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 - Summary of the impact assessment {COM(2008) 426 final} {SEC(2008) 2180}
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) 2181 

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 

Summary of the Impact Assessment 

{COM(2008) 426 final} 
{SEC(2008) 2180} 

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COMMISSION STAFF WORKING DOCUMENT 

Document accompanying  
the proposal for a Council Directive on the principle of equal treatment 
Summary of the Impact Assessment 

1. INTRODUCTION 

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.  This  is  also  recognised  by 
Article 21 of the EU Charter of Fundamental Rights.  

The EU has taken effective action2 on the basis of Article 13 EC, supplementing the already 
existing comprehensive body of gender equality law. Yet discrimination still exists in many 
areas,  such  as  in  the  access  to  and  supply  of  goods  and  services,  housing,  education,  social 
services and health care.  

The 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',  the  2005  Commission  framework 
strategy  on  non-discrimination  and  equal  opportunities  for  all,  the  European  Year  of  Equal 
Opportunities for All 2007, and continuing through to its 2008 legislative work programme3. 

2. PRESENT LEGAL FRAMEWORK 

The  present  EC 
legal  framework  provides  much  more  extensive  protection  from 
discrimination on grounds of sex, race or ethnic origin than from discrimination on grounds of 
religion  or  belief,  disability,  age  or  sexual  orientation,  as  shown  in  the  table  below.  These 
directives have now been transposed into national law, with the result that protection against 
discrimination has greatly increased under national law. 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.  

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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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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 

Although a number of Member States go beyond the minimum standards set out, the level and 
extent  of  protection  against  discrimination  on  the  various  grounds  is  very  varied.  Five 
Member States4 have detailed legal protection against discrimination on grounds of religion or 
belief,  disability,  age  or  sexual  orientation  in  all  the  areas  shown  above.  Others  have  more 
general Constitutional provisions or legal protection in some areas, or on some grounds, but 
not all. 

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. It is also makes it more difficult for providers of goods and services to operate across 
borders. 

3. EVIDENCE AND CONSULTATION 

The  "Mapping  study"  commissioned  by  the  Commission  in  2005  on  existing  national 
measures going beyond the EU requirements and their impact was received in 20065. 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.  

In  addition,  the  Commission  commissioned  a  further  study6  in  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", 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.  

The Report takes account of the reports from the European Network of Independent Experts 
in the non-discrimination field and the results of a special Eurobarometer survey carried out in 

4 
5 
6 

Ireland, Bulgaria, Luxembourg, Slovenia and Hungary. 
http://ec.europa.eu/employment_social/fundamental_rights/public/pubst_en.htm#stud 
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 

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March  2008  on  discrimination  and  inequality  in  Europe7  and  a  more  narrowly  focussed 
Eurobarometer flash survey in February 20088. 

Particular  mention  should  be  made  of  the  public  on-line  consultation9,  a  survey  of  the 
business  sector10,  and  a  written  consultation  of,  and  meetings  with,  the  social  partners  and 
European level NGOs active in the non-discrimination field11. In parallel, the main EU-level 
NGO  representing  people  with  disabilities  presented  a  petition  calling  for  legislation  signed 
by some 1.3 million people.  

The  results  of  the  public  consultation  and  that  of  the  NGOs  was  a  clear  call  for  more 
legislation at EU level to increase the level of protection against discrimination although some 
argued  for  ground-specific  directives  in  the  areas  of  disability  and  of  sex.  The  European 
Business Test Panel consultation also indicated that businesses believe it would be helpful to 
have  the  same  level  of  protection  from  discrimination  across  the  EU,  although  the  social 
partners  representing  business  were  against  new  legislation  in  principle,  which  they  saw  as 
increasing red tape and costs. The trade unions were in favour of 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 (e.g. the lack of accessible transport for disabled workers). 

4. BASE LINE SCENARIO 

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.  

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. 

The UN Convention on the rights of persons with disabilities, which the EC and 26 Member 
States have signed, will need to be implemented by those Member States and the EC.  

5. PROBLEM DEFINITION 

A  substantial  number  of  people  in  the  European  Union  suffer  from  or  are  at  risk  of 
discrimination,  as  shown  by  the  public  consultation  (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).  According  to  a  Eurobarometer 
survey12  conducted  in  February  2008,  between  8%  and  16%  of  EU  citizens    said  they  or  a 
member  of  their  family  or  friends  had  experienced  discrimination  on  grounds  of  their  age, 

7 

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12 

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 Eurobarometer 232; the full results are available online at: 
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 
http://ec.europa.eu/yourvoice/ebtp/consultations/index_en.htm 
http://ec.europa.eu/employment_social/fundamental_rights/org/imass_en.htm#ar 
Flash Eurobarometer 232; 

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disability, religion, sexual orientation or a combination of factors. The EPEC study presents 
evidence of the scale of discrimination on the grounds of  religion and belief, age, disability 
and  sexual  orientation  in  a  number  of  areas  (access  to  goods  and  services,  health  care, 
education,  transport  etc).  The  NGOs  that  responded  to  the  consultation  also  gave  specific 
examples of discrimination.  

The legal protection that victims of discrimination can expect varies according to the grounds 
of  discrimination  concerned,  whether  it  takes  place in  employment  or  in  other  areas  of  life, 
and  where  they  live.  This  difference  in  protection  from  discrimination  at  EU  and  national 
level has practical consequences: it means that the incidences of discrimination identified in 
the  Report  are  not  addressed  in  a  coherent  manner  and  that  victims  of  discrimination  have 
unequal means of redress depending on their Member State. It also means that differences in 
protection afforded by the Member States may affect people's mobility as well as the cross-
border marketing of goods and services. 

6. EU POLICY RESPONSES 

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 ways of possibilities were looked at and after a preliminary screening of possible 
policy options, six were 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  

7. COMPARISON OF THE OPTIONS 

Each option was analysed to assess the extent to which it could meet the objectives, and how 
it compares with the baseline scenario of no new action but "business as usual".  

Economic and social impacts were examined for all options, as were environmental impacts 
where  relevant.  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  option  of  not  taking  action  would  not  tackle  the  problems  which  have  been  identified, 
would  mean  that  the  economic  and  societal  costs  of  discrimination  remain,  and  would 
increase the risk of widening the gap in legal protection.  

The non-legislative options looked at could not guarantee any clear improvement in the level 
of  protection  against  discrimination  because  it  was  impossible  to  foresee  to  what  extent  the 

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Member States would take up these options and implement them effectively. A dialogue with 
the insurance and banking industries was considered a possibly effective way of dealing with 
allegations of discrimination in that context. 

Member  State  action  alone,  based  on  national  constitutional  and  legal  frameworks,  was 
considered to run the risk that differences in the levels of protection would not only be left in 
place but could also widen.  

The  only  sure  way  to  make  clear  progress  towards  the  objectives  identified  is  through  a 
legally binding measure at EU level. The experience with the existing Directives was positive 
and their transposition 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.  

The Report also explains that a directive which prohibited discrimination based on disability, 
as well as the other grounds, could be an effective and coherent way for the Member States to 
implement parts of the UN Convention on the rights of persons with disabilities. In particular, 
by  defining  what  is  expected  in  terms  of  "reasonable  accommodation"  a  directive  would 
provide  greater  legal  certainty  than  the  Convention.  In  addition  a  directive  would  provide 
clearer and more effective mechanisms of redress for victims of discrimination.  

8. CONCLUSION 

The  Impact  Assessment  Report  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. THE NEW DIRECTIVE 

•  would  build  on  the  approach  and  concepts  of  the  existing  Article  13  EC  directives  and 
notably  2000/43/EC  and  2000/78/EC,  for  example  the  definitions  of  discrimination  and 
harassment, the obligation to provide reasonable accommodation, as well as the 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. 

New legislation could be coupled with a dialogue to look at perceived discrimination in the 
insurance  and  banking  sectors,  in  order  to  clarify  rules  for  industry  and  consumers.  The 
promotion  of  non-legal  measures  to  combat  discrimination,  such  as  raising  awareness  of 
discrimination, training and exchange of good practice would continue. 

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