L  

L  

L  

L  

L  

L  

L 

L 

CL 

CL  

L  

L 

Lx 

Lx 

Lx 

Lx 

C 

C 

C 

C 

L 

L  

L 

L  

L  

L  

L 

L 

L  

L 

Lx 

Lx 

Lx 

Lx 

C 

C 

C 

C 

L  

L 

L  

L 

L 

L 

L 

L 

140 

141 

In France, the legislation provides for special rights for disabled people, for example in education, and 
provides for accessibility to public spaces, buildings, transport and online services of the State. 
In  Germany,  protection  in  access  to  goods  and  services  concerns  only  "mass  [standard]  contracts". 
Protection on housing has limitations; ex: it does not apply to renting by owners who have less than 50 
apartments. 

EN 

67 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Key: 
"L" = legislative protection against discrimination 
"C" = constitutional protection against discrimination 
"x" = partial protection against discrimination 

Member 
State 

Grounds of 
discrimination 

Social 
security 

Health 
Care 

Social 
advantages 

Education 

Housing 

Access to 
goods & 
services 

Italy 

Religion 

Age 

Disability 

Sexual Or. 

Latvia 

Religion 

Age 

Disability 

Sexual Or. 

L  

L 

L 

L  

L  

L 

L 

Lithuania 

Religion 

C 

C 

Age 

Disability 

Sexual Or. 

Luxembourg 

Religion 

Age 

Disability 

Sexual Or. 

Malta 

Religion 

Age 

Disability 

Sexual Or. 

L 

L 

L 

L  

L 

L  

L 

L 

L 

L  

L 

L 

L 

C 

L 

L  

L 

L  

L 

L 

L 

L  

L 

L  

L  

L  

L 

L  

L 

L  

L  

L  

L  

L  

L  

L 

L 

L 

L  

L  

L 

C 

L 

L  

L 

L  

L 

L  

L 

EN 

68 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Key: 
"L" = legislative protection against discrimination 
"C" = constitutional protection against discrimination 
"x" = partial protection against discrimination 

Member 
State 

Grounds of 
discrimination 

Social 
security 

Health 
Care 

Social 
advantages 

Education 

Housing 

Access to 
goods & 
services 

Netherlands 

Religion 

Age 

Disability 

Sexual Or. 

Religion 

Poland 

Age 

Disability 

Sexual Or. 

Portugal  

Religion 

Age 

Disability 

Sexual Or. 

Romania 

Religion 

Age 

Disability 

Sexual Or. 

Slovakia 142 

Religion 

Age 

Disability 

Sexual Or. 

L 

L  

C 

C 

C 

C 

L  

L 

L  

L 

L 

L  

L  

Lx 

Lx  

Lx  

Lx  

L 

L 

L 

L  

L 

L 

L  

Lx 

Lx  

Lx  

Lx  

L  

L  

L  

L  

L 

L 

L 

L  

L 

L 

L 

L 

L 

L 

L 

C 

C  

C  

C  

L 

L  

L  

Lx 

Lx  

Lx  

Lx  

L 

L  

C 

C  

C  

C  

L  

L 

L 

Lx 

Lx  

Lx  

Lx  

C 

C  

C  

C  

L  

L  

L 

Lx 

Lx  

Lx  

Lx  

142 

In Slovakia, discrimination based on sexual orientation may covered by the reference to "other status". 

EN 

69 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Key: 
"L" = legislative protection against discrimination 
"C" = constitutional protection against discrimination 
"x" = partial protection against discrimination 

Member 
State 

Grounds of 
discrimination 

Social 
security 

Health 
Care 

Social 
advantages 

Education 

Housing 

Access to 
goods & 
services 

Slovenia  

Religion 

Age 

Disability 

Sexual Or. 

Spain 

Religion 

Age 

Disability 

Sexual Or. 

Sweden143 

Religion 

United 
Kingdom 

Age 

Disability 

Sexual Or. 

Religion 

Age 

Disability 

Sexual Or. 

L  

L 

L 

L 

C 

C 

C 

C 

L 

L  

L 

L 

L  

L 

L 

L 

L 

C 

C 

C 

C 

L  

L 

L 

L  

L 

L  

L 

L  

L 

C 

C 

C 

C 

L  

L 

L 

L  

L 

L  

L 

L 

L 

Lx 

Lx  

Lx  

Lx  

L 

L 

L  

L  

L 

L 

L  

L 

L 

L 

C 

C 

L  

C 

Lx 

Lx 

Lx  

L 

L 

L 

L 

L 

L 

L 

C 

C 

C 

C 

Lx 

Lx 

Lx  

L  

L 

L  

143 

In  Sweden,  protection  in  access  to  goods  and  services  and  housing  applies  only  to  commercial 
transactions. 

EN 

70 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Non-exhaustive  indication  of  the  Member  States  legal  protection  (legislative  and  /or 
constitutional)  from  different  types  of  discrimination  outside  the  employment  sphere 
(covering social security, health care, social advantages, education, and access to goods and 
services available to the public, including housing, unless specified otherwise) 

Member 
State 

Austria 

Belgium 

Bulgaria 

Cyprus 

Legal situation 

Federal  law  protects  disabled  people  and  their  close  relatives  from  discrimination  in 
consumer  protection.  Transport  &  buildings  have  until  2016  to  adapt  accessibility. 
Legislation  in  Carinthia,  Salzburg,  Tyrol,  Upper  Austria  &  Burgenland,  Vienna  &  Styria 
prohibits discrimination on grounds of religion, disability, age and sexual orientation in non-
employment fields. Sign language is an officially recognised language. 

Legislative  protection  against  discrimination  on  grounds  of  religion,  sexual  orientation,  age 
and disability  exists outside the labour market, except for education and housing which are 
regional competences. Regional laws vary. 

Legislative  protection  against  discrimination  on  grounds  of  religion,  sexual  orientation,  age 
and disability in all areas outside the labour market. The Protection Against Discrimination 
Act  prohibits  discrimination  in  the  exercise  of  any  right  or  freedom  provided  by  the 
Constitution or by the law. 

The  Constitution  provides for general protection  against  discrimination  in  the  enjoyment  of 
economic,  social  and  cultural  rights;  but  age,  disability  and  sexual  orientation  are  not 
explicitly mentioned. Law 13 (III) of 2002 provides that the enjoyment of any right set forth 
by law shall be secured without discrimination on any ground; but age, disability and sexual 
orientation are not mentioned explicitly. Specific legislation provides for equality for disabled 
persons in the provision of goods and services, including education. 

Czech Republic  The  Charter  of  Fundamental  Rights  and  Freedoms  includes  a  general  non-discrimination 
clause, but most social, economic and cultural rights the Charter provides for can be invoked 
only within the limits established by the laws implementing them. The School Act, covering 
primary,  secondary  and  higher  education  prohibits  discrimination,  based,  inter  alia,  on 
religion or belief and "other status". The Law on consumers has a general clause prohibiting 
discrimination in provision of goods and services, but with no reference to specified grounds.  

Denmark 

Estonia 

Finland 

A new law adopted recently, but not yet in force as of 25/4/2008, prohibits discrimination on 
the  grounds  of  sex,  race,  religion,  age,  disability  and  sexual  orientation  covering  the  full 
material remit of Directive 2000/43/EC. 

Explicit protection against discrimination exists on grounds of religion and sexual orientation 
in access to goods and services (including housing) provided in a commercial manner. Public 
authorities are also governed by the unwritten principle of equality applicable under general 
administrative law. 

Constitutional  protection  against  discrimination  on  grounds  of  religion,  sexual  orientation, 
age and disability outside the labour market. 

Laws  on  social  welfare  and  on  rights  of  a  patient  provide  for  a  general  prohibition  of 
discrimination.  Discrimination  in  education  is  explicitly  prohibited  on  grounds  of  religion, 
sexual  orientation,  age  and  disability.  The  criminal  code  prohibits  discrimination  in  a  wide 
range of areas, when it is based on religion, age, sexual orientation and state of health, where 
it is carried out in a trade or profession, service of the general public, or exercise of official 
authority.  Within  the  remit  of  its  competence,  Ǻland  Islands  legislation  prohibits 
discrimination on grounds of religion, sexual orientation, age and disability outside the labour 
market.  

EN 

71 

   EN 

France 

Germany 

Greece 

Hungary 

Ireland 

Italy 

Latvia 

Lithuania 

The criminal code provides for sanctions of refusal or conditioning of the provision of goods 
and services if it is based, inter alia, on religion, age, disability and sexual orientation. The 
law on disabled people provides for special rights, for example in education, and provides for 
accessibility to public spaces, buildings, transport and online services of the State. 

Legislative  protection  against  discrimination  on  grounds  of  religion,  sexual  orientation,  age 
and  disability  applies  outside  employment,  but  in  access  to  goods  and  services  only  for 
"mass" (ie standard) contracts". Protection regarding housing has some limitations of scope. 

Constitutional  protection  against  discrimination  on  grounds  of  religion,  sexual  orientation, 
age and disability in all areas. 

Legislative  protection  against  discrimination  on  grounds  of  religion,  sexual  orientation,  age 
and disability in all areas. 

Legislative  protection  against  discrimination  on  grounds  of  religion,  sexual  orientation,  age 
and disability in all areas. 

Legislative protection against discrimination on grounds of disability and religion in all areas. 

Legislative  protection  exists  against  discrimination  based  on  religion  in  education.  Besides, 
discrimination  is  also  prohibited  on  the  grounds  of  religion,  age  and  disability  in  social 
security  and  social  advantages.  The  Constitution  provides  also  for  a  general  principle  of 
equality which can be invoked before the courts, but only in relations with the State. 

Legislative  protection  against  discrimination  on  grounds  of  religion,  sexual  orientation,  age 
and disability exists in education and access to goods and services. The Constitution provides 
for  a  principle  of  equality  on  a  list  of  exhaustive  grounds  including  religion  (not  age, 
disability and sexual orientation) which can be invoked before the courts. 

Luxembourg 

Legislative  protection  against  discrimination  on  grounds  of  religion,  sexual  orientation,  age 
and disability in all areas. 

Malta 

Protection  against  discrimination  exists  only  if  based  on  disability  and  occurs  in  education 
and access to goods and services (including housing). 

Netherlands 

Legislative protection against discrimination outside employment exists only if it is based on 
religion  and  sexual  orientation  and  occurs  in  education  and  access  to  goods  and  services, 
including health care and housing. 

Poland 

Portugal 

Romania 

Slovakia 

The  Constitution  contains  a  general  provision  of  non-discrimination  and  equal  treatment.  It 
also  provides  generally  for  equal  access  to  health  care  services.  No  legislative  explicit 
protection against discrimination on grounds of religion, sexual orientation, age and disability 
outside  the  labour  market.  The  sole  exception  is  the  Act  on  Education,  which  prohibits 
discrimination generally - even if it does not include a separate, explicit non-discrimination 
provision listing protected grounds.  

Protection against discrimination on grounds of religion, sexual orientation, age and disability 
in all areas. This protection derives partly from constitutional provisions. 

Protection against discrimination on grounds of religion, sexual orientation and disability in 
all areas, but not for age. 

Legislative protection against discrimination on grounds of religion, age, disability and sexual 
orientation,  in  social  security,  healthcare,  education  and  provision  of  goods  and  services, 
including housing, but only in combination with the rights laid down in specific laws. 

Slovenia 

Legislative  protection  against  discrimination  on  grounds  of  religion,  sexual  orientation,  age 

EN 

72 

   EN 

Spain 

Sweden 

and disability in all areas. 

Protection against discrimination on grounds of religion, sexual orientation, age and disability 
in  all  areas.  This protection derives primarily  from  constitutional provisions.  The  education 
law  (on  public  and  state-funded  schools)  prohibits  discrimination,  inter  alia,  on  grounds  of 
religion,  disability  or  any  other  personal  circumstance.  Legislation  on  disabled  persons 
provides for equality in access to goods and services, as well as for accessibility norms for 
public buildings and space. Sign language is an officially recognised language. 

Legislative protection against discrimination on grounds of religion and sexual orientation in 
all areas. For disability the protection applies to education and access to goods and services, 
including housing, but does not apply to social protection, health care or social advantages. In 
general, protection against discrimination in access to goods and services and housing applies 
only  to  commercial  or  professional  transactions,  not  to  those  of  a  purely  private  nature 
(between two private individuals). Age discrimination is not covered. 

United 
Kingdom 

Legislative  protection  against  discrimination  on  grounds  of  religion,  sexual  orientation  and 
disability in all areas, but not for age.  

Public  authorities  are  under  a  duty  to  combat  discrimination  based  on  race,  gender  or 
disability and promote equality in their policies and services. 

EN 

73 

   EN 

ANNEX IV: EPEC Study – methodology and effects and impacts of discrimination 

1. Methodology 

EPEC gathered data via desk based research, country research of the 27 EU Member States, a 
survey  of  equality  bodies,  case  studies  of  seven  MS,  participation  in  conferences,  and 
brainstorming  meetings  with  experts.  They  then  assessed  the  scale  and  impact  of 
discrimination  before  assessing  the  costs  and  benefits  of  legislative  and  non-legislative 
measures.  The  study  gives  details  of  the  assumptions  used  and  the  challenges  which  the 
contractors faced. 

2. Costs of discrimination  

Costs to individuals and society by policy domain 

Costs to individuals and society 

Policy 
domain 

Education 

Sexual orientation 

Health  problem  faced  by  gay  and  lesbian  pupils  in  upper-secondary  education  due  to 
bullying and harassment in school has been estimated to later reduce their earning capacity 
by on average 14.3%. This corresponds to an annual loss of 3,584 euro for an individual, 
and 452 million euro altogether (based on an estimation of 126,000 victims).  

Early  school  leaving  due  to  harassment  in  school  leads  to  a  reduction  of  net  earning 
prospects by 10,706 euro on average per annum, adding up to 173 million euro (based on 
that 10% of gay or lesbian youth who have been harassed - 16,100 in the age group 15-19 - 
drops out of school).  

The loss in GDP due to lower participation rate or qualification levels of LGB persons in 
the labour force is estimated to be around 872 million euro (loss in net wage and loss in 
tax revenue).  

The direct tax revenue foregone due to lower earning capacity of harassed LGB youth with 
health problems  is  1,275  euro per person,  i.e. 161  million  euro  in  total. The  tax  revenue 
foregone due to dropping out equals 76 million euro. 

Disabilities 

The  combined  wage  loss  in  the  EU-25  due  to  that  3,592,000  severely  or  moderately 
disabled  persons  may  have  achieved  a  lower  level  of  education  than  they  would  if  all 
countries were as successful in narrowing the education gap as much as the best performer 
(Germany) is estimated to reach 28 billion euro per annum.  

The  lower  economic  performance  (i.e.  loss  in  GDP)  due  to  lower  participation  rate  or 
qualification level of individuals with disabilities in the labour force is estimated to add up 
to around 40.3 billion euro per annum.  

Furthermore, the change in the net transfers to individuals with disabilities (benefits minus 
taxes)  is  estimated  to  be  12.3  billion  euro,  as  individuals  with  lower  educational 
achievement are more likely to take lower-paid jobs. 

Age 

Scholarship not granted to students above 26 may result in a loss of 3,464 euro on average 

EN 

74 

   EN 

Costs to individuals and society by policy domain 

Policy 
domain 

to an individual. 

Housing 

Sexual orientation 

Costs to individuals and society 

A 10% hedonic surplus in housing expenditure of the gay and lesbian is attributed to the 
intention to avoid harassment and degrading treatment. This would correspond to a total of 
4.1 billion euro for the gay and lesbian community. 

Disabilities 

For disabilities  the  key  cost  that  lends  itself  to  monetisation  is  the  hedonic  price  surplus 
that owners/tenants would enjoy if they lived in amenities on upper floors. Estimating the 
share of wheelchair users affected to be 20%, and the surplus to be 10%, the total loss in 
consumer surplus is around 347 million euro. 

Health 

Sexual orientation 

For  LGB  individuals,  the  total  loss  in  net  earnings  on  the  grounds  of  ill-health  is  3,584 
euro  per  person  (an  average  loss  of  14.3%);  466  million  euro  in  total.  (Around  847,000 
people  with  homo-  or  bisexual  orientation  experience  some  form  of  discrimination  in 
health  services;  significant  health  problems  occur  to  16,900  of  them.  Another  113,000 
people may face health problems because they avoid going to the doctor regularly).  

The economic value of life, relevant for those who die because of discrimination at health 
services,  is  estimated  at  a  conservative  4  million  euro.  This  is  not  grossed  up,  as  the 
number of individuals affected is not known. 

The loss of GDP as a result of the diminishing workforce (due to the gap in the average 
number  of  years  spent  on  the  labour  market  between  LGB  persons  and  the  total 
population)  is  estimated  at  632  million  euro.  The  direct  tax  revenue  foregone  due  to 
reduced wage-earning capacity of gays and lesbians caused by ill-health is 1,275 euro per 
person per annum, i.e. 166 million euro in total (contained in the loss of GDP figure). 

Disabilities 

8.4  million  severely  or  very  severely  disabled  individuals  are  estimated  to  face 
discrimination when accessing health services. Resulting ill-health is calculated to effect a 
loss of 599 million euro in net wage per year. 

Ill  health  leads  to  lower  economic  performance  and  a  loss  of  GDP  as  a  result  of 
diminishing workforce, estimated at 812 million euro per year. 

The direct tax revenue foregone is estimated to reach 213 million euro a year. 

Social security 

Sexual orientation 

Social  expenditure  on  survivors’  benefits  is  estimated  to  increase  by  around  2%,  or  2.5 
billion  euro,  if  widowers  of  same-sex  marriages  and  partnerships  were  entitled  to  such 
benefits. Currently, these are often not granted, and are seen as the cost of discrimination 
in this area. 

Social services 

Sexual orientation 

The loss of income - if inaccessible social services prevent mothers with small children in 

EN 

75 

   EN 

Costs to individuals and society by policy domain 

Costs to individuals and society 

Policy 
domain 

same-sex relationships to enter the labour market - may amount to up to 90.8 million euro. 

Insurance and 
finance 

Sexual orientation 

Access  to  health  and  incapacity  insurance  with  an  annual  fee  of  about  201  million  euro 
may be denied for gay and lesbian individuals. 

Disabilities 

Disabled  persons  are  excluded  from  private  health  and  incapacity  insurance  contracts 
worth about an estimated 6.45 billion euro in fees. 

EN 

76 

   EN 

3. Causal links of discrimination 

DISABILITY 

Discrimination on the ground of disabilities in education: Outline of causal links 

Disabilities - education

Discriminatory 
practices

Immediate 
effects

Indirect effects

Impacts 
(on individual)

Wider impacts 
(on society)

No or restricted 
access to preferred 
educational 
establishment (e.g. 
mainstream schools).

No access to high 
quality education

Longer time to finalise 
studies. 

Lower quality of 
education at same 
level of education.

Lower probability to 
attain secondary or 
tertiary education.

Lower level of 
education.

Higher risk of 
unemployment.

Lower level of income 
from employment (or 
entrepreneurship).

Lower economic 
growth (lower 
consumption and 
entrepreneurship).

Burden on public 
budget due to lower 
participation rate or 
qualification level of 
disabled persons in 
labour force. 

Lack of adaptations in 
schools / at 
universities / other 
education 
possibilities.

Unable to participate 
in all activities, e.g. 
exams or outdoor 
activities. 

Deterioting health 
conditions.

Higher burden on 
social security funds 
(medical costs).

Higher risk of 
dropping out of 
school.

Drop outs / early 
school leavers.

Insulting or degrading 
treatment by staff or 
other pupils.

Psychological 
damage.

Mental health 
problems and lack of 
self esteem. 

Less contact with 
persons from peer 
group, less social 
networking 
opportunities

Lower level of 
cohesiveness in 
society.

Discrimination on the ground of disabilities in health: Outline of causal links 

Disabilities - health

Discriminatory 
practices

Immediate 
effects

Indirect effects

Impacts 
(on individual)

Wider impacts 
(on society)

Health problems are 
not quickly 
diagnosed and 
treated.

Prolongation of health 
problems.

Inability to work

Additional time and 
extra costs for 
alternative healthcare.

Decreased 
consumption

No access to quality 
health care

Lower quality of 
health care.

Lower economic 
growth (lower 
consumption and 
entrepreneurship).

Higher burden on 
social security funds 
(medical costs).

Lower level of 
screening, uptake of 
preventive measures

Unnoticed and 
untreated health 
problems.

Deterioting health 
conditions.

Loss of productive 
work force. 

No or limited access 
to preferred doctor, 
expert or medical 
institute.

No access to optimal 
health care

Insufficient measures 
taken by staff to 
spread information 
about preventive 
measures / screening 
to people with e.g. 
literacy problems.

Insufficient knowledge 
of staff to deliver 
appropriate treatment

Insulting or degrading 
treatment by staff

Psychological 
damage

Mental health 
problems and lack of 
self esteem. 

EN 

77 

   EN 

 
 
Discrimination on the ground of disabilities in transport: Outline of causal links 

Disabilities - transport

Discriminatory 
practices

Immediate 
effects

Indirect effects

Impacts 
(on individual)

Wider impacts 
(on society)

No access to 
transport access 
points (underground 
etc.).

Refusal by 
personnel to take on 
board disabled 
person (or dog for 
blind).

Limited number of 
vehicles that are 
adapted for 
disabled.

Insulting or 
degrading treatment 
by personnel.

Unable to use 
public transport

Higher levels of 
pollution.

Having to go by own 
car instead of public 
transport.

Increased costs.

Restricted access to 
transport.

Restricted mobility.

Delay (additional time 
spent waiting), loss of 
productive time.

Longer waiting 
times.

Lower economic 
growth (lower 
consumption and loss 
of productive hours).

Lower level of 
cohesiveness in 
society.

Higher burden on
social security funds 
(medical costs).

Psychological 
damage.

Cost of alternative 
transport means.

Deteriorating health 
conditions.

Less purchasing 
power.

Loss of self esteem 
and confidence.

Discrimination on the ground of disabilities in insurance and financial services: Outline of causal 
links 

Disabilities – insurance and financial services

Discriminatory 
practices

Immediate 
effects

Indirect effects

Impacts 
(on individual)

Wider impacts 
(on society)

No access to high 
quality healthcare.

No access to high 
quality healthcare.

Economic insecurity 
(for family).

Denied access to 
insurance or financial 
services due to 
disability.

Limited access to 
insurance and 
financial services due 
to disability.

Higher premium due 
to misuse of statistics.

No access to private 
healthcare. 

Unable to travel. 

No access to life 
insurance 

No access to 
financial protection. 

Additional time spent 
searching for 
alternative services. 

Less spending 
power. 

Deteriorating health.

Lower 
entrepreneurship.

Less purchasing 
power.

Lower purchasing 
power.

Feeling of social 
exclusion. 

Lower economic 
growth.

Lower level of 
cohesiveness in 
society.

Degrading treatment 
by staff.

Stress. 

Mental health 
problems and lack of 
self esteem. 

Deteriorating health 
conditions.

Higher burden on 
social security funds 
(medical costs).

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SEXUAL ORIENTATION 

Discrimination on the ground of sexual orientation in health: Outline of causal links 

Sexual orientation - health

Discriminatory 
practices

Immediate 
effects

Indirect effects

Impacts 
(on individual)

Wider impacts 
(on society)

No or limited access 
to public healthcare

No access to optimal 
health care

No access to 
religious-based health 
care organisations 

Knowledge of health 
risks and diagnosis of 
health problems is 
postponed as 
individual’s life style 
remains unknown to 
medical staff

No access to 
preventative health 
measures, as not 
covered by medical 
insurance 

Higher levels of stress 
when seeking 
professional health

Insulting or degrading 
treatment by staff

Seek care at 
healthcare centres 
specialising in LGBs.

Higher medical costs.

Longer waiting times.

No access to quality 
health care

Lower quality of 
health care.

Unnoticed and 
untreated health 
problems.

No awareness of 
severe physical 
health risks, such 
STDs. 

Lower economic 
growth (lower 
consumption and 
entrepreneurship).

Higher burden on 
social security funds 
(medical costs).

Higher curative costs

Less purchasing 
power.

Higher probability of 
certain diseases as 
problems remain 
unnoticed or 
untreated.

Higher levels of 
infections due to lack 
of vaccinations.

Higher levels of 
diseases due to lack 
of preventative 
measures.

Higher prevalence of 
certain sexually 
transmitted diseases. 

Psychological 
damage

Mental health 
problems and lack of 
self esteem. 

Deterioting health 
conditions.

Loss of productive 
work force. 

Discrimination on the ground of sexual orientation in education: Outline of causal links  

Sexual orientation - education

Discriminatory 
practices

Immediate 
effects

Indirect effects

Impacts 
(on individual)

Wider impacts 
(on society)

No or restricted 
access to preferred 
educational 
establishment (e.g. 
Catholic institutes) 
and specific courses).

No access to high 
quality education.

Lack of LGB issues in 
curriculum (e.g. 
biology, health or 
sexual education 
courses).

No awareness of 
severe physical 
health risks, such as 
STDs. 

Higher risk of 
dropping out of 
school.

Lack of tolerance by 
schools.

Insulting or degrading 
treatment by staff or 
other pupils.

Lower quality of 
education at same 
level of education.

Lower probability to 
attain secondary or 
tertiary education.

Lower level of 
education.

Drop outs get into 
‘street life’; 
prostitution.

Less contact with 
persons from peer 
group, less social 
networking 
opportunities.

Higher risk of 
unemployment.

Lower level of income 
from employment (or 
entrepreneurship).

Lower economic 
growth (lower 
consumption and 
entrepreneurship).

Burden on public 
budget due to lower 
participation rate or 
qualification level of 
LGB persons in 
labour force. 

Deterioting health 
conditions.

Higher burden on 
social security funds 
(medical costs).

Higher level of suicide 
among LGB youth. 

Lower level of 
cohesiveness in 
society.

Psychological 
damage.

Mental health 
problems and lack of 
self esteem. 

EN 

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Discrimination on the ground of sexual orientation in goods and services: Outline of causal links 

Sexual orientation – goods and services

Discriminatory 
practices

Immediate 
effects

Indirect effects

Impacts 
(on individual)

Wider impacts 
(on society)

Lower purchasing 
power.

Higher costs for goods 
and services 
purchased from 
alternative providers.

Lower consumption

Higher burden on 
social security funds 
(unemployment 
benefits, medical 
costs)

Lower level of 
cohesiveness in 
society

Segregation.

Lack of social 
interaction.

Stigmatisation

Greater perceived 
stigma in accessing 
or being refused such 
services.

Reduced access to 
some goods and 
services.

Additional time spent 
finding alternative 
goods / services

Seek LGB-friendly 
hotels / bars / 
restaurants / 
associations etc.

Psychological 
damage

Deterioting health 
conditions.

Loss of self esteem and 
confidence

Access to goods and 
services denied (e.g. 
entry to bars and 
restaurants, 
sauna/health spa 
facilities denied; rooms 
for same-sex couples 
in hotels denied).

Facilities, which are 
available to 
heterosexual 
individuals are denied 
to homosexuals (e.g. 
No condom machines 
in venues where same 
sex individuals meet, 
unequal treatment in 
accessing special 
offers with airline travel 
etc.).

Insulting or degrading 
treatment by retailers, 
service providers.

AGE 

Discrimination on the ground of age in health: Outline of causal links 

Age – health
Discriminatory 
practices

No/limited access to 
specialist care.

No access to optimal 
health care.

No/limited access to 
suitable mental health 
care.

Insufficient supply of 
additional care 
services. 

Removal of rights to 
make decisions about 
treatment.

Insulting or degrading 
treatment by staff.

Immediate 
effects

Indirect effects

Impacts 
(on individual)

Wider impacts 
(on society)

Lower quality of 
health care.

Untreated health 
problems.

Higher probability of 
certain diseases as 
problems remain 
unnoticed or 
untreated.

Higher level of 
secondary infections 
due improper 
additional care.

Higher curative costs

Higher burden on 
social security funds 
(medical costs)

Loss of dignity

Less social cohesion

No access to quality 
health care.

Higher level of 
secondary infections 
due improper 
additional care.

Older and younger 
individuals suffer 
unnecessarily due to 
insufficient treatment

Psychological 
damage

Mental health 
problems and lack of 
self esteem. 

Deteriorating health 
conditions

EN 

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Discrimination on the ground of age in social services: Outline of causal links 

Age – social services
Discriminatory 
practices

Immediate 
effects

Indirect effects

Impacts 
(on individual)

Wider impacts 
(on society)

Lack of funding for 
older people, both in 
the community and in 
residential care.

Lack of adaptation for 
those who whish to 
live independently.

Lack of dissemination 
and awareness 
raising of existing 
services.

Lack of adequate 
design and delivery of 
social services (e.g. 
do not take account of 
different mobility 
levels; services and 
administrative 
procedures are not 
understandable).

Staff unaware and not 
trained to respond to 
particular needs.

Insulting or degrading 
treatment by staff or 
other users.

Neglect and abuse in 
elderly care homes. 

Lack of access to 
social services

Higher costs for 
services purchased 
from private 
institutions / 
companies.

Lower purchasing power.

Social exclusion

Lack of social 
interaction

Lower consumption.

Higher burden on 
social security funds 
(unemployment 
benefits, medical 
costs).

Greater perceived 
stigma in accessing 
such services.

Segregation

Stigmatisation.

Lower level of 
cohesiveness in 
society.

Psychological 
damage.

Deterioting health 
conditions.

Loss of self esteem and 
confidence.

Discrimination on the ground of age in insurance and financial services: Outline of causal links  

Age – insurance and financial services
Discriminatory 
practices

Immediate 
effects

Indirect effects

Impacts 
(on individual)

Wider impacts 
(on society)

Limited financial 
borrowing for younger 
and older people.

Reduced financial 
protection for older 
people.

Increased costs of 
financial services for 
younger and older 
people.

Higher premium 
based on supposed 
higher risks.

Unable to acquire 
material goods due 
to reduced financial 
guarantees.

Less spending 
power due to lower 
benefits. 

Decreasing health 
due to a lack of 
health insurance 
coverage.

Lower 
entrepreneurship.

Economic insecurity.

Less purchasing 
power.

Lower economic 
growth.

Lower purchasing 
power.

Feeling of social 
exclusion. 

Lower level of 
cohesiveness in 
society.

Less spending 
power due to 
higher contribution

Mental health 
problems and lack of 
self esteem. 

Deteriorating health 
conditions.

Higher burden on 
social security funds 
(medical costs).

EN 

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ANNEX V: UN Convention on the Rights of Persons with Disabilities 

1. The UN Convention  

The  UN  Convention  on  Rights  of  Persons  with  Disabilities  and  its  Optional  Protocol  were 
adopted on 13 December 2006 at the United Nations. On the basis of a negotiation Directive 
adopted by the Council on 24 May 2004, the European Commission played a central role in 
the negotiation of the Convention.  

Council Decision of 20 March 2007144 authorised the Community to sign the Convention on 
the  Rights  of  Persons  with  Disabilities,  and  issued  a  declaration  on  the  Optional  Protocol, 
stating that the Council shall reconsider the question of signing the Optional Protocol to the 
UN Convention on the Rights of Persons with Disabilities. 

The  Convention  on  the  Rights  of  Persons  with  Disabilities  is  the  result  of  an  increasing 
international  recognition  that  the  existing  UN  human  rights  treaties  failed  to  fully  protect 
people with disabilities. The purpose of the Convention is to promote, protect and ensure the 
full and equal enjoyment of all human rights and fundamental freedoms by all persons with 
disabilities.  

The  Convention  requires  State  Parties  to  identify  and  eliminate  obstacles  and  barriers  and 
ensure  that  persons  with  disabilities  can  access  their  environment,  transportation,  public 
facilities  and  services,  and  information  and  communications  technologies.  It  also  grants 
disabled  people  rights  to  education,  to  health,  the  right  to  work,  the  right  to  an  adequate 
standard of living, the right to participate in political and public life, and right to participate in 
cultural life. 

The Convention defines discrimination on the grounds of disability as: 

"any  distinction,  exclusion  or  restriction  on  the  basis  of  disability  which  has  the 
purpose  or  effect  of  impairing  or  nullifying  the  recognition,  enjoyment  or  exercise, 
on an equal basis with others, of all human rights and fundamental freedoms in the 
political, economic, social, cultural, civil or any other field. It includes all forms of 
discrimination, including denial of reasonable accommodation". 

"Persons  with  disabilities"  are  defined  as  including  those  who  have  long  term  physical, 
mental,  intellectual  or  sensory  impairments  which  in  interaction  with  various  barriers  may 
hinder their effective participation in society on an equal basis with others". Furthermore the 
preamble recognises that disability is an evolving concept and that disability results from the 
interaction between persons with impairments and attitudinal and environmental barriers that 
hinders their full and effective participation in society on an equal basis with others. 

The Convention includes an Optional Protocol that provides for a Committee on the Rights 
of Persons with Disabilities, which can receive and consider complaints from individuals. It 
also provides for an inquiry procedure giving the Committee authority to undertake inquiries 
of grave or systematic violations of the Convention. However, the Committee has no power to 
sanction State Parties nor to give redress to victims of discrimination. Even if a Member State 
ratifies the Optional Protocol, it is not clear how effective a remedy victims of discrimination 
will have. 

144 

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2. State of Play 

The Convention entered into force on 3 May 2008. 127 States have signed it, 25 States also 
ratified  it  and  71  signed  the  Optional  Protocol;  15  also  ratified  it  (situation  as  of  15  May 
2008). At EU level 26 Member States have signed the Convention and 16 signed the Protocol, 
three Member States (Hungary, Spain and Slovenia) have ratified both the Convention and the 
Protocol.  The  European  Community  signed  the  Convention  but  not  the  Optional  Protocol. 
Latvia,  which  has  not  yet  signed  the  Convention  have  confirmed  that  they  plan  to  do  so  in 
2008. 

The Commission is drafting a proposal for a Council decisions on the conclusion (ratification) 
of  the  Convention  and  accession  to  its  Optional  Protocol  by  the  Community,  in  which  the 
areas  where the  Community is competent  will be defined  in the declaration of competences 
pursuant to Article 44.1 of the UN Convention annexed to the Decision, as well as the modus 
operanda  as  to  the  relation  of  the  Community  and  the  Member  States  to  one  another  when 
implementing the Convention and its Optional Protocol. The principle of close co-operation 
between  the  Community  and  Member  States  with  regard  to  the  conclusion  of  such 
international  agreements,  which  has  been  confirmed  by  the  jurisprudence  of  the  Court  of 
Justice145 is important for the ratification procedures for this Convention. The deposit of the 
instruments  of  ratification  by  all  Members  States  parties  to  the  agreement  and  by  the 
Community  should  take  place  at  the  same  time  in  order  to  ensure  the  unity  in  the 
international representation of the Community and its Member States as well as legal certainty 
and clarity in the division of competences. 

The  internal  procedures  required  in  Member  States  should  be  actively  pursued  in  order  to 
allow  for  an  early  deposit  of  all  the  instruments  of  ratification. In order to achieve the 
necessary co-ordination for the ratification of the  Convention, the instrument of ratification 
by each Member State should not be deposited until all other Member States which are parties 
to the agreement and the Community are able to do so together. 

2. What is the relation between the UN Convention and new legislation based on Article 
13? 

As such, the UN Convention does not create any obligation for the Community to provide for 
new legislation covering the matters it governs, as it applies to the Community only within the 
limits of already existing Community competence. Nevertheless if a new directive is adopted 
it will imply new competences for the Community vis à vis the UN Convention.  

The  Convention  is  a  Human  Rights  instrument  in  which  anti  discrimination  provisions  are 
legally  binding,  whatever  the  nature  of  the  rights  concerned.  Once  in  force,  the  Convention 
will  require  its  parties,  be  it  the  EC  or  its  individual  Member  States,  to  take  measures  to 
protect  against  discrimination  and  to  make  adaptations  for  disabled  people  in  certain  areas, 
such  as  education,  health  services,  employment,  social  protection,  public  housing,  culture, 
sport etc.  

Member States will need to ensure that their legislation complies with their new obligations 
under  the  UN  Convention.  A  systematic  check  is  also  being  undertaken  to  see  whether  any 
adjustments  might  have  to  be  made  to  Community  legislation  and/or  policies  before 

145 

Cf. opinion 1/78, ECR 1978, p. 2151 para. 36 ; opinion 2/91, ECR 1993,1-1061 paras 36 to 38; opinion 
1/94, ECR 1994, 1-5267, para 108. 

EN 

83 

   EN 

                                                 
concluding  the  Convention.  Finally,  action  will  be  required  by  the  Community  institutions 
themselves  as  the  UN  Convention  provision  will  be  binding  for  them  as  well  (pursuant  to 
article 300.7 of the Treaty establishing the European Community). 

A Directive would bring EU added value in relation to the implementation UN Convention in 
a number of areas: 

1.  Member  States  have  already  identified  as  a  challenge  (in  the  High  Level  Group  Report 
prepared  for  the  Ministerial  meeting  of  22  May  2008)  that  there  could  be  legal  uncertainty 
throughout the EU coming from possible differences in interpretations of the UN Convention 
principles  by  various  Member  States.  Therefore  the  development  of  further  EC  non-
discrimination  legislation  would  improve  coherence  of  the  legal  interpretations  of  some 
provisions of the UN Convention at the European level. In its Presidency conclusions of the 
Ministerial  meeting,146  the  Slovenian  Presidency  identified  the  compliance  of  non-
discrimination legislation with the Convention’s provisions as one of the actions which would 
of common interest and providing added value for a quick and effective implementation of the 
UN-Convention. 

2. The UN Convention does not foresee adequate protection/redress for those who claim to be 
victims of a violation by a State Party of the provisions of the UN Convention: 

a)  The  Convention  does  not  oblige  a  State  Party  to  become  also  a  Party  to  the  Optional 
Protocol  that  provides  for  competence  of  the  Committee  on  the  Rights  of  Persons  with 
Disabilities  to  receive  and  consider  communications  from  or  on  behalf  of  individuals  or 
groups of individuals subject to its jurisdiction who claim to be victims of a violation by that 
State Party of the provisions of the Convention (article 1 of the Optional Protocol) 

b) The Committee on the Rights of Persons with Disabilities is not a judicial institution and its 
findings have no binding force in law (the statement based on ECJ judgment of 17 February 
1998 in Case C-249/96, par 46 on the Human Right Committee) 

Therefore the development of further EC non-discrimination legislation would provide for a 
uniform and minimal approach to some of the obligations of the UN Convention.  

146 

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84 

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ANNEX VI: International Instruments 

As well as the recent UN Convention on the Rights of Persons with Disabilities, various other 
international instruments to which the Member States are party deal with discrimination and 
deserve mention.  

Article 14 of the European Convention on Human Rights provides: 

"The  enjoyment  of  the  rights  and  freedoms  set  forth  in  this  Convention  shall  be  secured 
without discrimination on any ground such as sex, race, colour, language, religion, political or 
other opinion, national or social origin, association with a national minority, property, birth or 
other status." 

This  is  not  a  free  standing  right  to  non-discrimination,  and  must  be  pleaded  with  a 
"substantive"  right  under  the  Convention  for  example  the  right  to  education,  as  was 
successfully argued in the "Ostrava" case147. 

Protocol 12 to the European Convention on Human Rights, which entered in to force on 1 
April  2005,  provides  a  free  standing  right  to  non-discrimination  on  grounds  of  sex,  race, 
colour, language, religion, political or other opinion, national or social origin, association with 
a national minority, property, birth or other status. It has been signed by 19 Member States148 
of  the  EU,  of  whom  5  have  ratified  (Cyprus,  Finland,  Luxembourg,  the  Netherlands  and 
Romania). 

The 1996 Revised Social  Charter  of the Council of Europe149 requires its State  parties to 
guarantee various economic and social rights (such as the right to social welfare, protection 
from social exclusion, a right to housing, etc) and provides that: 

"The  enjoyment  of  the  rights  set  forth  in  this  Charter  shall  be  secured  without 
discrimination on any ground such as race, colour, sex, language, religion, political 
or  other  opinion,  national  extraction  or  social  origin,  health,  association  with  a 
national minority, birth or other status."150. 

The United Nation's International Covenant on Civil and Political Rights provides that: 

"All persons are equal before the law and are entitled without any discrimination to 
the  equal  protection  of  the  law.  In  this  respect  the  law  shall  prohibit  any 
discrimination  and  guarantee  to  all  persons  equal  and  effective  protection  against 
discrimination."151 

The UN International Covenant on Economic, Social and Cultural Rights152 provides that: 

"The  States  Parties  to  the  present  Covenant  undertake  to  guarantee  that  the  rights 
enunciated in the present Covenant will be exercised without discrimination of  any 

147 
148 

149 
150 
151 
152 

D.H.v Czech Republic (Application No 57325/00) 
Austria, Belgium, Cyprus, Czech Republic, Estonia, Finland, Germany, Greece, Hungary, Ireland, Italy, 
Latvia, Luxemburg, the Netherlands, Portugal, Romania, Slovenia, Slovakia and Spain. 
Ratified by all Member States except Germany and Latvia 
Article E. 
Article 26. 
Article 2 (2). 

EN 

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kind as to race, colour, sex, language, religion, political or other opinion, national or 
social origin, property, birth or other status." 

Other UN treaties deal with specific types of discrimination, such as the Convention  on  the 
Elimination  of  All  Forms  of  Discrimination  against  Women  (CEDAW)  and  the  Convention 
on the Elimination of All Forms of Racial Discrimination (CERD).  

In  its  General  recommendation  No.  14  on  the  definition  of  discrimination,  the  CERD 
Committee held that:  

"Non-discrimination,  together  with  equality  before  the  law  and  equal  protection  of 
the law without any discrimination, constitutes a basic principle in the protection of 
human rights." 

EN 

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ANNEX VII: Proposals for indicators and sources of information 

Objectives 

Possible Indicators 

Specific objective 

Ensure the existence of an 
effective legal remedy for 
victims of discrimination 

Number  of  Member  States  which 
transposed the directive 

Conformity of the transposition with 
the directive 

Number  of  Member  States  with  an 
Equality Body 

Number  of  Equality  Bodies  with 
sufficient  resources  to  fulfil  their 
tasks  

Entities/methods 

providing the information 

For the first 4 indicators in this row : 

States' 

Member 
information 
transposing 
implementing measures) 

obligations 
legislation 

governments 
(on 
and 

European Network of legal experts in 
the non-discrimination field 

National 
(individually or through Equinet) 

Equality 

Bodies 

National  NGOs  (through  each  EU 
umbrella NGO) 

Complaints from individuals 

Number of court cases 

- Member States' governments 

Number  of  complaints 
Commission 

to 

the 

- European Commission 

Number of complaints to NGOs 

Number  of  complaints  to  Equality 
Bodies 

- National NGOs 

- National Equality Bodies 

Increased  cross-border  activities  by 
concerned groups 

NGOs 

Consumer associations  

For all indicators in this row : 

Eurobarometer 

Survey of relevant research on equal 
treatment 

Fundamental Rights Agency 

Percentage 
public 
estimating that discrimination exists 

general 

of 

Percentage  of  people  of 
the 
concerned  groups  estimating  that 
discrimination exists 

Percentage  of  people  stating  that 
they  were  victims  of  discrimination 
before and after the existence of new 
legislation 

Percentage  of  people  of 
the 
concerned  groups  stating  that  the 
new  legislation  improved  their  life 
(or not)  

General objectives 

Ensuring a minimum level 
playing field across the 
Member States 

Equal treatment 

of concerned groups 

in social protection, social 
advantages, education, and 
access to goods & services 

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