Opinion of the European Economic and Social Committee on Extending anti-discrimination measures for areas outside employment and the case for a single comprehensive anti-discrimination directive
Date: 2008-09-18
Institutions: European Economic and Social Committee
Subjects: ESC opinion, EU policy, anti-discriminatory measure, equal treatment, job access, racial discrimination

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Opinion of
the European Economic and Social Committee on ‘Extending anti-discrimination
measures for areas outside employment and the case for a single comprehensive anti-discrimination
directive’

(2009/C 77/24)

On 17 January 2008 the European Economic and Social Committee, acting under Rule 29(2) of its Rules of
Procedure, decided to draw up an own-initiative opinion on

Extending anti-discrimination measures for areas outside employment and the case for a single comprehensive
anti-discrimination directive.

The Section for Employment, Social Affairs and Citizenship which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 18 July 2008. The rapporteur was Mr Crook.

At its 447th plenary session, held on 17 and 18 September 2008 (meeting of 18 September 2008), the
European Economic and Social Committee adopted the following opinion by 112 votes to 3 with
2 abstentions.

1. Conclusions and recommendations

1.1
The right to equality is both a universal right and a
fundamental principle of Community law. It is proclaimed in
the Charter of Fundamental Rights. Its source is in the European
Convention for the Protection of Human Rights and Funda-
mental Freedoms, the other international instruments to which
all Member States are signatories and in the constitutional tradi-
tions common to the Member States.

1.2
Article 13 TEC commits the EU to combating discrimi-
nation on grounds of sex, racial or ethnic origin, religion or
belief, disability, age and sexual orientation in all areas within its
competence. The Lisbon Treaty makes combating discrimination
a specific aim of the EU.

1.3
Discrimination on the grounds within Article 13 may
undermine the objectives of the European Community as set
out in Article 2 TEC, including the promotion of a high level of
employment and social protection, equality between men and
women, the raising of the standard of living and quality of life,
economic and social cohesion and solidarity among Member
States.

1.4
Effective protection against discrimination outside the
field of employment is important to ensure the development of
democratic, tolerant societies which allow for the expression of
diversity and the full participation and integration of all persons
into economic and social life.

to the

Action is

required in response

continuing
1.5
inequality and discrimination in the EU. Such discrimination
causes harm to individuals and to European societies generally.
Current EU legislation is inadequate for this purpose. While all
grounds referred to in Article 13 are protected against discrimi-
nation in employment and occupation, EU law also provides
protection against discrimination on grounds of racial or ethnic
origin in social protection, including social security and health-
care, social advantages, education and access to goods and

services including housing and on grounds of sex in access to
goods and services. For grounds of religion or belief, disability,
age and sexual orientation there is no EU legal protection
against discrimination outside the field of employment. EU
anti-discrimination law fails to recognise and provide protection
for multiple discrimination.

The actual picture of legal protection across the EU is
1.6
complex. Many Member States have laws beyond EC require-
ments but with wide variation as to the content, nature and
degree of protection offered, while others barely meet minimum
requirements. Despite the proven benefit of specialised equality
bodies to combat discrimination and promote equality, EU law
requires such bodies only in relation to racial or ethnic origin
and sex equality. Many Member States have established equality
bodies with mandates including equality on all or some of the
other Article 13 grounds.

The EESC considers that there can be no justification for
1.7
the EU to maintain a system of
legislation based on a clear
Treaty commitment to combat discrimination on six specified
grounds that maintains disparities in protection with lesser
protection against discrimination and more limited guarantee of
equal treatment on certain grounds. Without binding obligation
to meet an EU common standard there is no real incentive for
Member States to enact laws providing consistent rights for all
grounds.

The EESC is concerned that achievement of the aims of
1.8
the EU will be significantly hindered by this hierarchical scheme
of protection against discrimination. It could impede freedom of
movement of workers, and of goods; workers may be reluctant
to move to countries with fewer enforceable rights, and provi-
ders of goods or services may be adversely affected by require-
ments to meet different equality standards in different countries.
It works against social cohesion and will limit levels of partici-
pation in civil society.

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The EESC considers that there is now a need for new EU
1.9
legislation prohibiting discrimination outside
field of
employment on grounds of religion or belief, disability, age and
sexual orientation. Consistent with principles of subsidiarity and
proportionality in Article 5 TEC, the achievement of a high
common standard of legal protection across all Member States
cannot be achieved other than by action at Community level.

the

1.10
Action by the EC should be in the form of a single
directive covering all four grounds. To achieve coherence and
consistency in EU and national law, the new directive should
apply to all areas other
than employment and occupation
within the Race Equality Directive. The EESC believes that a
single directive offers major advantages:
it would provide
maximum clarity for businesses and other providers of goods
and services, encouraging early compliance; it would most effec-
tively encompass protection against multiple discrimination; it
supports greater social cohesion.

1.11
The EESC therefore welcomes the decision by the
Commission announced on 2 July 2008 to propose a new
directive implementing the principle of equal treatment irrespec-
tive of religion or belief, disability, age or sexual orientation.

1.12
It is essential that new legislation should ensure that the
right to equality is not diluted or diminished and does not result
in the reduction of protection against discrimination under
existing EU or national
laws. A new directive should offer a
framework for compliance with the equality obligations under
the UN Convention on the Rights of Persons with Disabilities
including provision of access and reasonable accommodation so
disabled people can participate fully in society. It should enable
adoption of measures permitting positive action and preferential
treatment on grounds of age or disability where this is consis-
tent with the principle of equal treatment. It must not allow a
general justification for direct discrimination, but should permit
discrimination where it serves to promote equality and respect
for human dignity. It should require the establishment or enlar-
gement of specialised bodies to cover equality on the four
outstanding grounds.

2. Equality is a fundamental principle of EU law

2.1
The right to equality is both a universal right and a
fundamental principle of Community law. It derives from inter-
national instruments of which all Member States are signatories
and from the constitutional traditions of Member States and is
proclaimed in Articles 21 and 22 of the Charter of Fundamental
Rights.

a key feature in the development of the Union. Equal treatment
of women and men remains essential for a fair internal market,
freedom of movement and the building of a strong and cohesive
European society.

2.3
During the 1990s there was an increasing awareness of
the need for measures to tackle discrimination on grounds other
than sex and in areas other than employment. The incorpora-
tion of Article 13 in the Amsterdam Treaty was a major devel-
opment conferring new powers and an expanded commitment
treatment. Article 13 commits the EU to
to secure equal
combating discrimination not only on grounds of sex but also
on grounds of
religion or belief,
disability, age and sexual orientation.

racial or ethnic origin,

two

directives:

the Racial

2.4
Recognising the pressing need for action in respect of
discrimination on these other grounds,
in 2000 the Council
approved
Equality Directive
implementing the principle of equal treatment
(2000/43/EC)
between persons irrespective of racial or ethnic origin and the
Employment Framework Directive (2000/78/EC) establishing a
general
in employment and
occupation. In 2004 the Council approved the Gender Goods
and Services Directive (2004/113/EC) implementing the prin-
ciple of equal treatment between men and women in the access
to and supply of goods and services.

framework for equal

treatment

2.5
Each of the three directives refers in its preamble to
Article 6 of the Treaty on the European Union and confirms
that the right to equality is a fundamental right based on the
instruments of which all
rights enshrined in international
Member States are signatories and the constitutional traditions
common to all Member States.

2.6
This was endorsed by the European Court of Justice, in
Mangold-v-Helm (1) in its preliminary ruling on the interpreta-
tion of Council Directive 2000/78/EC in relation to age
discrimination:

— ‘74 … in accordance with Article 1[Directive 2000/78], the sole
purpose of the directive is to lay down a general framework for
combating discrimination on the grounds of religion or belief,
disability, age or sexual orientation, the source of the actual prin-
ciple underlying the prohibition of those forms of discrimination
being found, as is clear from the third and fourth recitals in the
preamble to the directive, in various international instruments and
in the constitutional traditions common to the Member States.

— 75 The principle of non-discrimination on grounds of age must

thus be regarded as a general principle of Community law’.

There is no reason to suggest that the Court would not equally
confirm this as a principle in respect of the other grounds
within Directive 2000/78.

2.2
The right to non-discrimination between women and
men in the workplace, agreed more than 30 years ago, has been

(1) [2005] EUECJ C-144/04 of 22 November 2005.

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2.7
In Coleman-v-Attridge Law, a case in which the European
Court of Justice had been asked for a preliminary ruling on the
scope of Council Directive 2000/78 the Advocate General in his
Opinion stated (2):

— ‘8 Article 13 EC is an expression of the commitment of the
Community legal order to the principle of equal treatment
and non-discrimination. … The Court's case law is clear as
regards the role of equal treatment and non-discrimination
in the Community legal order. Equality is not merely a poli-
tical ideal and aspiration but one of the fundamental princi-
ples of Community law’.

Both the Race Equality Directive (3) and Employment
2.8
Framework Directive (4) affirm the Council's view that discrimi-
nation based on the grounds referred to in Article 13 may
the EC as stated in
undermine the achievement of aims of
Article 2 TEC,
including the promotion of a high level of
employment and of social protection, equality between men and
women, the raising of the standard of living and quality of life,
and economic and social cohesion and solidarity among
Member States.

2.9
The Lisbon Treaty gives new importance to combating
discrimination on the grounds within Article 13 (5), making this
a specific aim of the EU in defining and implementing its poli-
cies and activities (6).

3. The

importance

protection
discrimination outside the field of employment

effective

of

against

3.1
The Employment Framework Directive establishes a
general framework for equal treatment on grounds of religion
or belief, disability, age or sexual orientation in employment and
occupation; the Race Equality Directive implements the principle
of equal treatment between persons irrespective of racial or
ethnic origin in relation not only to employment and occupa-
tion but also to social protection including social security and
healthcare, social advantages, education and access to and
supply of goods and services which are available to the public,
including housing.

The Gender Goods and Services Directive supplements
3.2
the protection against sex discrimination in employment and
occupation in directives adopted under Article 141 TEC (7) and
implements the principle of equal treatment between men and
women in the access to and supply of goods and services.

ensure full participation of all persons, protection against discri-
mination should extend beyond employment.

The EESC has recognised (10) the importance of eAccessi-
3.4
bility in combating discrimination and enabling full participa-
tion in society of all groups and recommended legislation under
Article 13 to achieve a common high standard of measures for
eAccessibility.

The EESC believes that the elimination of discrimination
3.5
both within and outside of the labour market is essential for the
achievement of the objectives of the Lisbon Strategy. Conversely,
discrimination in social protection, healthcare, education or
housing or in the access to essential public and private sector
services will hinder progress towards sustainable growth and
more and better jobs.

4. Current position of equality and non-discrimination in

the EU

The European Year of Equal Opportunities for All

4.1
in
2007 provided a valuable opportunity for EU institutions,
national governments and civil society to reflect on the impor-
tance of equality and the elimination of discrimination for the
realisation of a more socially inclusive society. It exposed the
fact clearly noted by the Council that inequality and discrimina-
tion on grounds of sex, racial or ethnic origin, age, disability,
religion or belief or sexual orientation ‘continue to exist in the EU,
at a substantial cost to the individual women and men concerned and
European societies as a whole’ (11).

4.2
The European Year also exposed the disparity in protec-
tion against discrimination within the existing EU legislation,
described in 3.1 and 3.2 above. The EESC is concerned that
denial of fair treatment, including institutional patterns of discri-
mination, on any of the Article 13 grounds in areas such as
healthcare, education, access to goods and services and housing
may contribute to persistent inequality in access to employment
and may profoundly affect the quality of people's lives and their
ability to participate fully in society.

In the Race Equality Directive (8) and the Gender Goods
3.3
and Services Directive (9) the Council has recognised that to

5. Multiple discrimination

(2) [2008] EUECJ C-303/06 of 31 January 2008.
(3) Recital 9.
(4) Recital 11.
(5) Treaty on the Functioning of the European Union (consolidated version

as amended by the Treaty of Lisbon), Article 19.

(6) Treaty on the Functioning of the European Union (consolidated version

as amended by the Treaty of Lisbon), Article 10.

(7) e.g. Directives 76/207/EEC and 2002/73/EC.
(8) Recital 12.
(9) Recital 9.

5.1
As the Council noted ‘The European Year has highlighted
the aggravated difficulties stemming from multiple discrimination’ (12).

(10) EESC opinion of 30.5.2007 on ‘Future eAccessibility Legislation’,

rapporteur: Mr Hernández Bataller (OJ C 175 of 27.7.2007).

(11) Council Resolution of 5 December 2007 on the follow-up of the

European Year of Equal Opportunities for All (2007), page 1.

(12) Idem, page 3.

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5.2
‘Multiple discrimination’ recognises the complex identi-
ties of every natural person. It occurs when a person experiences
discrimination or harassment on more than one of the grounds
that form part of their identity.

5.3
A research report by the Danish Institute for Human
Rights ‘Tackling Multiple Discrimination — Practices, policies
and laws’ was published in December 2007 (13). From their
academic and legal research and consultation with stakeholders
the authors conclude: ‘If the reality of discrimination and inequality
is to be tackled, workable solutions to combat the existence of Multiple
Discrimination have to be found’ (14).

laws
EU anti-discrimination legislation and national
5.4
transposing EU legislation should be capable of providing
protection and rights to redress against all forms of multiple
discrimination. In order to do this, there needs to be parity of
protection for all of the grounds. Currently this is not the case
under EU law outside the field of employment.

6. Legal protection against discrimination across the EU

Although not all Member States have yet adequately
6.1
transposed the Race Equality Directive or
the Employment
Framework Directive (15), many Member States have laws prohi-
biting discrimination that go beyond the requirements of the
current Article 13 directives.

in national constitutions,
whether protections were set out
generic anti-discrimination laws, national or regional
laws or
special laws covering single areas, such as housing or education.
For each of the grounds or areas covered there were different
variations between countries in the nature, form and extent of
exceptions to non-discrimination rights (18). The comparison of
Member States by Bell, Chopin and Palmer (19) reinforces these
findings of variation and inconsistency.

6.4
As the Council recognised in its Resolution on the
follow-up of the European Year, specialised equality bodies are,
or could be, key driving forces in combating discrimination and
promoting equality in every Member State;
in particular they
have a critical awareness raising role. The Race Equality Direc-
tive, the Gender Goods and Services Directive and the Recast
Gender Directive (20) require Member States to establish specia-
lised equality bodies to support equality rights on grounds of
racial or ethnic origin and sex, but there is no requirement to
establish equality bodies for religion or belief, disability, sexual
orientation or age. The specialised bodies established in Member
States vary widely in terms of the grounds within their compe-
tence: some are limited to racial and ethnic origin and others
include all Article 13 grounds plus additional grounds (21). The
Equinet network (22) operates at European level, made up of
autonomous or governmental authorities responsible within the
Member States for applying anti-discrimination legislation.

A mapping study (16) published in December 2006
6.2
looked at national laws prohibiting discrimination outside the
field of employment and occupation on grounds of sex, sexual
orientation, disability, religion and belief and age. As the author
states:

6.5
The EU Agency for Fundamental Rights, after reviewing
legal protection against sexual orientation discrimination across
the EU (23), recommended EU legislation to ensure equal rights
to equal treatment for all grounds within Article 13.

the fact

the European countries
‘Perhaps the most striking features of
surveyed are (1)
that most countries go well beyond
current EC requirements and provide legal protection of some form
the discrimination forming the subject
in respect of much of
matter of this report, and (2) the variety between the countries as
to the degree, as well as the nature, of such protection’ (17).

She found wide disparities in terms of which grounds
6.3
were protected in relation to which areas of activity and

The EESC believes that there is no valid justification for a
6.6
system of EU anti-discrimination legislation based on a Treaty
commitment to combat discrimination on the grounds of sex,
racial and ethnic origin, religion or belief, disability, age and
sexual orientation that permits and perpetuates a lower degree
of protection and more limited guarantees of equal treatment
on certain of these grounds.

(13) Office for Official Publications of the European Communities, 2007,

ISBN 978-92-79-06953-6.

(14) Idem, page 7.
(15) See M. Bell, I. Chopin and F. Palmer, ‘Developing Anti-Discrimination
Law in Europe — The 25 EU Member States Compared’, July 2007,
Office for the Official Publication of the European Communities,
2007, ISBN 978-92-79-06572-9.

(16) See A. McColgan, J. Niessen and F. Palmer, ‘Comparative Analyses on
National Measures to Combat Discrimination Outside Employment
and Occupation’ VT/2005/062, Migration Policy Group and Human
European Consultancy, December 2006.

(17) Idem, page 3.

(18) Op.cit. Comparative Tables pages 36-45, and see M. Bell, I. Chopin and

F. Palmer (see footnote 15).

(19) Op. cit. Comparative Tables pages 83-113.
(20) 2006/54/EC.
(21) See M. Bell, I. Chopin and F. Palmer, ‘Developing Anti-Discrimination
Law in Europe — The 25 EU Member States Compared’, July 2007,
Office for the Official Publication of the European Communities,
2007, ISBN 978-92-79-06572-9, pages 108-113.

(22) See www.equineteurope.org.
(23) Homophobia and Discrimination on Grounds of Sexual Orientation
in the EU Member States: Part I — Legal Analysis, European Union
Agency for Fundamental Rights, 2008 (author: Olivier De Schutter).

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there is no real

6.7 Without consistent legislation covering all grounds at EU
level
incentive for Member States to enact
consistent legislation, and there is no legal basis for intervention
by the Commission or the Council where there are inadequate
or uneven levels of protection against discrimination, as is
currently the case.

6.8
The EESC accepts that the enactment of legislation prohi-
biting discrimination does not of itself rid a country of the
scourge of discrimination, but it could at least be said to reflect
the state's recognition of the harm discrimination causes to indi-
viduals and society and its commitment to use legal means to
bring it to an end. The absence of anti-discrimination legislation
conveys quite different messages, indicating a (mistaken) belief
that such discrimination does not exist or that such discrimina-
tion is not a problem of sufficient gravity to warrant formal
preventative measures, or, in political terms, indicating that the
objections of potential discriminators to any form of regulation
overshadow concerns to improve the quality of life for all citi-
zens and to achieve greater social cohesion.

nation on grounds of age, disability, religion and sexual
orientation, in terms of access to goods and services, as well
as housing, would affect their ability to do business there.

— It affects the quality of life, since, without a legal ban, discri-
mination and harassment are likely to remain unchecked,
and barriers to full and equal enjoyment of economic and
social rights will remain in place.

— It militates against social cohesion, since it fails to give full

and equal recognition to all groups within the society.

— It limits the degree of participation in civil society by major

groups and communities.

7.2 With its stated concerns regarding continuing discrimina-
tion, the Council,
in its Resolution on the follow-up of the
European Year:

— noted that ‘discrimination can lead to poverty and social exclusion

by preventing participation and access to resources’; and

6.8.1
There is good evidence that informal non-legislative
measures intended to promote good practice have failed to
eradicate entrenched patterns of discrimination.

— noted that ‘the European Parliament and civil society have called
for extending legal protection against discrimination to areas
beyond employment and occupation’; and

6.8.2
Anti-discrimination legislation on its own, however,
without a comprehensive programme of awareness-raising and
education, as well as effective enforcement, will not achieve its
aims.

— invited Member States and the European Commission to
‘strengthen efforts to prevent and combat discrimination … inside
and outside the labour market’ and to ‘secure and strengthen the
effectiveness of specialised equality bodies’.

7. A hierarchy of rights to equality operates against the

achievement of the aims of the EC

7.1
The EESC believes allowing the present inconsistent hier-
archical system of EC protections against discrimination oper-
ates against the achievement of the aims of the EC:

— It impedes the freedom of movement of workers, who have
fewer enforceable rights to non-discrimination in some
States than in others. For example, 69.2 % of individual
respondents to the Commission's on-line survey, Discrimina-
tion — Does it Matter,
legal
protection against discrimination outside of work on
grounds of age, disability, religion and sexual orientation
would influence their decision to move to a different
Member State (24).

indicated that the level of

— It may impede freedom of movement of goods, as suppliers
must meet different equality standards
for goods and
services in different Member States. For example, 26.3 % of
companies participating in the European Business Test Panel
on Anti-Discrimination (25) indicated that the level of legal
protection offered by another Member State against discrimi-

(24) Consultation on-line July-October 2007.
(25) 12.7.2007-31.8.2007, question 4a.

8. A new directive is required

8.1
To respond to the Council's concerns and to ensure a
consistent minimum standard of protection across the EU, there
is a need for new legislation implementing the principle of
equal
religion or belief,
irrespective of disability,
sexual orientation or age outside the field of employment.

treatment

The nature and scale of

8.2
the matters affected by the
current levels of discrimination and their impact on the achieve-
ment of the objectives of the EU and the need for a common
high level of protection in all Member States cannot be suffi-
ciently met or achieved by the Member States and therefore
requires action at Community level, consistent with the princi-
ples of subsidiary and proportionality as set out in Article 5 TEC.

8.3
The EESC recommends that this should be in the form
of a single directive prohibiting discrimination on grounds of
disability, religion or belief, sexual orientation or age in relation
to all areas outside the field of employment within the scope of
the Race Directive and requiring the establishment or enlarge-
ment of an equality body with full competence to work across
all matters within the scope of the legislation. This was a main
recommendation of EU Agency for Fundamental Rights (26).

(26) Homophobia and Discrimination on Grounds of Sexual Orientation
in the EU Member States: Part I — Legal Analysis, European Union
Agency for Fundamental Rights, 2008 (author: Olivier De Schutter).

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8.3.1 While recognising that protections under the existing
anti-discrimination directives could be strengthened, including a
clearer recognition of institutional discrimination, the current
the EESC is to secure protection for the above
priority of
grounds at the same standard as now exists for racial and ethnic
origin.

8.4
The EESC accepts that the initial reaction of many orga-
nisations, especially small business, to any proposal for new
regulation will be genuine concern about the costs of compli-
ance. For businesses, multiple layers of rules make compliance
‘extremely difficult’. (27) The EESC is not persuaded that enact-
ment of a single directive establishing a common EU standard
of protection against discrimination outside the field of employ-
ment would result in significant new costs; in many cases the
costs of bringing practice in line with the law would be more
than outweighed by the resulting wider customer base that
would result from the eradication of discrimination. It was the
view of 89.8 % of
the European Business Test Panel on
Anti-discrimination that there should be legislation to ‘guarantee
the same level of protection against discrimination all over
Europe’ (28).

The EESC is aware of arguments supporting separate
8.5
directives for each of the relevant grounds, however the EESC
considers that a single directive covering all four grounds is
strongly to be preferred:

different groups can read from the content of
legislation
that the rights to equal treatment of some groups carry
greater weight than the rights of others.

8.6
The Race Equality Directive has established the key areas
outside the field of employment within the competence of the
EU in which, to achieve the aims of the EU it is relevant and
necessary to prevent discrimination on grounds of disability,
religion or belief, sexual orientation and age; the EESC strongly
recommends that these same areas should be fully within the
scope of the new directive.

The EESC accepts that, in accordance with the principle
8.7
of subsidiarity, in respect of certain areas of activity, for example
housing, education or certain other public services, competence
for organisation and delivery of provision and/or for other
aspects of regulation is primarily within the competence of
Member States, at national or regional level. The EESC believes
that, pursuant to Article 5 TEC, to ensure the required compre-
hensive high level common standard of equal
in
respect of all such areas of activity cannot be achieved other
than by legislation at European level.

treatment

— to provide maximum clarity and transparency for individuals
and providers of goods and services; we are aware that
private business rarely welcomes new forms of regulation,
and to set separate EC non-discrimination standards for each
ground separately, at different times, without any certainty
of consistent requirements will make compliance far more
difficult,
small businesses with limited
resources;

especially

for

— to enable effective response to and remedy for multiple
discrimination;
if there is consistent, equivalent protection
for all grounds then individuals who face discrimination or
harassment based on more than one characteristic of their
identity will be able to seek appropriate and relevant redress;

— to make the law understandable and accessible; in its Resolu-
tion on the follow-up of the European Year, the Council
referred to the low level of public awareness of anti-discrimi-
nation legislation (29). The task of improving awareness will
be many times more difficult if there are complex variations
of rights to equal treatment based on different grounds in
different fields in EU or national legislation;

— to avoid any form of hierarchy within a European system of
social cohesion depends on
rights
members of society feeling a shared commitment and sense
of belonging; this will be far more difficult to achieve if

treatment;

to equal

the decision of

The EESC therefore welcomes

the
8.8
Commission announced on 2 July 2008 to propose a new
directive that would implement the principle of equal treatment
irrespective of religion or belief, disability, age or sexual orienta-
tion in the areas outside the field of employment covered by the
Race Equality Directive. As earlier drafts of this opinion had
been submitted to the Commission, it is hoped that the argu-
ments and preliminary conclusions of the EESC Study Group
recommending a directive in the form now proposed may have
assisted the Commission in its decision-making. We further
hope that this opinion in its final form may encourage Member
States to recognise the value and importance of EU legislation
for this purpose and assist them to contribute to its positive
development and approval.

The EESC endorses

8.9
the Commission's decision to
propose a directive which to a maximum degree is consistent
with other Article 13 directives, with the same definitions of
direct and indirect discrimination, harassment and positive
action, application to all persons present in a Member State
including third country nationals and the same obligations on
Member States to ensure rights to redress, effective, propor-
tionate and dissuasive sanctions, protection against victimisation
and incorporation of the shift of the burden of proof. Equally
important are consistent obligations to raise awareness and to
encourage dialogue with social partners and NGOs.

(27) The Confederation of European Business, response to European
Commission consultation ‘Discrimination, does it matter?’ 12 October
2007.

(28) 12.7.2007-31.8.2007, question 4b.
(29) Consultation on-line July-October 2007, page 1.

The EESC recommends that the Council and other EU
8.10
institutions
should
consider the following matters to ensure that in its final form it
achieves the purposes we have described:

in scrutinising the proposed directive

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8.10.1
Non-regression: The development of a new directive
must not be used to reduce protection against discrimination in
any EU legislation and Member States should not be able to use
implementation of the directive as grounds for reduction in
their existing level of protection against discrimination.

8.10.2
Equality rights and reasonable accommodation for disabled
people: Outside the field of employment disabled people meet
the same or greater barriers to their full participation. The new
directive should provide a framework for all Member States to
meet their equality and non-discrimination obligations under
the UN Convention on the Rights of Persons with Disabilities.

The new directive

all persons
8.10.2.1
engaged in the provision of social protection including social
security and healthcare, social advantages, education and goods
and services including housing:

should require

a) to anticipate accessibility needs, including access to physical
related to

transportation and information,

environment,
disability; and

b) to make anticipatory reasonable accommodation, removing
barriers to maximum participation and use by disabled
people.

8.10.2.2
The new directive should define as a form of discri-
mination failure to ensure reasonable accessibility or to provide
reasonable accommodation for a particular disabled person,
unless the measures would impose a disproportionate burden
on the provider.

8.10.3 Multiple discrimination: the directive should confirm
that the principle of equal treatment includes protection in rela-
tion to multiple discrimination so that this is given effect in EU
and national law.

8.10.4
Positive action: Inequality is well entrenched in areas of
activity other than employment and occupation, for example in
education, healthcare, housing and access to services such as
hotels restaurants, financial services, and travel arrangements.
Therefore, with a view to ensuring full equality in practice, the
new directive should explicitly permit Member States to main-
tain or adopt measures to prevent or compensate for disadvan-
tages linked to religion or belief, disability, age or sexual
orientation.

8.10.5
Preferential treatment on grounds of disability or age: The
new directive should acknowledge practices within Member

Brussels, 18 September 2008.

States of providing preferential treatment to persons based on
their age or their status as a disabled person, many of which
contribute to greater social inclusion of older or younger people
and disabled people. The new directive should not discourage
public or private sector organisations from offering such bene-
fits where they are intended to overcome or ameliorate real,
financial or attitudinal barriers to equal participation. It should
enable Member States to permit such measures provided they
have a legitimate aim that is consistent with the principle of
equal
treatment and the means of meeting that aim are
proportionate.

Any exceptions must be narrowly defined. The EESC
8.10.6
accepts that there will be circumstances in which differential
treatment based on a protected ground may be appropriate and
necessary but rejects the introduction of a general justification
for direct discrimination. Exceptions to the prohibition of discri-
mination should not be so wide that they remove the impact of
the protection the directive is intended to provide; on the other
hand the directive should not be made unduly complicated with
a long list of specific exceptions for particular circumstances or
treatment should be permitted within
grounds. Differential
anti-discrimination legislation only where it serves to promote
and enhance equality and human dignity and does not under-
mine the impact of the anti-discrimination provisions.

Enforcement of rights: The new directive, recognising
8.10.7
the importance and value of organised civil society, should
ensure that associations or organisations which have a legitimate
interest
in ensuring compliance may engage in judicial or
administrative procedures either on behalf of or in support of
persons affected by discrimination.

8.10.8
Specialised bodies: there is little doubt that awareness
and enforcement of national laws and the promotion of equal
treatment benefit greatly by the existence of an independent
specialised body resourced and competent to carry out the func-
tions specified in the Race Equality Directive (30) or the Gender
Goods and Services Directive (31). The new directive should
require the establishment of a body or bodies (or the extension
of an existing body) for religion or belief, disability, age or
sexual orientation. Furthermore, these organisations should be
made
results of
responsible
anti-discrimination policies.

regularly evaluating the

for

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

(30) Article 13.
(31) Article 12.