Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation {SEC(2008) 2180} {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, religious discrimination

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 2.7.2008 
COM(2008) 426 final 

2008/0140 (CNS) 

Proposal for a 

COUNCIL DIRECTIVE 

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

(presented by the Commission) 

{SEC(2008) 2180} 
{SEC(2008) 2181} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

The  aim  of  this  proposal  is  to  implement  the  principle  of  equal  treatment  between  persons 
irrespective  of  religion  or  belief,  disability,  age  or  sexual  orientation  outside  the  labour 
market.  It  sets  out  a  framework  for  the  prohibition  of  discrimination  on  these  grounds  and 
establishes a uniform minimum level of protection within the European Union for people who 
have suffered such discrimination. 

This  proposal  supplements  the  existing  EC  legal  framework  under  which  the  prohibition  of 
discrimination  on  grounds  of  religion  or  belief,  disability,  age  or  sexual  orientation  applies 
only to employment, occupation and vocational training1. 

General context 

The  Commission  announced  in  its  legislative  and  work  programme  adopted  on  23 October 
20072  that  it  would  propose  new  initiatives  to  complete  the  EU  anti-discrimination  legal 
framework. 

The  current  proposal  is  presented  as  part  of  the  ‘Renewed  Social  Agenda:  Opportunities, 
access  and  solidarity  in  21st  century  Europe'3,  and  accompanies  the  Communication  ‘Non-
Discrimination and Equal Opportunities: A Renewed Commitment’4. 

The  UN  Convention  on  the  Rights  of  Persons  with  Disabilities  has  been  signed  by  the 
Member  States  and  the  European  Community.  It  is  based  on  the  principles  of  non-
discrimination, participation and inclusion in society, equal opportunities and accessibility. A 
proposal  for  the  conclusion  of  the  Convention  by  the  European  Community  has  been 
presented to the Council5. 

Existing provisions in the area of the proposal 

This  proposal  builds  upon  Directives  2000/43/EC,  2000/78/EC  and  2004/113/EC6  which 
prohibit  discrimination  on  grounds  of  sex,  racial  or  ethnic  origin,  age,  disability,  sexual 
orientation, religion or belief7. Discrimination based on race or ethnic origin is prohibited in 
employment, occupation and vocational training, as well as in non-employment areas such as 

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Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons 
irrespective  of  racial  or  ethnic  origin,  OJ  L  180  of  19.7.2000,  p.22  and  Directive  2000/78/EC  of  27 
November 2000 establishing a general framework for equal treatment in employment and occupation, 
OJ L 303 of 2.12.2000, p. 16 
COM (2007) 640 
COM (2008) 412 
COM (2008) 420 
[ COM (2008) XXX ] 
Directive  2004/113/EC  of  13  December  2004  implementing  the  principle  of  equal  treatment  between 
men and women in the access to and supply of goods and services, OJ L 373 of 21.12.2004, p.37 
Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons 
irrespective of racial or ethnic origin (OJ L 180 of 19.7.2000), Directive 2000/78/EC of 27 November 
2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303 of 
2.12.2000)  

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social protection, health care, education and access to goods and services, including housing, 
which are available to the public. Discrimination based on sex is prohibited in the same range 
of areas, with the exception of education and media and advertising. However, discrimination 
based  on  age,  religion  and  belief,  sexual  orientation  and  disability  is  prohibited  only  in 
employment, occupation and vocational training.  

Directives 2000/43/EC and 2000/78/EC had to be transposed into national law by 2003, with 
the exception of those provisions dealing with age and disability discrimination, for which an 
extra three years was available. A report on the implementation of Directive 2000/43/EC was 
adopted  by  the  Commission  in  20068  and  a  report  on  the  implementation  of  Directive 
2000/78/EC  was  adopted  on  19  June  20089.  All  except  one  Member  State  have  transposed 
these directives. Directive 2004/113/EC had to be transposed by the end of 2007.  

As far as possible, the concepts and rules provided for in this proposal build on those used in 
the existing Directives based on Article 13 EC.  

Consistency with other policies and objectives of the Union 

This  proposal  builds  upon  the  strategy  developed  since  the  Amsterdam  Treaty  to  combat 
discrimination and is 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.  It  will  help  to  further  the  fundamental  rights  of 
citizens, in line with the EU Charter of Fundamental Rights.  

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

Consultation 

In  preparing  this  initiative,  the  Commission  sought  to  associate  all  stakeholders  with  a 
potential interest and care was taken to ensure that those who might want to comment would 
have the opportunity and time to respond. The European Year of Equal Opportunities for All 
provided  a  unique  opportunity  to  highlight  the  issues  and  encourage  participation  in  the 
debate. 

Particular  mention  should  be  made  of  the  public  on-line  consultation10,  a  survey  of  the 
business  sector11,  and  a  written  consultation  of,  and  meetings  with,  the  social  partners  and 
European  level  NGOs  active  in  the  non-discrimination  field12.  The  results  of  the  public 
consultation and that of the NGOs were a call for legislation at EU level to increase the level 
of  protection  against  discrimination  although  some  argued  for  ground-specific  directives  in 
the area of disability and of sex. The European Business Test Panel consultation indicated that 
businesses  believe  it  would  be  helpful  to  have  the  same  level  of  protection  from 
discrimination  across  the  EU.  The  social  partners  representing  business  were  against  new 
legislation  in  principle,  which  they  saw  as  increasing  red  tape  and  costs,  while  the  trade 
unions were in favour. 

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COM (2006) 643 final 
COM (2008) 225 
The full results of the consultation can be accessed at: 
http://ec.europa.eu/employment_social/fundamental_rights/news/news_en.htm#rpc 
http://ec.europa.eu/yourvoice/ebtp/consultations/index_en.htm 
http://ec.europa.eu/employment_social/fundamental_rights/org/imass_en.htm#ar 

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The responses to the consultation highlighted concerns about how a new Directive would deal 
with  a  number  of  sensitive  areas  and  also  revealed  misunderstandings  about  the  limits  or 
extent  of  Community  competence.  The  proposed  Directive  addresses  these  concerns  and 
makes explicit the limits of Community competence. Within these limits the Community has 
the power to act (Article 13 EC Treaty) and believes that action at EU level is the best way 
forward.  

The responses also emphasised the specific nature of disability-related discrimination and the 
measures needed to address it. These are addressed in a specific Article. 

Concerns  have  been  expressed  that  a  new  Directive  would  bring  costs  for  business  but  it 
should  be  emphasised  that  this  proposal  builds  largely  on  concepts  used  in  the  existing 
directives with which economic operators are familiar. As to measures to deal with disability 
discrimination,  the  concept  of  reasonable  accommodation  is  familiar  to  businesses  since  it 
was established in Directive 2000/78/EC. The Commission proposal specifies the factors to be 
taken into account when assessing what is 'reasonable'. 

It  was  pointed  out  that,  unlike  the  other  two  Directives,  Directive  2000/78/EC  does  not 
require Member States to establish equality bodies. Attention was also drawn to the need to 
tackle multiple discrimination, for example by defining it as discrimination and by providing 
effective remedies. These issues go beyond the scope of this Directive but nothing prevents 
Member States taking action in these areas. 

Finally,  it  was  pointed  out  that  the  scope  of  protection  from  sex  discrimination  under 
Directive 2004/113/EC is not as extensive as in Directive 2000/43/EC and that this should be 
addressed in new legislation. The Commission does not take up this suggestion now since the 
date  for  transposition  of  Directive  2004/113/EC  has  only  just  passed.  However  the 
Commission  will  report  in  2010  on  the  Directive’s  implementation  and  can  propose 
modifications then, if appropriate. 

Collection and use of expertise 

A  study13  in  2006  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.  A  further  study14  looked  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.  

In addition, the Commission has used the reports from the European Network of Independent 
Experts 
their  overview  ‘Developing  Anti-
Discrimination  Law  in  Europe‘15  as  well  as  a  study  on  ’Tackling  Multiple  Discrimination: 
practices, policies and laws’16. 

the  non-discrimination  field,  notably 

in 

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http://ec.europa.eu/employment_social/fundamental_rights/pdf/pubst/stud/mapstrand1_en.pdf 
Will be available on: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 

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Also relevant are the results of a special Eurobarometer survey 17 and a Eurobarometer flash 
survey in February 200818.  

Impact assessment 

The  impact  assessment  report19  looked  at  evidence  of  discrimination  outside  the  labour 
market.  It  found  that,  while  non-discrimination  is  recognised  to  be  one  of  the  fundamental 
values  of  the  EU,  in  practice  the  level  of  legal  protection  to  secure  these  values  differs 
between  Member  States  and  between  discrimination  grounds.  As  result,  those  at  risk  of 
discrimination often find themselves less able to participate fully in society and the economy, 
with negative effects both for the individual and for broader society.  

The report defined three objectives which any initiative should meet: 

•  to increase protection from discrimination ; 

•  to ensure legal certainty for economic operators and potential victims across the Member 

States; 

•  to enhance social inclusion and promote the full participation of all groups in society and 

the economy. 

Of  the  various  measures  identified  that  could  help  reach  the  objectives,  six  options  were 
selected  for  further  analysis,  notably  no  new  action  at  EU  level;  self-regulation; 
recommendations;  and  one  or  more  directives  prohibiting  discrimination  outside  the 
employment sphere . 

In  any  event,  Member  States  will  have  to  implement  the  UN  Convention  on  the  Rights  of 
Persons  with  Disabilities  which  defines  the  denial  of  reasonable  accommodation  as 
discrimination.  A  legally  binding  measure  which  prohibits  discrimination  on  grounds  of 
disability entails financial costs because of the adaptations needed but there are also benefits 
from the fuller economic and social inclusion of groups currently facing discrimination.  

The  report  concludes  that  a  multi-ground  directive  would  be  the  appropriate  response, 
designed so as to respect the principles of subsidiarity and proportionality. A small number of 
Member  States  already  have  rather  complete  legislative  protection  while  most  others  have 
some,  but  less  comprehensive,  protection.  The  legislative  adaptation  arising  from  new  EC 
rules would therefore vary. 

The  Commission  received  many  complaints  about  discrimination  in  the  insurance  and 
banking sector. The use of age or disability by insurers and banks to assess the risk profile of 
customers  does  not  necessarily  represent  discrimination:  it  depends  on  the  product.  The 
Commission  will  initiate  a  dialogue  with  the  insurance  and  banking  industry  together  with 
other relevant stakeholders to achieve a better common understanding of the areas where age 
or  disability  are  relevant  factors  for  the  design  and  pricing  of  the  products  offered  in  these 
sectors.  

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Special Eurobarometer Survey 296 on discrimination in the EU: 
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 
Will be available on:http://ec.europa.eu/employment_social/fundamental_rights/org/imass_en.htm 

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3. 

LEGAL ASPECTS 

Legal base 

The proposal is based on Article 13(1) EC Treaty. 

Subsidiarity and proportionality 

The principle of subsidiarity applies insofar as the proposal does not fall under the exclusive 
competence of the Community. The objectives of the proposal cannot be sufficiently achieved 
by the Member States acting alone because only a Community–wide measure can ensure that 
there  is  a  minimum  standard  level  of  protection  against  discrimination  based  on  religion  or 
belief, disability, age or sexual orientation in all the Member States. A Community legal act 
provides  legal  certainty  as  to  the  rights  and  obligations  of  economic  operators  and  citizens, 
including  for  those  moving  between  the  Member  States.  Experience  with  the  previous 
directives  adopted  under  Article  13(1)  EC  is  that  they  had  a  positive  effect  in  achieving  a 
better  protection  against  discrimination.  In  accordance  with  the  principle  of  proportionality, 
the proposed directive does not go beyond what is necessary to achieve the objectives set.  

Moreover,  national  traditions  and  approaches  in  areas  such  as  healthcare,  social  protection 
and  education  tend  to  be  more  diverse  than  in  employment-related  areas.  These  areas  are 
characterised by legitimate societal choices in areas which fall within national competence.  

The diversity of European societies is one of Europe's strengths, and is to be respected in line 
with  the  principle  of  subsidiarity.  Issues  such  as  the  organisation  and  content  of  education, 
recognition  of  marital  or  family  status,  adoption,  reproductive  rights  and  other  similar 
questions  are  best  decided  at  national  level.  The  Directive  does  not  therefore  require  any 
Member State to amend its present laws and practices in relation to these issues. Nor does it 
affect national rules governing the activities of churches and other religious organisations or 
their relationship with the state. So, for  example,  it  will  remain  for  Member  States  alone  to 
take  decisions  on  questions  such  as  whether  to  allow  selective  admission  to  schools,  or 
prohibit or allow the wearing or display of religious symbols in schools, whether to recognise 
same-sex  marriages,  and  the  nature  of  any  relationship  between  organised  religion  and  the 
state. 

Choice of instrument 

A directive is the instrument that best ensures a coherent minimum level of protection against 
discrimination  across  the  EU,  whilst  allowing  individual  Member  States  that  want  to  go 
beyond the minimum standards to do so. It also allows them to choose the most appropriate 
means of enforcement and sanctions. Past experience in the non-discrimination field is that a 
directive was the most appropriate instrument.  

Correlation table 

Member States are required to communicate to the Commission the text of national provisions 
transposing  the  directive  as  well  as  a  correlation  table  between  those  provisions  and  the 
directive. 

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European Economic Area 

This  is  a  text  of  relevance  to  the  European  Economic  Area  and  the  Directive  will  be 
applicable  to  the  non-EU  Member  States  of  the  European  Economic  Area  following  a 
decision of the EEA Joint Committee  

4. 

BUDGETARY IMPLICATIONS 

The proposal has no implications for the Community budget.  

5. 

DETAILED EXPLANATION OF THE SPECIFIC PROVISIONS 

Article 1: Purpose 

The  main  objective  of  the  directive  is  to  combat  discrimination  based  on  religion  or  belief, 
disability,  age  or  sexual  orientation  and  to  put  into  effect  the  principle  of  equal  treatment, 
outside  the  field  of  employment.  The  directive  does  not  prohibit  differences  of  treatment 
based  on  sex  which  are  covered  by  Articles  13  and  141  of  the  EC  Treaty  and  related 
secondary legislation. 

Article 2: Concept of discrimination 

The definition of the principle of equal treatment is based on that contained in the previous 
directives adopted under Article 13(1) EC [as well as relevant case law of the European Court 
of Justice].  

Direct discrimination consists of treating someone differently solely because of his or her age, 
disability, religion or belief and sexual orientation. Indirect discrimination is more complex in 
that a rule or practice which seems neutral in fact has a particularly disadvantageous impact 
upon a person or a group of persons having a specific characteristic. The author of the rule or 
practice  may  have  no  idea  of  the  practical  consequences,  and  intention  to  discriminate  is 
therefore  not  relevant.  As  in  Directives  2000/43/EC,  2000/78/EC  and  2002/73/EC20,  it  is 
possible  to  justify  indirect  discrimination  (if  "that  provision,  criterion  or  practice  is 
objectively justified by a legitimate aim and the means of achieving that aim are appropriate 
and necessary"). 

Harassment is a form of discrimination. The unwanted conduct can take different forms, from 
verbal or written comments, gestures or behaviour, but it has to be serious enough to create an 
intimidating,  humiliating  or  offensive  environment.  This  definition  is  identical  to  the 
definitions contained in the other Article 13 directives. 

A denial of reasonable accommodation is considered a form of discrimination. This is in line 
with the UN Convention on the rights of people with disabilities and coherent with Directive 
2000/78/EC. Certain differences of treatment based on age may be lawful, if they are justified 
by  a  legitimate  aim  and  the  means  of  achieving  that  aim  are  appropriate  and  necessary 
(proportionality test). 

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OJ L269 of 5.10.2002 

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In the existing Article 13 EC directives exceptions to the prohibition of direct discrimination 
were  allowed  for  "genuine  and  determining  occupational  requirements",  for  differences  of 
treatment  based  on  age,  and  in  the  context  of  sex  discrimination,  in  access  to  goods  and 
services. Although the current proposal does not cover employment, there will be differences 
of  treatment  in  the  areas  mentioned  in  Article  3  that  should  be  allowed.  However,  as 
exceptions to the general principle of equality should be narrowly drawn, the double test of a 
justified  aim  and  proportionate  way  of  reaching  it  (i.e.  in  the  least  discriminatory  way 
possible) is required. 

A special rule is added for insurance and banking services, in recognition of the fact that age 
and disability can be an essential element of the assessment of risk for certain products, and 
therefore of price. If insurers are not allowed to take age and disability into account at all, the 
additional costs will have to be entirely borne by the rest of the "pool" of those insured, which 
would result in higher overall costs and lower availability of cover for consumers. The use of 
age and disability in the assessment of risk must be based on accurate data and statistics.  

The  directive  does  not  affect  national  measures  based  on  public  security,  public  order,  the 
prevention of criminal offences, the protection of health and the rights and freedoms of others. 

Article 3: Scope 

Discrimination  based on religion or belief, disability, age or sexual orientation is  prohibited 
by both the public and private sector in: 

•  social protection, including social security and health care; 

•  social advantages; 

•  education; 

•  access  to  and  supply  of  goods  and  services  which  are  available  to  the  public,  including 

housing. 

In  terms  of  access  to  goods  and  services,  only  professional  or  commercial  activities  are 
covered. In other words, transactions between private individuals acting in a private capacity 
will not be covered: letting a room in a private house does not need to be treated in the same 
way  as  letting  rooms  in  a  hotel.  The  areas  are  covered  only  to  the  extent  that  the  subject 
matter falls within the competences of the Community. Thus, for example, the organisation of 
the school system, activities and the content of education courses, including how to organise 
education  for  persons  with  disabilities,  is  a  matter  for  the  Member  States,  and  they  may 
provide  for  differences  in  treatment  in  access  to  religious  educational  institutions.  For 
example, a school could arrange a special presentation just for children of a certain age, while 
a faith based school would be allowed to arrange school trips with a religious theme. 

The  text  makes  it  clear  that  matters  related  to  marital  and  family  status,  which  includes 
adoption,  are  outside  the  scope  of  the  directive.  This  includes  reproductive  rights.  Member 
States  remain  free  to  decide  whether  or  not  to  institute  and  recognise  legally  registered 
partnerships. However once national law recognises such relationships as comparable to that 
of spouses then the principle of equal treatment applies21. 

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Judgment of the ECJ of 1.4.2008 in case C-267/06 Tadao Maruko 

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Article 3 specifies that the directive does not cover national laws relating to the secular nature 
of  the  State  and  its  institutions,  nor  to  the  status  of  religious  organisations.  Member  States 
may  thus  allow  or  prohibit  the  wearing  of  religious  symbols  in  schools.  Differences  in 
treatment based on nationality are also not covered. 

Article 4: Equal treatment of persons with disabilities 

Effective  access  for  disabled  people  to  social  protection,  social  advantages,  health  care, 
education and access to and supply of goods and services which are available to the public, 
including housing, shall be provided by anticipation. This obligation is limited by the defence 
that  if  this  would  impose  a  disproportionate  burden  or  would  require  major  changes  to  the 
product or service, it does not need to be done. 

In some cases individual measures of reasonable accommodation may be necessary to ensure 
effective access for a particular disabled person. As above, this is only the case if it would not 
impose a disproportionate burden. A non-exhaustive list is given of factors that could be taken 
into  account  in  assessing  whether  the  burden  is  disproportionate,  thus  allowing  the  specific 
situation of small and medium sized, and micro enterprises, to be taken into account. 

The  concept  of  reasonable  accommodation  already  exists  in  the  employment  sphere  under 
Directive  2000/78/EC,  and  Member  States  and  businesses  therefore  have  experience  in 
applying it. What might be appropriate for a large corporation or public body may not be for a 
small or medium-sized company. The requirement to make reasonable accommodation does 
not only imply making physical changes but may entail an alternative means of providing a 
service.  

Article 5: Positive action 

This  provision  is  common  to  all  Article  13  directives.  It  is  clear  that  in  many  cases,  formal 
equality  does  not  lead  to  equality  in  practice.  It  may  be  necessary  to  put  in  place  specific 
measures  to  prevent  and  correct  situations  of  inequality.  The  Member  States  have  different 
traditions and practices regarding positive action, and this article lets Member States provide 
for positive action but does not make this an obligation. 

Article 6: Minimum requirements 

This provision is common to all Article 13 directives. It allows Member States to provide a 
higher  level  of  protection  than  that  guaranteed  by  the  Directive,  and  confirms  that  there 
should  be  no  lowering  of  the  level  of  protection  against  discrimination  already  afforded  by 
Member States when implementing the Directive. 

Article 7: Defence of rights 

This provision is common to all Article 13 directives. People should be able to enforce their 
right to non-discrimination. This article therefore provides that people who believe that they 
have  been  the  victim  of  discrimination  should  be  able  to  use  administrative  or  judicial 
procedures,  even  after  the  relationship  in  which  the  discrimination  is  alleged  to  have  taken 
place has ended, in accordance with the ruling of the European Court of Justice in the Coote22 
case. 

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Case C-185/97 [1998] ECR I-5199 

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The right to effective legal protection is strengthened by allowing organisations, which have a 
legitimate  interest  in  the  fight  against  discrimination,  to  help  victims  of  discrimination  in 
judicial  or  administrative  procedures.  National  rules  on  time  limits  for  initiating  actions  are 
unaffected by this provision. 

Article 8: Burden of proof 

This provision is common to all Article 13 directives. In judicial procedures, the general rule 
is that a person who alleges something must prove it. However, in discrimination cases, it is 
often extremely difficult to obtain the evidence necessary to prove the case, as it is often in 
the hands of the respondent. This problem was recognised by the European Court of Justice23 
and the Community legislator in Directive 97/80/EC24. 

The shift of the burden of proof applies to all cases alleging breach of the principle of equal 
treatment, including those involving associations and organisations under Article 7(2). As in 
the earlier directives, this shift in the burden of proof does not apply to situations where the 
criminal law is used to prosecute allegations of discrimination. 

Article 9: Victimisation 

This provision is common to all Article 13 directives. Effective legal protection must include 
protection against retaliation. Victims may be deterred from exercising their rights due to the 
risk  of  retaliation,  and  it  is  therefore  necessary  to  protect  individuals  against  any  adverse 
treatment due to the exercise of the rights conferred by the Directive. This article is the same 
as in Directives 2000/43/EC and 2000/78/EC.  

Article 10: Dissemination of information 

This  provision  is  common  to  all  Article  13  directives.  Experience  and  polls  show  that 
individuals are badly or insufficiently informed of their rights. The more effective the system 
of public information and prevention is, the less need there will be for individual remedies. 
This 
in  Directives  2000/43/EC,  2000/78/EC  and 
2002/113/EC.  

replicates  equivalent  provisions 

Article 11: Dialogue with relevant stakeholders 

This  provision  is  common  to  all  Article  13  directives.  It  aims  to  promote  dialogue  between 
relevant public authorities and bodies such as non-governmental organisations which have a 
legitimate interest in contributing to the fight against discrimination on grounds of religion or 
belief,  disability,  age  or  sexual  orientation.  A  similar  provision  is  contained  in  the  previous 
anti-discrimination directives. 

Article 12: Bodies for the promotion of equal treatment 

This  provision  is  common  to  two  Article  13  directives.  This  article  requires  the  Member 
States to have a body or bodies ("Equality Body") at national level to promote equal treatment 
of  all  persons  without  discrimination  on  the  grounds  of  religion  or  belief,  disability,  age  or 
sexual orientation.  

23 
24 

Danfoss, Case 109/88. [1989] ECR 03199 
OJ L.14, 20.1.1998 

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It replicates the provisions of Directive 2000/43/EC in as far as they deal with access to and 
supply of goods and services, and builds on equivalent provisions in Directives 2002/73/EC25 
and  2004/113/EC.  It  sets  out  minimum  competences  applicable  to  bodies  at  national  level 
which should act independently to promote the principle of equal treatment. Member States 
may  decide  that  these  bodies  be  the  same  as  those  already  established  under  the  previous 
directives. 

It is both difficult and expensive for individuals to mount a legal challenge if they think they 
have been discriminated against. A key role of the Equality Bodies is to give independent help 
to  victims  of  discrimination.  They  must  also  be  able  to  conduct  independent  surveys  on 
discrimination  and 
to 
to  publish  reports  and  recommendations  on 
discrimination. 

issues  relating 

Article 13: Compliance 

This  provision  is  common  to  all  Article  13  directives.  Equal  treatment  involves  the 
elimination  of  discrimination  arising  from  any  laws,  regulations  or  administrative  provision 
and the directive therefore requires the Member States to abolish any such provisions. As with 
earlier legislation, the directive also requires that any provisions contrary to the principle of 
equal treatment must be rendered null and void or amended, or must be capable of being so 
rendered if they are challenged. 

Article 14: Sanctions 

This provision is common to all Article 13 directives. In accordance with the case law of the 
Court  of  Justice26,  the  text  provides  that  that  there  should  be  no  upper  limit  on  the 
compensation  payable in  cases of breach of the principle of equal treatment. This provision 
does not require criminal sanctions to be introduced. 

Article 15: Implementation 

This provision is common to all Article 13 directives. It gives the Member States a period of 
two years to transpose the directive into national law and to communicate to the Commission 
the  texts  of  the  national  law.  Member  States  may  provide  that  the  obligation  to  ensure 
effective  access  for  disabled  persons  only  applies  four  years  after  the  adoption  of  the 
Directive.  

Article 16: Report 

This provision is common to all Article 13 directives. It requires the Commission to report to 
the European Parliament and the Council on the application of the Directive, on the basis of 
information  from  Member  States.  The  report  will  take  account  of  the  views  of  the  social 
partners, relevant NGOs and the EU Fundamental Rights Agency. 

Article 17: Entry into force 

This provision is common to all Article 13 directives. The Directive will enter into force on 
the day it is published in the Official Journal.  

25 

26 

Directive 2002/73/EC amending Council Directive 76/207/EEC on the implementation of the principle 
of  equal  treatment  for  men  and  women  as  regards  access  to  employment,  vocational  training  and 
promotion, and working conditions, OJ L 269 of 5.10.2002, p.15 
Cases C-180/95 Draehmpaehl, ECR 1997 I p.2195 and C-271/91 Marshall ECR 1993 I P.4367 

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Article 18: Addressees 

This  provision  is  common  to  all  Article  13  directives,  making  it  clear  that  the  Directive  is 
addressed to the Member States. 

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2008/0140 (CNS) 

Proposal for a 

COUNCIL DIRECTIVE 

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

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
13(1) thereof, 

Having regard to the proposal from the Commission27, 

Having regard to the opinion of the European Parliament28, 

Having regard to the opinion of the European Economic and Social Committee29, 

Having regard to the opinion of the Committee of the Regions30, 

Whereas: 

(1) 

(2) 

In accordance with Article 6 of the Treaty on European Union, the European Union is 
founded  on  the  principles  of  liberty,  democracy,  respect  for  human  rights  and 
fundamental  freedoms,  and  the  rule  of  law,  principles  which  are  common  to  all 
Member  States  and  it  respects  fundamental  rights,  as  guaranteed  by  the  European 
Convention  for  the  Protection  of  Human  Rights  and  Fundamental  Freedoms  and  as 
they result from the constitutional traditions common to the Member States, as general 
principles of Community law. 

The  right  to  equality  before  the  law  and  protection  against  discrimination  for  all 
persons  constitutes  a  universal  right  recognised  by  the  Universal  Declaration  of 
Human  Rights,  the  United  Nations  Convention  on  the  Elimination  of  all  forms  of 
Discrimination Against Women, the International Convention on the Elimination of all 
forms of Racial Discrimination, the United Nations Covenants on Civil and Political 
Rights  and  on  Economic,  Social  and  Cultural  Rights,  the  UN  Convention  on  the 
Rights  of  Persons  with  Disabilities,  the  European  Convention  for  the  Protection  of 
Human Rights and Fundamental Freedoms and the European Social Charter, to which 
[all] Member States are signatories. In particular, the UN Convention on the Rights of 
Persons  with  Disabilities  includes  the  denial  of  reasonable  accommodation  in  its 
definition of discrimination. 

27 
28 
29 
30 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 

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(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

This Directive respects the fundamental rights and observes the fundamental principles 
recognised in particular by the Charter of Fundamental Rights of the European Union. 
Article  10  of  the  Charter  recognises  the  right  to  freedom  of  thought,  conscience  and 
religion; Article 21 prohibits discrimination, including on grounds of religion or belief, 
disability, age or sexual orientation; and Article 26 acknowledges the right of persons 
with disabilities to benefit from measures designed to ensure their independence.  

The European Years of Persons with Disabilities in 2003, of Equal Opportunities for 
All in 2007, and of Intercultural Dialogue in 2008 have highlighted the persistence of 
discrimination but also the benefits of diversity. 

The European Council, in Brussels on 14 December 2007,  invited Member States to 
strengthen efforts to prevent and combat discrimination inside and outside the labour 
market31. 

The  European  Parliament  has  called  for  the  extension  of  the  protection  of 
discrimination in European Union law32. 

The  European  Commission  has  affirmed  in  its  Communication  ‘Renewed  social 
agenda: Opportunities, access and solidarity in 21st century Europe’33 that, in societies 
where  each  individual  is  regarded  as  being  of  equal  worth,  no  artificial  barriers  or 
discrimination of any kind should hold people back in exploiting these opportunities. 

The Community has adopted three legal instruments34 on the basis of article 13(1) of 
the  EC  Treaty  to  prevent  and  combat  discrimination  on  grounds  of  sex,  racial  and 
ethnic  origin,  religion  or  belief,  disability,  age  and  sexual  orientation.  These 
instruments  have  demonstrated  the  value  of  legislation  in  the  fight  against 
discrimination.  In  particular,  Directive  2000/78/EC  establishes  a  general  framework 
for equal treatment in employment and occupation on the grounds of religion or belief, 
disability,  age  and  sexual  orientation.  However,  variations  remain  between  Member 
States on the degree and the form of protection from discrimination on these grounds 
beyond the areas of employment. 

Therefore,  legislation  should  prohibit  discrimination  based  on  religion  or  belief, 
disability,  age  or  sexual  orientation  in  a  range  of  areas  outside  the  labour  market, 
including social protection, education and access to and supply of goods and services, 
including  housing.  It  should  provide  for  measures  to  ensure  the  equal  access  of 
persons with disabilities to the areas covered. 

(10)  Directive  2000/78/EC  prohibits  discrimination  in  access  to  vocational  training;  it  is 
necessary to complete this protection by extending the prohibition of discrimination to 
education which is not considered vocational training. 

(11)  This Directive should be without prejudice to the competences of the Member States 
in  the  areas  of  education,  social  security  and  health  care.  It  should  also  be  without 

31 
32 
33 
34 

Presidency conclusions of the Brussels European Council of 14 December 2007, point 50.  
Resolution of 20 May 2008 P6_TA-PROV(2008)0212 
COM (2008) 412  
Directive 2000/43/EC, Directive 2000/78/EC and Directive 2004/113/EC 

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prejudice to the essential role and wide discretion of the Member States in providing, 
commissioning and organising services of general economic interest.  

(12)  Discrimination is understood to include direct and indirect discrimination, harassment, 

instructions to discriminate and denial of reasonable accommodation.  

(13) 

In  implementing  the  principle  of  equal  treatment  irrespective  of  religion  or  belief, 
disability, age or sexual orientation, the Community should, in accordance with Article 
3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between 
men  and  women,  especially  since  women  are  often  the  victims  of  multiple 
discrimination.  

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

(15)  Actuarial and risk factors related to disability and to age are used in the provision of 
insurance,  banking  and  other  financial  services.  These  should  not  be  regarded  as 
constituting  discrimination  where  the  factors  are  shown  to  be  key  factors  for  the 
assessment of risk.  

(16)  All  individuals  enjoy  the  freedom  to  contract,  including  the  freedom  to  choose  a 
contractual  partner  for  a  transaction.  This  Directive  should  not  apply  to  economic 
transactions  undertaken  by  individuals for whom these transactions  do  not  constitute 
their professional or commercial activity. 

(17)  While  prohibiting  discrimination,  it  is  important  to  respect  other  fundamental  rights 
and  freedoms,  including  the  protection  of  private  and  family  life  and  transactions 
carried  out  in  that  context,  the  freedom  of  religion,  and  the  freedom  of  association. 
This  Directive  is  without  prejudice  to  national  laws  on  marital  or  family  status, 
including  on  reproductive  rights.  It  is  also  without  prejudice  to  the  secular  nature  of 
the State, state institutions or bodies, or education. 

(18)  Member  States  are  responsible  for  the  organisation  and  content  of  education.  The 
Commission  Communication  on  Competences  for  the  21st  Century:  An  Agenda  for 
European Cooperation on Schools draws attention to the need for special attention to 
be  paid  to  disadvantaged  children  and  those  with  special  educational  needs.  In 
particular national law may provide for differences in access to educational institutions 
based on religion or belief. . Member States may also allow or prohibit the wearing or 
display of religious symbols at school. 

(19)  The  European  Union  in  its  Declaration  No  11  on  the  status  of  churches  and  non-
confessional  organisations,  annexed  to  the  Final  Act  of  the  Amsterdam  Treaty,  has 
explicitly recognised that it respects and does not prejudice the status under national 
law of churches and religious associations or communities in the Member States and 
that it equally respects the status of philosophical and non-confessional organisations. 
Measures  to  enable  persons  with  disabilities  to  have  effective  non-discriminatory 
access  to  the  areas  covered  by  this  Directive  play  an  important  part  in  ensuring  full 
equality  in  practice.  Furthermore,  individual  measures  of  reasonable  accommodation 
may  be  required  in  some  cases  to  ensure  such  access.  In  neither  case  are  measures 

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required that would impose a disproportionate burden. In assessing whether the burden 
is disproportionate, account should be taken of a number of factors including the size, 
resources and nature of the organisation. The principle of reasonable accommodation 
and  disproportionate  burden  are  established  in  Directive  2000/78/EC  and  the  UN 
Convention on Rights of Persons with Disabilities.   

(20)  Legal requirements35 and standards on accessibility have been established at European 
level in some areas while Article 16 of Council Regulation 1083/2006 of 11 July 2006 
on  the  European  Regional  Development  Fund,  the  European  Social  Fund  and  the 
Cohesion  Fund  and  repealing  Regulation  (EC)  No  1260/199936  requires  that 
accessibility  for  disabled  persons  is  one  of  the  criteria  to  be  observed  in  defining 
operations  co-financed  by  the  Funds.  The  Council  has  also  emphasised  the  need  for 
measures to secure the accessibility of cultural infrastructure and cultural activities for 
people with disabilities37.  

(21)  The  prohibition  of  discrimination  should  be  without  prejudice  to  the  maintenance  or 
adoption  by  Member  States  of  measures  intended  to  prevent  or  compensate  for 
disadvantages  suffered  by  a  group  of  persons  of  a  particular  religion  or  belief, 
disability,  age  or  sexual  orientation.  Such  measures  may  permit  organisations  of 
persons  of  a  particular  religion  or  belief,  disability,  age  or  sexual  orientation  where 
their main object is the promotion of the special needs of those persons. 

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

(23)  Persons who have been subject to discrimination based on religion or belief, disability, 
age or sexual orientation should have adequate means of legal protection. To provide a 
more effective level of protection, associations, organisations and other legal entities 
should be empowered to engage in proceedings, including on behalf of or in support of 
any victim, without prejudice to national rules of procedure concerning representation 
and defence before the courts. 

(24)  The rules on the burden of proof must be adapted when there is a prima facie case of 
discrimination  and,  for  the  principle  of  equal  treatment  to  be  applied  effectively,  the 
burden  of  proof  must  shift  back  to  the  respondent  when  evidence  of  such 
discrimination  is  brought.  However,  it  is  not  for  the  respondent  to  prove  that  the 
plaintiff  adheres  to  a  particular  religion  or  belief,  has  a  particular  disability,  is  of  a 
particular age or has a particular sexual orientation.  

(25)  The  effective  implementation  of  the  principle  of  equal  treatment  requires  adequate 

judicial protection against victimisation. 

(26) 

In its resolution on the Follow-up of the European Year of Equal Opportunities for All 
(2007),  the  Council  called  for  the  full  association  of  civil  society,  including 

35 
36 

37 

Regulation (EC) No. 1107/2006 and Regulation (EC) No 1371/2007 
OJ L 210, 31.7.2006, p.25. Regulation as last amended by Regulation (EC) No 1989/2006 (OJ L 411, 
30.12.2006, p.6) 
OJ C 134, 7.6.2003, p.7 

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organisations  representing  people  at  risk  of  discrimination,  the  social  partners  and 
stakeholders  in  the  design  of  policies  and  programmes  aimed  at  preventing 
discrimination and promoting equality and equal opportunities, both at European and 
national levels.  

(27)  Experience in applying Directives 2000/43/EC and 2004/113/EC show that protection 
from discrimination on the grounds covered by this Directive would be strengthened 
by  the  existence  of  a  body  or  bodies  in  each  Member  State,  with  competence  to 
analyse  the  problems  involved,  to  study  possible  solutions  and  to  provide  concrete 
assistance for the victims.  

(28) 

In  exercising  their  powers  and  fulfilling  their  responsibilities  under  this  Directive, 
these  bodies  should  operate  in  a  manner  consistent  with  the  United  Nations  Paris 
Principles  relating  to  the  status  and  functioning  of  national  institutions  for  the 
protection and promotion of human rights.  

(29)  Member States should provide for effective, proportionate and dissuasive sanctions in 

case of breaches of the obligations under this Directive. 

(30) 

(31) 

In  accordance  with  the  principles  of  subsidiarity  and  proportionality  as  set  out  in 
Article 5 of the EC Treaty, the objective of this Directive, namely ensuring a common 
level  of  protection  against  discrimination  in  all  the  Member  States,  cannot  be 
sufficiently achieved by the Member States and can therefore, by reason of the scale 
and  impact  of  the  proposed  action,  be  better  achieved  by  the  Community.  This 
Directive does not go beyond what is necessary in order to achieve those objectives. 

In  accordance  with  paragraph  34  of  the  interinstitutional  agreement  on  better  law-
making, Member States are encouraged to draw up, for themselves and in the interest 
of  the  Community,  their  own  tables,  which  will,  as  far  as  possible,  illustrate  the 
correlation  between  the  Directive  and  the  transposition  measures  and  to  make  them 
public. 

HAS ADOPTED THIS DIRECTIVE: 

Chapter 1 
GENERAL PROVISIONS 

Article 1  
Purpose 

This  Directive  lays  down  a  framework  for  combating  discrimination  on  the  grounds  of 
religion or belief, disability, age, or sexual orientation, with a view to putting into effect in the 
Member  States  the  principle  of  equal  treatment  other  than  in  the  field  of  employment  and 
occupation. 

Article 2 
Concept of discrimination 

1. For the purposes of this Directive, the "principle of equal treatment" shall mean that there 
shall be no direct or indirect discrimination on any of the grounds referred to in Article 1. 

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2. For the purposes of paragraph 1: 

(a) direct discrimination shall be taken  to occur where one person is treated less favourably 
than another is, has been or would be treated in a comparable situation, on any of the grounds 
referred to in Article 1; 

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

3.  Harassment  shall  be  deemed  to  be  a  form  of  discrimination  within  the  meaning  of 
paragraph  1,  when  unwanted  conduct  related  to  any  of  the  grounds  referred  to  in  Article  1 
takes place with the purpose or effect of violating the dignity of a person and of creating an 
intimidating, hostile, degrading, humiliating or offensive environment.  

4. An instruction to discriminate against persons on any of the grounds referred to in Article 1 
shall be deemed to be discrimination within the meaning of paragraph 1. 

5. Denial of reasonable accommodation in a particular case as provided for by Article 4 (1)(b) 
of  the  present  Directive  as  regards  persons  with  disabilities  shall  be  deemed  to  be 
discrimination within the meaning of paragraph 1. 

6. Notwithstanding paragraph 2, Member States may provide that differences of treatment on 
grounds of age shall not constitute discrimination, if, within the context of national law, they 
are justified by a legitimate aim, and if the means of achieving that aim are appropriate and 
necessary. In particular, this Directive shall not preclude the fixing of a specific age for access 
to social benefits, education and certain goods or services.  

7.  Notwithstanding  paragraph  2,  in  the  provision  of  financial  services  Member  States  may 
permit  proportionate  differences  in  treatment  where,  for  the  product  in  question,  the  use  of 
age  or  disability  is  a  key  factor  in  the  assessment  of  risk  based  on  relevant  and  accurate 
actuarial or statistical data.  

8.  This  Directive  shall  be  without  prejudice  to  general  measures  laid  down  in  national  law 
which,  in  a  democratic  society,  are  necessary  for  public  security,  for  the  maintenance  of 
public  order  and  the  prevention  of  criminal  offences,  for  the  protection  of  health  and  the 
protection of the rights and freedoms of others.  

Article 3 
Scope 

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

(a) Social protection, including social security and healthcare; 

(b) Social advantages; 

(c) Education; 

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(d)  Access  to  and  supply  of  goods  and  other  services  which  are  available  to  the  public, 
including housing.  

Subparagraph (d) shall apply to individuals only insofar as they are performing a professional 
or commercial activity. 

2.  This  Directive  is  without  prejudice  to  national  laws  on  marital  or  family  status  and 
reproductive rights.  

3. This Directive is without prejudice to the responsibilities of Member States for the content 
of  teaching,  activities  and  the  organisation  of  their  educational  systems,  including  the 
provision of special needs education. Member States may provide for differences in treatment 
in access to educational institutions based on religion or belief. 

4. This Directive is without prejudice to national legislation ensuring the secular nature of the 
State,  State  institutions  or  bodies,  or  education,  or  concerning  the  status  and  activities  of 
churches and other organisations based on religion or belief. It is equally without prejudice to 
national legislation promoting equality between men and women.  

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

Article 4 
Equal treatment of persons with disabilities 

1. In order to guarantee compliance with the principle of equal treatment in relation to persons 
with disabilities: 

a)  The  measures  necessary  to  enable  persons  with  disabilities  to  have  effective  non-
discriminatory  access  to  social  protection,  social  advantages,  health  care,  education  and 
access  to  and  supply  of  goods  and  services  which  are  available  to  the  public,  including 
housing  and  transport,  shall  be  provided  by  anticipation,  including  through  appropriate 
modifications  or  adjustments.  Such  measures  should  not  impose  a  disproportionate  burden, 
nor  require  fundamental  alteration  of  the  social  protection,  social  advantages,  health  care, 
education, or goods and services in question or require the provision of alternatives thereto.  

b)  Notwithstanding  the  obligation  to  ensure  effective  non-discriminatory  access  and  where 
needed  in  a  particular  case,  reasonable  accommodation  shall  be  provided  unless  this  would 
impose a disproportionate burden. 

2.  For  the  purposes  of  assessing  whether  measures  necessary  to  comply  with  paragraph  1 
would impose a disproportionate burden, account shall be taken, in particular, of the size and 
resources  of  the  organisation,  its  nature,  the  estimated  cost,  the  life  cycle  of  the  goods  and 
services,  and  the  possible  benefits  of  increased  access  for  persons  with  disabilities.  The 
burden  shall  not  be  disproportionate  when  it  is  sufficiently  remedied  by  measures  existing 
within the framework of the equal treatment policy of the Member State concerned.  

3. This Directive shall be without prejudice to the provisions of Community law or national 
rules covering the accessibility of particular goods or services. 

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Article 5 
Positive action 

With  a  view  to  ensuring  full  equality  in  practice,  the  principle  of  equal  treatment  shall  not 
prevent  any  Member  State  from  maintaining  or  adopting  specific  measures  to  prevent  or 
compensate  for  disadvantages  linked  to  religion  or  belief,  disability,  age,  or  sexual 
orientation.  

Article 6 
Minimum requirements 

1.  Member  States  may  introduce  or  maintain  provisions  which  are  more  favourable  to  the 
protection of the principle of equal treatment than those laid down in this Directive.  

2. The implementation of this Directive shall under no circumstances constitute grounds for a 
reduction in the level of protection against discrimination already afforded by Member States 
in the fields covered by this Directive.  

CHAPTER II 
REMEDIES AND ENFORCEMENT 

Article 7 
Defence of rights 

1. Member States shall ensure that judicial and/or administrative procedures, including where 
they deem it appropriate conciliation procedures, for the enforcement of obligations under this 
Directive are available to all persons who consider themselves wronged by failure to apply the 
principle of equal treatment to them, even after the relationship in which the discrimination is 
alleged to have occurred has ended.  

2.  Member  States  shall  ensure  that  associations,  organisations  or  other  legal  entities,  which 
have a legitimate interest in ensuring that the provisions of this Directive are complied with, 
may engage, either on behalf or in support of the complainant, with his or her approval, in any 
judicial  and/or  administrative  procedure  provided  for  the  enforcement  of  obligations  under 
this Directive.  

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

Article 8  
Burden of proof 

1. Member States shall take such measures as are necessary, in accordance with their national 
judicial systems, to ensure that, when persons who consider themselves wronged because the 
principle  of  equal  treatment  has  not  been  applied  to  them  establish,  before  a  court  or  other 
competent  authority,  facts  from  which  it  may  be  presumed  that  there  has  been  direct  or 
indirect discrimination, it shall be for the respondent to prove that there has been no breach of 
the prohibition of discrimination.  

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

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3. Paragraph 1 shall not apply to criminal procedures. 

4. Member States need not apply paragraph 1 to proceedings in which the court or competent 
body investigates the facts of the case.  

5.  Paragraphs  1,  2,  3  and  4  shall  also  apply  to  any  legal  proceedings  commenced  in 
accordance with Article 7(2). 

Article 9 
Victimisation 

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

Article 10 
Dissemination of information 

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

Article 11 
Dialogue with relevant stakeholders 

With  a  view  to  promoting  the  principle  of  equal  treatment,  Member  States  shall  encourage 
dialogue  with  relevant  stakeholders,  in  particular  non-governmental  organisations,  which 
have, in accordance with their national law and practice, a legitimate interest in contributing 
to the fight against discrimination on the grounds and in the areas covered by this Directive.  

Article 12 
Bodies for the Promotion of Equal treatment 

1. Member States shall designate a body or bodies for the promotion of equal treatment of all 
persons  irrespective  of  their  religion  or  belief,  disability,  age,  or  sexual  orientation.  These 
bodies may form part of agencies charged at national level with the defence of human rights 
or the safeguard of individuals' rights, including rights under other Community acts including 
Directives 2000/43/EC and 2004/113/EC.  

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

–  without  prejudice  to  the  right  of  victims  and  of  associations,  organizations  or  other  legal 
entities  referred  to  in  Article  7(2),  providing  independent  assistance  to  victims  of 
discrimination in pursuing their complaints about discrimination, 

–  conducting independent surveys concerning discrimination, 

–  publishing independent reports and making recommendations on any issue relating to such 

discrimination. 

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CHAPTER III 
FINAL PROVISIONS 

Article 13 
Compliance 

Member  States  shall  take  the  necessary  measures  to  ensure  that  the  principle  of  equal 
treatment is respected and in particular that:  

(a)  any  laws,  regulations  and  administrative  provisions  contrary  to  the  principle  of  equal 
treatment are abolished; 

(b)  any  contractual  provisions,  internal  rules  of  undertakings,  and  rules  governing  profit-
making or non-profit-making associations contrary to the principle of equal treatment are, or 
may be, declared null and void or are amended. 

Article 14 
Sanctions 

Member  States  shall  lay  down  the  rules  on  sanctions  applicable  to  breaches  of  the  national 
provisions adopted pursuant to this Directive, and shall take all measures necessary to ensure 
that they are applied. Sanctions may comprise the payment of compensation, which may not 
be  restricted  by  the  fixing  of  a  prior  upper  limit,  and  must  be  effective,  proportionate  and 
dissuasive.  

Article 15 
Implementation 

1. Member States shall adopt the laws, regulations and administrative provisions necessary to 
comply with this Directive by …. at the latest [two years after adoption]. They shall forthwith 
inform the Commission thereof and shall communicate to the Commission the text of those 
provisions and a correlation table between those provisions and this Directive. 

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

2.  In  order  to  take  account  of  particular  conditions,  Member  States  may,  if  necessary, 
establish  that  the  obligation  to  provide  effective  access  as  set  out  in  Article  4  has  to  be 
complied with by … [at the latest] four [years after adoption]. 

Member States wishing to use this additional period shall inform the Commission at the latest 
by the date set down in paragraph 1 giving reasons. 

Article 16 
Report 

1. Member States and national equality bodies shall communicate to the Commission, by …. 
at the latest and every five years thereafter, all the information necessary for the Commission 
to  draw  up  a  report  to  the  European  Parliament  and  the  Council  on  the  application  of  this 
Directive. 

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2.  The  Commission's  report  shall  take  into  account,  as  appropriate,  the  viewpoints  of  the 
social partners and relevant non-governmental organizations, as well as the EU Fundamental 
Rights  Agency.  In  accordance  with  the  principle of  gender  mainstreaming,  this  report  shall, 
inter alias, provide an assessment of the impact of the measures taken on women and men. In 
the light of the information received, this report shall include, if necessary, proposals to revise 
and update this Directive. 

Article 17 
Entry into force 

This Directive shall enter into force on the day of its publication in the Official Journal of the 
European Union. 

Article 18 
Addressees 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the Council 

The President 

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