Developing anti-discrimination law in Europe : the 28 EU Member States, the former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Norway and Turkey compared.
Date: 2015-04-16
Institutions: Directorate-General for Justice and Consumers
Subjects: EU law - national law, accession to the European Union, anti-discriminatory measure, comparative study, drafting of EU law, equal treatment, human rights

December | 2014

Developing Anti-Discrimination 
Law in Europe

The 28 EU Member States, the Former Yugoslav 
Republic of Macedonia, Iceland, Liechtenstein, 
Norway and Turkey compared 

Justice
and Consumers

EUROPEAN COMMISSION

Directorate-General for Justice and Consumers

Directorate D — Equality

Unit JUST/D1

European Commission

B-1049 Brussels

Developing  
Anti-discrimination Law  
in Europe

The 28 EU Member States, the Former Yugoslav 
Republic of Macedonia, Iceland, Liechtenstein, Norway 
and Turkey compared 

Prepared by Isabelle Chopin and Catharina Germaine
for the European Network of Legal Experts in the Non-discrimination Field

December 2014
(Based on information current to 1 January 20141)

European Commission
Directorate-General for Justice and Consumers

Manuscript completed in January 2015

1 

As regards major significant changes in a few Member States, information may be based on data after 1 January 2014.

 
The text of this report was drafted by Isabelle Chopin and Catharina Germaine for the European Network of Legal Experts in the Non-

discrimination Field (covering the grounds of racial or ethnic origin, religion or belief, disability, age and sexual orientation), managed by:

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Belgium

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www.migpolgroup.com

For more information on publications of the European Network of Legal Experts in the Non-discrimination Field and of the activities of the 

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LEGAL NOTICE

This  document  has  been  prepared  for  the  European  Commission  however  it  reflects  the  views  only  of  the 

authors,  and  the  Commission  cannot  be  held  responsible  for  any  use  which  may  be  made  of  the  information 

contained therein.

More information on the European Union is available on the Internet (http://www.europa.eu).

Luxembourg: Publications Office of the European Union, 2015

ISBN 978-92-79-46193-4

doi: 10.2838/94057

© European Union, 2015

Contents

Preface
Introduction

 4
5 

E. Public security, public order, criminal offences, 

protection of health, and protection of the rights and 
freedoms of others

1 Protected grounds of discrimination
A.  Introduction to the transposition of the anti-

discrimination Directives
B.  Which grounds are covered?
Table: Protected grounds

C. Racial or ethnic origin 
D. Religion or belief

Specific provisions on religion or belief – ethos-based 
organisations

E. Disability

Specific provisions on disability – the reasonable 
accommodation duty
Table: Reasonable accommodation
Specific provisions on disability – health and safety

F. Sexual orientation
G. Age

Specific provisions on age

H. Assumed and associated discrimination
I. Multiple discrimination

2 Definitions and scope
A.  Direct discrimination

Table: Direct discrimination

B.  Indirect discrimination

Table: Indirect discrimination

C.  Harassment

Table: Harassment

D.  Instructions to discriminate

Table: Instructions to discriminate

E.  Personal scope
F. Material scope

Table: Material scope of the Directives
Employment
Social protection
Social advantages
Education
Access to and supply of goods and services
Beyond the Directives

7
8

10
11
13
15
19

20
24

29
31
32
33
34
40
43

45
46
47
49
49
52
54
56
56
59
60
60
61
62
63
63
67
70

3 Exceptions to the principle of equal treatment 

73

and positive action

A. Genuine and determining occupational requirements
B. Armed forces and other specific occupations
C. Nationality

Table: Nationality

D. Family benefits

74
75
76
76
78

F. Other exceptions
G. Positive action

Table: Positive action

4 Access to justice and effective enforcement
A.  Judicial and administrative procedures
Legal action in the private sector
Legal action in the public sector
Obstacles to effective access to justice

B.  Legal standing and associations

Entities which may engage in procedures
Table: Legal standing
To engage ‘on behalf of’
Collective redress
Legitimate interest

C. Burden of proof
D. Victimisation

Table: Victimisation
E.  Sanctions and remedies

5 The role of equality bodies compared
A. Grounds covered

Table: Specialised bodies

B. Competencies of equality bodies

6 Implementation and compliance
A.  Dissemination of information and social and civil 

dialogue
Dissemination of information and awareness-raising
Social and civil dialogue

B.  Ensuring compliance

Conclusion

ANNEX 1   Signature/ratification of 
                 international conventions

ANNEX 2   Main national specific  
                 anti-discrimination legislation

ANNEX 3   National specialised bodies

79

79
79
82

85
86
86
89
89
91
91
93
96
97
99
100
104
106
107

113
115
115
121

129
130

131
133
135

139

143

147

157

3

December 2014Preface

Over 10 years ago a major and unprecedented evolution occurred in the European Union with the adoption in 2000 of two 

pieces of EU legislation in the field of anti-discrimination: the Racial Equality Directive (2000/43/EC) and the Employment 

Equality Directive (2000/78/EC). The transposition and implementation of these legal provisions into the national legal 

systems of the 28 Member States is described in a series of annually updated country reports produced by the European 

Network of Legal Experts in the Non-discrimination Field. In addition, the Network also includes candidate countries (the 

former Yugoslav Republic of Macedonia, Iceland and Turkey) and, since 2012, EEA countries (Liechtenstein and 

Norway).2 The Network annually reports on their national legislation compared with the anti-discrimination standards 

set by the EU. This Network was established and is managed by the Human European Consultancy and the Migration 

Policy Group.

The national reports are written by independent national experts in each country covered by the Network. The information 

is  provided  in  response  to  questions  set  out  in  a  template  format  which  closely  follows  the  provisions  of  the  two 

Directives, although all countries included in the Network do not have the same compliance obligations. The 33 reports 

cover national law, the establishment of enforcement mechanisms, jurisprudence and the adoption of other measures. 

They contain information current as of 1 January 2014.3 As such, they are a valuable source of information on national 

anti-discrimination law and can be found on the Network’s website at: www.non-discrimination.net.

This Comparative Analysis, drafted by Isabelle Chopin and Catharina Germaine (Migration Policy Group), compares and 

analyses the information set out in the 2013 country reports in a format mirroring that of the country reports themselves 

and draws some conclusions from the information contained in them.

Isabelle Chopin (Migration Policy Group) 

Piet Leunis (Human European Consultancy)

Brussels – Utrecht

2 

Please note that Iceland has the status of both an EU candidate country and an EEA country. 

3  Where major changes in legislation have been adopted at national level after the cut-off date of 1 January 2014, they have been 

included and this has been indicated accordingly. 

4

Developing Anti-Discrimination Law in EuropeDecember 2014Introduction

The objective of this report is to compare and contrast anti-discrimination law in the 28 EU Member States and EU 

candidate countries (namely the former Yugoslav Republic of Macedonia and Turkey), as comprehensively described 

in the annually updated country reports written by the European Network of Legal Experts in the Non-discrimination Field 

and summarised in this publication. In addition, the report includes EEA countries, namely Iceland (which is also an EU 

candidate country), Liechtenstein and Norway, which became part of the Network in 2012.

The grounds of discrimination listed in the Directives – racial or ethnic origin, religion or belief, disability, age and sexual 

orientation – are considered individually and collectively. It should be recalled throughout that the purpose of this report 

is to provide an overview of national laws and to contrast them. In addition, compliance obligations differ considerably 

between EU Member States, candidate countries and EEA countries. Consequently, for detailed and nuanced information 

about the law of a particular country, readers are referred to the comprehensive country reports. These country reports 

contain information current as of 1 January 2014.

It goes beyond the scope of this report to assess the extent to which Member States have fully complied with the Directives 

or to assess the legislative impact of the European Directives on the laws of all the countries examined, although the 

report could potentially be used as one of the instruments for making such an assessment. In the transposition process 

ambiguities in the Directives became apparent which this report will not seek to clarify, although, where appropriate, the 

report makes some suggestions to that effect.

The Racial Equality Directive and the Employment Equality Directive had to be transposed into national law by 19 July 

2003 and 2 December 2003 respectively in the EU 15 Member States. The 10 countries acceding to the EU on 1 May 

2004 had to transpose both Directives by that date, while Bulgaria and Romania had to transpose them by 1 January 

2007, the date of their accession to the EU. Entering the EU as its most recent Member State on 1 July 2013, Croatia 

had to transpose the legislation by that date. If and when they accede, the former Yugoslav Republic of Macedonia, 

Iceland and Turkey will have to align their national legislation with EU law by the date on which they enter the EU. 

EU directives on anti-discrimination are not binding on EEA countries, as the EEA agreement only provides obligations 

on those countries vis-à-vis EU legislation related to the internal market. In practice, provisions on anti-discrimination 

exist, but the level of protection varies greatly compared with EU standards. As a general tendency, protection against 

discrimination in these countries is much more developed in relation to the ground of gender than for the other grounds.

This report looks in turn at the main substantive issues in both Directives: the grounds of discrimination, the definition 

of grounds and scope, exceptions to the principle of equal treatment and positive action, access to justice and effective 

enforcement, and equality bodies.

5

December 2014Jelle | 1996

6

December 2014Chapter 1 
Protected grounds  
of discrimination

7

December 2014A. 

Introduction to the transposition of the Anti-discrimination Directives

Further to the introduction of ex-Article 13 TEC4 by the Amsterdam Treaty (now Article 19 TFEU5), two ground-breaking 

EC Directives were adopted in 2000, banning discrimination on grounds of racial or ethnic origin, religion or belief, age, 

disability and sexual orientation. The Directives presented profound challenges to the existing approaches to combating 

discrimination based on these grounds across Europe and aimed to ensure that all individuals living in the EU, regardless 

of their nationality, could benefit from effective legal protection against such discrimination. All Member States were 

required to review their existing legislation and to make the necessary changes to comply with the requirements of the 

Directives, and candidate countries were similarly required to do so in order to comply with EU law in force by their date 

of accession.

The  Racial  Equality  Directive6  requires  Member  States  to  prohibit  certain  forms  of  discrimination,  namely  direct  and 

indirect discrimination, harassment and instructions to discriminate, on the grounds of racial or ethnic origin. It covers 

employment, self-employment and occupation, as well as vocational training, social protection including social security 

and healthcare, social advantages, education and access to and supply of goods and services available to the public, 

including  housing.  The  Employment  Equality  Directive7  limits  the  protection  granted  to  the  field  of  employment  and 

occupation as well as vocational training, and prohibits direct and indirect discrimination as well as harassment and 

instructions to discriminate, on the grounds of religion or belief, age, sexual orientation and disability.

The European Union’s commitment to the principle of non-discrimination was reaffirmed in the Charter of Fundamental 

Rights in December 2000 which states that ‘Any discrimination based on any ground such as sex, race, colour, ethnic 

or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national 

minority, property, birth, disability, age or sexual orientation shall be prohibited’.8 Since the entry into force of the Lisbon 

Treaty in December 2009, the Charter has the same binding legal value as the Treaties.

Even though all Member States have transposed the two Directives into their national law, certain discrepancies still 

remain. For instance, the Anti-discrimination Act of the most recent Member State Croatia (in force since January 2009) 

raises doubts as to whether it brings national law into full compliance with the Directives. Exceptions to the prohibition 

of discrimination may still be too wide, unclear and open to interpretation despite amendments adopted in 2012.

As far as the candidate countries are concerned, the first comprehensive Anti-discrimination Act in the former Yugoslav 

Republic of Macedonia entered into force on 1 January 2011, but without explicitly mentioning sexual orientation as 

a protected ground. Although most of the recent Turkish legislative changes reflect an attempt towards harmonisation, 

there  are  still  major  shortcomings  (see  below),  and  the  anti-discrimination  provisions  currently  in  force  as  part  of 

criminal,  administrative  and  civil  law  contain  different  non-exhaustive  lists  of  protected  grounds.9  In  both  candidate 

4 

5 

Treaty establishing the European Community.

Treaty on the Functioning of the European Union, also called the Lisbon Treaty (the Lisbon Treaty amended the TEC and changed 

its name to the TFEU).

6 

Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of 

7 

8 

9 

racial or ethnic origin, OJ L 180, 19 July 2000, pp. 22-26.

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and 

occupation, Official Journal L 303, 2 December 2000, pp. 16-22.

Article 21 of the Charter. 

A draft Law on Combating Discrimination and Establishment of an Equality Council was presented by the Government in 2009. 

After the text was submitted for public consultation, expectations were high for this new comprehensive piece of legislation. 

However, although amendments significantly removed all references to sexual orientation and sexual identity, the bill has not yet 

been adopted.  

8

Developing Anti-Discrimination Law in EuropeDecember 2014countries, greater efforts towards harmonisation should undeniably be made to bring the major existing discrepancies 

into line with EU standards as a prerequisite to possible future accession.

Concerning  the  EEA  countries,  only  Norway  has  comprehensive  anti-discrimination  legislation,  in  line  with  both 

the  Employment  Equality  Directive  and  the  Racial  Equality  Directive.  Iceland10  and  Liechtenstein  both  have  some 

anti-discrimination  provisions  scattered  among  various  pieces  of  legislation,  including  constitutional  law,  civil  law, 

administrative law, criminal law and labour law, but they are far from reflecting the standards of the Directives.11

A number of different transposition methods can be identified among the states:

•  adoption of anti-discrimination acts which more or less reproduce the Directives;

•  adoption of anti-discrimination acts covering more grounds than the Directives;

•  adoption of combinations of multi-ground anti-discrimination acts and single-ground acts;

•  adoption of several pieces of single-ground anti-discrimination legislation;

•  adoption of combinations of specific legislation and an employment act;

•  adoption of combinations of specific amendments to legislation, labour and criminal codes and some 

administrative law;

•  adoption of a much wider general act.

Under Article 258 TFEU (ex-Article 226 TEC), the European Commission can launch infringement proceedings against 

Member States which it considers to have failed to fulfil their Treaty obligations, for instance by failing to transpose the 

Racial Equality Directive or the Employment Equality Directive. It may initiate proceedings for non-communication of 

transposition or for non-conformity where the transposition, or eventually the implementation, is incomplete or incorrect. 

Since the deadline for transposition, the Commission has embarked on a detailed check of the compliance of national 

law to this end and is currently still reviewing potential gaps in the correct transposition of these two Directives.

Ensuring that the Directives are transposed throughout the territory of a Member State and by all tiers of government 

with relevant competences was a reason for delays in several Member States. The United Kingdom was delayed in 

its transposition in Gibraltar. Finland was found by the Court of Justice of the European Union (CJEU) to have failed to 

fulfil its obligations by omitting the Åland Islands from its transposition of Directive 2000/43/EC. Since the end of the 

transposition period in 2003, the European Commission has sent a great number of reasoned opinions for failure to 

notify or for non-conformity and, more than 10 years after the adoption of the Directives, there are still some pending 

cases.12 In June 2011, the Commission referred Italy to the Court of Justice for failure to transpose the Employment 

Equality Directive with regard to the duty to provide reasonable accommodation. The Court subsequently found that 

the Italian transposition of Article 5 of the Directive was not sufficient,13 and Italy eventually amended its legislation to 

ensure compliance with EU law. 14

10 

Iceland currently enjoys the dual nature of EEA country and acceding country to the EU. A comprehensive anti-discrimination bill 

was due to be presented to the Icelandic Parliament in 2012, but this did not happen. 

11 

Iceland and Liechtenstein have traditionally developed legislation related to gender, with concepts of discrimination specifically 

related to that area, and there are only a few provisions regarding the other protected grounds.  

12  Romania and Greece concerning non-conformity with Directive 2000/78/EC, Finland concerning Directive 2000/43/EC and 

Belgium concerning both Directives. 

13  C-312/11, Commission v Italian Republic, judgment of 4 July 2013 (not yet reported), ECLI:EU:C:2013:446.

14 

Italian Law decree of 28 June 2013 No 76, in Official Journal No 150 of 28 June 2013.

9

December 2014On 17 January 2014, the European Commission adopted its second report on the state of implementation of the Racial 

Equality  Directive  and  the  Employment  Equality  Directive  in  the  EU  Member  States.15  In  this  report  the  Commission 

notes  that  all  28  Member  States  have  transposed  the  Directives  and  acquired  some  experience  of  working  within 

this  framework.  The  focus  of  the  report  is  therefore  on  the  application  by  the  Member  States  of  the  Directives  and 

their interpretation by national courts as well as by the Court of Justice of the EU. The issues of concern raised by the 

Commission mirror those that are raised in this report.

B.   Which grounds are covered?

The Racial Equality Directive and the Employment Equality Directive require Member States to prohibit discrimination on 

the grounds of racial or ethnic origin, religion or belief, disability, age and sexual orientation in the field of employment. 

Moreover, the material scope of the Racial Equality Directive has been enlarged to also cover social protection including 

social security, healthcare, education, and supply of and/or access to goods and services, including housing. The Directives 

do not contain any definition of the grounds. This section examines how the Member States, candidate countries and 

EEA countries have incorporated the different grounds of discrimination into national law. This involves issues such as 

whether to provide a definition of each ground and how to address discrimination based on assumed characteristics. 

In addition, this section will highlight the main issues arising with respect to each ground during the implementation 

process.

Most countries have chosen not to define the grounds of discrimination in their implementing legislation (for instance, 

Croatia, the former Yugoslav Republic of Macedonia, France, Greece, Hungary, Poland, Romania and Slovenia). 

A small group of countries have included statutory definitions or have at least provided definitions in accompanying 

documentation, such as an explanatory memorandum. This group includes Austria, Estonia, Ireland, the Netherlands, 

Sweden and the United Kingdom. In many countries, definitions or guidelines for definitions have subsequently been 

provided by national court rulings.

All  countries  have  included  the  general  principle  of  equal  treatment  or  specific  grounds  of  discrimination  in  their 

constitution (except the UK, which does not have a written constitution, Denmark, which does not include a general 

anti-discrimination clause in the Constitution, Liechtenstein, which only includes reference to women and men, and 

Norway, which generally refers to human rights16). Constitutional provisions are commonly either not directly applicable 

or they have vertical effect only in litigation involving the State as the respondent. In Bulgaria, Cyprus, Denmark, 

Estonia,  Iceland,  Liechtenstein,  Luxembourg,  the  Netherlands,  Slovenia,  Spain  and  Turkey,  constitutional 

provisions  are  deemed  to  be  applicable  to  horizontal  relations  as  well.17  In  a  minority  of  countries,  horizontal  direct 

effect remains theoretical or largely debatable (for instance, Belgium, Croatia, the former  Yugoslav  Republic  of 

Macedonia, Ireland, Italy, Poland and Portugal).

In the majority of countries, general constitutional equality guarantees apply, thus theoretically covering the material 

scope of the Directives (see Chapter 2), at least in the public sector. However, it is highly unlikely that constitutional 

provisions alone are adequate to sufficiently transpose the Directives. Where Protocol 12 to the European Convention on 

Human Rights (which contains a general prohibition of discrimination by the State against an open number of groups) is 

applicable in national law, such as in Croatia, Cyprus, Finland, the Netherlands and Spain, the scope of national law 

15  COM (2014) 2 final, 17 January 2014, available at http://ec.europa.eu/justice/discrimination/files/com_2014_2_en.pdf. 

16  After the cut-off date of this report, on 20 June 2014, the Norwegian Council of Ministers approved and adopted an amendment 

to the Norwegian Constitution adding a new Section 98 containing a general equality clause.

17 

In Turkey, Article 10 of the Constitution (general non-discrimination provision) has been directly applicable since January 2012, 

further to the constitutional reform on the right to initiate a constitutional review by individuals. 

10

Developing Anti-Discrimination Law in EuropeDecember 2014is broad, at least in relation to the public sector. In terms of concrete legislative provisions, however, most countries are 

far more restrictive and exhaustively list the areas to which discrimination legislation applies.

As  already  mentioned,  most  countries  have  transposed  the  Directives  through  civil  or  labour  law,  with  a  minority 

having also maintained, introduced or amended criminal law provisions (e.g. Belgium, Denmark, Estonia, France and 

Luxembourg) to further realise the equal treatment principles enshrined in their constitutions. While in some countries 

anti-discrimination  provisions  still  exist  in  various  pieces  of  legislation,  e.g.  Bulgaria  and  Latvia,  this  method  has 

largely been replaced by more general anti-discrimination provisions and legislation and, more recently, a move towards 

multiple-ground equal treatment bodies has also been discernible.

Some countries, such as Sweden18 and the UK,19 having in past years opted for a single act, have taken the opportunity 

to clarify existing provisions and to fill the gaps and inconsistencies caused by a patchy legal framework. In Finland, 

a draft law was published by the Ministry of Justice in November 2012, proposing a comprehensive reform of national 

anti-discrimination  legislation.  The  Act  would  bring  other  discrimination  grounds  to  a  closer  or  to  the  same  level  of 

protection as for ethnicity.20

In contrast, a few attempts to adopt a single comprehensive instrument have failed, for instance in Spain. The anticipated 

dissolution  of  Parliament  and  the  general  elections  that  followed  in  November  2011  disrupted  the  decision-making 

process and the new government showed no intention to follow up on the proposal. Similarly, in the Netherlands, the 

previous government was working on a new General Equal Treatment Act in which four distinct laws (the General Equal 

Treatment Act, the Equal Treatment for Men and Women in Employment Act, the Disability Discrimination Act and the 

Age  Discrimination  Act),  as  well  as  several  Civil  Code  provisions,  would  be  integrated  into  one  single  act.  Since  this 

government fell in the spring of 2012, however, it is unclear whether the new coalition government will proceed with 

this planned reform.

A number of Member States, such as Belgium, Bulgaria, Hungary, Poland, Romania, Spain and Sweden chose not 

to restrict new anti-discrimination laws to the grounds outlined by the two Directives and have opted for a broader list 

of prohibited grounds. Age and sexual orientation are not explicitly mentioned in Turkish legislation and, whereas the 

new Anti-discrimination Act in the former Yugoslav Republic of Macedonia covers extra grounds not provided for in 

the Directives, it does not include sexual orientation.

The  table  below  shows  the  variety  of  grounds  which  have  been  introduced  at  the  national  level  (including  the  five 

grounds  mentioned  in  the  two  Directives)  in  specific  anti-discrimination  legislation  and  other  types  of  law  granting 

protection against discrimination.

Grounds protected on the national level in various laws, whether at the federal or regional level

AUSTRIA

BELGIUM

Gender, ethnic affiliation, race or ethnic origin, religion, belief, age, sexual orientation, disability, disability of a 
relative, sexual identity, gender, pregnancy, maternity, nationality, birth, class.

Alleged race, colour, descent, ancestry, ethnic and national origin, nationality, age, sexual orientation, civil 
status, birth, wealth/income, religious or philosophical belief, actual or future state of health, disability, physical 
characteristics, genetic characteristics, political opinion, language, social origin, social position, trade union 
conviction, gender (including pregnancy, birth, maternity leave and transgender), gender reassignment.

18  Swedish 2008 Discrimination Act (2008:567).

19  UK Equality Act 2010 of 8 April 2010. 

20  The draft was presented to Parliament in April 2014, and is now awaiting first reading. 

11

December 2014BULGARIA

CROATIA

CYPRUS

CZECH 
REPUBLIC

DENMARK

ESTONIA

FINLAND

FRANCE

Sex, race, national origin, ethnicity, human genome, nationality, origin, religion or faith, education, beliefs, 
political affiliation, personal or public status, disability, age, sexual orientation, family status, property status, or 
any other ground provided for by law or an international treaty to which the Republic of Bulgaria is a party.

Race or ethnic affiliation or colour, gender, language, religion, political or other belief, national or social origin, 
property, trade union membership, education, social status, marital or family status, age, health condition, 
disability, genetic heritage, gender identity and expression, sexual orientation.

Community, race, ethnic origin, religion, disability, age, sexual orientation language, sex, political or other 
conviction, national or social descent, birth, colour, wealth, social class, or any other ground.

Sex, race, ethnic origin, sexual orientation, age, disability, religion, belief or other conviction, nationality, national 
origin, social origin, birth, language, health condition, property, marital and family status or family obligations, 
political or other views, membership of political parties and movements, trade unions, employers’ organisations 
or other assemblies, colour, pregnancy and motherhood or breastfeeding, or any other status.

Age, disability, ethnicity or ethnic origin, race, skin colour, belief and religion, sexual orientation, political opinion, 
national and social origin, gender.

Ethnic origin, race, colour, origin, religion or other beliefs, age, disability or sexual orientation, sex, language, 
duty to serve in defence forces, marital or family status, family-related duties, social status, representation of 
the interests of employees or membership of an organisation of employees, political opinion, financial or social 
status, genetic risks.

Race, ethnic origin, religion or belief, age, disability, sexual orientation, nationality, language, health, opinion.

Sex, pregnancy, origin, appearance of origin, race, ethnic and national origin, morals, sexual orientation, age, 
family situation, genetic characteristics, physical appearance, family name, health, disability, union activities, 
religion, political and religious convictions, sexual identity.

FORMER 
YUGOSLAV 
REPUBLIC of 
MACEDONIA

Race, colour, gender, belonging to a marginalised group, ethnic affiliation, language, citizenship, social origin, 
religion or religious belief, political or other beliefs, membership of a trade union, education, political affiliation, 
personal or social status, mental or physical impairment, disability, age, family or marital status, national or 
social origin, position of the family, property status, health condition, language, sexual orientation or other 
personal circumstances, any other ground prescribed by law or ratified international treaty.

GERMANY

GREECE

HUNGARY

ICELAND

IRELAND

ITALY

LATVIA

Sex, parentage, race, ethnic origin, language, homeland and origin, faith, religion or belief, religious or political 
opinions, disability, age, sexual identity or any other ground.

Racial or ethnic origin, religion or belief, disability, age, sexual orientation.

Sex, racial affiliation, colour of skin, nationality, membership of a national or ethnic minority, mother tongue, 
disability, health condition, religion or belief, political or other opinion, family status, maternity (pregnancy) or 
paternity, sexual orientation, sexual identity, age, social origin, financial status, part-time nature of employment, 
legal relationship or other legal relationship relating to employment or the fixed period thereof, membership of 
an interest representation organisation, other situation, attribute or condition of a person or group.

Gender, race, ethnic origin, colour, language, religion, political or other opinion, national or social origin, associa-
tion with a national minority, family origin, nationality, sexual orientation, age, disability, property, financial 
status, residence, social class, health, parentage, cultural, economic, social or other status in society, birth or 
other status.

Gender, age, race, religion, family status, disability, marital status, sexual orientation, membership of the 
Traveller community.

Race and ethnic origin, colour, religion or belief, disability, age, sexual orientation, ancestry, national or ethnic 
origin, religious beliefs and practices, disability.

Race, ethnicity/ethnic origin, skin colour, age, disability, health condition, religious, political or other conviction/
opinions, national or social origin, gender, property, family status or marital status, sexual orientation, occupa-
tion, place of residence or other circumstances.

LIECHTENSTEIN Gender, pregnancy, disability, sexual orientation, race, national origin, nationality, ethnicity, language, religion or 

belief.

LITHUANIA

Age, disability, sexual orientation, race, ethnicity, ethnic origin, religion, beliefs or convictions, language and social 
status.

LUXEMBOURG

Race, ethnic origin, religion or belief, age, disability, sexual orientation.

MALTA

Race, racial or ethnic origin, place of origin, political or other opinions, colour, creed or sex, marital status, 
pregnancy or potential pregnancy, sex, disability, religious conviction, membership of a trade union or an 
employers’ association, language, national or social origin, association with a national minority, property, birth or 
other status, sexual orientation, age, religion or belief and gender identity.

NETHERLANDS

Race, religion and belief, political opinion, hetero- or homosexual orientation, sex, nationality and civil (marital) 
status, disability and chronic disease, age.

NORWAY

POLAND

Ethnicity, national origin, descent, skin colour, language, religion or belief, disability, age, sexual orientation, 
political affiliation, membership of trade unions, part-time/temporary work.

Gender, race, ethnic origin, nationality, religion, belief, political opinion, disability, age and sexual orientation, 
membership of a trade union, civil (marital) and family status.

12

Developing Anti-Discrimination Law in EuropeDecember 2014PORTUGAL

ROMANIA

SLOVAKIA

SLOVENIA

SPAIN

SWEDEN

TURKEY

UNITED 
KINGDOM

Race, colour, nationality, ethnic origin, religion, ancestry, sex, language, country of origin, political or ideological 
convictions, education, economic situation, social condition, sexual orientation, civil status, family situation, 
disability, genetic inheritance, pre-existing risk to health, reduced capacity to work, disability or chronic disease, 
membership of a trade union, age. 

Race, nationality, ethnic origin, language, religion, social status, beliefs, sex, sexual orientation, age, disability, 
chronic disease, HIV positive status, membership of a disadvantaged group or any other criterion.

Sex, religion or belief, race, affiliation to a nationality or an ethnic group, disability, age, sexual orientation, 
marital status and family status, colour of skin, language, political or other opinion, national or social origin, 
property, lineage/gender or other status, unfavourable health condition, duties to a family, trade union involve-
ment, membership of or involvement in a political party, a political movement or other association, other status.

Gender, ethnicity, race or ethnic origin, religion or belief, disability, age, sexual orientation, national and social 
origin, skin colour, health condition, family status, membership of a trade union, financial situation, ethnic roots, 
language, political or other belief, social status, birth, education, social position or other personal circumstance.

Race or ethnic origin, religion or belief, age, disability, sexual orientation, gender, marital status, origin, social 
status, political ideas, affiliation or non-affiliation to a union, official language of the state of Spain, family ties 
with other workers in a company, colour, descent, religious convictions and practices, ideology, membership of an 
ethnicity, race or nation.

Sex, transgender identity or expression, ethnicity, religion and other belief, disability, sexual orientation, age.

Language, race, gender, political opinion, philosophical belief, religion and sect or any such considerations, colour, 
disability. 

Northern Ireland: disability and dependant status, racial grounds, including grounds of colour, nationality (includ-
ing citizenship), ethnic origins, national origins, membership of the Irish Traveller community, religion, political 
belief and belief, racial group, age, marital status, sexual orientation, gender.

Great Britain (England, Wales and Scotland): racial grounds, including grounds of colour, nationality (including 
citizenship), ethnic origins, national origins, gender, including gender reassignment, pregnancy and maternity, 
marriage/civil partnership status, disability, religion/belief, sexual orientation, age.

C.  

Racial or ethnic origin

There appear to be two main issues in relation to the definition of ‘racial or ethnic origin’. First, there are debates around 

the use of ‘race’ within anti-discrimination legislation. Secondly, there are overlaps with other personal characteristics, 

such as nationality, language or religion.

Recital 6 of the Racial Equality Directive declares:

The European Union rejects theories which attempt to determine the existence of separate human races. The use 

of the term ‘racial origin’ in this Directive does not imply the acceptance of such theories.

Some countries have taken the view that including the terms ‘race’ or ‘racial origin’ in anti-discrimination legislation 

reinforces the perception that humans can be distinguished according to ‘race’, whereas there is no scientific foundation 

for such a categorisation. For example, the Finnish Non-Discrimination Act refers to ‘ethnic or national origin’ (Section 

6(1)), whilst the Swedish 2008 Discrimination Act refers to ethnicity (Ch. 1 S. 5 pt. 3), defined as ‘national or ethnic 

origin, skin colour or similar circumstance’. In other countries, ‘race’ has been included in the legislation, but it is qualified. 

Austria also rejects the idea of separate races and therefore the notion of ‘race’ has been removed from most legal 

texts  to  be  replaced  with  ‘ethnic  affiliation’.  In  Germany,  heated  criticism  and  opposition  have  arisen  for  the  same 

reasons. In France, various legal provisions refer to ‘real or assumed’ (vraie ou supposée) race or ethnicity. However 

in  May  2013  the  French  National  Assembly  adopted  a  bill  removing  the  words  ‘race’  and  ‘racial’  from  all  national 

legislation, including legislation which ratifies international treaties or transposes the Racial Equality Directive. These 

terms will be replaced by ‘racist’, ‘for racist reasons’ or ‘alleged race’, if the bill is also adopted by the Senate, where it 

13

December 2014is currently awaiting its first hearing.21 Although the Hungarian Fundamental Law refers to ‘race’ and ‘colour’, the Equal 

Treatment Act also mentions ‘racial affiliation’ and ‘belonging to a national minority’.

One  of  the  areas  of  ambiguity  in  the  Racial  Equality  Directive  is  the  extent  to  which  characteristics  such  as  colour, 

national origin, membership of a national minority, language or social origin might fall within the scope of ‘racial or 

ethnic origin’. Some national laws include, as a minimum, colour and national origin within legislation implementing the 

Racial Equality Directive. Some states, such as Hungary, Poland and Slovenia, have specific and detailed laws on the 

protection of national minorities. It is often unclear whether the concepts of ethnic/national minority found within these 

laws will be relied upon when national courts interpret anti-discrimination legislation.

The boundary between ethnic origin and religion is also problematic. Within the Directives, it is evident that this is an 

important distinction because the material scope of the Racial Equality Directive is much more extensive than that of 

the Employment Equality Directive.

Lucy Vickers, Religion and belief discrimination in employment22

‘The blending of religion and racial identity may not be of particular importance where discrimination 

occurs in employment or occupation, as the protection will be similar under both Directives. However, 

where the scope of the Racial Equality Directive is broader, in the areas of social security, education or 

health, then protection against discrimination will only be provided on grounds of race and ethnicity, and 

the pressure to broaden the definition of race and ethnicity to include some religious groups will continue. 

Unless the scope of the Employment Equality Directive is broadened to match that of the Racial Equality 

Directive, the potential for inconsistencies in protection available as between different religious groups 

will remain. In effect, a hierarchy is created, with those religious groups that can claim a separate ethnic 

identity being given greater protection against discrimination than those who remain only a religious 

group. Hierarchy as between member states could also be created if member states vary in the extent 

to  which  they  recognise  religious  groups  as  ethnic  groups.  The  creation  of  such  hierarchies  between 

different religious groups works against the aims of the Employment Equality Directive which is to put an 

end to discrimination between those of different religions.’

Nevertheless, it is undeniable that the concepts of ethnicity and religion are closely linked. The European Court of Human 

Rights (ECtHR) held that:

Ethnicity has its origin in the idea of societal groups marked by common nationality, tribal affiliation, religious 

faith, shared language, or cultural and traditional origins and backgrounds.23

In the Netherlands, case law has recognised the possibility for discrimination against Jews,24 and in certain circumstances 

Muslims,25 to be challenged as racial discrimination. In the United Kingdom, discrimination against Sikhs26 or Jews27 

21  Bill No 139 adopted by the National Assembly on 16 May 2013.

22  Lucy Vickers, Religion and Belief: Discrimination in Employment – EU law, Thematic report by the European Network of Legal 

Experts in the Non-Discrimination Field, 2007

23  Para. 55, Timishev v Russia, Applications 55762/00 and 55974/00, 13 December 2005.

24  Opinion 1998/48, Equal Treatment Commission. 

25  Opinion 1998/57, Equal Treatment Commission. 

26  Mandla v Dowell Lee [1983] 2 AC 548.

27  Seide v Gillette Industries Ltd. [1980] IRLR 427.

14

Developing Anti-Discrimination Law in EuropeDecember 2014has been accepted as discrimination on racial grounds (specifically, ethnic origin). The UK Equality Act also requires the 

Government to introduce secondary legislation to make caste an aspect of ‘race’ as a protected ground.28 Similarly, due 

to the historical background of Nazi ideology in Germany, anti-Semitism is regarded as discrimination on the grounds 

of race and not of religion.

A  number  of  common  problems  have  arisen  in  the  process  of  implementing  the  Racial  Equality  Directive.  First,  the 

Directive is distinguished by its broad material scope, extending beyond employment to include areas such as social 

protection, education, and goods and services including housing. Yet several states have not adopted adequate legislation 

on discrimination outside employment. Secondly, the Racial Equality Directive requires Member States to establish a 

body or bodies for the promotion of equal treatment. All Member States and candidate countries included in this review, 

except  Iceland  and  Turkey,29  have  set  up  such  a  body,  although  several  Member  States  did  not  comply  with  this 

requirement until several years after the end of the transposition period. For instance, the Czech Republic and Spain 

only put in place their equality bodies in 2009 while the existing Polish Office of the Ombudsperson (Commissioner 

for Civil Rights Protection – Rzecznik Praw Obywatelskich) was designated as the equality body in 2010.  In 2013, the 

Commission launched infringement proceedings against Finland concerning the competences of the equality body. In 

the former Yugoslav Republic of Macedonia, the Anti-discrimination Act made provision for the establishment of 

the Commission for Protection from Discrimination in 2011.30 Of the EEA countries, only Norway has a specialised body 

mirroring the requirements of the Racial Equality Directive.31

D.  

Religion or belief

No state has attempted to provide a comprehensive definition of ‘religion or belief’ within anti-discrimination legislation 

(e.g. an exhaustive inventory of protected religions), nor has it ever been defined at the international level. In Hungary, 

Article 6 of Act CCVI of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, 

Denominations and Religious Communities stipulates that religious activities are linked to a world view directed towards 

the transcendental and showing a system of faith-based principles which are focused on existence as a whole. It also 

embraces the entire human personality through specific requirements of conduct that do not offend morals and human 

dignity.

In  the  context  of  the  second  implementation  report  on  the  Racial  Equality  Directive  and  the  Employment  Equality 

Directive adopted on 17 January 2014,32 the Commission clarified that the concept of ‘belief’ should be read in the 

context of ‘religion or belief’ and that it refers to a belief or a philosophical conviction which does not need to be of a 

religious nature, but it does not cover political opinion.

28  Although a government regulation to this effect entered into force on 25 June 2013, it has still not been implemented. The 

Government has announced its intention to introduce the required legislation into Parliament in 2015.

29 

In 2012 Turkey did, however, set up a Human Rights Institute with a mandate which includes protection of human rights, 

preventing violations and reviewing complaints. Combating discrimination is not explicitly listed.

30  The founding session of the Commission was held on 17 January 2011. 

31 

Iceland has no specialised body with regard to racial and ethnic origin and Liechtenstein has a specialised body of some 

description dealing with disability.  

32  SWD(2014) 5 final of 17.1.2014 accompanying COM (2014) 2 final, 17 January 2014, available at http://eur-lex.europa.eu/. 

15

December 2014Nathasja | 1990

16

December 2014Further  guidance  on  the  meaning  of  ‘religion  or  belief’  is  in  some  states  provided  by  explanatory  documentation 

accompanying legislation or by court rulings, such as in Belgium, France, Germany and the Netherlands.33

Explanatory Notes to the UK Equality Act 2010 on religion and belief

(paras 51-53) ‘The protected characteristic of religion or religious or philosophical belief … [has] a broad 

definition  in  line  with  the  freedom  of  thought,  conscience  and  religion  guaranteed  by  Article  9  of  the 

European  Convention  on  Human  Rights.  The  main  limitation  for  the  purposes  of  Article  9  is  that  the 

religion must have a clear structure and belief system. Denominations or sects within a religion can be 

considered to be a religion or belief, such as Protestants and Catholics within Christianity ...

The  criteria  for  determining  what  is  a  “philosophical  belief”  are  that  it  must  be  genuinely  held;  be  a 

belief and not an opinion or viewpoint based on the present state of information available; be a belief 

as to a weighty and substantial aspect of human life and behaviour; attain a certain level of cogency, 

seriousness, cohesion and importance; and be worthy of respect in a democratic society, compatible with 

human dignity and not conflict with the fundamental rights of others. So, for example, any cult involved 

in illegal activities would not satisfy these criteria…

The Baha’i faith, Buddhism, Christianity, Hinduism, Islam, Jainism, Judaism, Rastafarianism, Sikhism and 

Zoroastrianism are all religions for the purposes of this provision.’34

Most of the controversy around the implementation of the provisions of the Employment Equality Directive on religion 

or  belief  centres  on  the  extent  of  any  exceptions  provided  for  organised  religions  (e.g.  churches)  and  organisations 

with an ethos based on religion or belief (e.g. religious schools). The Directive provides a rather complex exception in 

Article 4(2), which permits such organisations to make requirements relating to employees’ religion or belief in narrow 

circumstances. This exception is examined in further detail below.35

There has been a serious increase in case law arising since the adoption of the Directives relating to dress codes and 

religious symbols,36 thus indicating that manifestation of religious belief through dress or symbols is one of the key 

issues  in  the  practical  implementation  of  the  Directives.  For  instance,  such  cases  have  been  recorded  in  Belgium, 

Denmark, France, Germany, Greece, Italy, the Netherlands, Spain,37 Sweden and the United Kingdom. In Sweden, 

further to a hotly debated case regarding a student who wore a niqab during training to become a day care teacher,38 the 

School Inspectorate issued guidelines on a ban on veils covering an individual’s face in classrooms, with the support of 

the Equality Ombudsman. There is legislation regulating access to employment in, for instance, Germany where several 

Länder (e.g. Baden-Württemberg, Bavaria and Hesse) enacted a new law prohibiting the display of religious symbols 

in violation of the principle of neutrality, further to a case where a civil servant returned to work wearing a burka. In 

Turkey,  a  regulation  related  to  the  general  attire  of  staff  in  public  administration  has  been  occasionally  invoked  to 

33 

In the Netherlands, the term levensovertuiging (philosophy of life) has been adopted because this had already been interpreted 

through case law. It includes broad philosophies, such as humanism, but it does not extend to every view of society. In addition to 

levensovertuiging, the Dutch General Equal Treatment Act (GETA) also covers godsdienst (religion).

34  http://www.legislation.gov.uk/ukpga/2010/15/pdfs/ukpgaen_20100015_en.pdf.

35  See page 19. 

36  See, for instance, Lautsi and others v Italy (No 30814/06), ECtHR (Grand Chamber) Judgment of 18 March 2011 or Eweida and 

others v United Kingdom (No 48420/10; 59842/10; 51671/10; 36516/10), ECtHR Judgment of 15 January 2013. 

37  See, for instance, Decision No 35/2012 of Court 32 of Madrid, 25 January 2012.

38  Equality Ombudsman Decision, Case 2009/103 of 30 November 2010. 

17

December 2014prohibit the wearing of the Islamic headscarf in the public sector.39 Moreover, a ban has been imposed in universities 

since 1983 by the High Board of Education, which was upheld by the Constitutional Court.40

Secularity and neutrality of private employers in France – the ‘Baby Loup’ case

The Baby Loup case concerns an employee of a privately run day care centre for underprivileged children 

who was dismissed when she returned from maternity and parental leave for wearing an Islamic veil in 

violation of the centre’s internal regulations. The claimant filed a complaint arguing that the dismissal 

violated the principle of non-discrimination on the ground of religion.

The first and second instance courts dismissed her claim on the ground that the association managing 

the day care centre, Association Baby Loup, was pursuing action targeting underprivileged young children 

and  the  social  integration  of  women  and  therefore  aimed,  in  accordance  with  its  mission,  to  offer  a 

neutral environment especially for children who, because of their young age, were to be preserved from 

exposure to the staff’s religious beliefs. The courts held that given the legitimacy of these objectives, the 

day care centre’s in-house regulations were justified in stating that respect for the freedom of religion of 

all its staff members cannot prevent enforcement of the principles of secularity and neutrality in all the 

activities conducted by the association.

In March 2013, the Social Chamber of the Supreme Court (Cour de cassation) held that the principle 

of secularity (Article 1 of the Constitution) is not applicable to employees of the private sector who are 

not in the position of managing a public service. It therefore cannot be invoked by a private employer 

to hinder the protection against discrimination provided by the Labour Code. The Supreme Court held 

in  addition  that  restrictions  to  freedom  of  religion  must  be  justified  by  the  nature  of  the  particular 

occupational activities concerned or of the context in which they are carried out, and constitute a genuine 

and determining occupational requirement, provided that the objective is legitimate and the requirement 

is  proportionate.  The  general  and  imprecise  restriction  contained  in  the  in-house  regulations  did  not 

comply with these requirements and the dismissal was therefore null and void. The case was sent back 

before another court of appeal.

In November 2013, the Court of Appeal of Paris followed a different legal argument, based on the case 

law of the ECtHR on the protection of philosophical and religious orientations of organisations with an 

ethos based on religion or belief. The Court held that the purpose of maintaining the secular credo of the 

child care centre, as expressed in its statutes and in-house regulations, constituted a legitimate mission 

of public interest often carried out by a public service. In addition, given the duty to protect the freedom 

of religion and belief of the children as recognised by Article 14 of the Convention of the Rights of the 

Child the day care centre could be considered as an organisation with an ethos based on the ‘belief’ of 

secularity.

Meanwhile, the Court of Appeal did not address the fact that the French Parliament has not transposed 

into French law the possibility under Article 4 (2) of the Employment Equality Directive to provide an 

exception from the prohibition of discrimination on the ground of religion or belief for employers with an 

ethos based on religion or belief.

39  Regulation Concerning the Attire of Personnel Working at Public Institutions, Official Gazette No 17849, 25 October 1982.  

40  Despite the attempt by the Director of the High Board of Education in October 2010 to end the ban on the wearing of 

headscarves, several universities were reported to be continuing with the prohibition in practice.  

18

Developing Anti-Discrimination Law in EuropeDecember 2014 As a result of the Court of Appeal’s decision, the case was sent back to the Supreme Court, this time to 

be decided by the plenary session.41

Shortly  after  the  Court  of  Appeal  of  Paris  issued  its  decision,  the  Council  of  State  (supreme  court  in 

administrative matters; Conseil d’Etat) rendered a legal opinion on the scope of the principle of secularity 

regarding private as opposed to public employees.42 The opinion had been requested by the Defender 

of Rights (the national equality body) and clearly determined that the duty of neutrality only applies 

to  public  sector  employees.  It  cannot  be  imposed  on  beneficiaries  of  public  services,  and  there  is  no 

intermediary  category  between  employees  and  beneficiaries  upon  which  the  duty  of  neutrality  could 

possibly be imposed.

Specific provisions on religion or belief – ethos-based organisations

Most of the controversy around the implementation of the provisions of the Employment Equality Directive on religion or 

belief centres on the extent of any exceptions provided for organised religions (e.g. churches) and organisations with an 

ethos based on religion or belief (e.g. religious schools). Under Article 4(2) of the Employment Equality Directive, Member 

States  can  maintain  national  legislation  or  practices  which  allow  churches  and  other  public  or  private  organisations 

whose ethos is based on religion or belief to treat people differently on the basis of their religion or belief. Such different 

treatment does not constitute discrimination where, by reason of the nature of these activities or of the context in which 

they are carried out, a person’s religion or belief constitutes a genuine, legitimate and justified occupational requirement, 

having regard to the organisation’s ethos. This exception only allows for differential treatment on the grounds of religion 

or belief, and cannot be used to justify discrimination on another ground, for example sexual orientation.

Hungarian legislation on ethos-based organisations possibly in breach of the Directives

In Hungary, Article 12, paragraph (2) of Act CCVI of 2011 on the Right to Freedom of Conscience and 

Religion and the Legal Status of Churches, Denominations and Religious Communities stipulates that, 

‘since church institutions are ideologically committed, such conditions may be determined concerning 

recruitment and the establishment, maintenance and termination of the legal relationship of employ-

ment as are necessary to preserve their specific identity’.

It remains to be seen how the relation of this provision with Article 22, paragraph (1), point (b) of the 

Equal Treatment Act (ETA) on ethos organisations will be interpreted. Article 12 of Act CCVI does not 

specify what types of special conditions may be set and therefore the provision could be interpreted 

along the lines of Article 22 as a declarative rule which merely reinforces already existing special rights 

of organisations based on a religious ethos put in place under the ETA.

However, it could also be argued that there would have been no point in re-declaring an already existing 

right, and therefore the legislator’s intention behind the adoption of Article 12 of Act CCVI was to allow 

church institutions to set conditions going beyond those already permitted under the ETA. In this case 

there would be a collision between the ETA and the new provision. Based on the principle of lex posterior 

derogat legi priori (‘the later law overrules the earlier one’), this collision could be solved in favour of 

41  After the cut-off date of this report, the plenary session of the Supreme Court rendered the final decision in the Baby Loup case: 

Decision No 612 of 25 June 2014 (13-28.369), ECLI:FR:CCASS:2014:AP00612.

42  Study adopted by the General Assembly of the Council of State on 19 December 2013, available at: http://www.gouvernement.fr/

sites/default/files/contenu/piece-jointe/2014/09/conseil_detat_-_etude_voile_et_liberte_religieuse_-_2013.pdf.

19

December 2014Article 12. However, this interpretation opens the door for employment-related differentiation that goes  

far beyond what is allowed by the Employment Equality Directive.

At  the  outset,  it  is  important  to  distinguish  between  national  legislation  that  does  not  apply  to  employment  within 

religious  organisations  and  national  legislation  which  does  apply,  but  provides  certain  exceptions.  The  Dutch  (then) 

Equal Treatment Commission found in 201243 that a church, when renting out houses owned by the church, cannot make 

distinctions between potential tenants based on their religion as this activity falls outside the internal affairs of the 

church, placing them within the scope of national anti-discrimination law.

Not all countries chose to include the Article 4(2) exception: such was the case of France, Portugal, Romania, and 

Sweden. Although the Romanian anti-discrimination law (Ordinance 137/2000) does not include specific provisions 

on an exemption for employers with an ethos based on religion or belief to comply with the Directive, the provisions of 

Article 9 on determining occupational requirements which are recognised as exemptions under a clear legitimacy and 

adequacy test can be interpreted to allow ethos or religion-based exceptions. Turkey does not provide an exception for 

employers with an ethos based on religion or belief. In contrast, the following states have adopted provisions in national 

law which seek to rely on Article 4(2): Austria, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, the former 

Yugoslav Republic of Macedonia, Germany, Greece, Hungary, Italy, Ireland, Latvia, Lithuania, Luxembourg, 

Malta, the Netherlands, Norway, Poland, Slovakia, Slovenia and the United Kingdom.

Some states have provided exceptions that appear to go beyond the strict terms of the Directive (e.g. Hungary44) or 

which remain ambiguous (e.g. the Netherlands and the UK). For instance, there are concerns in several states that 

the exceptions based on Article 4(2) may be too wide (e.g. Greece, Ireland and Italy). Meanwhile, in Bulgaria, there 

is an inconsistency in the wording between the Directive and the Protection against Discrimination Act, as rather than 

defining the occupational requirement as ‘genuine, legitimate and justified’, the Act terms it ‘genuine and determining’, 

making it arguably stricter than under the Directive. In Ireland, the Employment Equality Act does not refer to the terms 

‘legitimate’ or ‘proportionate’ as required by the Directive.

E.  

Disability

On 23 December 2010, the EU ratified the UN Convention on the Rights of Persons with Disabilities and was thus the 

first international organisation to accede to an international treaty on human rights.45 This means that all legislation, 

policies and programmes at EU level must comply with the Convention’s provisions on disability rights, within the limits 

of  EU  responsibilities.  Countries  that  have  ratified  the  Convention  should  take  action  in  the  following  areas:  access 

to  education,  employment,  transport,  infrastructure  and  buildings  open  to  the  public,  and  granting  the  right  to  vote, 

improving political participation and ensuring full legal capacity of all people with disabilities.

In 2006, the CJEU provided its first decision on the meaning of ‘disability’ in the case of Chacón Navas, distinguishing 

disability from sickness.46 In 2013, the CJEU eventually rendered another landmark decision on the concept of ‘disability’, 

while  also  referring  explicitly  to  the  obligations  of  EU  Member  States  following  the  ratification  by  the  EU  of  the  UN 

43  Opinion of the Equal Treatment Commission (ETC), ETC 2012-84 dd of 4 May 2012.

44  Regarding the Hungarian legislation, see textbox on page 19.

45  For the full list of countries which have signed/ratified the Convention, please see Annex 1.

46  Paras. 43-45, Case C-13/05 Chacón Navas v Eurest Colectividades SA, Judgment of 11 July 2006, [2006] ECR I-6467. See 

commentary by Lisa Waddington (2007), Common Market Law Review 44, p. 487.

20

Developing Anti-Discrimination Law in EuropeDecember 2014CRPD.47 The Court underlined the importance of interpreting the Employment Equality Directive in a manner which is 

consistent with the UN Convention, and held that the concept of ‘disability’ must be understood as:

a limitation which results in particular from physical, mental or psychological impairments which in interaction 

with various barriers may hinder the full and effective participation of the person concerned in professional life 

on an equal basis with other workers. (para. 38)

The Court also noted that the impairment must be ‘long-term’ and that a curable or incurable illness which leads to the 

required degree of limitation does fall within the concept of ‘disability’. An illness which does not cause such a limitation, 

however, does not constitute a ‘disability’ within the meaning of the Directive.48

The majority of national legislation contains many examples of definitions of disability (e.g. Austria, Belgium, Croatia, 

Cyprus, the Czech Republic, Estonia, the former Republic of Macedonia, France, Germany, Iceland, Lithuania, 

Luxembourg, Norway, Portugal, Slovakia, Spain, Sweden and Turkey) but these stem from the context of social 

security legislation rather than anti-discrimination law. As far as candidate countries are concerned, there is no definition 

of disability in the Anti-discrimination Act in the former Yugoslav Republic of Macedonia mirroring Chacón Navas or 

HK Danmark.49 The Turkish definition refers to difficulties in adapting to social life and the need for protection,50 which 

significantly differs from the definition provided by the CJEU. In Iceland, the definition of disability does not refer to 

professional life and merely includes mental or physical disability which requires special services and assistance without 

further specifying in which areas of life.

A tentative assessment of national definitions of ‘disability’ as compared with the CJEU’s recent HK Danmark ruling 

indicates that the definitions of ‘disability’ applied in most of the EU Member States for the purpose of anti-discrimination 

appear a priori in line with the ruling. Some discrepancies exist however, in countries such as Cyprus, Greece,51 Poland 

and Slovakia.52 Notably, Bulgaria sets out a wider interpretation of disability as it does not require the limitation to 

result in ‘hinder[ing] the participation of the person concerned in professional life’53 – the existence of an impairment or 

limitation is sufficient, regardless of the implications this may have for the individual’s professional life. In addition, this 

national definition is broader in material scope because it applies to any field including, but not limited to, professional 

life.  However,  the  concept  of  permanent  disability  is  narrower  than  in  CJEU  case  law  as  it  requires  three  additional 

elements: the permanence of what is effectively the equivalent of a hindrance to participation, a threshold of 50% of 

incapacity and official medical certification acknowledging the incapacity. In addition, the definitions of disability in a 

47  CJEU, joined cases C-335/11 and C-337/11, HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab 

and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S, 

judgment of 11 April 2013, not yet reported, ECLI:EU:C:2013:222. Commentary by Lisa Waddington (2013) in European Anti-

discrimination Law Review, issue 17, page 11.

48  CJEU, HK Danmark, paras 39-42.

49  The ratification by the former Yugoslav Republic of Macedonia of the UN CRPD implies that the provisions of the Convention are 

in theory directly applicable before national courts, including the definition of ‘disability’. It is, however, unlikely that a national 

court would apply international law directly.

50 

‘A person with a disability is a person who has difficulties in adapting to social life and in meeting daily needs due to loss of 

physical, mental, psychological, sensory or social capabilities at various levels by birth or by any reason thereafter and who 

therefore needs protection, care, rehabilitation, advice and support services’, Article 3(a) of the 2005 Law on Persons with 

Disabilities.

51  However, the ratification by Greece of the UN CRPD implies that the provisions of the Convention are legally binding in Greece.  

52  However, the ratification by Slovakia of the UN CRPD implies that the provisions of the Convention take precedence over Slovak 

legislation.

53 

Integration of Persons with Disabilities Act, Sections 1.1 and 1.2 Additional Provisions.

21

December 2014number of countries fail to make reference to the interaction with various barriers, only focusing on the limitations and 

impairments of the person concerned. These countries’ definitions would thereby not be fully consistent with the case 

law of the CJEU and with Article 1 of the UN CRPD. These countries are Austria, Bulgaria, Czech Republic, Estonia, 

Finland,  Germany,  Iceland,  Ireland,  Italy,  Latvia,  Liechtenstein,  Luxembourg,  Norway,  Romania,  Slovenia, 

Sweden and the United Kingdom. Some countries, including Estonia, Hungary, Lithuania and Malta, go beyond the 

employment field by referring to everyday activities or all aspects of social life and, likewise, Sweden and Norway do 

not restrict the scope of relevant impairment to professional activities only.

In Denmark epilepsy and Asperger’s Syndrome do not constitute disabilities

In a decision of February 2013, the Danish Equal Treatment Board found that the epilepsy of a com-

plainant who had not provided any medical data regarding her condition could not be recognised as a 

disability for the purposes of the protection provided by the Act on Prohibition of Discrimination in the 

Labour Market etc.54 The complainant was a teacher in an after-school programme who had informed her 

employer when she was hired that she was in medical treatment for her epilepsy and that she did not 

have seizures. However, during the first week of employment she had at least one epileptic seizure, and 

she was dismissed due to reasons both related and unrelated to her condition. She claimed that she had 

been discriminated against because of disability, but the Board found that under such circumstances the 

complainant’s epilepsy could not be characterised as a disability.

In another case in 2012, the Board of Equal Treatment had already found that in principle a diagnosis of 

Asperger’s Syndrome does not by itself predict the specific impairments that will develop over time. In the 

case at hand medical records showed that the person with Asperger’s Syndrome was under medication, 

showed normal psychomotor speed and had no symptoms of psychosis, depression or anxiety. Under 

such circumstances the equality body found that any possible impairment could not be deemed with 

sufficient certainty to constitute a disability within the meaning of the anti-discrimination legislation.55

German  Federal  Labour  Court  interprets  social  reactions  to  a  symptom-free  condition  as 

constituting a disability

The claimant was living with HIV without showing any symptoms, and argued that he had been dismissed 

illegally during the probation period due to a disability. The first and second instance courts had found 

no  discrimination,  but  the  Federal  Labour  Court  (Bundesarbeitsgericht)  reversed  the  lower  instance 

decisions  and  reconceptualised  the  definition  of  disability.56  The  Court  held  that  an  interpretation  of 

disability in the light of EU law must lead to a wide concept of disability, combining the elements that are 

advantageous for a disabled person in EU law and in national law. The concept of disability as covered by 

anti-discrimination law is thus broader than the concept defined by the national Social Code, and should 

follow the definition adopted by the CJEU in the HK Danmark ruling. The Court added that German law 

goes beyond the CJEU definition by regarding a physical impairment that lasts longer than six months as 

sufficient to constitute (a physical) disability and by referring not only to inclusion in the workforce but to 

inclusion in social life in general.

54  Danish Board of Equal Treatment Decision No 47/2013 of 27 February 2013.

55  Decision No 275/2012 of 9 May 2012.

56  German Federal Labour Court Decision No 6 AZR 190/12 of 19 December 2013, para 43ff.

22

Developing Anti-Discrimination Law in EuropeDecember 2014Finally, the Court explicitly stated – in the context of HIV infection without impairing symptoms – that a 

disability can be created by social reactions to a long-term illness impairing the participation in society of 

the person concerned. It is thus the disadvantageous treatment of persons with an HIV infection without 

symptoms which impairs the inclusion of the person in social life. The Court also clarified that a lack 

of reasonable accommodation can preclude the possibility of justification of unequal treatment; if an 

employer has not taken sufficient measures of reasonable accommodation, this can lead consequently 

to discrimination.

As the lower courts did not sufficiently consider these matters the case was referred back to the lower 

instance for reconsideration.

The CJEU’s requirement for it to be probable that the impairment will last is echoed in various definitions of disability in 

national law. For example, in both Austria57 and Germany58 impairments must be likely to last for more than six months 

in order to amount to disabilities, while in the United Kingdom59 the impairment should last or be likely to last for at 

least 12 months. In contrast, other states require the impairment to be indefinite in duration (Cyprus60 and Sweden61).

It is not yet clear whether the Court regards the formula provided in Chacón Navas and HK Danmark as an exhaustive 

definition of disability. In particular, this definition leaves no space for the protection of those assumed to be disabled 

or  likely  to  have  a  future  disability.  These  scenarios  are  anticipated  in  some  national  legislation.  For  instance,  Irish 

legislation  covers  discrimination  on  grounds  that  exist  at  the  present  moment,  grounds  that  previously  existed  and 

grounds that may exist in the future.62 Dutch law covers ‘an actual or assumed disability or chronic disease’,63 thereby 

protecting (for example) a person who previously had cancer but no longer experiences any symptoms. The Slovak Anti-

discrimination Act states that ‘discrimination on the ground of previous disability, or discrimination against a person in a 

case in which it could be, based on external symptoms, possible to presume that she or he is a person with a disability, 

shall be deemed to be discrimination on the ground of disability’.64 Slovak and UK law also protect individuals with 

respect to past disabilities.

In the Czech Republic, employment agencies have been prohibited since 1 January 2012 from assigning persons with a 

disability to temporary work. Although this measure was adopted in an attempt to protect persons with disabilities from 

exploitation and to ensure their regular employment, it seemed to be in breach of the Employment Equality Directive as 

it provides for an absolute ban on employing persons with disabilities in a certain category of work, i.e. temporary work.65

57  Para. 3, Federal Disability Equality Act. 

58  Section 2, Social Code IX and Section 3, Disabled Equality Act. 

59  Section 1(1), Disability Discrimination Act 1995. 

60  Act 127(I)/2000.

61  Chapter 1, Section 5, paragraph 4, Discrimination Act (2008:567).

62  Section 6(1)(a), Employment Equality Act 1998-2011. 

63  Article 1(b), Act of 3 April 2003 to establish the Act on Equal Treatment on the Grounds of Disability or Chronic Disease, 

Staatsblad 2003, 206.

64  Section 2a, paragraph 11(d) of Act No 365/2004 Coll. on Equal Treatment in Certain Areas and on Protection against 

Discrimination and on Amending and Supplementing Certain Acts, as amended.

65  After the cut-off date of this report, on 18 June 2014, Act No 136/2014 was adopted to amend Section 66 of the Employment 

Act 435/2004, thereby removing the prohibition on employment agencies assigning persons with a disability to temporary work. 

The amendment took place following infringement proceedings initiated by the European Commission and entered into force on 

1 January 2015.

23

December 2014Specific provisions on disability – the reasonable accommodation duty

One of the most significant innovations within the Employment Equality Directive is the duty placed on employers to 

‘take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, 

participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate 

burden on the employer’.66 This provision has been implemented very unevenly across the states. In its landmark decision 

HK Danmark, the CJEU provided further clarification on the concept of reasonable accommodation as defined by the 

Employment Equality Directive. The Court held that in this regard the Directive must be interpreted in accordance with 

the UN CRPD as ‘referring to the elimination of the various barriers that hinder the full and effective participation of 

persons with disabilities in professional life on an equal basis with other workers’.67 Reasonable accommodation may 

therefore include both material and organisational measures such as adapted working hours.

In many countries judicial interpretation is still scarce or lacking regarding the limits and scope of the duty to provide 

reasonable  accommodation.  However,  it  can  be  said  that  the  following  states  have  legal  provisions  that  approximate 

to the reasonable accommodation duty found within the Directive: Austria, Belgium, Bulgaria, Croatia, Cyprus, the 

Czech  Republic,  Denmark,  Estonia,  Finland,  the  former  Yugoslav  Republic  of  Macedonia,68  France,  Greece, 

Hungary,  Ireland,  Italy,69  Latvia,  Liechtenstein,  Lithuania,70  Luxembourg,  Malta,  the  Netherlands,  Norway, 

Poland,  Portugal,  Slovakia,  Slovenia,71  Spain,  Sweden,  and  the  United  Kingdom.  These  vary  considerably,  from 

states which provide a basic duty with little elaboration on how this should be implemented (e.g. Lithuania) or how a 

disproportionate burden must be assessed (e.g. Croatia, the former Yugoslav Republic of Macedonia, Latvia and 

Sweden) to states with more extensive guidance on its practical application (e.g. the United Kingdom). In Cyprus, the 

duty to adopt ‘reasonable measures’ is not restricted to the workplace but also covers basic rights (rights to independent 

living; diagnosis and prevention of disability; personal support with assistive equipment, services etc.; access to housing, 

buildings,  streets,  the  environment,  public  transport,  etc.;  education;  information  and  communication  through  special 

means;  services  enabling  social  and  economic  integration;  vocational  training;  employment  in  the  open  market  etc.; 

and  supply  of  goods  and  services,  including  transport  and  telecommunications).  Having  said  this,  outside  the  field 

of  employment,  the  duty  is  not  absolute  and  quite  restricted.  In  Malta,  reasonable  accommodation  is  restricted  to 

employees, hence to the exclusion of job seekers which is in breach of Directive 2000/78/EC.

Italy amends reasonable accommodation legislation following CJEU ruling

Italy had implemented the Employment Equality Directive without adopting any provisions regarding the 

duty to make reasonable accommodation. Following infringement proceedings initiated by the European 

66  Article 5, Directive 2000/78/EC.

67  CJEU joined cases C-335/11 and C-337/11, HK Danmark (Ring and Skouboe Werge), para 54.

68  Clear provisions regarding reasonable accommodation have been introduced with the entry into force of the Anti-discrimination Act. 

69 

Italy only adopted legislation imposing the duty to provide reasonable accommodation in July 2013. However, the legislation 

states that public employers ‘shall apply this provision without any additional burden and with human, financial and instrumental 

resources already available’. See textbox, page 24. 

70  However, the wording of the Equal Treatment Act lacks precision and seems to be softer than the Employment Equality Directive. 

Lithuania has also ratified the UN Convention on the Rights of Persons with Disabilities which entered into force in September 

2010 but it is not clear whether failure to provide reasonable accommodation can be considered as discrimination.  

71  The 2010 Act on Equal Opportunities of People with Disabilities (Zakon o izenačevanju možnosti invalidov, Official Journal of the 

Republic of Slovenia, No 94/2010) establishes the duty to provide reasonable accommodation in conformity with the Directive. 

The law uses the inaccurately translated term ‘appropriate accommodation’ instead of ‘reasonable accommodation’. The purpose 

of this act is to prevent and eliminate discrimination towards people with disabilities and to encourage equal opportunities for 

people with disabilities in all areas of life. 

24

Developing Anti-Discrimination Law in EuropeDecember 2014Commission in 2011, the Court of Justice (CJEU) ruled on 4 July 2013 that Italy had therefore failed to 

correctly transpose Article 5 of the Directive.72

The Court rejected the Italian Government’s argument that the duty to provide reasonable accommoda-

tion was already in force in Italy when the Directive was adopted, through the existence of a number of 

laws covering the rights of persons with disabilities.73 Although these existing laws provide for measures 

of aid and support, social integration and protection of people with disabilities, the Court found that none 

of them established a general duty to provide reasonable accommodation, that is, to offer effective solu-

tions to eliminate ‘the various barriers that hinders the participation of disabled people in professional 

life’, as required by the Directive. The Court also rejected the Government’s argument concerning the lack 

of a definition of the concept of ‘disability’ in the Directive, by noting that Member States must respect 

both the previous ruling of the CJEU in this regard, HK Danmark, and the UN Convention on the Rights of 

Persons with Disabilities, both of which provide definitions of ‘disability’.

Only  days  before  the  CJEU  delivered  its  ruling,  Italy  eventually  amended  its  existing  legislation  to 

transpose Article 5 of the Directive, by adding a new Article 3, paragraph 3-bis to Legislative Decree 

216/2003.74 The added provision does not define reasonable accommodation or offer employers any sort 

of guidance. It does, however, state as regards public employers specifically, that although they have a 

duty to provide reasonable accommodation, they ‘shall apply this provision without any additional burden 

and with human, financial and instrumental resources already available’.

The concept of reasonable accommodation has not been included in national legislation in Iceland75 and Turkey76. In 

France,77 the duty to provide reasonable accommodation is narrower in scope than under the Directive, as it has not been 

transposed, for instance, to cover officials working in the parliament who can only rely on the direct application of the 

Employment Equality Directive on the basis of domestic case law.78 In Hungary, the duty of reasonable accommodation 

has not entirely been implemented. Concerns are particularly serious with regard to access to employment as Act XXCI 

of  1998  on  the  Rights  of  Persons  with  Disabilities  and  the  Guaranteeing  of  their  Equal  Opportunities  contains  the 

obligation to accommodate the needs of people with disabilities in the course of recruitment and to adapt the working 

environment for current employees, but does not seem to prescribe that reasonable effort should be made to adapt the 

workplace to special needs with a view to actually employing a person with a disability. In Bulgaria the Protection against 

Discrimination Act, Articles 16 and 32, makes provision for reasonable accommodation for persons with disabilities in 

72  CJEU, Commission v Italy, C-312/11, 4 July 2013, not yet reported, ECLI:EU:C:2013:446.

73  The Government referred notably to the Framework Law on care, social integration and rights of disabled people (Act no. 

104/1992); Act no. 68/1999 on the right to work of disabled people; Act no. 381/1991 on Social Co-operatives and Legislative 

Decree no. 81/2008 on workplace health and safety.

74 

Legislative Decree of 28 June 2013 No 76, then converted into Law No 99 of 9 August 2013 No on Preliminary urgent measures for 

the promotion of employment, in particular of youngsters, the promotion of social cohesion, and other urgent financial measures.

75  The Act on the Equality of People with Disabilities does provide that assistance in employment should be given when necessary, 

including adapting the working environment to the worker’s needs.

76  However, the Persons with Disabilities Act requires both public and private employers to take necessary measures to eliminate or 

alleviate the barriers and hardship faced by employees with disabilities or job applicants in employment processes and to make 

physical adjustments. A very limited duty to provide reasonable accommodation is provided by the Civil Servants Act, addressed 

at people with disabilities working in the public sector. In addition, the United Nations Convention on the Rights of Persons 

with Disabilities, to which Turkey is a signatory, prohibits denial of reasonable accommodation as a form of discrimination. 

Nevertheless, there is no explanation of the concept of reasonableness or guidance on how the test should be conducted. 

77  See Administrative Supreme Court decisions in the Perreux case of 30 October 2009 and the Bleitrach case of 30 October 2010.

78  For more details on the French situation regarding reasonable accommodation, please also see the tables below.

25

December 2014Marcel | 1986

26

December 2014employment and education respectively. In Romania, the 2000 anti-discrimination law (Ordinance 137/2000) does not 

stipulate reasonable accommodation for persons with disabilities, but Act 448/2006 on the Promotion and Protection 

of the Rights of Persons with Disabilities, which has the same personal scope as the Ordinance, establishes the duty to 

ensure reasonable accommodation in access to various public and private services and facilities and in labour relations.

Reasonable accommodation affecting French prosecutor’s functions and remuneration79

After a prosecutor from the public prosecution office of the Court of Besançon (eastern France) became 

deaf,  his  public  hearings  were  assigned  to  colleagues  and  replaced  with  administrative  tasks  to  ac-

commodate his condition. In France, courts sit until hearings on the court roll finish, which often results 

in night sessions. The extra burden of work was compensated by higher allowances for the plaintiff’s 

colleagues, whereas the plaintiff’s remuneration was reduced to the lowest rate of allowances paid by 

the Court. The General Prosecutor argued that the rate was objective and reasonable as his remuneration 

was adjusted to reflect his effective participation in the functioning of the institution.

The Council of State (the supreme administrative court) overruled the lower courts’ decisions, which held 

that the duty to provide reasonable accommodation did not apply to allowances related to additional 

duties of prosecutors. The Council recalled that, in accordance with French case law, Directive 2000/78/

EC was directly applicable. It then ruled that the duty to provide reasonable accommodation also implied 

that the measures taken did not create a disadvantage with regard to remuneration and allowed for 

career progression. The Council observed that the plaintiff’s disability had to be taken into consideration 

when assessing his participation in the functioning of the public administration and calculating allow-

ances completing his remuneration. It recognised that the lower instances had committed an error in law 

and concluded that there was indirect discrimination.

Whilst the definition of the duty varies, it is commonly subject to the limitation that it should not create a ‘disproportionate’ 

or ‘unreasonable’ burden for the employer (in Austria, Belgium, Bulgaria, Croatia, Cyprus, France, Germany, Ireland, 

Italy (public employers), Latvia, Lithuania, the Netherlands, Norway, Portugal, Slovakia and Spain). The preamble 

of the Directive provides an indication of the criteria to be taken into account in determining the reasonableness of 

a  particular  accommodation.  Recital  21  identifies  three  issues  to  consider,  and  these  are  often  included  in  national 

legislation or case law:

• 

the financial and other costs entailed: Bulgaria, Cyprus, Finland, France, Germany, Ireland, Liechtenstein, 

Malta, Norway, Spain and the United Kingdom;

• 

the scale and financial resources of the organisation or undertaking: Austria, Finland, Ireland, Liechtenstein, 

Malta, Norway, Slovakia and the United Kingdom; and

• 

the possibility of obtaining public funding or any other assistance: Austria, Cyprus, Finland, France, Germany, 

Ireland,  Liechtenstein,  Malta,  the  Netherlands,  Norway,  Portugal,  Spain,  Slovakia  and  the  United 

Kingdom.

National legislation is often ambiguous about whether failure to provide reasonable accommodation is to be treated 

as  a  form  of  unlawful  discrimination  (e.g.  Hungary  and  Latvia).  In  some  countries  there  is  still  no  case  law  that 

could lead to the conclusion that such an approach is being taken (e.g. Lithuania and Luxembourg). In Cyprus, no 

reasonable accommodation case has ever been tried in the courts, but the Code of Conduct on Disability Discrimination 

79  Council of State, Decision No 347703 of 11 July 2012.

27

December 2014in the workplace issued by the equality body in 201080 explicitly provides that an employer’s failure to adopt reasonable 

accommodation measures amounts to unlawful discrimination and is punishable with a fine or imprisonment, like all 

other forms of discrimination.81 Irish case law holds that a failure to provide reasonable accommodation amounts to 

discrimination.82 The courts did not, however, state whether it is a form of direct or indirect discrimination. In Bulgaria, 

there is no provision relating failure to provide reasonable accommodation to bans on direct or indirect discrimination, 

but in several cases the courts have found that this constituted direct (rather than indirect) discrimination. In Greece, 

failure to meet the duty on reasonable accommodation was found to amount to direct discrimination.83

In France, a failure to meet the duty constitutes unlawful discrimination, but it is not specified whether this is classified 

as  direct  or  indirect  discrimination.84  In  Sweden,  failure  to  provide  reasonable  accommodation  constitutes  direct 

discrimination in the fields of employment and education.85 In contrast, failure to provide reasonable accommodation 

constitutes indirect discrimination in Austria86 and Denmark.87 In Slovakia, failure to provide reasonable accommodation 

is regarded as a violation of the principle of equal treatment (which is broader than the prohibition of discrimination and 

its individual forms and also encompasses the duty to adopt measures to prevent discrimination) and it does not equate 

to direct or indirect discrimination. However, this does not mean that in specific situations the actions or omissions of an 

employer cannot at the same time also fall within definitions of the specific forms of discrimination defined by the Slovak 

Anti-discrimination Act – mainly direct or indirect discrimination or harassment. Meanwhile, in the United  Kingdom 

failure to provide reasonable accommodation is defined as a specific form of discrimination and in the Netherlands as 

a prohibited form of distinction.88 In the Czech Republic, the Anti-discrimination Act stipulates that failure to provide 

reasonable accommodation constitutes indirect discrimination on the ground of disability, and the applicable sanctions 

are the same as for other forms of discrimination.89  In addition, there is a separate provision of the Labour Code which 

requires employers to secure the necessary workplace accommodation, working conditions, protected workshops and 

workplaces, special training and guidance for employees with disabilities, although this provision is limited to employees 

who are registered by the social security authorities as having a disability.90 As there is no case law on the issue it is 

unclear how national courts would apply these two parallel provisions.

Danish employers’ duty to provide reasonable accommodation independently of the disabled 

employee’s demands

In  2013,  the  Danish  Board  of  Equal  Treatment  held  that  the  employer’s  duty  to  provide  reasonable 

accommodation applies independently of whether or not the employee with a disability has asked for 

any such measures to be put in place.

80  This code of conduct was issued by the equality body in order to clarify Art. 5(1) of the Law on Persons with Disabilities No 

127(I)2000, as amended by Law No 72(I) of 2007.

81  Available (in Greek) at:  

www.no-discrimination.ombudsman.gov.cy/sites/default/files/kodikas_gia_diakriseis_logo_anapirias_ergasia.pdf.

82  A Complainant v Bus Éireann DEC E2003-04.

83  Decision 2048/2008 of the Court of First Instance of Athens. 

84  Labour Code, Article L5212-6, para. 2.

85  Discrimination Act (2008:567), Chapter 2, Section 1.

86  Act on the Employment of People with Disabilities, §7c.

87  Act on Prohibition of Discrimination in the Labour Market etc., Section 1(3).

88  See above, footnote 16. 

89  Section 3, paragraph 2 of the Anti-discrimination Act.

90  Section 103, paragraph 5 of the Labour Code (2007).

28

Developing Anti-Discrimination Law in EuropeDecember 2014The complainant was employed as a healthcare assistant in a psychiatric hospital. As a result of a broken 

hand,  the  complainant  was  diagnosed  with  a  malposition  of  the  little  finger  of  her  right  hand,  which 

among other things made handwriting painful and slow.

The complainant was dismissed due to a combination of disability / sickness absences as well as the 

sense  of  insecurity  and  mistrust  that  the  complainant’s  colleagues  felt  towards  her,  which  hindered 

cooperation.  Her  colleagues’  sense  of  insecurity  was  primarily  due  to  the  fact  that  the  complainant 

arguably could not use her hand fully, for example in situations where patients should be controlled and 

retained. The complainant had not required any measures of accommodation from her employer before 

being dismissed.

The  Board  stated  that  the  employer  had  not  conducted  a  thorough  investigation  of  the  possibility  of 

transferring the complainant to another department and/or of providing her with technical aids for her 

documentation tasks.91 The employer had therefore not fulfilled the obligation to take steps to provide 

reasonable and appropriate accommodation with regard to the complainant’s specific needs. The fact 

that the complainant had not asked for special accommodation did not make any difference according 

to the Board, which emphasised the independent obligation of the employer to provide reasonable ac-

commodation. Thus, the complainant was awarded compensation of DKK 245,000 (approx. EUR 33,000).

While the Directive requires the duty of reasonable accommodation to be put in place for persons with disabilities, in a 

few countries reasonable accommodation has been extended to other grounds of discrimination in the law. In practice, 

there are quite a few examples, notably from the private sector, where people with a specific religion can benefit from 

reasonable accommodation, such as not working on religious holidays or adapting working hours during Ramadan. In 

Germany for instance, the Federal Administrative Court has provided guidance in several recent judgments on the limits 

of freedom of religion in the field of education, and on the duty of schools to remain religiously neutral without impeding 

pupils’ religious beliefs.92

Reasonable  accommodation  (RA)  is  provided  for  people  with  disabilities  and  extended  by  law  to  other 

grounds (in the case of decentralised states only federal law is indicated)

93

94
AUSTRIA
95

96

BELGIUM

BULGARIA

RA provided for people with disabilities

Law

Employment of People with Disabilities Act, §§ 7c (4)-(6)

Federal Disability Equality Act, §§ 6(3), 6(4)

RA extended to other 
grounds than disability

No but judicial interpretation 
is required of the Viennese 
Anti-discrimination Act.93

General Anti-discrimination Federal Act, Arts 4,12° and 14.

No.

Protection Against Discrimination Act, Arts 16 and 32.94

For religion95 and age.96

91  Board of Equal Treatment Decision No 67/2013 of 20 March 2013.

92  See for instance two decisions of the Federal Administrative Court dated 12 September 2013: No 6 C 25.12 on the participation 

of a Muslim girl in co-educational swimming classes; and No 6 C 12.12 on the participation of a Jehovah’s Witness in a class 

where a film was shown which included scenes featuring magic.

93  Viennese Anti-discrimination Act, §3.

94  Protection can also be found in the Integration of Persons with Disabilities Act (Articles 17-18, 20, 24), and the Labour Code 

(Article 314).

95  Protection against Discrimination Act, Article 13.

96  Labour Code, Articles 301-305, 307 and 309.

29

December 201497

98

CROATIA
99

CYPRUS
100

CZECH 
101
REPUBLIC
102
DENMARK
103
ESTONIA

104
FINLAND

105

FRANCE98

106

FORMER 
YUGOSLAV 
REPUBLIC of 
MACEDONIA

RA provided for people with disabilities

Law

Anti-discrimination Act, Art. 4(2).

Act on Persons with Disabilities, Art. 5(1A) and 9(1)

Anti-discrimination Act, Section 3 §2.

Act on Prohibition of Discrimination in the Labour Market etc., Art. 2(a)

Equal Treatment Act, Art. 11(2)

Non-discrimination Act, Section 5.

Labour Code, Arts L5121-13, L 5212-2, L5212-13 and L5213-6. 

RA extended to other 
grounds than disability

For religion.97

No.

No.

No.

No.

No.

Race or ethnic origin99 and 
possibly religion.100

Law No 2005-102 for Equal Opportunities and Integration of Persons with 
Disabilities, Arts 24 V,  32 and 37

No

Prevention and Protection Against Discrimination Act, Arts 5, para. 1, pt 12; 8, 
para. 2; 15, para. 1, line 3

For race, religion101 and 
age.102

GERMANY

Social Code IX, Art. 81.4.

Possibly religion.103

GREECE

HUNGARY

ICELAND

IRELAND

ITALY

LATVIA

Equal Treatment Act, Art. 10

Act on the Rights of Persons with Disabilities and the Guaranteeing of their 
Equal Opportunities, Art. 15.104 

Not explicitly.105

Employment Equality Act, S. 16(3).

Equal Status Act, S. 4

Legislative Decree 216/2003, Art. 3, para. 3-bis106

Labour Law, Art. 7(3).

LIECHTENSTEIN Act on Equality of People with Disabilities, Arts 11-14.

LITHUANIA

Equal Treatment Act, Art. 7.

No.

No.

No.

No.

No.

No.

No.

No.

No.

97  Act on Holidays, Remembrance Days and Non-Working Days of 30 April 1996 (Article 3).

98  There are gaps in the French legislation regarding reasonable accommodation for some people such as judges who are not 

considered as civil servants, unregistered disabled persons, non-salaried disabled workers and disabled persons who are 

members of the professions or self-employed. The duty to provide for reasonable accommodation for persons with disabilities is 

therefore incomplete.

99  Circular No 2002-063 of 20 March 2002 as last amended in 2012 regards administrative arrangements for special classes 

admitting non-French speaking children.

100 

In France accommodations result from judicial decisions relating to the application of freedom of religion. (Please see the 

jurisprudence of the Administrative Supreme Court regarding reasonable accommodation on religious grounds of the pupil’s 

duty to attend school and Ministerial Instruction of the Ministry of Public Service No 2106 of 14 November 2005 regarding 

authorisations of absence on religious grounds.)

101  Limited accommodation is granted in respect of race/ethnicity and religion according to the law on holidays of the Republic of 

Macedonia (Arts 1 and 2).

102  Special measures do exist regarding working hours or night shifts for women over 57 and men over 59 according to Art. 179 and 

180 of the Labour Law.

103  Depending on judicial interpretation of Article 4 of the Basic Law (Constitution).

104  The Disability Law is clear regarding any aspect of employment except for access to employment where it still needs to be 

judicially interpreted.

105  National law does not explicitly include employer’s duty to accommodate the needs of persons with disabilities, nor does it define 

what reasonable accommodation is. Nevertheless, Article 29 of the Act on the Affairs of Persons with Disabilities states that 

those should be given assistance in their employment when necessary.

106  See p. 24. Italy included the concept of reasonable accommodation in its legislation following the infringement proceedings 

initiated by the European Commission and the judgment of the Court of Justice of the EU in Case C-312/11.

30

Developing Anti-Discrimination Law in EuropeDecember 2014RA extended to other 
grounds than disability

No.

No

No.

No.

No.

No.

No.

No.

107

108

RA provided for people with disabilities

Law

LUXEMBOURG
109

Equal Treatment Act, Art.  20.

110

MALTA
111

Disabled Persons Act, Art. 8

Equal Opportunities (Persons with Disabilities) Act, Arts 7 and 20.

112
NETHERLANDS Disability Discrimination Act, Art. 2.

Equal Treatment in Employment Regulations, Art. 4.

NORWAY

POLAND

PORTUGAL

ROMANIA

SLOVAKIA

SLOVENIA

SPAIN

Anti-discrimination and Accessibility Act on Prohibition of Discrimination on the 
Basis of Disability, S. 16, 17 and 26.

Act on Vocational and Social Rehabilitation and Employment of Persons with 
Disabilities107, Art. 23a.

Labour Code, Arts 84-88.

Act 448/2006 on the Protection and Promotion of the Rights of Persons with a 
Handicap, Art. 5(4).

For religion.108

Act on Equal Treatment in Certain Areas and Protection against Discrimination, 
Section 7.

Act on Equal Opportunities of People with Disabilities, Art. 3(3).

No.109

No.

General Law on the Rights of Persons with Disabilities and their Social Inclusion, 
Art. 2.m

For religion.110

SWEDEN

Discrimination Act, Ch. 2, S. 1.

TURKEY

UNITED 
KINGDOM

No.112

(UK) Equality Act, S. 20.

(NI) Disability Discrimination Act 2006, S.4A

Specific provisions on disability – health and safety

For race or ethnic origin, 
religion or belief and sexual 
orientation.111

No.

No.

No.

With  regard  to  disabled  people,  Article  7(2)  of  Directive  2000/78/EC  allows  Member  States  to  maintain  or  adopt 

provisions on the protection of health and safety at work. Some national legislators have interpreted this provision as 

permitting health and safety exceptions to non-discrimination on the ground of disability, e.g. Croatia, Cyprus, Greece, 

Ireland, Luxembourg and the Netherlands. In Ireland, for instance, if a person has a disability that under the given 

circumstances could cause harm to that person or to others, treating that person differently to the extent reasonably 

necessary to prevent such harm does not constitute discrimination.113 In the former Yugoslav Republic of Macedonia, 

the Anti-discrimination Act sets out three exceptions regarding pregnant women or mothers, the educational needs of 

107  As amended by the Act on the Implementation of Certain Provisions of the European Union in the Field of Equal Treatment of 3 

December 2010.

108  Art. 134(1) letter F of the Labour Code in relation to observance of religious celebrations of the employees grants two vacation 

days for two religious celebrations each year, to be taken according to the faith of the employee, under the condition that the 

faith of the employee is a state recognised religion.

109  Although judicial interpretation is required of Section 2, para. 3 of the Act on Equal Treatment in Certain Areas and Protection 

Against Discrimination.

110  Law 24/1992, of 10 November, adopting the cooperation agreement between the State and the Federation of Evangelical 

Religious Entities of Spain, Article 12.1; Law 25/1992, of 10 November, adopting the cooperation agreement between the State 

and the Jewish Communities of Spain, Articles 12.1 and 2, Law 26/1992, of 10 November, adopting the cooperation agreement 

between the State and the Islamic Commission of Spain, Articles 12.1 and 2.

111  There is no direct duty to apply reasonable accommodation within the Discrimination Act to grounds other than disability, but for 

the grounds of race or ethnic origin and religion or belief Chapter 3, Section 4 of the Discrimination Act might be used. Regarding 

the ground of sexual orientation, the School Act may in specific instances be used to achieve such a duty indirectly.

112  Judicial interpretation will be required notably of the Law on Persons with Disabilities.

113  Section 4(4) Equal Status Act 2000-2011.

31

December 2014people with disabilities and more generally the special protection of people with disabilities. In Bulgaria, there are no 

exceptions for health and safety relating to any of the protected grounds, including disability, under the Protection against 

Discrimination Act. However, under the Healthy and Safe Working Conditions Act, employers have a duty to only assign to 

their employees tasks that are compatible with their capabilities114 in view of the specific dangers for employees with a 

reduced work capability,115 and a number of other laws and pieces of secondary legislation governing specific fields, such 

as transportation (including aviation) and other risk-intensive occupations, provide health requirements for access to 

employment in those fields. Similarly, the Romanian Anti-discrimination Ordinance does not provide specific exceptions 

in relation to disability in the context of the health and safety provisions of the Directive. However, the general exception 

of objective and justified limitation, allowed by Article 9 of the Anti-discrimination Ordinance, could be applicable.

F.  

Sexual orientation

The introduction of legal protection against discrimination for the first time on the ground of sexual orientation was 

challenging for a number of states as it has proved to be controversial. At present, very few countries have defined sexual 

orientation within anti-discrimination legislation. In Bulgaria, sexual orientation is defined under the Protection against 

Discrimination Act, Section 1.9 Additional Provisions as ‘heterosexual, homosexual or bisexual orientation’. Germany, 

Ireland and Sweden provide a similar definition. British legislation refers to ‘a sexual orientation towards (a) persons 

of the same sex, (b) persons of the opposite sex, or (c) persons of the same sex and of the opposite sex’.116 The 2006 

German General Equal Treatment Act adopts the term ‘sexual identity’ while the Federal German Constitutional Court 

refers to both sexual identity and sexual orientation. This is understood to reach beyond sexual orientation and also 

encompasses  protection  against  discrimination  for  transsexual  people.117  In  the  Netherlands,  the  concept  of  sexual 

orientation  has  not  been  interpreted  in  a  way  that  covers  transsexuality  and  transvestism.  Discrimination  on  these 

grounds is regarded as sex discrimination, in contrast with Denmark where they are considered to be aspects of sexual 

orientation. In France, legislation was adopted in 2012 to include sexual identity as an additional, separate protected 

ground of discrimination.118

Although explicitly mentioned in the Hungarian Equal Treatment Act of 2003, the provision prohibiting discrimination 

in  the  new  Fundamental  Law  of  Hungary119  does  not  list  sexual  orientation  among  the  grounds  protected  from 

discrimination.120 However, the Constitutional Court, ordinary courts and the Equal Treatment Authority have in the past 

acknowledged sexual orientation as one of the other protected grounds listed in Article 70/A of the former Constitution. 

Anti-discrimination  provisions  in  the  former  Yugoslav  Republic  of  Macedonia,121  Iceland  and  Turkey  do  not 

explicitly mention sexual orientation as a protected ground. As far as EEA countries are concerned, national legislation 

in Liechtenstein gives no definition of sexual orientation. Norway provides a similar definition as in many countries, 

as  sexual  orientation  covers  heterosexual,  homosexual  and  bisexual  orientation.  Transsexualism  is  encompassed  in 

the definition of gender. The revision and harmonisation of Norwegian anti-discrimination legislation which took place 

114  Article 16 (1.2a).

115  Article 16 (1.3).

116  Regulation 2(1), Employment Equality (Sexual Orientation) Regulations 2003, S.I. 1661.

117  See Federal Constitutional Court (Bundesverfassungsgericht) of 6 December 2005; 1 BvL 3/03, paragraph 48 et seq. 

118  Law No 2012-954 of 6 August 2012 on Sexual Harassment.

119  The new Constitution came into force on 1 January 2012.

120  Article XV of the Fundamental Law states: ‘Hungary grants fundamental rights to everyone without any discrimination, namely 

discrimination based on race, colour, gender, disability, language, religion or other opinion, national or social origin, financial, 

birth-related or any other situation’.

121 

It is, however, mentioned as a ground protected from discrimination in other laws, such as for instance the Law on Labour 

Relations, Official Gazette of the Republic of Macedonia, No 52/2012, Article 6.

32

Developing Anti-Discrimination Law in EuropeDecember 2014in 2013 did not include any changes to this definition, although gender identity and gender expression were added as 

separate protected grounds of discrimination, in the Sexual Orientation Anti-discrimination Act.122

Refusal to rent a room to a same-sex couple amounts to direct discrimination on grounds of 

sexual orientation

The UK Supreme Court recently upheld the decision of the Court of Appeal of England and Wales that the 

refusal of the defendants, who ran a seven bedroom private hotel, to provide the claimants (a same-sex 

couple) with a double room for occupation, amounted to direct sexual orientation discrimination.123

The defendants argued that, as Christians, they only let double bedded rooms to married couples, be-

cause to do otherwise would be to promote sinful sexual behaviour. They also argued that to find them 

in breach of the relevant legislation would breach their rights to manifest their religious beliefs under 

Article 9 of the European Convention on Human Rights. The Supreme Court found that because same-sex 

couples could not get married in the UK, discrimination between married and unmarried couples would 

have been indirect. Discrimination between married (differently sexed) and civilly partnered (same sex) 

couples, which was at issue in the case at hand, was, however, direct. The Court specifically noted that 

the appellants would not have been willing to let the respondents share a room even if they had been 

married, and the appellants’ policy was therefore unlawful under the Equality Act (Sexual Orientation) 

Regulations 2007 (since replaced by the materially similar Equality Act 2010).

Many  of  the  difficulties  encountered  in  implementing  the  sexual  orientation  provisions  of  the  Directive  relate  to  the 

breadth of any exceptions applying to employers with a religious ethos (see the section above on religion or belief). 

These exceptions are sensitive because they stir up debate around reasonable accommodation beyond disability in the 

EU: some employers may be hostile to homosexuality because of their religious beliefs, while others are looking to strike 

the right balance between the interests of employees holding religious convictions and the interests of lesbian, gay, 

bisexual and transsexual people.124

Another key issue relates to partners’ benefits (see the Maruko case125) and the extent to which national law permits 

employers to limit work-related benefits to those employees who are married (e.g. a pension entitlement for a surviving 

spouse). It should also be noted that, in the majority of states, there are few or no examples of cases of discrimination on 

the grounds of sexual orientation being brought before the courts. Issues around confidentiality or fear of victimisation 

may  deter  some  individual  victims  from  initiating  proceedings.  Moreover,  in  some  states  the  wider  political  climate 

remains unfriendly or openly hostile to equality for lesbian, gay and bisexual people (e.g. the former Yugoslav Republic 

of Macedonia, Poland and Lithuania).

G.  

Age

Age  is  generally  assumed  to  be  an  objective  characteristic  with  a  natural  meaning  and  hence  it  is  not  defined.  The 

Swedish Discrimination Act defines age as the ‘length of life to date’ and includes all ages, ensuring that the young 

and the old are evenly protected. Likewise, most states have not restricted the scope of the legislation, but the Irish 

122  Sexual Orientation Anti-discrimination Act (SOA) of 21 June 2013 No 59, in force on 01.01.2014.

123  Supreme Court decision Bull & Anor v Hall & Anor [2012] UKSC 73 of 27 November 2013.

124  See ECtHR, Lillian Ladele and Gary McFarlane v the United Kingdom, Application numbers 48420/10 and 59842/10, Judgment of 

15 January 2013.

125  Case C-267/06, Maruko v Versorgungsanstalt der deutschen Bühnen, [2008] ECR I-1757.

33

December 2014Employment Equality Act 1998-2011 limits its application to ‘persons above the maximum age at which a person is 

statutorily obliged to attend school’.126 Similarly, in Denmark legislation was adopted in 2006 which removes protection 

from  persons  under  18  if  differential  treatment  is  stipulated  in  a  collective  agreement.127  Moreover,  the  prohibition 

against  differential  treatment  due  to  age  does  not  apply  with  regard  to  the  employment  and  conditions  of  pay  and 

dismissal of young people under the age of 15, since their employment is not regulated by a collective agreement. In the 

UK, the provisions of the 2010 Equality Act which prohibit age discrimination in the provision of goods and services and 

the performance of public functions apply only to discrimination suffered by adults over the age of 18; children under 

this age are not protected by this extension of age discrimination legislation.128

The transposition of Directive 2000/78/EC with respect to age discrimination presented particular challenges because 

the great majority of Member States did not have existing general legislation against age discrimination. Turkey has 

not yet incorporated age discrimination into its national legislation.

Two contrasting patterns or models can be identified in how countries chose to confront these challenges, though it 

should be stressed that these are only broad patterns, within which significant variations occur. One pattern consists 

of direct or nearly direct enactment in national legislation of the age discrimination provisions of the Directive, without 

elaborate adaptation to existing practice or detailed amendment of existing legislation. Cyprus, Greece and Italy have 

passed anti-discrimination laws which more or less reproduce the Directives.

A contrasting response consisted of engaging in a more elaborate legislative debate at the national level as to how 

the  age  discrimination  requirements  of  the  Directive  might  be  fully  and  immediately  integrated  within  existing  law 

and  practice.  The  resulting  legislative  debate  tended  to  be  difficult  and  complex  in  some  Member  States,  which  is 

why Belgium, Germany, the Netherlands, Sweden and the United  Kingdom took up the option of extra time to 

implement age discrimination requirements in particular. In Sweden new legislation entered into force on 1 January 

2013, extending the protection against discrimination on the ground of age to the fields of goods and services including 

housing; meetings and public events; health, medical care and social services; social and unemployment insurance and 

financial aid for education; and public sector employment.129

Specific provisions on age

The Employment Equality Directive permits national law to include a range of exceptions in relation to both direct and 

indirect age discrimination. Article 6(1) states: ‘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  objectively  and  reasonably 

justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, 

and  if  the  means  of  achieving  that  aim  are  appropriate  and  necessary’.  It  then  lists  examples  of  differences  which 

could  be  allowed,  including  the  fixing  of  minimum  conditions  of  age,  professional  experience  or  seniority  for  access 

to employment. As a consequence, there remains very substantial uncertainty across the states as to which forms of 

age discrimination will be treated as justified by national courts. In Mangold v Helm,130 the Court of Justice provided an 

early indication that directly discriminatory practices need to be carefully scrutinised by national courts. That ruling, in 

conjunction with the Kücükdeveci case,131 might potentially greatly affect national implementation, particularly as the 

126  Section 6(f)(3). 

127  Act No 31/2006. 

128  Equality Act 2010 (Commencement No 9) Order 2012 of 18 June 2012.

129  Act 2012:673.

130  Case C-144/04, Mangold v Helm; [2005] ECR I-9981.

131  Case C-555/07, Seda Kücükdeveci  v Swedex GmbH & Co. KG; [2010] ECR I-00365.

34

Developing Anti-Discrimination Law in EuropeDecember 2014CJEU ruled that prohibition of discrimination on the grounds of age must be considered as a general principle of EU law 

to which the Directive merely gives expression.132

Differing interpretations on number of days of paid holiday depending on age

In both Germany and Sweden, collective agreements for public sector employees provide that the number 

of days of paid holiday increases with the employee’s age, rather than with his or her experience. In both 

countries these provisions were challenged by employees considering that such a distinction constituted 

direct discrimination on the ground of age.

The Swedish Ombudsman handled a complaint in 2009 and was of the opinion that such a distinction 

based on age is justified as it constitutes an appropriate and necessary means to reach the legitimate 

goal of ensuring that older workers can keep working until they benefit from full retirement benefits.133 

Therefore the Ombudsman decided not to go to court on behalf of the plaintiff.

In March 2012, the German Federal Labour Court (Bundesarbeitsgericht) found after conflicting decisions 

at lower instance that the provision formed discrimination on the ground of age, violating Section 9 of 

the Law on Equal Treatment (Allgemeines Gleichbehandlungsgesetz).134 Considering that the provision 

did not serve the purpose of providing extended holidays to meet the needs of elderly employees, the 

Court found that there was no justification. In any case, such needs, the court argued, do not exist for the 

respective life periods covered by the provision. In consequence, younger employees – as claimed by the 

plaintiff – are entitled to the longer holiday period.135

A key issue relating to the age provisions of the Employment Equality Directive is retirement. In principle, compelling 

employees to leave work because they have reached a certain age is direct age discrimination which will require objective 

justification. Meanwhile, Recital 14 indicates that retirement ages may be regarded as justified age discrimination. It 

states that ‘this Directive shall be without prejudice to national provisions laying down retirement ages’. National law 

varies greatly in this area, ranging from states with no national compulsory retirement age (e.g. the Czech Republic) to 

states which permit compulsory retirement by public and private employers at a specific age (e.g. Italy).

Several Member States have simply inserted the text of Article 6 of the Employment Equality Directive into national law, 

including Austria, Cyprus, Greece, Malta, Portugal and Slovakia. Meanwhile, Finland, France, Germany, Ireland, 

Italy, Luxembourg, Romania, Slovenia and the United Kingdom have provisions that resemble all or part of Article 6.

132  Mangold, and in particular the CJEU’s exercise of powers in that case, was (unsuccessfully) challenged before the Federal 

Constitutional Court in Germany, showing the still fragile authority of EU law in Germany regarding the general principle of age 

discrimination. See Decision by the German Federal Constitutional Court (Bundesverfassungsgericht), 2 BvR 2661/06 of 6 July 

2010.

133  Decision of the Discrimination Ombudsman (Diskrimineringsombudsmannen), No 2009/80.

134  Decision of the Federal Labour Court (Bundesarbeitsgericht) of 20 March 2012, 9 AZR 529/10.

135  After the cut-off date of this report, on 21 October 2014, the German Federal Labour Court found that the provision of additional 

holidays for employees aged above 58 was justified because it was based on the additional need for rest of older workers in this 

field of work (shoe production). See Decision 9 AZR 956/12.

35

December 2014Sifra | 1993

36

December 2014Compulsory retirement age for pilots is lawful

KLM  pilots  were  obliged  to  retire  at  the  age  of  56  pursuant  to  the  collective  agreement  in  force.  By 

contrast, pilots who had worked part time and who had not accrued a sufficient pension could maintain 

their employment relationship until the age of 60. When several pilots challenged the compulsory retire-

ment age of 56, the board of KLM and the trade union (Vereniging van Nederlandse Verkeersvliegers, 

VNV) argued that the measure aimed to ensure a balanced workforce (in terms of age and experience, 

including a balanced distribution of job opportunities), to guarantee foreseeable and regular movement 

of pilots between grades and to allow personnel costs to be controlled.

Referring  to  CJEU  case  law,  in  particular  the  Mangold  (C-144/04)  and  Kücükdeveci  (C-555/07)  cases, 

the Supreme Court observed that the principle of non-discrimination on the ground of age is a general 

principle  of  EU  law.136  Recalling  the  Rosenbladt  ruling  (C-45/09),  the  Court  held  that  Member  States, 

including social partners, have a wide margin of appreciation in formulating their policies with regard to 

a compulsory retirement age for certain categories of workers taking into account social policy objectives 

and the means to achieve these aims. The objective was not to guarantee the safety of airline traffic, as 

in the Prigge case (C-447/09). The Court therefore ruled that the justifications were covered by Article 

6(1) of Directive 2000/78/EC and Article 7(1) of the Anti-discrimination Act. The means were deemed 

appropriate and necessary as 56-year-old pilots were not put in a difficult financial situation as they 

received a good pension. In addition, they were not prevented from continuing working. In the light of 

these observations, the Court concluded that KLM/VNV did not discriminate against pilots on the ground 

of age.

At  the  outset,  it  is  important  to  distinguish  between  the  age  at  which  people  become  entitled  to  receive  pensions 

(pensionable  age)  and  the  age  at  which  they  are  required  to  cease  employment  (retirement  age).  Sometimes  these 

are linked in national law. In Malta, protection against unfair dismissal is lost at retirement age and in Hungary such 

protection is reduced. In Latvia, the Constitutional Court has held that it is not disproportionate to require civil servants 

to retire at pensionable age.137 In Cyprus, a series of judicial decisions have recently sought to justify differences in 

retirement ages for different employees, introducing a rather wide spectrum of exceptions premised upon a doctrine 

that equality must be applied only to equal situations and that ‘different things... can only be dealt with differently’. By 

contrast, in the United Kingdom, the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011, 

which came into force on 6 April 2011, removed the possibility for employers to enforce compulsory retirement ages 

without  risk  of  unfair  dismissal  claims  by  amending  the  Equality  Act  2010.  Since  1  October  2011,  all  age-related 

dismissals have had to be justified by the employer.

The approach in national law to retirement age can be loosely grouped into three categories. First, there are Member 

States where national law does not impose any compulsory retirement age, nor does it remove protection from unfair 

dismissal for workers after a certain age. In general, this includes the Czech Republic, Estonia, Poland and Slovakia. 

Retirement  ages  are  not  specified  in  national  legislation  in  Denmark,  but  these  are  commonly  found  in  collective 

agreements. The Danish Supreme Court found in 2013 that a collective agreement providing for mandatory retirement 

at the age of 67 is justified where it aims to achieve a more appropriate age distribution among employees and to 

reduce the workforce by age-related departures rather than dismissals.138 In Germany, although there is no general 

mandatory retirement age, there are a number of special regulations regarding maximum ages for specific categories 

136  Supreme Court (Hoge Raad) Decision No LJN: BW3367 of 13 July 2012.

137  Case 2003-12-01, Decision of 18 December 2003. 

138  Supreme Court Decision of 27 August 2013, Case 183/2011.

37

December 2014of  public  servants,  both  on  federal  and  Land  level.  In  addition,  similarly  to  the  situation  in  Denmark,  both  collective 

agreements and individual employment contracts commonly stipulate that retirement is to coincide with the federal 

pensionable age of 67 (being phased in).

In  a  second  group  of  states,  retirement  ages  are  specified  for  public  sector  employees  only.  The  precise  age  varies: 

Belgium (65), Cyprus (65 – being phased in), Latvia (65 – being phased in), Luxembourg (68), Norway (70 – with 

exceptions for certain sectors such as the armed forces), Portugal (70) and Spain (65). In France, the retirement age 

specified for public sector employees (65) can be subject to derogation. In 2013, the French Administrative Supreme 

Court found that the retirement age for public sector employees is justified. This measure was found to constitute a 

proportionate means to reach the legitimate aim of promoting a better employment distribution among generations.139 

In  Bulgaria,  in  some  sectors,  such  as  the  professional  army140  and  the  police,141  the  law  imposes  age  limits  after 

which people, both women and men, can no longer remain in service, although they are not prohibited from finding 

employment  in  other  sectors  and  still  collecting  their  pensions.  In  2011,  Hungary  adopted  legislation  imposing  a 

mandatory  retirement  age  on  public  sector  employees  which  coincides  with  the  general  pensionable  age  (currently 

62-65 being phased in). The mandatory retirement age of legal professionals such as judges and notaries had until 

then been fixed at 70, and this abrupt lowering of the retirement age without any transitional period was consequently 

challenged by the European Commission who brought infringement proceedings against Hungary on this account. In 

November 2012 the CJEU found that this legislation was in breach of the Employment Equality Directive, and following 

this  ruling  the  Hungarian  Government  submitted  a  bill  introducing  a  transitory  period  for  the  implementation  of  the 

2011 legislation.

Finally, there are states where national law permits the compulsory retirement of employees, whether in the public or 

private sector, because they have reached a certain age: Finland (68), Italy (70), Malta (65 – being phased in), the 

Netherlands  (67  –  being  phased  in),  Romania  (63-65),142  Sweden  (67),  Croatia  (65),  and  the  former  Yugoslav 

Republic of Macedonia (62-64).143 In Ireland, an employee may be dismissed after he or she has reached the ‘normal 

retiring age’ for that position. In Bulgaria the Labour Code was amended in 2012, and the right of employers to dismiss 

employees solely on the ground of age when they reached the applicable pensionable age was abolished.144 In 2011, 

the CJEU examined the compatibility with the Employment Equality Directive of a collective agreement providing for 

the  automatic  termination  of  employment  contracts  at  retirement  age  in  the  case  of  Prigge  and  Others  v  Deutsche 

Lufthansa.145 The Court found the relevant provision of the collective agreement to constitute direct discrimination on 

grounds of age, and that the measure could not be justified under the exception provided in Article 2(5) of the Directive 

regarding  public  security.  The  Court  also  determined  that  possessing  physical  capabilities  as  an  airline  pilot  can  fall 

within the meaning of Article 4(1) of the Directive on genuine and determining occupational requirements, and that such 

capabilities may diminish with age. However, although the objective relating to airline safety therefore was legitimate 

within the meaning of Article 4(1), the social partners had imposed a disproportionate requirement as both national 

and international legislation authorised pilots to carry out their professional activities until the age of 65, under certain 

conditions, while the collective agreement at hand provided for the automatic retirement of airline pilots at the age of 

139  France; Supreme Administrative Court (Conseil d’Etat), Decision No 351183, 22 May 2013.

140  Defence and Armed Forces of the Republic of Bulgaria Act, Article 127(1). For soldiers, the limit is 49 years; that limit is raised for 

each higher rank, with 60 years as the limit for the highest ranking officers.

141  Ministry of Interior Act, Article 245(1). The limit is 60 years. 

142  The retirement age is 63 for women and 65 for men. 

143  The retirement age is 62 for women and 64 for men. 

144  Labour Code, Article 328.10, as amended. Academic workers (professors, assistant professors and doctors of science) are, 

however, excluded from this amendment and may still be dismissed on age grounds when they reach the age of 65.

145  Case C-447/09, Prigge and Others v Deutsche Lufthansa AG, ECR [2011] p. I-08003.

38

Developing Anti-Discrimination Law in EuropeDecember 201460. Finally, the Court proceeded to the justification test under Article 6 of Directive 2000/78/EC and ruled that air traffic 

safety did not constitute a legitimate aim related to employment policy, labour market and vocational training.

Mandatory early retirement age fixed by the French state-owned railway company deemed 

unlawful146

After 27 years of employment, the national state-owned railway company (SNCF) ended the plaintiff’s 

employment contract as he had turned 55, granting him an annual pension of EUR 7,619. The plaintiff 

challenged the decision, alleging that employees retiring at the age of 65 were granted EUR 10,420 and 

that he had faced discrimination.

The  Court  of  Cassation  held  that  the  fact  that  a  decree  allowed  mandatory  early  retirement  did  not 

preclude the possibility of a decision being incompatible with anti-discrimination legislation. Mandatory 

retirement may not be considered as discriminatory depending on the justification brought forward by 

the employer, in particular in relation to health and safety or professional integration as provided for by 

Article 1133-2 of the Labour Code. In the present case, the financial justification of reducing the number 

of  staff  employed  by  the  company  did  not  meet  the  requirement  of  Directive  2000/78/EC  regarding 

social and political objectives. Consequently, the decision was annulled and the employer was ordered 

to reinstate the plaintiff and to contribute to his retirement scheme for the period when he had not been 

employed. In addition, the company was ordered to pay EUR 130,137 as compensation for the difference 

between the pension received and the salary he would have earned as an employee and EUR 10,000 for 

non-material damages.

Another key issue is the justification with regard to age, and national practice varies greatly in this area. Article 6(1)(b) of 

the Employment Equality Directive expressly allows laws which seek to promote the vocational integration or protection 

of young people, older workers and persons with caring responsibilities. Such laws are very common. Almost every state 

has some legislation or practices which aim to protect and to promote young employees, or to ensure a balance of age 

in the workforce. For instance, the UK permits age distinctions in the payment of the national minimum wage in order 

to encourage employers to employ younger workers, which seems controversial under the CJEU case law on age. In 

Denmark, the Act on the Prohibition of Discrimination in the Labour Market etc. provides a general exception allowing 

collective agreements to establish different conditions of employment, remuneration and dismissal for employees aged 

below 18. The Danish Supreme Court recently found that this provision is in compliance with the Employment Equality 

Directive, as it constitutes an appropriate means to ensure the integration of young employees in the labour market.147 

As a matter of fact, confusion around the justification issue is clearly noticeable throughout the EU, in particular as 

regards compulsory retirement, and domestic case law also shows that national jurisdictions are not always consistent 

in finding discrimination.

Minimum and maximum age requirements, in particular in access to employment, seem to be widely permitted. These 

can  be  described  as  direct  age  requirements,  whereas  a  requirement  of  a  certain  number  of  years  of  experience 

constitutes an indirect age requirement. The Czech Republic has examples of both direct age requirements (minimum 

age requirements for employment and self-employed activity and maximum age limits set for certain professions) and 

indirect age requirements (conditions of pay dependent on years of experience and requirement of a certain education 

146  Court of Cassation, 9 February 2012 No 10-28651.

147  Supreme Court Decision of 14 November 2013, Case 185/2010.

39

December 2014and a minimum period of training for entrance to professions). The Greek Council of State has declared that an age limit 

for access to a profession is unconstitutional unless it is justified by reason of necessity.148

German Federal Labour Court provides guidance on age discrimination149

The claimant was a 36-year-old lawyer with professional experience whose application was rejected for 

a place in a trainee programme aimed at ‘graduates/young professionals’. Claiming that his application 

was unlawfully rejected on the ground of age, he brought an action before the labour courts. At the first 

two instances, his claims remained unsuccessful. The Federal Labour Court, however, returned the case 

to the Berlin-Brandenburg Land Labour Court to examine the actual reason for the rejection, and whether 

it was the applicant’s age or his final examination grades.

According to the ruling of the Federal Labour Court, vacancies targeting specifically university graduates 

and young professionals may suggest age discrimination, shifting the burden of proof to the defendant. 

If the employer is not able to present factual arguments for the selection of the successful candidate(s), 

the unsuccessful applicant(s) may claim compensation for unlawful discrimination on the ground of age. 

The Court held specifically that general references to the declining learning abilities of older employees 

are not sufficient for the employer to demonstrate that no unlawful discrimination has taken place.

In transposing the Directives there seems to have been little discussion in some Member States as to the legality of 

certain existing provisions and practices, and confusion still remains. An exception is the Netherlands, where every 

government department was obliged to produce a report giving an inventory of age criteria in its legislation in order 

to review the legitimacy of such distinctions. The compatibility of retirement ages with Directive 2000/78/EC has been 

partially clarified by the Court of Justice, most notably in its decisions in Cases C-87/06 Pascual García [2006]; C-411/05 

Palacios  de  la  Villa  [2007]  ECR  I-8531;  C-488/05  The  Incorporated  Trustees  of  the  National  Council  on  Ageing  (Age 

Concern  England)  v  Secretary  of  State  for  Business,  Enterprise  and  Regulatory  Reform  [2009]  ECR  I-1569;  C-45/09, 

Rosenbladt [2010] ECR I-0000 and C-447/09, Prigge [2011] ECR I-08003.

H.  

Assumed and associated discrimination

Discrimination can sometimes occur because of an assumption about another person which may or may not be factually 

correct,  e.g.  that  the  person  has  a  disability.  Alternatively,  a  person  may  face  discrimination  because  they  associate 

with persons of a particular characteristic, e.g. a non-Roma man may be denied admission to a bar because he is with 

friends from the Roma community. In many countries, the application of discrimination law to such scenarios is neither 

stipulated  nor  expressly  prohibited,  and  only  future  judicial  interpretation  will  clarify  this  issue.  This  is  the  case  for 

instance in Finland, Greece,  Iceland, Italy, Latvia, Liechtenstein, Malta, Poland, Romania, Slovenia, the UK150 

and Turkey.

148  Council of State, 9 May 2012, Decision No 1624 /2012. However, it is noteworthy that the Council of State did not invoke 

national anti-discrimination law or the Employment Equality Directive, but only the constitutional principles of proportionality, 

professional freedom and participation in economic and social life.

149  Federal Labour Court (Bundesarbeitsgericht) Decision of 24 January 2013 No Az. 8 AZR 429/11. For another interesting case on 

age discrimination, see also the Spanish Constitutional Court’s Decision No 78/2012 of 16 April 2012, regarding an upper age 

limit imposed on pharmacists.

150  However, in the United Kingdom the explanatory notes to the 2010 Equality Act make it clear that discrimination by association 

and discrimination on the basis of perception are intended to be covered by the Act.

40

Developing Anti-Discrimination Law in EuropeDecember 2014CJEU ruling in landmark Coleman case on discrimination by association151

On 17 July 2008, the Court of Justice of the European Union delivered judgment in the case of Coleman v 

Attridge Law and Steve Law. The judgment interprets the meaning of the prohibition of direct discrimina-

tion and harassment in employment and occupation on grounds of disability pursuant to Article 2(2)(a) 

and Article 2(3) of the Employment Equality Directive and especially the meaning of discrimination by 

association.

The CJEU stated that the purpose of the Directive is to prohibit all forms of discrimination in employment 

and occupation on the protected grounds, namely disability, sexual orientation, age and religion or belief 

and is not limited to a particular category of person. As the ECJ explained, ‘An interpretation limiting its 

application only to people who are themselves disabled is liable to deprive the Directive of an important 

element of its effectiveness and to reduce the protection which it is intended to guarantee.’ (para. 51).

The Court concluded that Directive 2000/78/EC ‘...must be interpreted as meaning that the prohibition 

of direct discrimination laid down by those provisions is not limited only to people who are themselves 

disabled.  Where  an  employer  treats  an  employee  who  is  not  himself  disabled  less  favourably  than 

another employee is, has been or would be treated in a comparable situation, and it is established that 

the less favourable treatment of that employee is based on the disability of his child, whose care is 

provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination 

laid down by Article 2(2)(a).’ (para. 56).

In  relation  to  harassment,  the  Court  used  the  same  reasoning  to  conclude  that  ‘...the  prohibition  of 

harassment laid down by those provisions is not limited only to people who are themselves disabled.’ 

(para. 63).

This judgment is very important, as it asserts the general principle that discrimination should also be 

prohibited when it results in view of the association of a person with other persons to whom a prohibited 

discrimination ground applies.

Ireland provides a rare example where legislation explicitly forbids both discrimination where a ground is ‘imputed’ 

to exist and discrimination due to association.152 Croatia prohibits discrimination based on misconception153 (although 

there is no case law on discrimination based on a perception or assumption of a person’s characteristic), whereas in the 

Czech Republic discrimination on the ground of assumed characteristics is forbidden. The Bulgarian Protection against 

Discrimination Act also explicitly prohibits both discrimination on perceived or assumed grounds and discrimination by 

association.154 As mentioned earlier, in several states the legislation refers to ‘real or assumed’ race or ethnicity (e.g. 

France) or to a disability that existed in the past or which may exist in the future (e.g. the Netherlands). The Austrian 

legislation provides protection to individuals who experience discrimination or harassment due to their close relationship 

with  a  person  whose  sex,155  ethnic  affiliation,  religion,  belief,  age,  sexual  orientation156  or  disability157  constitutes  the 

151  Case C-303/06, S. Coleman v Attridge Law, Steve Law, [2008] I-05603.

152  Section 6(1)(b), Employment Equality Act 1998-2011. 

153  Article 1(3) of the Anti-discrimination Act. 

154  Additional Provisions, Section 1.8.  

155  Para. 5/4 Equal Treatment Act.

156  Paras. 19/4, 21/4 Equal Treatment Act.

157  Para. 4/2 Federal Disability Equality Act and para. 7b/5 Employment of People with Disabilities Act.

41

December 2014ground for discrimination or harassment. In the Flemish Framework Decree of 10 July 2008 in Belgium, the definition of 

direct discrimination expressly states that it is applicable in cases of discrimination based on an assumed characteristic. 

Perceived or assumed discrimination is covered by the Norwegian Anti-discrimination Act, the Anti-discrimination and 

Accessibility Act and the Working Environment Act, provided that it has actually resulted in a worse or less favourable 

treatment. In 2013, Spain introduced for the first time explicit protection against discrimination by association, covering 

only the ground of disability.158

Belgian court finds discrimination by association159

The complainant was employed as the manager of a fitness centre when he had a child with a serious 

disability requiring specific care. When the complainant informed his employer of his child’s disability, 

he was dismissed because the employer considered that the complainant’s enthusiasm for work could 

be affected and that he might need days off work to care for his child. With the support of the Centre 

for Equal Opportunities and Opposition to Racism, the complainant filed a complaint for discriminatory 

dismissal.

On 10 December 2013, the Labour Court of Leuven found that the employer had discriminated against 

the  complainant  based  on  the  disability  of  his  child,  and  ordered  the  employer  to  pay  compensation 

amounting to six months of salary and additional damages. This is the first Belgian conviction for dis-

crimination by association, which is not explicitly prohibited by the anti-discrimination legislation in Bel-

gium. The Court referred directly to the decision of the CJEU in Coleman to hold that discrimination based 

on association with persons with a disability is implicitly forbidden under federal law and constitutes 

direct discriminations.

In  the  context  of  the  second  implementation  report  on  the  Racial  Equality  Directive  and  the  Employment  Equality 

Directive adopted on 17 January 2014,160 the Commission referred to the existing national case law and maintained 

that the Directives also prohibit a situation where a person is directly discriminated against on the basis of a wrong 

perception or assumption of protected characteristics.161

158  Royal Legislative Decree 1/2013 of 29 Novembe, approving the Consolidated Text of the General Law on the Rights of Persons 

with Disabilities and their Social Inclusion.

159  Judgment No. 12/1064/A of the Labour Court of Leuven of 10 December 2013.

160  COM (2014) 2 final, 17 January 2014, available at http://ec.europa.eu/justice/discrimination/files/com_2014_2_en.pdf.

161  COM (2014) 2 final, 17 January 2014, p. 10,  available at http://ec.europa.eu/justice/discrimination/files/com_2014_2_en.pdf.

42

Developing Anti-Discrimination Law in EuropeDecember 2014I.  

Multiple discrimination

The EU has recognised the significance of multiple discrimination, although both the Employment Equality Directive and 

the Racial Equality Directive do not specifically address the issue. Explicit provisions are provided in a few Member States 

only. For instance, in Greece, a provision adopted in 2011 explicitly refers for the first time to multiple discrimination.162 

The  Protection  against  Discrimination  Act  in  Bulgaria  defines  multiple  discrimination  as  ‘discrimination  based  on 

more than one [protected] ground’.163 It places a statutory duty on public authorities to give priority to positive action 

measures to the benefit of victims of multiple discrimination.164 In case of multiple discrimination, the Commission for 

Protection against Discrimination (the equality body) holds hearings in a larger panel of five members, instead of the 

ordinary three-member panel.165 In the Netherlands, the government decided not to follow the then Equal Treatment 

Commission’s suggestion to include multiple discrimination in the General Equal Treatment Act.166 In Germany, Section 

4 of the General Act on Equal Treatment provides that any unequal treatment on the basis of several prohibited grounds 

has  to  be  justified  with  regard  to  each  of  these  grounds.  In  addition,  Section  27.5  states  that  in  cases  of  multiple 

discrimination the Federal Anti-discrimination Agency (Antidiskriminierungsstelle des Bundes) and the competent agents 

of  the  federal  Government  and  the  Bundestag  must  co-operate.  Multiple  discrimination  constitutes  an  aggravating 

circumstance under the Romanian anti-discrimination law,167 as well as in Portugal where the level of compensation 

may then be higher. In Turkey, segregation and institutional discrimination based on one or more grounds is mentioned 

in the draft anti-discrimination law but multiple discrimination is not specifically addressed. However, all existing national 

provisions  bear  limited  effects  in  practice  and  case  law  remains  very  scarce.  In  the  few  existing  cases  reported,  no 

specific approach with regard to the comparator had been followed by either the courts or the equality bodies.

162  See Article 2(1) of Act 3996/2011 concerning the general reform of the Labour Inspectorate adopted on 5 August 2011: ‘The 

labour inspectorate supervises the implementation of the principle of equal treatment irrespective of racial or ethnic origin, 

religion or other beliefs, disability, age or sexual orientation, taking into consideration instances of multiple discrimination in 

accordance with Article 19 of Act 3304/2005’. 

163  Additional Provisions, § 1.11.

164  Article 11(2). Under Art. 11(1) authorities are placed under a general statutory duty to take positive action whenever necessary 

to achieve the legislation’s goals. 

165  Article 48(3).

166  Tweede kamer 2011-2012, 28 481, No 16, p.4.

167  Article 2(6) states that, ‘Any distinction, exclusion, restriction or preference based on two or more of the criteria foreseen in 

para. 1 shall constitute an aggravating circumstance in establishing responsibility for a minor offence, unless one or more of its 

components is not subject to criminal law’.

43

December 2014Msgana | 1994

44

December 2014Chapter 2 
Definitions and scope

45

December 2014An  overview  of  Member  State  and  candidate  country  anti-discrimination  legislation  reveals  considerable  progress  in 

this area since the adoption of the Directives. The great majority of states have introduced legislation that expressly 

forbids each of the four types of discrimination. Moreover, in most cases, the definitions provided in national legislation 

are very similar to the definitions found in the Directives. Many states have chosen essentially to reproduce the text of 

the Directives on these core concepts. This chapter will examine the regulation of each type of discrimination across the 

national legal systems.

At  the  outset,  it  should  be  noted  that  although  states  may  be  described  as  following  the  definitions  found  in  the 

Directives, there are often slight differences between the actual text of national legislation and that of the Directives. 

Given the frequent absence of case law interpreting the legislation, it is difficult to assess whether small differences in 

language will be resolved through purposive judicial interpretation or whether there are substantive gaps in national 

implementation.

A.  

Direct discrimination

All  EU  Member  States,  the  former  Yugoslav  Republic  of  Macedonia  and  Norway  have  adopted  legislation  that 

reflects closely the definition of direct discrimination found within the Directives. There are several common elements:

• 

the need to demonstrate less favourable treatment;

•  a requirement for a comparison with another person in a similar situation but with different characteristics (e.g. 

ethnic origin, religion, sexual orientation);

• 

the possibility to use a comparator from the past (e.g. a previous employee) or a hypothetical comparator; and

•  a statement that direct discrimination cannot be justified.

These  elements  can  be  generally  found  in  legislation  in  Austria,  Belgium,  Bulgaria,  Croatia,  Cyprus,  Denmark, 

Estonia,  Finland,  the  former  Yugoslav  Republic  of  Macedonia,  France  (although  hypothetical  comparison 

is  not  covered,  in  breach  of  the  Directives),  Germany,  Greece,  Ireland  (although  not  providing  for  a  hypothetical 

comparator  in  employment  cases),  Italy,  Latvia,168  Lithuania,  Luxembourg,  Malta,  the  Netherlands,169  Norway, 

Poland (although the definition of direct discrimination given in the Labour Code is still erroneous with regard to the 

comparator), Portugal, Slovakia, Slovenia, Spain (although the law only refers to ‘a comparable situation’, without 

determining whether past and hypothetical comparators are covered), Sweden and the United Kingdom. It should be 

noted that this legislation does not necessarily apply to the full material scope required by the Directives and it may 

coexist with other legislation containing different definitions of direct discrimination. Moreover, most states have taken 

advantage of the opportunity provided for in Article 6 of the Employment Equality Directive to permit justification of 

direct discrimination on the ground of age.

Although  different  from  the  definitions  proposed  by  Directive  2000/43/EC  and  Directive  2000/78/EC,  the  2000 

Romanian Anti-discrimination Ordinance provides a detailed definition, attempting to cover the whole range of actions 

and  omissions  leading  to  discrimination.  The  Ordinance  allows  justifications  of  direct  discrimination  in  the  fields  of 

housing and access to goods and services (in breach of Directive 2000/43/EC), if such a ‘restriction is objectively justified 

168 

It should however be noted that in several fields, such as education, access to and provision of goods and services, social 

protection and social advantages, Latvian legislation provides for a general justification of discrimination without distinguishing 

between direct and indirect discrimination. Judicial interpretation by the courts will indicate whether or not this justification is in 

breach of the Directives.

169  The Dutch legislation was amended in November 2011, replacing the previous definition of direct discrimination with the 

definition found in the Directives: see Wet van 7 November 2011, Staatsblad 2011, 554.

46

Developing Anti-Discrimination Law in EuropeDecember 2014by a legitimate purpose and the methods used to reach such a purpose are adequate and necessary’.170 In Hungary, 

a general objective justification for direct discrimination applies to the grounds covered by the Employment Equality 

Directive when the act is ‘found by objective consideration to have a reasonable ground directly related to the relevant 

legal relationship’. However, it is unclear whether this exemption applies in the field of employment.171 In Slovakia, the 

prohibition of general justification of direct discrimination is not explicit and can only be derived from interpretation. In 

Bulgaria the Protection against Discrimination Act does not permit general justification for direct discrimination with 

respect to any grounds.

In  Turkey  there  is  no  legislation  defining  direct  discrimination  on  any  ground,  although  the  Law  on  Persons  with 

Disabilities was amended in 2013 to include provisions specifically prohibiting direct discrimination on the ground of 

disability.172 There is no legislation related to direct discrimination on any of the protected grounds in Iceland, while in 

Liechtenstein, direct discrimination is explicitly prohibited on the grounds of gender and disability only.

Prohibition of direct discrimination in national law (in the case of decentralised states only federal law is 

BULGARIA

CROATIA

CYPRUS

CZECH 
REPUBLIC

DENMARK

ESTONIA

FINLAND

FRANCE

FORMER 
YUGOSLAV 
REPUBLIC of 
MACEDONIA

GERMANY

GREECE

HUNGARY

ICELAND

indicated)

173
AUSTRIA

Law

Federal Equal Treatment Act

Equal Treatment Act

Employment of People with Disabilities Act

Federal Disability Equality Act

BELGIUM

Racial Equality Federal Act 

General Anti-discrimination Federal Act

Protection Against Discrimination Act

Anti-discrimination Act

Act on Equal Treatment in Employment and Occupation

Act on Equal Treatment irrespective of Race or Ethnic Origin

Act on Persons with Disabilities

Anti-discrimination Act

Act on Prohibition of Discrimination in the Labour Market etc.

Ethnic Equal Treatment Act

Equal Treatment Act

Non-Discrimination Act

Act on the Adaptation of National Law to Community Law in Matters of Discrimina-
tion 

Article

§§ 13//1 and 13a/1

§§ 17/1, 18, 19/1, 30, 
31, 32/1, 43/1 and 44/1

§ 7b/1

§§ 4/1 and 5/1

Arts 4, 6°-7°, and 12

Arts 4, 6°-7°, and 14

Arts 4(2)

Arts 2(1)

Arts 2, 6(1)(a)

Arts 2, 5(2)(a)

Arts 2, 3(a)

S. 2, para. 3

Art. 1(2) 

Art. 3(2)

Art. 3(2)

S. 6(2)1

Art. 1

Prevention and Protection against Discrimination Act

Art. 6, para. 1

General Equal Treatment Act 

Equal Treatment Act

Act on Equal Treatment and the Promotion of Equal Opportunities

-173

Art. 3.1

Arts 3(a) and 7(1)(a)

Art. 8

-

170  Article 10, Act 324/2006 on the Amendment of Government Ordinance 137/2000 on the Prevention and Punishment of All Forms 

of Discrimination, (20 July 2006). 

171  Article 7, paragraph (2) of the Equal Treatment Act.

172  Law No 6462 of 25 April 2014 amending Article 14(3) of the Law on Persons with Disabilities (No 5378).

173  Direct discrimination is only defined and prohibited in the Gender Law, but this provision has been found by the EFTA Surveillance 

Authority not to fully comply with EU gender law. An amendment to this provision in pending in Parliament.

47

December 2014Law

IRELAND

Employment Equality Act

Equal Status Act

Article

S. 6

S. 3

ITALY

Legislative Decree No 215/2003 on the Implementation of Directive 43/2000

Art. 2, para. 1

Legislative Decree No 216/2003 on the Implementation of Directive 78/2000 

Art. 2, para. 1

Law No 67/2006 on Measures for the Judicial Protection of Persons with Disabilities 
Victims of Discrimination

Art 2, paras 1 and 2

LATVIA

Labour Law

Law on Prohibition of Discrimination against Natural Persons who are Economic 
Operators

LIECHTENSTEIN Act on Equality of People with Disabilities

LITHUANIA

Equal Treatment Act

LUXEMBOURG

Equal Treatment Act

MALTA

Equal Treatment in Employment Regulations

Equal Treatment of Persons Order

Equal Opportunities (Persons with Disabilities Act174

Equality for Men and Women Act175

NETHERLANDS General Equal Treatment Act

Disability Discrimination  

Age Discrimination Act 

NORWAY

Anti-discrimination Act on Prohibition of Discrimination based on Ethnicity, religion, 
etc.

Working Environment Act

Anti-discrimination and Accessibility Act on Prohibition of Discrimination on the 
Basis of Disability

Act relating to a Prohibition against Discrimination on the Basis of Sexual Orienta-
tion, Gender Identity and Gender Expression

Art. 29(5)

Art. 4(2)

Art. 6§1

Art. 2, para. 7

Arts 1a and 18

Art. 3(2)(a)

Art. 2(2)(a)

Arts 3,5 and 6

Art. 2(4A)

Art. 1.a and b

Arts 1.a and b

Art. 1(1)

Art. 6(2)

Art.13-1

Art. 5(2)

Art. 5(2)

POLAND

Act on the Implementation of Certain Provisions of the European Union in the Field 
of Equal Treatment

Art. 3

PORTUGAL

Racial Equal Treatment Act

Act on the Prohibition of Discrimination based on Disability and Pre-Existing Risk to 
Health

Arts 3(3)(a)

Art. 3(a)

Labour Code

Arts 23(1)(a), and 25(1)

ROMANIA

SLOVAKIA

Act 324/02006 amending the Ordinance on the Prevention and Punishment of All 
Forms of Discrimination

Art. 2(1)

Act on Equal Treatment in Certain Areas and Protection against Discrimination Equal 
Treatment Act

S. 2a, para. 2

SLOVENIA

Act Implementing the Principle of Equal Treatment

Employment Relationship Act

Vocational Rehabilitation and Employment of Disabled Persons Act

Act on Equal Opportunities of People with Disabilities

SPAIN

Act on Fiscal, Administrative and Social Measures

Art. 4(2)

Art. 6(3)

Art. 5

Art. 3(2)

Art. 28.1.b

General Law on the Rights of Persons with Disabilities and their Social Inclusion

Art. 2.c

SWEDEN

TURKEY

UNITED 
KINGDOM

Discrimination Act 

Law on Persons with Disabilities

(UK) Equality Act

(NI) The Race Relations Order 

(NI) Fair Employment and Treatment Order

174

175

(NI) Disability Discrimination Act

(NI) Employment Equality (Age)

(NI) Equality Act (Sexual Orientation) Regulations 2006

174  Even though direct discrimination is prohibited, it is nevertheless not defined in the law.

175  Even though direct discrimination is prohibited, it is nevertheless not defined in the law.

Ch. 1 S. 4 pt. 1

Art. 14(3)

S. 13

Art. 3

Art. 3

S. 3A

Reg. 3

Reg. 3

48

Developing Anti-Discrimination Law in EuropeDecember 2014B.  

Indirect discrimination

A large proportion of states have introduced a definition of indirect discrimination that generally reflects the definition 

adopted in the Directives. This includes Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, 

Finland, the former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, 

Luxembourg, Malta, the Netherlands,176 Norway, Poland, Portugal, Romania, Slovakia, Spain, Sweden and the 

United Kingdom. In Iceland and Turkey, indirect discrimination is explicitly prohibited on the grounds of gender and 

maternity only, thus not meeting the requirements laid down in the Directives. In Liechtenstein, indirect discrimination 

covers disability and gender only.

The  Lithuanian  legislation  provides  a  sufficient  definition  of  indirect  discrimination;  however,  its  implementation  in 

practice has not yet been established. In Latvia, the definition of indirect discrimination contained in the Labour Law is 

compatible with the Directives but there is still no national case law interpreting the concept.

The Directives envisage a comparison between the effect of a measure on persons of a particular ethnic origin etc. and 

its impact on other persons. National law varies in the comparison required for establishing indirect discrimination. In 

the United Kingdom, the definition of indirect discrimination requires evidence that the measure placed the individual 

complainant, as well as the group to which he or she belongs, at a disadvantage.177 In Slovenia, the law requires the 

individual complainant to be in an ‘equal or similar situation and conditions’ to the comparator for indirect discrimination 

to be established.178

Prohibition of indirect discrimination in national law (in the case of decentralised states only federal law 

is indicated)

Law

AUSTRIA

Federal Equal Treatment Act

Equal Treatment Act

Employment of People with Disabilities Act

Federal Disability Equality Act

BELGIUM

Racial Equality Federal Act

BULGARIA

CROATIA

CYPRUS

CZECH 
REPUBLIC

DENMARK

ESTONIA

FINLAND

FRANCE

General Federal Anti-discrimination Act 

Protection Against Discrimination Act

Anti-discrimination Act

Act on Equal Treatment in Employment and Occupation

Act on Equal Treatment irrespective of Race or Ethnic Origin Act

Act on Persons with Disabilities

Anti-discrimination Act

Act on Prohibition of Discrimination in the Labour Market etc.

Ethnic Equal Treatment Act

Equal Treatment Act

Non-Discrimination Act

Act on the Adaptation of National Law to Community Law in Matters of Discrimina-
tion 

Article

§§ 13/1 and , 13a/2

§§ 17/1, 18, 19(2), 30, 31, 
32(2), 43/1 and 44/2

§ 7/b/1 and 7c(2)

§§ 4/1 and 5(2)

Arts 4, 8°-9°, and 12

Arts 4, 8°-9°, and 14

Art. 4(3)

Art. 2(2)

Arts 2, 6(1)(b)

Arts 2, 5(2)(b)

Arts 2, 3(a)

S. 3, para. 1 and 2

Art. 1(3)

Art. 3(3)

Art. 3(4)

S. 6(2)2

Art. 1

176  The Dutch legislation was amended in November 2011, replacing the pre-existing national definition of indirect discrimination 

with the definition found in the Directives: see Wet van 7 November 2011, Staatsblad 2011, 554.

177  Section 19 of the Equality Act 2010.

178  Article 4 §3 of the Act Implementing the Principle of Equal Treatment.

49

December 2014Noraly | 2013

50

December 2014FORMER 
YUGOSLAV 
REPUBLIC of 
MACEDONIA

GERMANY

GREECE

HUNGARY

ICELAND

IRELAND

Prevention and Protection against Discrimination Act

Art. 6, para. 2

General Equal Treatment Act 

Equal Treatment Act 

Act on Equal Treatment and the Promotion of Equal Opportunities

-179

Employment Equality Act

Equal Status Act

Art. 3.2

Arts 3(b) and 7(1)(b)

Art. 9

-

Ss 19(4)(a), 22 and 31

S. 3(1)(c)

ITALY

Legislative Decree No 215/2003 on the Implementation of Directive 43/2000

Art. 2, para. 1

Legislative Decree No 216/2003 on the Implementation of Directive 78/2000 

Art. 2, para. 1

Law No 67/2006 on Measures for the Judicial Protection of Persons with Disabili-
ties Victims of Discriminations 

Art. 2, para.3

LATVIA

Labour Law

Law on Prohibition of Discrimination against Natural Persons who are Economic 
Operators

LIECHTENSTEIN Act on Equality of People with Disabilities

LITHUANIA

Equal Treatment Act

LUXEMBOURG

Equal Treatment Act

MALTA

Equal Treatment in Employment Regulations

Equal Treatment of Persons Order

Equality for Men and Women Act180

Equal Opportunities (Persons with Disabilities) Act181

NETHERLANDS General Equal Treatment Act

Disability Discrimination Act 

Age Discrimination Act 

NORWAY

Anti-discrimination Act on Prohibition of Discrimination based on Ethnicity, Religion, 
etc.

Working Environment Act

Anti-discrimination and Accessibility Act on Prohibition of Discrimination on the 
Basis of Disability

Act relating to a Prohibition against Discrimination on the Basis of Sexual Orienta-
tion, Gender Identity and Gender Expression

Art. 29(6)

Art. 4(2)

Art. 6§2

Art. 2, para. 4

Arts 1b and 18

Art. 3(2)(b)

Art. 2(2)(b)

Art. 2(4A)

Arts 4 and 5

Art. 1.c

Art. 1.c

Art. 1(1)

Art. 6

Art.13-1

Art.5(2)

Art. 5(2)

POLAND

Act on the Implementation of Certain Provisions of the European Union in the Field 
of Equal Treatment

Art. 3

PORTUGAL

Racial Equal Treatment Act

Act on the Prohibition of Discrimination based on Disability and Pre-Existing Risk to 
Health

Labour Code

Art. 3(3)(b)

Art. 3(b)

Arts 23(1)(b), 24(1) and 
25(1)

ROMANIA

SLOVAKIA

SLOVENIA

179

180

181

Act 324/2006 amending the Ordinance on the Prevention and Punishment of All 
Forms of Discrimination

Art. 2(3)

Act on Equal Treatment in Certain Areas and Protection against Discrimination 

S. 2a, para. 3

Act Implementing the Principle of Equal Treatment

Employment Relationship Act

Vocational Rehabilitation and Employment of Disabled Persons Act

Act on Equal Opportunities of People with Disabilities

Art. 4(3)

Art. 6(3)

Art. 5

Art. 3(2)

179 

Indirect discrimination is only defined and prohibited in the Gender Law, but this provision has been found by the EFTA 

Surveillance Authority not to fully comply with EU gender law. An amendment to this provision is pending in the Parliament.

180  Even though indirect discrimination is prohibited, it is nevertheless not defined in the law.

181  Even though indirect discrimination is prohibited, it is nevertheless not defined in the law.

51

December 2014SPAIN

Act on Fiscal, Administrative and Social Measures

Art. 28.1.c

General Law on the Rights of Persons with Disabilities and their Social Inclusion

Art. 2.d

SWEDEN

TURKEY

UNITED 
KINGDOM

Discrimination Act

-

(UK) Equality Act

(NI) Race Relations Order 

(NI) Fair Employment and Treatment Order

(NI) Employment Equality (Age)

(NI) Employment Equality (Sexual Orientation)

C.  

Harassment

Ch. 1 S. 4 pt. 2

-

S. 19

Art. 3

Art. 3

Reg. 3

Reg. 3

The  concept  of  harassment,  in  particular  sexual  harassment,  was  traditionally  developed  in  the  1990s  from  EU 

gender  equality  legislation.  Harassment  in  the  Anti-discrimination  Directives  does  not  differ  much  from  the  baseline 

established, and is defined as unwanted conduct relating to racial or ethnic origin, religion or belief, disability, age, or 

sexual orientation with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, 

degrading,  humiliating  or  offensive  environment.182  The  majority  of  states  have  adopted  definitions  of  harassment 

that appear similar to that contained in the Directives. This includes Belgium, Bulgaria, Croatia, Cyprus, the Czech 

Republic, Denmark, Estonia, Finland, the former Yugoslav Republic of Macedonia, Germany, Greece, Hungary, 

Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovenia and 

the United Kingdom. However, in a number of Member States the definition does not explicitly require the conduct to 

be unwanted, including in Denmark, France, Hungary, the Netherlands, Slovakia and Sweden. In Spain, ‘hostile’ 

and ‘degrading’ are not included in the national definition, which refers to the creation of an intimidating, humiliating 

or offensive environment only. In Sweden, the definition does not require that the behaviour creates any specific type 

of  environment,  but  only  that  it  violates  the  dignity  of  a  person.  In  Romania,  harassment  is  defined  in  the  2000 

Anti-discrimination Ordinance, in the Act on Equal Opportunities between Men and Women and in the Criminal Code, but 

none of the definitions provided are in complete compliance with the definition of harassment set out in the Directives. 

The  definition  in  the  Anti-discrimination  Ordinance  refers  only  to  the  effect  of  the  unwanted  conduct  related  to  any 

of the protected grounds, thereby excluding conduct with the purpose (but without the effect) of violating the dignity 

of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In Turkey, only 

sexual harassment is explicitly prohibited and is punishable under criminal law if it constitutes defamation.183 Otherwise 

the concept has not been defined by law. Likewise, only sexual harassment and harassment on grounds of gender is 

protected in Iceland and in Liechtenstein only harassment on grounds of disability and gender is covered.

UK courts provide clarifications on the scope of racial harassment

Two cases decided by equality tribunals in the United  Kingdom provide some indication of how the 

concept of harassment in relation to the ground of racial origin can be interpreted on the national level. 

In October 2012, a tribunal ruled that the repeated use of the words ‘my nigga’ by a white colleague to 

the claimant, a black man, amounted to harassment related to race regardless of the context and, in 

particular, of the fact that the claimant had been the first to use those words and that his colleague had 

not intended to be offensive.184 According to the Tribunal, ‘the phrase is such an insulting phrase to use 

towards a black person that [it] could not conceive of any circumstances where its use would not violate 

dignity and create a degrading, humiliating or offensive environment’.

182  Article 2(3).

183  See Articles 24 and 25 of the Labour Law and Articles 94 and 105 of the Criminal Code.

184  Employment Tribunal, 24 October 2012, Beyene v JDA International Ltd, Case No 2703297/11.

52

Developing Anti-Discrimination Law in EuropeDecember 2014Subsequently, another equality tribunal ruled that the use of the word ‘nigger’ on a single occasion by 

a younger white colleague to the claimant, an older black man, amounted to racial harassment.185 By 

contrast with the tribunal in the previous case, the tribunal did not take the view that the use of the 

word would always amount to harassment (it had been argued that the word had been ‘re-appropriated’ 

by  some  black  rap  musicians).  The  tribunal  did,  however,  accept  that  its  use  was  indefensible  in  the 

instant context. The claimant was awarded EUR 5300 (GBP 4500) for injury to feelings which had been 

compounded by the fact that the word was used to the claimant in front of another employee and that 

his employers had failed to deal adequately with his complaint.

The Directives do not provide specific rules on how to determine whether conduct is such as to violate a person’s dignity 

or  to  create  an  intimidating,  hostile,  degrading,  humiliating  or  offensive  environment.  Several  states  have  sought  to 

clarify this in national legislation. For instance, under Slovakia’s Anti-discrimination Act harassment means conduct 

which results in or may result in the creation of an intimidating, unfriendly, shameful, humiliating, degrading or offensive 

environment and which has or may have the purpose or effect of violating a freedom or human dignity. In the Equal 

Treatment of Persons Order in Malta, harassment refers to any unwelcome act, request or conduct, including spoken 

words, gestures or the production, display or circulation of written words, pictures or other material that any person 

can be subjected to. Finland provides a wider definition as it covers the violation of physical integrity in addition to 

the violation of dignity and includes not only individuals but also groups. In Cyprus, the Code of Conduct on Disability 

Discrimination  issued  by  the  equality  body  in  September  2010  explains  the  law  and  provides  concrete  examples 

regarding harassment in the workplace.

Austrian Supreme Court found no post-employment harassment186

The case concerns a lawsuit brought by a cleaning worker who claimed harassment on the ground of 

ethnic affiliation by her former employer. The alleged harassment took the form of an insulting letter 

(with negative ethnicity-related remarks), which was sent to the plaintiff during a written dispute about 

payments owing after the work relationship had already ended. After this letter the two parties had never 

been in contact again.

The Supreme Court decided it was clear that the defendant’s conduct in this case was unwanted and 

inappropriate and related to ethnic affiliation in the meaning of the definition of harassment. The Court 

held that it could even be argued that the incident happened in the course of dismissal and was therefore 

still included by the definition of ‘in the workplace’. Nevertheless, the Court dismissed the claim, stating 

that the fact that there had been no further contact between the parties made clear that by sending the 

letter in question the respondent was not able to create an intimidating, hostile, degrading, humiliating 

or offensive environment – as they did not share any environment.

Another area left open by the Directives is the responsibility of the employer for acts of harassment by other workers 

or by third parties such as customers. In many states, employers can be held liable for the actions of their workers 

to varying degrees. Some countries have chosen to place a specific duty on employers to take action to prevent and 

redress harassment in the workplace. For example, the 2006 German General Equal Treatment Act places employers 

under a legal duty to prevent discrimination occurring in the workplace. This includes a duty to protect employees from 

discrimination  by  third  parties.187  Similarly,  Norway  imposes  a  special  duty  on  employers  to  prevent  harassment  in 

185  Employment Tribunal, 5 November 2012, Henry v Ashtead Plant Hire Co Ltd, Case No 3202933/11.

186  Supreme Court Decision No 9ObA21/12x of 27 February 2012.

187  Section 12.4 AGG. 

53

December 2014their areas of responsibility. Croatia obliges employers to protect employees’ dignity against the conduct of superiors, 

co-workers and third persons in connection with the work performed, if this conduct is unwanted and contrary to special 

regulations.188 Ireland also prohibits harassment by an employer, a colleague, a client, customer or other business contact 

of the employer.189 In addition, employers and service providers are liable for harassment by employees and third parties 

such as tenants, clients and customers. In Sweden harassment by colleagues or third parties is not prohibited as such, 

although the employer can be held liable for damage caused by his/her failure to investigate and implement measures 

to prevent harassment between employees. This duty, however, does not extend to harassment by third parties such as 

clients. In the Netherlands, colleagues cannot be held responsible for harassment whereas the employer or individuals 

acting on their behalf can be held liable. In Belgium, further to the dismissal of a trade union representative charged 

with harassment in November 2010, the Belgian association of employers called for the development of a general 

code of practice on harassment with trade unions but it has not yet been adopted. In Hungary, the Equal Treatment 

Act does not provide protection against harassment committed by colleagues at work and in the United Kingdom the 

Government announced its intention to repeal the provisions dealing with employers’ vicarious liability for third-party 

harassment.

Prohibition of harassment in national law (in the case of decentralised states only federal law is indicated)

Law

AUSTRIA

Federal Equal Treatment Act

Equal Treatment Act

Employment of People with Disabilities Act

Federal Disability Equality Act

BELGIUM

Racial Equality Federal Act 

General Federal Anti-discrimination Act 

BULGARIA

Protection Against Discrimination Act

CROATIA

Anti-discrimination Act

Article

§§ 13/1 and 16

§§ 17/1, 18, 21/2, 30, 31, 
35/1, 43/1 and 47/2

§§ 7b/1 and 7d

§§ 4/1 and 5/4

Arts 4, 10°, and 12

Arts 4, 10°, and 14

Art. 5 in conjunction with § 1.1 
Additional provisions

Art. 3

CYPRUS

Act on Equal Treatment in Employment and Occupation

Arts 2 and 6(1)(c)

Act on Equal Treatment irrespective of Race or Ethnic Origin

Act on Persons with Disabilities

Anti-discrimination Act

Arts 2 and 5(2)(c)

Arts 2 and 3(b)

S. 4, paras 1 and 2

Act on Prohibition of Discrimination in the Labour Market etc.

Ethnic Equal Treatment Act

Equal Treatment Act

Non-Discrimination Act

Act on the Adaptation of National Law to Community Law in Matters of 
Discrimination 

Art. 1(4)

Art. 3(4)

Art. 3(3)

S. 6(2)3

Art. 1

Prevention and Protection against Discrimination Act

Art. 7, para. 1

General Equal Treatment Act

Equal Treatment Act 

Art. 3.3

Art. 2

Act on Equal Treatment and the Promotion of Equal Opportunities

Arts 7, para. 1 and 10, para. 1

-190

-

CZECH 
REPUBLIC

DENMARK

ESTONIA

FINLAND

FRANCE

FORMER 
YUGOSLAV 
REPUBLIC of 
MACEDONIA

GERMANY

GREECE

HUNGARY

ICELAND

188  Article 5(5) of the Labour Act. 

189  Section 14A (1)(a), Employment Equality Act 1998-2011.  

54

Developing Anti-Discrimination Law in EuropeDecember 2014Law

IRELAND

Employment Equality Act

Equal Status Act

Article

Ss 14A and 15

S. 11

ITALY

Legislative Decree No 215/2003 on the Implementation of Directive 43/2000

Art. 2, para. 3

Legislative Decree No 216/2003 on the Implementation of Directive 78/2000 

Art. 2, para. 3

Law No 67/2006 on Measures for the Judicial Protection of Persons with 
Disabilities who are Victims of Discrimination

Art. 2, para.4

LATVIA

Labour Law

Law on Prohibition of Discrimination of Naturals Persons who are Economic 
Operators

LIECHTENSTEIN Act on Equality of People with Disabilities

LITHUANIA

Equal Treatment Act

LUXEMBOURG

Equal Treatment Act

MALTA

Equal Treatment in Employment Regulations

Equal Treatment of Persons Order

Equal Opportunities (Persons with Disabilities) Act

NETHERLANDS General Equal Treatment Act

Disability Discrimination Act 

Age Discrimination Act 

NORWAY

Anti-discrimination Act on Prohibition of Discrimination based on Ethnicity, 
religion, etc.

Working Environment Act

Anti-discrimination and Accessibility Act on Prohibition of Discrimination on the 
Basis of Disability

Act relating to a Prohibition against Discrimination on the Basis of Sexual 
Orientation, Gender Identity and Gender Expression

POLAND

Act on the Implementation of Certain Provisions of the European Union in the 
Field of Equal Treatment

PORTUGAL

Labour Code

Racial Equal Treatment Act

Art. 29(7)

Art. 4(4)

Art. 8

Art. 2, para. 5

Arts 1(3) and 18

Art. 3(3)

Art. 2(2)(c)

Art. 5

Art. 1.a

Art. 1.a

Art. 2

Art. 9

Art.13-1(2)

Art. 8

Art. 8

Art. 3

Art. 29(1)

Art. 3(4)

Art. 2(5)

Art. 5

Art. 7

Art. 28.1.d

ROMANIA

SLOVAKIA

SLOVENIA

Act 324/2006 amending the Ordinance on the Prevention and Punishment of All 
Forms of Discrimination

Act on Equal Treatment in Certain Areas and Protection against Discrimination 

S. 2a, para. 4

Act Implementing the Principle of Equal Treatment

Employment Relationship Act

SPAIN

Act on Fiscal, Administrative and Social Measures

General Law on the Rights of Persons with Disabilities and their Social Inclusion Art. 2.f

SWEDEN

TURKEY

UNITED 
KINGDOM

Discrimination Act

-

(UK) Equality Act

(NI) Race Relations Order 

(NI) Fair Employment and Treatment Order

(NI) Employment Equality Act (Sexual Orientation) Regulations 2006

(NI) Disability Discrimination Act

(NI) Employment Equality (Age)

(NI) Equality Act (Sexual Orientation) Regulations

Ch. 1 S. 4 pt. 3

-

S. 16

Art. 4A

Art. 3A

Reg. 5

S. 3B

Reg. 6

Art. 21

190

190  Harassment is only defined and prohibited in the Gender Law, but this provision has been found by the EFTA Surveillance 

Authority not to fully comply with EU gender law. An amendment to this provision is pending in Parliament.

55

December 2014D.  

Instructions to discriminate

Article 2(4) of the Racial Equality Directive and of the Employment Equality Directive stipulates that ‘an instruction to 

discriminate (…) shall be deemed to be discrimination’.191 A similar provision has been included in the national legislation 

of the great majority of countries,192 with a small number of exceptions (e.g. Iceland and Turkey). Under Bulgarian 

law, only an intentional instruction to discriminate is regarded as discrimination. Following amendments to the Anti-

discrimination Act in 2012, a similar requirement of intent was removed from Croatian law, bringing the provisions 

on instructions to discriminate into line with the Directives.193 The Bulgarian Protection against Discrimination Act was 

also amended in 2012, removing a requirement that the perpetrator be in a position of influencing others. In Norway, 

a relationship of subordination, obedience or dependency between the instructor and the person receiving instructions 

must exist. In France such a provision was introduced by Act 2008-496, although general legal principles on complicity 

and liability were previously able to produce similar effects. UK law regulates instructions to discriminate, as well as 

causing and inducing another to discriminate.

Prohibition of instructions to discriminate in national law (in the case of decentralised states only federal 

law is indicated)

Law

AUSTRIA

Federal Equal Treatment Act

Equal Treatment Act

Employment of People with Disabilities

Federal Disability Equality Act

BELGIUM

Federal Racial Equality Act 

General Federal Anti-discrimination Act 

BULGARIA

Protection Against Discrimination Act

CROATIA

CYPRUS

Anti-discrimination Act (judicial interpretation required)194

Act on Equal Treatment in Employment and Occupation

Act on Equal Treatment irrespective of Race or Ethnic Origin

Act on Persons with Disabilities

Anti-discrimination Act

Act on Prohibition of Discrimination in the Labour Market etc.

Ethnic Equal Treatment Act

Equal Treatment Act

Non-Discrimination Act

Act on the Adaptation of National Law to Community Law in Matters of 
Discrimination 

Prevention and Protection against Discrimination Act

CZECH 
REPUBLIC

DENMARK

ESTONIA

FINLAND

FRANCE

FORMER 
YUGOSLAV 
REPUBLIC of 
MACEDONIA

GERMANY

General Equal Treatment Act

GREECE
194

Equal Treatment Act

Article

§§13/1, 13a/3 and 16/3

§§ 17/1, 18, 19(3),21/3, 30, 31, 
32(3), 35/2/1, 43/1, 44/3 and 
47/3

§§ 7/b/1, 7c(8) and 7d/3/1

§§ 4/1, 5/1/3, 5(4) and 5/5/1

Art. 4, 12°, and 12

Art. 4, 13°, and 14

Art. 5 in conjunction with § 1.5 
Additional provisions

Art. 4(1)

Arts 2 and 6(1)(d)

Arts 2 and 5(2)(d)

Arts 2 and 3(a)

S. 4, para. 4

Art.1(5)

Art. 3(5)

Art. 3(5)

S. 6(2)4

Art. 1

Art. 9

Art. 3.5

Art. 2

191  Article 2(4), Directives 2000/43/EC and 2000/78/EC.

192 

In Liechtenstein instructions to discrimination are explicitly prohibited on the grounds of gender and disability only.

193  Croatian law refers to ‘encouragement to discriminate’ rather than ‘instructions’: Article 4(1) of the Anti-discrimination Act.

194  The law prohibits intentional encouragement to discriminate, but it does not specifically address instructions to discriminate.

56

Developing Anti-Discrimination Law in EuropeDecember 2014HUNGARY

ICELAND

IRELAND

ITALY

Law

Act on Equal Treatment and the Promotion of Equal Opportunities

-

Employment Equality Act195

Article

Art. 7(1)

-

Ss 2(1), 8(4)A and 14

Legislative Decree No 215/2003 on the Implementation of Directive 43/2000

Art. 2, para. 4

Legislative Decree No 216/2003 on the Implementation of Directive 78/2000  Art. 2, para. 4

LATVIA

Labour Law

Law on Prohibition of Discrimination against Natural Persons who are 
Economic Operators

LIECHTENSTEIN Act on Equality of People with Disabilities

LITHUANIA

Equal Treatment Act

LUXEMBOURG

Equal Treatment Act

MALTA

Equal Treatment in Employment Regulations

Equal Treatment of Persons Order 

NETHERLANDS General Equal Treatment Act

Disability Discrimination Act

Age Discrimination Act 

NORWAY

Anti-discrimination Act on Prohibition of Discrimination based on Ethnicity, 
religion, etc.

Working Environment Act

Anti-discrimination and Accessibility Act on Prohibition of Discrimination on 
the Basis of Disability

Art. 29(4)

Art. 4(3)

Art. 9

Art. 2, para. 8

Arts 1 and 18

Art. 3(4)

Art. 2(2)(c)

Arts 1.a and b

Art. 1.a

Art. 1(2)

Art. 11

Art.13-1(2)

Art.10

Act relating to a Prohibition against Discrimination on the Basis of Sexual 
Orientation, Gender Identity and Gender Expression

Art. 10

POLAND

Act on the Implementation of Certain Provisions of the European Union in the 
Field of Equal Treatment

Art. 3 and 9

PORTUGAL

Racial Equal Treatment Act

Art. 3(5)

Act on the Prohibition of Discrimination based on Disability and Pre-Existing 
Risk to Health

Arts 2, 3, 4(a) to (m) and 5(1)
(a) to (c)

Labour Code

Act 324/2006 amending the Ordinance on the Prevention and Punishment of 
All Forms of Discrimination

Art. 23(2)

Art. 2(2)

Act on Equal Treatment in Certain Areas and Protection against Discrimination  S. 2a,, para. 6

Act Implementing the Principle of Equal Treatment

Employment Relationship Act

Act on Fiscal, Administrative and Social Measures

Discrimination Act

-196

(UK) Equality Act

(NI) The Race Relations Order 

(NI) Fair Employment and Treatment Order

(NI) Disability Discrimination Act

(NI) Equality Act (Sexual Orientation) Regulations

(NI) Employment Equality (Age) Regulations

Art. 4(4)

Art. 6(3)

Art. 28.2

Ch. 1 S. 4 pt. 5

-

S. 111

Art. 30

Art. 35

S. 16C/28UB

Art. 21

Art. 5

ROMANIA

SLOVAKIA

SLOVENIA

SPAIN

SWEDEN

TURKEY

UNITED 
KINGDOM

195

196

195  The Equal Status Act does not itself include any provision on instructions. Nevertheless the Employment Equality Act includes a 

reference to the Equal Status Act implying that instructions are also prohibited under the terms of the latter.

196  However, the Law on Civil Servants prohibits the managers of civil servants from giving them orders that are in violation of the 

law.

57

December 2014Romeo | 1987

58

December 2014E.  

Personal scope

The Racial Equality Directive and Employment Equality Directive are applicable to all persons. This means that national 

anti-discrimination laws should apply to all persons on a Member State’s territory, irrespective of whether they are EU 

or third-country nationals. On the whole, protection against discrimination in the Member States on any of the grounds 

included in the Directives is not conditional on nationality, citizenship or residence status.197 Even so, some countries have 

included nationality in their list of protected grounds (see table, page 76).

Recital 16 of the Racial Equality Directive states that it is important to protect all natural persons against discrimination 

and that Member States should also provide, where appropriate and in accordance with their national traditions and 

practice, protection for legal persons where they suffer discrimination on the grounds of the racial or ethnic origin of their 

members. The Employment Equality Directive does not have an equivalent recital, but there is no reason why both natural 

and legal persons should not be understood under the term ‘persons’ in this Directive as well. In most countries both 

natural and legal persons are protected against discrimination. Where the law does not expressly distinguish between 

the two, this is assumed, as for instance in Bulgaria and Slovenia. Legal persons remain categorically unprotected in 

Swedish law,198 and in Austria the wording of the legislation implies that protection against discrimination is provided 

for natural persons only, while in Estonia the Equal Treatment Act refers to the rights of persons and the local legal 

tradition implies that only natural persons can be victims of discrimination (unless this is challenged in the national 

courts). In the Czech Republic, while liability applies to both legal and natural persons, only natural persons have a 

right to equal treatment and protection against discrimination pursuant to the Anti-discrimination Act. Similarly, the Act 

on Equality of People with Disabilities in Liechtenstein seems to refer to natural persons only.

Neither  Directive  indicates  whether  it  should  be  understood  as  making  both  natural  and  legal  persons  liable  for 

discriminatory  acts.  Nor  do  they  state  who  exactly  should  be  held  liable  for  discriminatory  behaviour.  This  issue  is 

discussed above in relation to harassment. The question of liability is particularly relevant in cases of discrimination 

in  employment,  as  often  the  employer  bears  responsibility  for  the  actions  of  his  or  her  employees,  for  example,  for 

discrimination  against  a  client  or  for  harassment  by  one  employee  against  another.  For  instance,  in  Ireland,199  the 

Netherlands200  and  Sweden,  anti-discrimination  legislation  is  directed  at  employers,  and  usually  the  person  who 

actually  acted  in  a  discriminatory  way  cannot  be  held  personally  liable.  In  Sweden,  a  discriminator  who  is  not  the 

employer can only be held liable if he/she has the authority to represent the employer to the (other) employees. Due to 

the limits to the personal scope of the Equal Treatment Act in Hungary, the law does not provide for protection against 

harassment committed by colleagues. In Bulgaria, the courts have interpreted the Protection against Discrimination Act 

as providing a basis to hold legal entities liable for discrimination by their employees even where no damages but other 

remedies have been sought. In contrast, in Spain liability for discrimination is personal and only the person (natural or 

legal) who has acted in a discriminatory way is liable under the law, rather than the employer or service provider.

197  However, see below, chapter 3, section C. In France, for example, the principle of equality is applicable to non-nationals unless 

the legislator can justify a difference in treatment on the basis of public interest, cf. Constitutional Council, 22 January 1990, 296 

DC, R.F.D.C. No 2 1990, obs. Favoreu.

198 

In Sweden, the Discrimination Inquiry Commission has proposed protection for legal persons in a number of areas (but not all) 

covered by non-discrimination legislation (SOU 2006:22, page 332 et seq). However, this proposal has not been finally accepted. 

199  Section 8(1) of the Employment Equality Act 1998-2011 prohibits discrimination by employers and employment agencies. Most 

of the prohibitions within the legislation are aimed at the employer, and no clear provision is made to enable actions against 

the person(s) who actually discriminated. The exceptions are Section 14 of the Act, which refers to liability being imposed on a 

person responsible for procuring or attempting to procure discrimination, and Section 10 which refers to liability being imposed 

on a person who displays discriminatory advertising.  

200  Dutch legislation in the field of employment is directed towards employers, employers’ organisations, organisations of workers, 

employment offices, public job agencies, professional bodies, training institutions, schools, universities etc.

59

December 2014It is less common to make employers liable for the actions of third parties, such as tenants, clients or customers who 

discriminate against their employees. In Portugal, for instance, employers and providers of services can only be held 

liable for actions of third parties where a special duty of care is imposed by law or where a special relationship can be 

established, for example subcontractors.201 Similarly, in the Netherlands records of parliamentary debates are thought 

to make clear that the Dutch legislature did not intend that anti-discrimination legislation should be enforceable against 

a colleague or a third party, on the basis that there is no contract or relationship of authority between the parties.202 

Pursuant  to  Croatian  anti-discrimination  law,  employers  and  service  providers  cannot  be  held  liable  for  actions  of 

third parties but employers are obliged to ensure the dignity of their employees against the conduct of persons whom 

they  regularly  meet  in  connection  with  their  work.203  In  the  former  Yugoslav  Republic  of  Macedonia,  liability  for 

third-party conduct would depend upon the character of the relationship and future court practice regarding this matter. 

Turkish criminal law does not allow employers to be held liable for employees or third persons, whereas civil law only 

covers liability for employees. In Romania, liability is individual; according to the case law of the national equality body, 

employers can be held liable for actions of their employees if there is joint responsibility, but not for actions of third 

parties. The national equality body has used personal liability in determining the degree of responsibility of each party.

Trade unions and other trade or professional organisations are usually not liable for the discriminatory actions of their 

members. In Denmark, however, trade unions are liable if an employee of the trade union discriminates against one of 

its members, although this liability is restricted to the actions of employees only. In Norway, trade unions can be held 

liable for actions of their members only if they operate on behalf of the organisation or if key members give instructions.

F.  

Material scope

Both the Racial Equality Directive and the Employment Equality Directive require discrimination to be forbidden in employment 

and vocational training. Article 3(1) of both Directives lists the areas in which the principle of equal treatment must be upheld.

Material scope of the Racial Equality and Employment Equality Directives

Racial Equality Directive

Employment Equality Directive

a.  conditions for access to employment, to self-employment 

a.  conditions for access to employment, to self-employment 

and to occupation, including selection criteria and recruitment 
conditions, whatever the branch of activity and at all levels 
of the professional hierarchy, including promotion

and to occupation, including selection criteria and recruitment 
conditions, whatever the branch of activity and at all levels 
of the professional hierarchy, including promotion

b.  access to all types and to all levels of vocational guidance, 
vocational training, advanced vocational training and 
retraining, including practical work experience

b.  access to all types and to all levels of vocational guidance, 
vocational training, advanced vocational training and 
retraining, including practical work experience

c.  employment and working conditions, including dismissals and 

c.  employment and working conditions, including dismissals and 

pay

pay

d.  membership of and involvement in an organisation of work-
ers or employers, or any organisation whose members carry 
on a particular profession, including the benefits provided for 
by such organisations

d.  membership of and involvement in an organisation of work-
ers or employers, or any organisation whose members carry 
on a particular profession, including the benefits provided for 
by such organisations

e.  social protection, including social security and healthcare

f.  social advantages

g.  education

h.  access to and supply of goods and services which are 

available to the public, including housing

201  Article 551(3) of the Labour Code.

202  Explanatory Memorandum to the Act on Equal Treatment on the ground of Age in Employment, Occupation and Vocational Training 

(Act on Equal Treatment on the Ground of Age in Employment), Second Chamber of Parliament, 2001-2002, 28 170, No 3, p.19. 

203  Article 5(5) of the Labour Act. 

60

Developing Anti-Discrimination Law in EuropeDecember 2014The material scope of the Directives is met in Austria, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, 

Estonia,  Finland,  the  former  Yugoslav  Republic  of  Macedonia,  France,  Germany,  Greece,  Hungary,  Ireland, 

Italy,  Luxembourg,  Malta,  the  Netherlands,  Norway,  Poland,  Portugal,  Romania,  Slovakia,  Slovenia,  Spain, 

Sweden and the United Kingdom, but not in Iceland, Liechtenstein and Turkey. In Latvia and Lithuania judicial 

interpretation is required regarding the implementation of the Racial Equality Directive in certain fields of application 

such  as  social  protection.  In  Belgium,  the  division  of  competences  between  the  different  levels  of  government  still 

causes discrepancies regarding the implementation of the material scope of the Directives.204 In the Czech Republic the 

Anti-discrimination Act of 17 June 2009 has quite a broad scope, extending beyond the requirements of the Directives, 

as it covers, for all grounds to the same extent, work and employment relations; access to employment, self-employment 

and occupation; healthcare; education; social security and social protection; social advantages; and goods and services 

including housing. In Slovakia, the prohibition of discrimination applies also to all these fields for all prohibited grounds 

which go beyond the list contained in the Directives (although the prohibition of discrimination in the field of housing 

only applies to legal persons and entrepreneurs).

To  fulfil  the  requirements  of  the  Directives,  national  anti-discrimination  law  must  apply  to  the  public  and  private 

sectors, including public bodies. Not all states currently meet this requirement. In the former Yugoslav Republic of 

Macedonia, there is no equivalent and consistent approach for the public sector. Article 5 of the Turkish Labour Act 

prohibiting discrimination applies to employees under a labour contract, irrespective of whether they work in the public 

or the private sector. Some categories of workers are, however, excluded from the scope of the Labour Act, such as 

workers performing sea and air transport activities or domestic services, and civil servants who are subject to the Civil 

Servants Act. In the same way, in Hungary not all private actors are covered by the Equal Treatment Act of 2003. The 

Hungarian legislature took a unique approach among the EU Member States, in that it does not enumerate the fields 

falling under its scope, but instead lists the public and private entities which must respect the requirement of equal 

treatment in all actions falling under the scope of the Equal Treatment Act. These are mostly public bodies and include 

state, local and minority self-governments and public authorities (Article 4 of the Equal Treatment Act). Four groups of 

private actors are listed (Article 5): (i) those who offer a public contract or make a public offer; (ii) those who provide 

public services or sell goods; (iii) entrepreneurs, companies and other private legal entities using state support; and (iv) 

employers and contractors.

Employment

Equality must be guaranteed in all sectors of public and private employment and occupation, including contract work, 

self-employment, military service and statutory office. A number of countries fall short of this protection. Military service 

is  not  included  in  the  scope  of  legislation  transposing  the  Directives  in  Latvia,  while  in  the  Netherlands  the  Age 

Discrimination Act has applied to military service only since 1 January 2008.

In Greece, Lithuania205 and the United Kingdom, self-employment and/or occupation are not fully covered. Since the 

entry into force in Latvia on 2 January 2013 of the Law on Prohibition of Discrimination against Natural Persons who 

are Economic Operators, national law finally provides protection against discrimination in self-employment on all the 

grounds covered by the EU Directives.206 In Portugal, Act 3/2011 of 5 February 2011 has eventually transposed the EU 

204  For instance, although the Region of Brussels-Capital filled the gap with regard to social housing in March 2009, discrepancies 

still persist as regards social advantages and access to goods and services in general, which are regional competences. 

205  Self-employment is not explicitly mentioned in the Equal Treatment Act, and legislation regulating particular professions such as 

attorney, notary, etc. does not provide anti-discrimination provisions. Further interpretation of the Equal Treatment Act by courts 

or the Equal Opportunities Ombudsman is required. 

206  Law on Prohibition of Discrimination against Natural Persons who are Economic Operators of 19 December 2012.

61

December 2014Directives with regard to self-employment. Maltese law does not apply to military personnel or to people who work or 

perform services in a professional capacity or as contractors for others where the work or service is not regulated by a 

specific contract of service. With respect to people who hold statutory office, the Maltese Employment and Industrial 

Relations Act 2002 only applies if the person concerned has a contract of employment. In the Netherlands the term 

‘liberal profession’ has been used instead of self-employment but has at all times been interpreted broadly, in particular 

by the Equal Treatment Commission, in order to guarantee that not only doctors, architects etc. are covered, but also 

freelancers, sole traders, entrepreneurs etc.

In Lithuania, a provision prohibiting discrimination with regard to membership of or involvement in employers’ and 

employees’ organisations was introduced into the Equal Treatment Act only by the latest amendments of June 2008. 

Likewise,  the  Romanian  Anti-discrimination  Ordinance  does  not  expressly  spell  out  the  prohibition  of  discrimination 

on grounds of membership of a trade union or professional organisation. However, the national equality body and the 

courts have interpreted that membership of trade unions or professional organisations falls under the protected ground 

of ‘social category’ or under ‘any other category’ and is therefore protected by anti-discrimination legislation. A similar 

reasoning applies in the former Yugoslav Republic of Macedonia.

Irish volunteer workers are protected by employment anti-discrimination law

The  claimants  were  volunteer  workers  whose  long-standing  volunteer  involvements  were  terminated 

when they reached the age of 70. They claimed that the termination amounted to discriminatory dis-

missal  on  grounds  of  age,  contrary  to  the  Employment  Equality  Acts  1998  to  2008.  The  respondent 

claimed that they were volunteers rather than employees and that the Employment Equality Act did not 

apply.

The Equality Tribunal found that both complainants had a contractual relationship with the respondent, 

based on the facts that the complainants were paid an amount for their work in addition to expenses, 

and that tax was deducted. It also found that the contract in question was one of employment (rather 

than a contract for services) in that the work was carried out by the complainants in discharging their 

duties with materials and supervision provided by the respondent, and there was an obligation to carry 

out those duties in person, with no option to send a self-selected replacement in case of illness or other 

unavailability. They were therefore found to be employees for the purposes of the protection provided by 

the Employment Equality Act.

The Equality Tribunal noted that the respondent never provided any evidence of a potential justification 

of the mandatory retirement, which therefore was found to amount to discriminatory dismissal on the 

ground of age. The complainants were each awarded EUR 1,200, which reflected slightly less than two 

years’ service.207

Social protection

Concerns  remain  with  regard  to  the  transposition  of  the  Racial  Equality  Directive  beyond  the  employment  sphere  in 

Lithuania.  The  Equal  Treatment  Act  does  not  explicitly  cover  social  security  and  healthcare  but  it  does  envisage  a 

general duty to implement equal opportunities: ‘State and local government institutions and agencies must within the 

scope of their competence ensure that in all the legal acts drafted and passed by them, equal rights and treatment 

207 

Irish Equality Tribunal, Case No DEC-E2013-027 – Dunican & Spain v Offaly Civil Defence.

62

Developing Anti-Discrimination Law in EuropeDecember 2014are  laid  down  without  regard  to  gender,  sexual  orientation,  age,  disability,  race,  ethnicity,  origin,  religion,  beliefs  or 

convictions, language and social status’. This could be interpreted to encompass social security and healthcare as well, 

as these fields are not explicitly excluded either. The Ombudsman has given a divergent reading where social security 

and  social  protection  do  not  fall  under  the  scope  of  the  Equal  Treatment  Act,  and  whereas  healthcare  does,  since 

the wording of the Act regarding goods and services is broad enough to include healthcare services.208 There are no 

specific provisions referring to social protection on the protected grounds of the Directives in Iceland, Liechtenstein 

and Turkey. In Poland, the 2010 Equal Treatment Act widens the material scope of anti-discrimination legislation on 

grounds of racial and ethnic origin and fully covers fields beyond employment, including social protection and healthcare, 

education, and access to goods and services, including housing.

Article 3(3) of the Employment Equality Directive provides that the Directive’s scope does not extend to ‘payments of 

any kind made by state schemes or similar, including state social security or social protection schemes’. This exception 

is not found in the Racial Equality Directive, which in contrast lists ‘social protection’ in its scope (Article 3(1)(e)). Some 

Member States have reproduced Article 3(3) of the Employment Equality Directive in their anti-discrimination legislation, 

e.g. Cyprus, Finland and Greece. However, in all of these countries it is likely that other laws would protect against 

discrimination in social security and healthcare. In Italy, the decree transposing Directive 2000/78/EC applies only to 

employment and occupation, while the field of social protection is only covered by the general equality principle of the 

Constitution. However, the Immigration Act 1998 also protects against discrimination on the grounds of religion and 

nationality in this area, and disability is in principle also covered by Act 67/2006.

Social advantages

The term ‘social advantages’ is mostly left undefined in national legislation. In the Netherlands it is observed by the 

Government in the Explanatory Memorandum to the General Equal Treatment Act that this notion must be interpreted 

in the light of CJEU case law rendered in the context of Regulation 1612/68 on the free movement of workers.209 In the 

Dutch Government’s view, the notion of social advantages refers to advantages of an economic and cultural nature 

which may be granted by both private and public entities. These may include student grants and price concessions for 

public transport and cultural or other events. Advantages offered by private entities include, for example, concessionary 

prices for the cinema and theatre.

Education

In the majority of states, issues arise in relation to discrimination in the education of children from racial and ethnic 

minorities. Of particular concern is the segregation of Roma children, which constitutes one of the most widespread 

manifestations of discrimination against the Roma.210

208  Equal Opportunities Ombudsperson, Annual Report for 2010, available in Lithuanian at http://www.lygybe.lt.

209  See for example CJEU Case C-261/83 Castelli of 12 July 1984 and Case C-249/83 Hoecx of 27 March 1985, as referred to in the 

Dutch Explanatory Memorandum to the EC Implementation Act, Second Chamber of Parliament 2002-2003, 28 770, No 3, p. 15. 

210  A thematic report written in 2014 by Lilla Farkas, ground-coordinator for race and ethnic origin for the European Network of 

Legal Experts in the Non-discrimination Field, entitled Report on discrimination of Roma children in education, provides a more 

detailed analysis and state of the art of this issue. It constitutes an update to a previous report by the same author published 

in 2007, entitled Segregation of Roma children in education, addressing structural discrimination through the Race Equality 

Directive.

63

December 2014Roma segregation in education provides a good example of the serious challenges faced by several states in terms of 

implementation and effective enforcement, including Bulgaria, Croatia, Cyprus,211 the Czech Republic, Finland, the 

former Yugoslav Republic of Macedonia, Greece, Hungary, Poland, Romania and Slovakia.

There are Roma in all the countries covered with the apparent exception of Iceland, Liechtenstein, Luxembourg and 

Malta. In Bulgaria, the Czech Republic, Hungary, Latvia, Poland, Romania and Slovakia, a disproportionate number 

of Roma children attend remedial ‘special’ schools for children with intellectual disabilities and are thereby segregated 

from the mainstream school system and receive an inferior level of education, which affects their life chances.212 In 

Romania, 60% of Roma children attending pre-school in 2011 went to segregated kindergartens, according to a UNICEF 

report.213 In January 2013 the ECtHR found discrimination in Hungary due to the lack of safeguards accompanying the 

placement of Roma children in remedial schools for children with ‘mild mental disabilities’.214 In the Czech Republic, 

in spite of the National Action Plan for Inclusive Education developed in 2010, segregation of Roma children continues, 

which was heavily criticised by the UN Committee on the Rights of the Child in its concluding remarks adopted on 17 

June 2011.215

Segregation of the Roma also occurs in some mainstream schools through the existence of segregated classes. This 

is the case in Bulgaria, Croatia, the Czech Republic, Finland, Greece, Hungary, Latvia, Romania, Slovakia and 

Slovenia. In Poland there were a number of segregated ‘Roma classes’ or ‘remedial classes’ which followed a special 

curriculum  but  the  situation  has  been  gradually  improving  since  2008.  As  of  2011  there  should  be  no  more  Roma 

classes in Poland. In Croatia, the number of Roma-only classes has been increasing continuously since 2004, despite 

certain measures taken by the Government in recent years to tackle segregation. In Slovakia ‘zero-grade’ classes have 

been established for children who are not expected to be able to absorb the standard curriculum as a result of their 

social  and  linguistic  environment.  Although  formulated  neutrally,  these  measures  have  in  practice  been  aimed  most 

specifically at Roma children, and Roma children are also their almost exclusive beneficiaries. In Finland, the Roma are 

streamed into special education classes more often than other pupils.

There  are  only  a  few  instances  where  segregated  classes  have  been  challenged  under  national  legal  systems,  for 

instance in Bulgaria, Croatia, Denmark, Finland, Greece, Hungary,216 Romania and Slovakia. In Finland there has 

been one case where de facto segregation of immigrant children at school was successfully challenged.217 In Greece 

intervention  by  the  Ombudsman  was  necessary  to  ensure  that  the  public  authorities  in  the  Peloponnese  provided 

temporary classrooms for Roma children who had been excluded from a school on the basis that the building’s facilities 

211 

In 2011 the equality body issued a report on the first complaint ever filed in relation to discrimination against Roma, which 

concerned the adequacy of measures for the support and integration of Roma children in the educational system, Equality Body 

Report AKR 18/2008 of 27 September 2011. 

212  See thematic report by Lilla Farkas (op. cit. at footnote 194).

213  UNICEF, the Romanian Ministry of Education, and the Impreunã Agency released a study of access of Roma children to quality 

education: A school for everybody? Access of Roma children to quality education (O şcoală pentru toţi? Accesul copiilor romi la o 

educaţie de calitate)’.

214  ECtHR, Horváth and Kiss v Hungary (application No 11146/11), Judgment of 29 January 2013.

215  UN Committee on the Rights of the Child Concluding Observations of 17 June 2011, CRC/C/CZE/CO/3-4. After the cut-off date of 

this report, on 25 September 2014, the European Commission initiated infringement proceedings against the Czech Republic for 

failure to correctly implement the provisions of the Racial Equality Directive relating to the prohibition of discrimination on the 

ground of racial/ethnic origin in the field of education. 

216  See Hungarian Supreme Court Decision No Pfv.IV.20.037/2011/4 of 29 June 2011.

217 

In Finland, segregation was not aimed at Roma children in particular. 

64

Developing Anti-Discrimination Law in EuropeDecember 2014were inadequate.218 In 2003, 57 Croatian citizens of Roma origin lodged a complaint before the ECtHR arguing that 

they had been segregated at primary school on the grounds of their racial or ethnic origin. The Court found that there 

had been a difference in treatment based on ethnic origin and that such separations, resulting from a lack of command 

of the Croatian language, had not been objectively justified, appropriate and necessary.219 Similarly, the ECtHR found 

in 2013 that Hungary had discriminated against Roma by not adopting sufficient safeguards to ensure that the special 

needs of Roma children as members of a disadvantaged group were taken into account during the tests put in place 

for children with alleged mild mental disabilities. The applicants were of Roma origin and had been placed in ‘special’ 

schools for children with mild mental disabilities although an independent evaluation later established that they could 

have followed an ordinary curriculum in a mainstream school.220

Successful actio popularis in a segregation case in Slovakia221

For  the  first  time  an  actio  popularis  was  launched  in  a  Roma  case  against  the  Elementary  School  of 

Šarišské  Michaľany.  The  NGO  acting  on  behalf  of  the  Roma  pupils  alleged  long-lasting  and  systemic 

segregation practices, in particular with regard to separated classes established for all grades of primary 

education.  The  school  argued  that  Roma  classrooms  allowed  teachers  to  adopt  an  individualised  ap-

proach, as pupils came from socially disadvantaged background. In addition, this ‘equalising’ measure 

aimed at precluding negative feelings for not doing as well at school as others. Finally, the separation 

was also justified on the ground that 50 non-Roma children left the school when classrooms were mixed 

to go to another school for non-Roma pupils only.

The  court  rejected  the  school’s  arguments  and  found  direct  discrimination  on  the  ground  of  ethnicity 

considering that the school failed to carry out its obligations, preferring unlawful segregated education 

rather than the development of inclusive education. The court requested the school to publish the ruling 

in a special professional journal for teachers and to redress the situation by installing mixed classrooms. 

The school was ordered to pay the costs of proceedings. After an appeal by the defendant school, the 

decision was confirmed in all its material parts by the Regional Court, although the order to publish the 

court’s ruling in a teachers’ periodical was cancelled.222

In  many  states,  including  Belgium,  Croatia,  Cyprus,  Finland,  Lithuania  and  Portugal,  school  absenteeism 

and  disproportionately  high  drop-out  rates  are  serious  issues  among  the  Roma,  Sinti  and  Traveller  communities.  In 

Lithuania, a 2008 report on Roma education stressed that most Roma children (69%) did not attend either pre-school 

establishments or pre-school groups; and participation in after-school activities is uncommon among Roma.223 In the 

former Yugoslav Republic of Macedonia, the Roma population has the lowest level of educational achievement, with 

39% of Roma not attending primary school and only 17.4% enrolled in secondary education.224 In Poland the school 

218  The Greek Ombudsman has been reported as increasingly examining complaints related to Roma pursuant to Act 3304/2005. 

In addition, the Deputy Chief Prosecutor of the Supreme Court issued an internal decree on 22 February 2011 requesting all 

prosecutors to combat Roma discrimination and exclusion (Protocol Number 720 /22-02-2011).

219  ECtHR, Oršuš and Others v Croatia (No 15766/03), Chamber Judgment of 16 March 2010. 

220  ECtHR, Horváth and Kiss v Hungary (No 11146/11), Chamber Judgment of 29 January 2013.

221  Prešov District Court, Decision 25 C 133/10-229, Center for Civil and Human Rights v Elementary School of Šarišské Michaľany of 

5 December 2011.

222  Prešov Regional Court, Decision of 30 October 2012 (No 20Co 125/2012).

223  Romų padėties tyrimas: Romai švietimo ir darbo rinkos sankirtoje, Socialnių tyrimų instituto etninių tyrimų centras, 2008 gruodis, 

www.tmid.lt/wp-content/uploads/2009/05/sti_tmid_romu-padeties-tyrimas-2008_ataskaita.doc.

224  www.unicef.org/tfyrmacedonia/MK_SITAN_ENG.pdf. 

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December 2014Ilse | 1991

66

December 2014attendance rate among the Roma was 82% in 2009/2010. In Romania, the vast majority of pupils who drop out of 

school due to poverty and the low quality of education are from the Roma population (70%).225

In a large number of Member States, for example, residence patterns also lead to a high concentration of Roma children 

(e.g. Bulgaria, Cyprus, Hungary, Romania and Slovakia) or children from particular ethnic minorities (e.g. France, the 

Netherlands, and the United Kingdom226) in certain schools, resulting in so-called ‘ghetto schools’. Notably, France, 

Slovakia  and  the  United  Kingdom  have  legislation  expressly  prohibiting  segregation  in  schools  between  persons 

of  different  racial  or  ethnic  groups  but  concerns  have  been  expressed  by  various  stakeholders  about  such  de  facto 

segregation arising from residence patterns. These schools follow the same curriculum but the quality of education and 

the physical condition of the buildings is often inferior. Some states are considering making attempts to try to remedy 

this form of de facto segregation. In the Netherlands, equal treatment legislation has been used to respond to the 

desire  of  many  school  boards  or  local  governments  to  institute  plans  to  ensure  a  spread  of  children  from  different 

cultural backgrounds across all schools through the use of housing and education policies to prevent the emergence 

of ‘black’ or ‘ghetto’ schools. The European Court of Human Rights found that Greece is discriminating against Romani 

children due to the practice of segregation in a Roma-only ‘ghetto’ school, first in 2008227 and then again – regarding 

the same school – in 2012.228

There have been several attempts by governments to address the segregation of Roma pupils.229 In Hungary positive 

action initiatives are underway in education to integrate Roma through the integration of socially disadvantaged pupils 

and students. In Romania, the Ministry of Education adopted Order No 1540/2007 on Banning School Segregation of 

Roma Children and Approving the Methodology for Preventing and Eliminating School Segregation of Roma Children. 

The Order is intended to prevent, ban and eliminate segregation and includes sanctions for those who do not observe 

its provisions, but the 2011 Education Law did not include a prohibition of segregation similar to previous legislation. 

In Hungary, the Secretary of State for Social Inclusion has launched a number of initiatives to improve the situation of 

Roma such as support amounting to HUF 275,500,000 (EUR 950,000) for innovative methods aimed at promoting the 

successful elementary education of disadvantaged children.230 The former Yugoslav Republic of Macedonia strategy 

for the Roma population sets out education as one of the Government’s priorities. In Norway, the governmental action 

plan to improve the Roma situation in Oslo includes elements related to schooling,231 in particular specific education 

provided in Norwegian as well as classes in the mother tongue. Computers are also made available for distance and 

home education.

Access to and supply of goods and services

The Racial Equality Directive prohibits discrimination concerning access to and supply of goods and services, including 

housing, that are available to the public. The boundaries of this prohibition have generated debate in many countries, 

225 

Ivasiuc, A., Duminică, G., (2010) O şcoală pentru toţi? Accesul copiilor romi la o educaţie de calitate, A School for Everybody? 

Access of Roma children to quality education, Bucharest, Vanemonde. The report is available at: http://www.agentiaimpreuna.ro/

files/O_scoala_pentru_toti.pdf.

226  Concerns persist as to the concentration of ethnic minority students in particular schools, which reflects the wider issues of 

divided communities and social segregation. State schools in certain parts of England, in particular the East End of London and 

some northern cities such as Bradford, often contain high numbers of black and Asian pupils, with some schools also being 

overwhelmingly Muslim in student composition.

227  ECtHR, Sampanis and others v Greece (Application No 32526/05), Judgment of 5 June 2008.

228  ECtHR, Sampani and others v Greece (Application No 59608/09), Judgment of 11 December 2012. 

229  For a discussion of some of these measures, see the section in Chapter 4 on positive action.

230  Since this initiative was launched in February 2012, visible results have yet to be seen. 

231  There are 71 registered Roma pupils in 22 schools in Oslo, out of a total of 700 Roma. 

67

December 2014and  most  states  do  indeed  restrict  protection  to  publicly  available  goods  and  services.  Exceptions  include  Bulgaria, 

Croatia,  the  former  Yugoslav  Republic  of  Macedonia,  France,  Italy,  Lithuania,232  Luxembourg,233  Malta,234 

Romania, Slovenia, Spain and Norway, where legislation does not distinguish between goods and services available 

to the public and available privately, and is thus presumed to apply to both. A few legislatures have provided definitions 

to delineate the circumstances in which discrimination is prohibited. Swedish law prohibits discrimination in the supply 

of goods and services, including housing, which are provided ‘outside the private or family sphere’, and thus the law does 

not apply to private transactions. There is some concern over the exception from the material scope of the provision 

of goods and services under German law for all transactions concerning a special relationship of trust and proximity 

between the parties or their families, including the letting of flats. The Finnish Non-Discrimination Act covers the ‘supply 

of or access to housing and movable and immovable property and services on offer or available to the general public 

other than in respect of legal acts falling within the scope of private affairs and family life’. Thus, for example, banking 

and insurance services, transportation services, repair services, and the selling and hiring of premises for business are 

covered. Significantly, the travaux préparatoires of the Non-Discrimination Act provide that the powers of the European 

Union and the basis of the Directives must be taken into account when interpreting this provision. Legislation on issues 

falling  under  the  jurisdiction  of  the  Åland  Islands  prohibits  discrimination  in  the  ‘professional’  (not  strictly  private) 

provision of goods and services, including housing. Portuguese law provides that private associations have the right to 

reserve goods and services only for their members.

As with education, discrimination against the Roma in the field of housing is a serious issue facing most states.235 Roma 

and Travellers usually live on the outskirts of cities, in settlements which do not provide a basic standard of living or on 

parking spots considered illicit by the authorities. Some of these situations can be found in countries such as Belgium, 

Bulgaria,  Croatia,  Cyprus,  the  Czech  Republic,  the  former  Yugoslav  Republic  of  Macedonia,  France,  Italy, 

Lithuania,  Poland,  Portugal,  Romania,  and  Slovakia.  In  recent  years,  many  cases  have  been  reported  of  forced 

expulsion and segregation (e.g. in Greece, Romania and Turkey) or in relation to campsites and stopping places for 

Roma and Travellers (e.g. in France and the UK). In recent years, the European Committee for Social Rights has declared 

both France and Portugal in contravention of the European Social Charter with regard to the right to housing of Roma 

and precarious living conditions as well as unlawful expulsions.236 In April 2012 the ECtHR found that collective forced 

evictions of an entire Romani community in Bulgaria were in breach of the affected persons’ rights to a home and to 

private and family life.237

232  Note that religious communities or associations, as well as associations founded by these religious communities or their 

members, are not obliged to comply with the Equal Treatment Act while providing goods and services, when the purpose of this 

provision is of a religious character.

233  Although in general no difference is made between goods and services available to the public and those offered by private 

associations, there is a special provision applicable to associations. Article 6 of the General Discrimination Act of 28 November 

2006 deems any provision to be void that is included in a contract, a collective agreement or internal regulation of a company or 

of rules of private associations, of bodies representing independent professions and organisations of workers and employers, and 

that is contrary to the principle of equal treatment. 

234  Although the Equal Treatment of Persons Order does not explicitly cover private supply of goods and services, such supply would 

be covered by the general prohibitions of discrimination.  

235  A thematic report written in 2013 by Nicolas Bernard and Julie Ringelheim entitled Discrimination in housing provides an 

extensive analysis of legislation and reoccurring issues across Europe in this specific field. Available at http://www.non-

discrimination.net/content/media/Discrimination%20in%20Housing%20-%20EN.pdf.

236  European Committee of Social Rights, Decision on the Merits of 30 June 2011 in Complaint No 61/2010, European Roma Rights 

Centre (ERRC) v Portugal; and Decision on the Merits of 11 September 2012 in Complaint No 67/2011, Médecins du Monde – 

International v France.

237  ECtHR, Yordanova and others v Bulgaria (Application No 25446/06), Judgment of 24 April 2012.

68

Developing Anti-Discrimination Law in EuropeDecember 2014Further  to  the  EU  framework  for  National  Roma  Integration  up  to  2020  adopted  in  April  2011  by  the  European 

Commission,238 EU Member States were requested to prepare or revise National Roma Integration Strategies in order 

to address more effectively the challenges of Roma inclusion to tangibly improve the situation of the Roma population. 

This is the first time that Roma inclusion has been addressed at the EU level and set out as an important priority by 

all  Member  States  to  develop  a  sustainable  approach  that  combines  efforts  in  different  areas  including  education, 

employment, health and housing. In December 2013, this priority was reaffirmed by the Council of the EU through the 

unanimous adoption of a Recommendation on effective Roma integration strategies in the Member States.239 In addition, 

the Decade of Roma Inclusion 2005-2015, formally signed in 2005, aims to improve the socio-economic status and 

social inclusion of Roma in Bulgaria, Croatia, the Czech Republic, the former Yugoslav Republic of Macedonia, 

Hungary,  Romania,  Slovakia  and  Spain.  Slovenia  has  observer  status  under  this  initiative.240  Governments  are 

required to draw up and implement action plans over a 10-year period until 2015.

Final ruling of the Romanian High Court of Cassation and Justice on the construction of a 

segregation wall

In July 2011, a wall of 1.8-2 metres high and 100 metres long was erected between a Roma neigh-

bourhood and the main road in the Romanian city of Baia Mare. The Mayor argued that the wall was 

designed to prevent traffic accidents. The National Council for Combating Discrimination (NCCD) initiated 

proceedings based on its ex officio investigation and petitions filed by an NGO and by the Ministry of 

Regional Development and Tourism.

The NCCD found harassment in conjunction with a violation of human dignity, as the construction was 

found to negatively affect the life of the entire Roma community while less invasive measures could 

adequately have been adopted to prevent traffic accidents.241 Consequently, the NCCD imposed a fine 

of  RON  6,000  (approximately  EUR  1,500)  and  recommended  the  demolition  of  the  wall.  The  Mayor 

appealed the decision.

Cluj Court of Appeal ruled that the aim of ensuring public safety invoked by the Mayor was legitimate 

and  that  the  means to  achieve  that aim  were  proportionate, underlining  that  human  dignity  was  not 

necessarily violated by the construction of a wall surrounding an area, and that the existence of exits 

from the main road precluded ethnic segregation.242 The Court observed that the wall allowed for the 

best control of access to the main road, considering that the majority of the population in the area were 

children, which made permanent supervision by adults impossible. The NCCD challenged the decision 

before the High Court of Cassation and Justice.

In September 2013, the High Court of Cassation and Justice rendered its final ruling in this case, over-

turning the decision of the Court of Appeal.243 The High Court took facts into account which had been 

238  Communication ‘An EU Framework for National Roma Integration Strategies up to 2020’, COM(2011)173 of 5 April 2011. 

239  Council recommendation adopted at the Employment, Social policy, Health and Consumer affairs Council meeting on 9 and 10 

December 2013: http://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32013H1224(01).

240  www.romadecade.org/ Note that the Roma Decade also includes the following non-EU countries: Albania, Bosnia Herzegovina, 

Montenegro and Serbia, and the United States as an observer. 

241  National Council for Combating Discrimination, Decision No 439 of 15 November 2011 in Case No 4A/2011.

242  Cluj Court of Appeal, Section II Civil, Administrative and Fiscal Law Decision No 141/2012 of 24 February 2012 in Case No 

1741/33/2011.

243  High Court of Cassation and Justice, File 1741/33/2011 of 27 September 2013, Decision No 640/27.09.2013.

69

December 2014overlooked by the Court of Appeal, and held that the construction of the wall was not an appropriate 

and proportionate means of achieving the aim of preventing traffic accidents. Following this decision, the 

NCCD can issue new sanctions against the Mayor for refusing to demolish the wall (as had been initially 

ordered by the NCCD), as it is still standing.

In parallel to this case, a Roma NGO (Romani CRISS) initiated an action to annul the Mayor’s authorisa-

tion to erect the wall, which was rejected by the Bucharest Court.244 The Court held that the building of 

an enclosure on a local authority’s property could not be considered as discriminatory, in particular if 

access to houses was not made impossible. Moreover, the wall seemed appropriate for the purposes of 

managing the property and ensuring road traffic safety. The NGO was ordered to pay RON 1,170 (EUR 

300) in legal fees to the Mayor.

Beyond the Directives

Many states have maintained the diverging scope of the two Directives, only expressly outlawing discrimination in social 

protection, social advantages, education and goods and services available to the public in relation to racial and ethnic 

discrimination. However, a number of states provide the same protection for other grounds of discrimination as well, if 

not all grounds, and thus go beyond the requirements of the Directives.

The following illustrates areas in which countries exceed EU law provisions:

•  Whereas in Austrian federal legislation the distinction between the scopes of the two Directives is 

maintained, in most provincial legislation it is levelled up.245

• 

In Bulgaria the Protection against Discrimination Act explicitly applies universally to the exercise of 

all rights and freedoms deriving from law, implicitly including in full any particular field such as any 

sector of employment and occupation, and all the other fields mentioned under the Racial Equality 

Directive.246 In respect of its universal material scope, a number of decisions both by the courts and 

by the equality body expressly recognise that the Act provides comprehensive, total protection.

• 

In  Croatia,  the  Anti-discrimination  Act  applies  to  housing  in  general  without  any  exceptions  and 

covers racial or ethnic origin, religion or belief, age, disability and sexual orientation.

•  Denmark extends the prohibition of discrimination on the grounds of religion or belief and sexual 

orientation to the fields of education and access to goods and services including housing.

• 

The Finnish Non-Discrimination Act prohibits discrimination in access to training/education on a wide 

variety  of  grounds,  including  age,  ethnic  or  national  origin,  nationality,  language,  religion,  belief, 

opinion, health, disability, sexual orientation and ‘other personal characteristics’.247

• 

In France the general principle of equality in public services guarantees equal treatment in social 

protection and education for all grounds. In addition, all grounds are protected in the provision of 

goods and services, including housing.

•  Hungarian law has practically unlimited material scope, treating all grounds of discrimination equally.

244  Bucharest Court (Tribunalul Bucuresti), Decision No 4506 of 13 November 2012.

245  Only Lower Austria has not followed the line.

246  Protection against Discrimination Act, Article 6.

247  The Act has a limiting clause, however: Section 3 provides that the Act does not apply to the aims or content of education or the 

education system. According to the travaux préparatoires, this takes into account Article 149(1) of the EC Treaty (presently Article 

165(1) of the TFEU), which states, inter alia, that the Union shall fully respect the responsibility of the Member States for the 

content of teaching and the organisation of education systems.

70

Developing Anti-Discrimination Law in EuropeDecember 2014• 

The Irish Employment Equality Act 1998-2011 and Equal Status Act 2000-2011 both prohibit dis

crimination on nine grounds: marital status, family status, sexual orientation, religious belief, age, 

disability,  gender,  race  (including  nationality  and  ethnic  origin)  and  membership  of  the  Traveller 

community.

• 

The  scope  of  the  Italian  Anti-discrimination  Decrees  partially  corresponds  with  other  pre-existing 

legislation  still  in  force,  primarily  the  Immigration  Act  of  1998.  This  Act  offers  protection  against 

discrimination based on race, religion and nationality that mostly overlaps with that of the Decrees, 

covering all the fields specified in the two Directives.

• 

In Latvia, differential treatment on the grounds of race, colour, gender, age, disability, health condition, 

religious, political or other conviction, national or social origin, property or family status or other cir-

cumstances (sexual orientation as a prohibited ground is not expressly listed) is covered in the field of 

social protection within the public sphere, and social security and social services provided by the State.

• 

In Malta, the Equality between Men and Women Act, as amended in 2012, provides protection against 

discrimination on the grounds of sexual orientation, age, religion or belief and gender identity in the 

fields of education and banking services.

• 

In Slovakian law, the right to healthcare is guaranteed equally to every person irrespective of sex, 

religion or belief, race, affiliation to a nationality or ethnic group, disability, age, sexual orientation, 

marital status and family status, colour of skin, language, political or other opinion, national or social 

origin, property, lineage/gender,248 trade union activities or other status.249 The Anti-discrimination Act 

prohibits discrimination in housing on the same grounds except for trade union activities. Discrimina-

tion in the field of public procurement is also unlawful.

• 

In Slovenia, protection is enjoyed with regard to all of the grounds listed in the Directives and other 

grounds of discrimination in the fields of social protection, social advantages, education and goods 

and services.

• 

In  Sweden,  discrimination  is  prohibited  in  social  security  and  healthcare,  including  social  services, 

state grants for education, social insurance and related benefit systems on the grounds of ethnic 

origin, religion or belief, disability, age250 and sexual orientation. The prohibition on discrimination in 

goods, services and housing applies to all the above-mentioned grounds as well.

•  Romanian anti-discrimination legislation applies to a large number of criteria going beyond those 

provided by the Directives, and the scope of the Anti-discrimination Ordinance is applicable to areas 

beyond those spelled out in the Directives.

• 

In the United Kingdom, discrimination on the grounds of race, national or ethnic origin, nationality and 

colour, disability, sexual orientation and religion or belief (with some exceptions) are prohibited in all 

forms and levels of education, in the provision of goods and services, and in the performance of public 

functions  by  public  authorities  (believed  to  cover  social  protection,  including  healthcare  and  social 

security). Northern Ireland has broad prohibitions against discrimination on grounds of political opinion.

•  Although not an EU member, Norway has committed itself in having high and even higher standards 

regarding discrimination than the requirements set up at the EU level.251

248  The Slovak word ‘rod’ can be translated as either lineage or gender.

249  Section 2, paragraph 1 of the Anti-discrimination Act.

250  Age was only included in the list of protected grounds by an amendment to the Discrimination Act which entered into force on 1 

January 2013.

251  See Government White Paper on Strengthened protection against discrimination in working life, NOU 2003:2 Skjerpet vern mot 

diskriminering i arbeidslivet, p. 7.

71

December 2014Anne | 1988

72

December 2014Chapter 3 
Exceptions to the principle  
of equal treatment  
and positive action

73

December 2014The  Directives  are  based  on  a  dichotomy  between  direct  discrimination,  which  cannot  be  justified,  and  indirect 

discrimination, which is open to objective justification. Most countries have complied with this approach, although there 

are some states where it may be argued that national law continues to permit the justification of direct discrimination 

(e.g.  Latvia252  and  Slovenia).  In  Romania,  justifications  of  direct  discrimination  were  allowed  in  the  field  of  access 

to  goods  and  services  including  housing  until  2013  when  the  legislation  was  amended  through  the  adoption  of  an 

emergency ordinance.253

Justification of direct discrimination in Slovenia

Slovenian law provides for possible justification of direct discrimination in quite confusing terms, allowing 

for  contradicting  interpretations.  Article  2a  of  the  Act  Implementing  the  Principle  of  Equal  Treatment 

states that different treatment on the basis of certain personal circumstances is not excluded, provided 

that it is justified by a legitimate goal and that the means for achieving the goal are appropriate and 

necessary (para. 1). However, paragraphs 2 and 3 of Article 2a prohibit any discrimination, regardless of 

the provision of paragraph 1, except for specifically defined exceptions, related to genuine and determin-

ing  occupational  requirements  in  the  area  of  employment;  religion  in  religious  organisations;  age  in 

recruitment, employment and vocational training; beneficial treatment of women during pregnancy and 

motherhood; availability of goods and services for people of a particular gender; in the area of insurance; 

or in other cases defined by laws adopted pursuant to European Union law. The relationship between 

these provisions therefore appears to be confusing, notably with regard to the scope of application of 

paragraph1 since paragraphs 2 and 3 exclude application of derogations within their scope, in compli-

ance with the Directives.

However, parallel to the possibility of objectively justifying indirect discrimination, the Directives permit a number of 

exceptions  applicable  to  the  ban  on  both  direct  and  indirect  discrimination.  Some  of  these  apply  to  all  grounds  of 

discrimination  (e.g.  genuine  occupational  requirements),  whereas  others  are  ground-specific  (e.g.  employers  with  a 

religious ethos). This section will examine the implementation of each of these exceptions.254

The Directives also permit positive action to be taken in certain circumstances. This is not an exception to the principle 

of equal treatment. On the contrary, these are measures which are necessary to ensure ‘full equality in practice’. Both 

the exceptions and positive action are optional elements for national law and practice. States are not required to include 

any or all of the possible exceptions, nor are they obliged to permit positive action.

A.  

Genuine and determining occupational requirements

Article 4 Racial Equality Directive and Employment Equality Directive

‘Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which 

is based on a characteristic related to [racial or ethnic origin, religion or belief, age, disability or sexual 

252  Latvian legislation in fields such as social security, education and access to goods and services does not distinguish between 

direct and indirect discrimination, thereby causing confusion regarding the limits of the possibility to justify (indirect) 

discrimination. See for instance Article 2.1(1) of the Law on Social Security.

253  Emergency Ordinance No 19/2013 amending Government Ordinance No 137/2000 regarding the prevention and the punishment 

of all forms of discrimination (27 March 2013).

254  The Employment Equality Directive contains a number of specific exceptions regarding the ground of age. These have, however, 

been discussed above in Chapter 1.F and will not be mentioned here.

74

Developing Anti-Discrimination Law in EuropeDecember 2014orientation] shall not constitute discrimination where, by reason of the nature of the particular occupa-

tional activities concerned or of the context in which they are carried out, such a characteristic constitutes 

a genuine and determining occupational requirement, provided that the objective is legitimate and the 

requirement is proportionate.’

Most  prominently,  both  Directives  allow  national  legislation  to  provide  an  exception  where  the  characteristic  is  a 

‘genuine  and  determining  occupational  requirement’.  Pursuant  to  Recital  18  of  the  Racial  Equality  Directive,  in  very 

limited circumstances, a difference of treatment may be justified where a characteristic related to racial or ethnic origin 

constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement 

is  proportionate.  Such  circumstances  should  be  included  in  the  information  provided  by  the  Member  States  to  the 

Commission. All countries surveyed, except Iceland and the Netherlands, have chosen to include such an exception 

within  their  national  legislation,  and  this  applies  to  many  or  all  discrimination  grounds.  In  some  cases,  the  precise 

wording of national legislation varies from that found within the Directives (e.g. Italy and Romania). This creates the 

risk that the exception is wider than permitted, but this will depend on subsequent interpretation by national courts.

The Netherlands specifies that only external racial appearances may constitute a genuine occupational requirement.255 

This means that ‘race’ per se is not regarded as a permissible ground for a given distinction; only physical differences 

(skin colour, hair type, etc.) may form the basis for a distinction, to the exclusion of sociological differences.

EEA countries have also chosen to include the genuine and determining occupational requirements exception into their 

equality and anti-discrimination legislation. The Equality for People with Disabilities Act in Liechtenstein provides that 

exceptions are permitted if special skills or physical conditions are required for a specific job. Similarly, Norway allows 

justification  of  direct  discrimination  if  it  is  necessary  for  the  performance  of  the  work,  in  line  with  the  Employment 

Equality Directive.

B.  

Armed forces and other specific occupations

Article 3(4) Employment Equality Directive

‘Member States may provide that this Directive, in so far as it relates to discrimination on the grounds of 

disability and age, shall not apply to the armed forces.’

A few Member States have included an express exemption for the armed forces in relation to both age and disability: 

Denmark,256  France,  Greece,  Ireland,  Italy,  Norway,257  Slovakia  and  the  United  Kingdom.  Others  have  simply 

maintained age and capability requirements in their regulations on the armed forces without expressly declaring an 

exemption from the equal treatment principle, e.g. Bulgaria, Portugal, Romania and Spain. Military service requires 

candidates not to be older than a certain fixed age in, for instance, the former Yugoslav Republic of Macedonia and 

Slovenia. But in Slovenia, the Police Act states that employment with the police is not possible if an individual invokes 

conscientious  objection  in  the  armed  forces,  which  might  unjustifiably  constitute  exclusion  on  grounds  of  religion  or 

belief. Professional soldiers must retire by the age of 60 in Poland. The exception regarding armed forces has not been 

adopted in Finland, Hungary, Lithuania, Luxembourg and Sweden. In several states, the exceptions seem to be wider 

255  Article 2(4)(b) General Equal Treatment Act, as inserted by the 2004 EC Implementation Act.

256  The Danish Act on the Prohibition of Discrimination in the Labour Market etc. stipulates that the Ministry of Defence can make 

exceptions for the armed forces in relation to age and disability. The Ministry has made use of this possibility (Executive Order No 

350 of 30 March 2012).  

257  Norway does not contain any specific exception with regard to disability, only to age. 

75

December 2014than provided for in Article 3(4). For example, Greek and Irish258 law provides exemptions on the basis of age in respect 

of the police, the prison service or any emergency service.

C.  

Nationality

Article 3(2) Racial Equality Directive and Employment Equality Directive

‘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.’

In addition to the protected grounds covered by the two Directives, several Member States have included nationality 

as an expressly protected ground in national anti-discrimination law, including Belgium, Bulgaria, the Netherlands, 

Portugal,  Romania  and  Spain.259  In  other  countries,  the  terms  ‘race’  or  ‘ethnic  origin’  are  considered  to  include 

nationality such as in Sweden, where nationality is explicitly listed as an aspect of ethnicity, and the UK, where, although 

nationality  is  not  specifically  mentioned  as  a  protected  ground,  the  Equality  Act  expressly  defines  race  as  including 

nationality. A number of Member States have express exclusions from the scope of their implementing legislation which 

apply to discrimination based on nationality: Greece, Italy, Luxembourg and Malta.

Nationality is an explicitly protected ground in anti-discrimination legislation (in the case of decentralised 

states only federal law is indicated)

260
AUSTRIA
261
BELGIUM
262
BULGARIA
263
CROATIA

CYPRUS

CZECH 
REPUBLIC

DENMARK

ESTONIA

FINLAND

FRANCE

Law

No260

Racial Equality Federal Act

Protection Against Discrimination Act

No

The Combating of Racial and other forms of Discrimination (Commissioner) 
Law No 42(I)/2001261

No262

No

No

Non-Discrimination Act

No263

Article

-

Art. 4, 4°

Art. 4(1) 

-

Art. 5(b)(i)

-

-

-

S. 2

-

258  Section 37, Employment Equality Act 1998-2011.

259 

In EU law discrimination on grounds of nationality is prohibited under Article 18 TFEU.

260  Difference of treatment based on nationality is generally regarded as discrimination on the basis of ethnicity unless the 

difference is based on immigration laws or other legally demanded requirements (see Equal Treatment Act, §§ 17/2 and 31/2).

261  Nationality is a protected ground in the above-mentioned legislation that sets out the mandate of the equality body, as this 

mandate covers all rights protected under Protocol 12 to the European Convention of Human Rights. The laws transposing the 

Directives do not include nationality among the protected grounds. The equality body itself has always considered nationality to 

be part of its mandate and refers to it repeatedly in its annual reports when it lists the grounds covered.

262  The concept of nationality as ‘citizenship’ is not covered. The concept of ‘národnost’ (national origin) is covered in several laws.

263  Judicial interpretation is required of Law No 2001-1066 on the Fight against Discrimination as its scope has been reduced. 

Furthermore the term ‘nation’ is often referred to as a proxy for nationality. The remaining protection does not explicitly cover 

national origin except in the Penal Code (Art. 225-1) and the Labour Code (Art. 1132-1).

76

Developing Anti-Discrimination Law in EuropeDecember 2014264

Law

FORMER 
265
YUGOSLAV 
266
REPUBLIC of 
MACEDONIA
267

GERMANY
268

GREECE
269

HUNGARY
270

ICELAND
271

IRELAND
272

273
ITALY
274
LATVIA
275

Prevention and Protection Against Discrimination Act264

No265

No

Act on Equal Treatment and the Promotion of Equal Opportunities266

No267

Employment Equality Act

Equal Status Act

No268

No

LIECHTENSTEIN No269

LITHUANIA

No270

LUXEMBOURG

MALTA

No

No

NETHERLANDS General Equal Treatment Act

Article

Art. 3

-

-

Art. 8

-

S. 6

S. 3(h)

-

-

-

-

-

-

Art. 1 b

-

NORWAY

POLAND

No271

Act on the Implementation of Certain Provisions of the European Union in the 
Field of Equal Treatment272

Arts 1 and 3

PORTUGAL

Racial Equal Treatment Act

Prohibition of Racial Discrimination

Labour Code

Art. 3(2)

Art. 1

Arts 24.1 and 25.1

ROMANIA

SLOVAKIA

SLOVENIA

SPAIN

Act 324/2006 amending the Ordinance on the Prevention and Punishment of 
All Forms of Discrimination

Art. 2

Act on Equal Treatment in Certain Areas and Protection against Discrimination  S. 2, para. 1273

No274

No275

-

-

264  The term ‘citizenship’ is used in the law.

265  Nationality is a protected ground under the Work Constitution Law in its Article 75.

266  Nationality is not explicitly mentioned in the law but is protected as ‘other situation, attribute or condition of a person or group’.

267  There is no anti-discrimination legislation in Iceland, but the General Penal Code, the Act on Trade Unions and Trade Disputes and 

the Act on Worker’s Terms of Employment and Pension prohibit nationality discrimination.

268  Nationality is protected under the Legislative Decree No 286 Consolidated Text of Provisions on the Regulation and the Condition 

of Foreign Citizens of 25 July 1998 as last amended in 2011.

269  Nationality is mentioned in the Constitution.

270 

If nationality is interpreted as national identity/ethnicity it is included in the list of protected grounds in the Equal Treatment Act. If 

nationality refers to citizenship then judicial interpretation of Art. 2 para 7(4) of the Equal Treatment Act would be necessary as it 

states that ‘different rights applied on the basis of citizenship as established by laws’ is not considered as direct discrimination.

271  Under the Anti-discrimination Act, national origin is a protected ground. National origin includes also stateless persons, as it is not 

focusing on which nationality, but national origin other than Norwegian.

272  However, ‘nationality’ (narodowość) is understood as the fact of belonging to a nation (citizenship is not covered verbatim).

273  Nationality would be covered by ‘other status’ included in the non-exhaustive list of protected grounds in the Act on Equal 

Treatment in Certain Areas and Protection against Discrimination.

274  Discrimination on the basis of nationality is not explicitly prohibited in national law. However, although the Constitution, the 

Act implementing the Principle of Equal Treatment and the Employment Relationship Act do not list nationality as a protected 

ground, they do include ‘any other personal circumstance’. Therefore judicial interpretation is required in order to determine 

whether nationality could be a protected ground.

275  Nationality is protected under Organic Law 4/2000 on Rights and Liberties of Aliens in Spain and their Social Integration, Art. 

2bis, 23 and 54.

77

December 2014SWEDEN

TURKEY

UNITED 
276
KINGDOM
277

Law

No276

No277

(UK) Equality Act

(NI) Race Relations Order

D.  

Family benefits

Article

-

-

S. 9

Art. 5

Implementation of the Directives came at a time when an increasing number of states are allowing same-sex couples 

to marry or to register partnerships and to benefit from the same benefits as married couples. Under the Employment 

Equality Directive, it would at first sight appear that any work-related benefits that are made available to opposite-sex 

couples should always be available to same-sex couples, as otherwise it would constitute discrimination on the ground 

of sexual orientation. However, Recital 22 of the Employment Equality Directive states that ‘this Directive is without 

prejudice to national laws on marital status and the benefits dependent thereon’.

It is necessary to distinguish among a number of different situations that can arise here. First, there are situations where 

employment-related  benefits  are  limited  to  those  who  are  married.  In  Belgium,  Denmark,  France,278  Iceland,  the 

Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom,279 same-sex couples can get married, so 

here limiting benefits to married couples does not result in discrimination on the grounds of sexual orientation. In other 

states, national legislation on the recognition of same-sex partnerships has had the impact of requiring marital benefits 

to be extended to registered partners. However, this is not an automatic consequence of same-sex partnership legislation. 

In 2006, the German Constitutional Court ruled that it was lawful to restrict supplementary payments to married civil 

servants  and  to  exclude  those  in  (same-sex)  registered  partnerships.280  The  compatibility  of  such  practices  with  the 

Directive was tested in a preliminary reference case judged on 1 April 2008 by the CJEU in Maruko.281 Consequently, the 

German Constitutional Court has clarified that both same-sex couples living in a life partnership and married spouses 

have to be treated equally with regard to social benefits, thereby overruling the previous case law.282

There  remain  many  states  where  restricting  work-related  benefits  to  married  employees  is  likely  to  be  regarded  as 

lawful.  In  some  states  (Ireland,  Italy  and  Austria),  this  is  made  clear  in  legislation  or  in  guidance  accompanying 

legislation.  In  other  states,  the  issue  has  not  been  expressly  addressed  in  national  legislation,  but  it  is  the  view  of 

the  national  experts  that  courts  would  interpret  the  law  as  permitting  benefits  to  be  officially  restricted  to  married 

employees (e.g. the former Yugoslav Republic of Macedonia, Greece, Latvia, Lithuania and Poland).

276  Although nationality is not explicitly mentioned as a protected ground in anti-discrimination legislation, it is included as an 

explicit aspect of ethnicity according to the Discrimination Act (Ch. 1, S. 5, point 3).

277  Nationality is explicitly mentioned in the Criminal Code (Art. 3(2)).

278  Law No 2013-404 was adopted on 17 May 2013, introducing the right of same-sex couples to get married in France.

279  The Marriage (Same-Sex Couples) Act 2013 was adopted on 17 July 2013, making it possible for same-sex couples to get 

married in England and Wales. In addition, the Marriage and Civil Partnership (Scotland) Act 2014 was adopted after the cut-off 

date of this report, introducing the right of same-sex couples to get married and to enter into registered partnerships in Scotland. 

Marriage for same-sex couples is not permitted in Northern Ireland.

280  BVerwG, 2 C 43.04, 26 January 2006. 

281  Case C-267/06, Maruko, [2008] ECR I-1757.

282  German Federal Constitutional Court (Bundesverfassungsgericht), 7 July 2009, 1 BvR 1164/07.  

78

Developing Anti-Discrimination Law in EuropeDecember 2014E.  

Public security, public order, criminal offences, protection of health, and protection of the 
rights and freedoms of others

Article 2(5) of the Employment Equality Directive

‘This Directive shall be without prejudice to measures laid down by 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 for the protection of the rights and freedoms of others.’

Article 2(5) is reproduced in legislation in Cyprus, Greece and Malta, and in Italy it is largely incorporated. In Croatia, 

an exception for conduct aimed at ‘preserving health and preventing criminal acts and misdemeanours’ was amended in 

2012 to include a note that such conduct cannot lead to direct or indirect discrimination on the grounds of race or ethnic 

origin, skin colour, religion, gender, ethnic or social origin, sexual orientation or disability.

In the United Kingdom anti-discrimination legislation typically includes an exception for action taken for the purpose of 

safeguarding national security or protecting public safety or public order which are justified by that purpose. In Portugal, 

even  though  the  laws  implementing  the  Directives  do  not  include  any  specific  exceptions  concerning  public  security, 

these exceptions may be considered implicit.

F.  

Other exceptions

In some states, national legislation includes exceptions which are not expressly specified in the Directives. Some of these 

may be incompatible with the Directives, but it is difficult to be certain in advance of case law testing their scope. For 

example, in Lithuania, the Equal Treatment Act provides exceptions that relate to knowledge of the state language, 

participation in political activities and enjoyment of different rights on the basis of citizenship. The Anti-discrimination 

Act  in  Croatia  contains  a  rather  controversial  exception  regarding  regulation  of  ‘the  rights  and  obligations  arising 

from family relations when it is stipulated by the law, particularly with the aim of protecting the rights and interests of 

children, which must be justified by a legitimate aim, the protection of public morality and the favouring of marriage in 

line with the provisions of the Family Act’.

In  the  former  Yugoslav  Republic  of  Macedonia,  the  Anti-discrimination  Act  provides  three  exceptions  regarding 

measures  aimed  at  stimulating  employment,  protecting  the  distinguishing  characteristics  of  the  identity  of  ethnic, 

religious and linguistic minorities, and favouring persons and groups in a disadvantaged position. The Irish Equal Status 

Act also contains a number of exceptions and exemptions to the non-discrimination rule that could be problematic with 

regard to the Directives.

G.  

Positive action

Article 5 of the Racial Equality Directive and Article 7(1) of the Employment Equality Directive

‘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 disadvan-

tages linked to any of the grounds referred to in Article 1.’

The scope for positive action is often a matter clarified through case law. In Cyprus, the Supreme Court has been called 

upon several times to determine the constitutionality of several sets of legal provisions granting priority in employment 

79

December 2014to different categories of people such as people with disabilities, veterans of war, etc., in the public sector. The Supreme 

Court has consequently developed a practice of declaring void and unconstitutional any law introducing positive action 

which is challenged.283 In Croatia, the Constitutional Act on the Rights of Ethnic Minorities284 provides for positive action 

for  proportionate  representation  of  members  of  ethnic  minorities  in  the  state  administration,  the  judiciary  and  local 

authority bodies and administrations, and the Judiciary Act285 provides for positive measures with respect to ethnic origin, 

for instance regarding the nomination of judges. These provisions were challenged before the Constitutional Court as 

discriminatory. The Constitutional Court286 held that such advantages constitute special positive measures intending to 

favour a certain group with the aim of eliminating factual inequality and differentiation of such people based on their 

characteristics without being automatic and unconditional. It concluded that such measures were not discriminatory as 

long as they were justified, permitted and proportionate. In the Netherlands, the then Equal Treatment Commission287 

found in a case involving preferential treatment by a pre-school of children with language difficulties that a measure 

which does not make a direct distinction based on a protected ground (in this case race or ethnic origin) cannot fall 

under the provisions on positive action measures. Thus, in the case at hand, the ETC applied the general justification 

test for indirect discrimination, and found that the measure was objectively justified.288 In Norway, where the legislation 

refers to ‘positive differential treatment’,289 the scope for positive action measures has been interpreted as very narrow, 

based on the CJEU’s case law on gender. In Turkey, amendments to the Constitution introduced in 2011 the principle 

of  positive  action290  and  other  legislation  also  provide  for  such  measures  in  a  number  of  areas  including  education. 

Discussions are, however, still new in the field.

Norwegian trainee programme for applicants with non-Western background

In Norway, the equality body has only rarely dealt with cases concerning positive action measures in an 

area other than gender. One such case however concerned a trainee programme established in 2010 

by a large state Directorate with the aim of recruiting more employees with a non-Western background. 

The trainee programme was part of a strategy to increase staff diversity to around 5% non-Westerners 

before  2012.  The  programme  would  train  eight  people  over  18  months,  and  was  reserved  for  appli-

cants  with  a  ‘non-Western’  background.  The  Equality  and  Anti-discrimination  Ombud  found  that  the 

requirements of the CJEU’s case law on gender discrimination must be used also for the assessment 

under the Racial Equality Directive and Norwegian legislation. The Ombud found that the requirement of 

proportionality was not fulfilled, and the programme thus did not qualify as positive action under Section 

8 of the Anti-discrimination Act.291

A number of states have introduced legal duties to promote equality. In some cases, there are broad obligations to 

advance equality in national constitutions (e.g. Greece (Article 116(2)) or Spain (Article 9.2)). The former Yugoslav 

Republic of Macedonia has developed a set of positive actions, as a result of the armed conflict in 2001 and the 

283  See for instance Charalambos Kittis et al v The Republic of Cyprus (2006), Appeal case No 56/06 (08.12.2006).  

284  Ustavni zakon o pravima nacionalnih manjina, Official Gazette 155/02.

285  Article 78(7) and (8), Zakon o sudovima, Official Gazette 150/2005, 16/2007 and 113/08.

286  Constitutional Court Decisions No U-I-2767/2007, 31 March 2009 and No U-I-402/2003 and U-I-2812/2007, 30 April 2008.

287  The Equal Treatment Commission was replaced on 2 October 2012 by the Netherlands Human Rights Institute. 

288  Equal Treatment Commission Opinion 2012- 151 of 14 September 2012.

289  Through legislative amendments adopted in 2013, the wording has been changed from ‘positive action’ to ‘positive differential 

treatment’. See Anti-discrimination Act, Section 8; Anti-discrimination and Accessibility Act, Section 5; Sexual Orientation Act, 

Section 7; and Working Environment Act, Section 13-6.

290  The new Article 10 of the Constitution stipulates that positive action taken for children, elderly people, people with disabilities, 

widows and orphans of martyrs, invalids and veterans shall not be considered as a violation of the principle of equality.

291  Equality body Decision No 10/508, of 5 February 2013.

80

Developing Anti-Discrimination Law in EuropeDecember 2014signing of the Ohrid Framework Agreement (OFA). The OFA was signed, inter alia, with the aim of enhancing the situation 

of  minority  communities  in  the  country,  and  of  reflecting  multi-ethnicity  in  the  public  sphere,  including  by  adopting 

non-discrimination measures. This agreement was reflected in the Constitution via amendments,292 and numerous laws 

that relate to equality on grounds of ethnic origin were also changed. These changes regulate, inter alia, the use of 

language and the provision of ‘fair’ representation in the public administration and public institutions. In Norway, a 

pilot project introduced a moderate quota system in favour of non-ethnic Norwegians in 12 state-owned companies. 

In addition, as of January 2009, employers, public authorities and employer/employee organisations are under a legal 

obligation to make active, targeted and systematic efforts and to report annually on their efforts to promote equality 

and  prevent  discrimination  on  grounds  of  disability,  ethnicity  and  sexual  orientation.293  The  obligation  comprises  pay 

and working conditions, promotion, development opportunities and protection against harassment. The annual report 

and  budget  must  list  all  measures  carried  out  throughout  the  year  to  fulfil  the  duty  of  making  active  efforts.  The 

obligation is enforced by the Equality and Anti-discrimination Ombud, and a similar duty is imposed on employers with 

more than 50 employees. Other states have included more detailed obligations in national legislation. In Bulgaria, the 

Protection against Discrimination Act places a duty on all authorities to take measures whenever necessary to equalise 

opportunities for disadvantaged groups and to guarantee participation by ethnic minorities in education to accomplish 

the objectives of the Act.294 The Act requires authorities to take such measures as a priority for the benefit of victims 

of  multiple  discrimination.295  In  Finland,  the  Non-Discrimination  Act  compels  all  public  authorities  to  foster  equality, 

including by drawing up plans on ethnic equality. Swedish law obliges employers to carry out goal-oriented work to 

actively promote ethnic diversity in working life.

Positive obligation to pay due regard in the United Kingdom

Since April 2011, all public authorities in Britain have been under positive obligation to have due regard 

to the need to ‘eliminate discrimination, harassment, victimisation and any other conduct that is prohib-

ited by or under the 2010 Equality Act, advance equality of opportunity between persons who share a 

relevant protected characteristic and persons who do not share it; [and] foster good relations between 

persons who share a relevant protected characteristic and persons who do not share it’.

The Essential Guide to the Public Sector Equality Duty gives a suggested approach to help public authori-

ties to comply with the equality duty. Public authorities are required to:

• 

Establish the relevance of the equality duty to their functions

•  Adopt an evidence-based approach in their decision-making process by collecting and using equality 

information

•  Assess the impact on equality of their decision-making and policies and practices

• 

Engage with people with different protected characteristics to help to develop an evidence-based 

approach

•  Comply  with  the  equality  duty  when  undertaking  procurement  (as  well  as  commissioning)  at  all 

stages,  including  reviews  of  their  procurement  policies  and  contractor’s  performance.  In  addition, 

292  Constitution of the Republic of Macedonia, Amendments IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, XVII and XVIII, official 

website of the Assembly of the Republic of Macedonia: http://sobranie.mk/the-constitution-of-the-republic-of-macedonia.nspx  

Last accessed on 02.07.2014. 

293  Anti-discrimination Act, Sections 13-15; Anti-discrimination and Accessibility Act, Sections 18-20; and Sexual Orientation Act, 

Sections 12-14.

294  Article 11(1).

295  Article 11(2).

81

December 2014procurement  could  impose  equality  conditions  or  require  full  compliance  with  the  Equality  Act  to 

tenderers, suppliers and subcontractors.

Moreover, certain public authorities are also required to publish equality information and equality objec-

tives  with  regard  to  their  specific  equality  duties  to  better  perform  the  general  equality  duty  for  the 

purpose of the Equality Act 2010.

The equality duty is monitored and enforced by the Equality and Human Rights Commission, whose pow-

ers include advising the Government and monitoring and the effectiveness of the equality and human 

rights legislation.

Disability is the ground for which the most positive action measures are probably already in place. These can be found 

in  the  great  majority  of  countries.  There  is,  for  example,  a  quota  system  for  the  employment  of  disabled  people  in 

Austria, Belgium (mostly public sector), Bulgaria, Croatia (public sector only), Cyprus (in the wider public sector), 

the Czech Republic,296 France, Germany, Greece, Italy, Malta, Poland, Portugal,297 Romania, Slovenia, Spain and 

Turkey.298 However, alternatives to employing disabled people, such as paying a fee or tax, are almost always offered. 

In  Liechtenstein,  Article  20  of  the  Act  on  Equality  of  People  with  Disabilities  envisages  the  integration  of  workers 

with disabilities into the labour market. In other words, local authorities are entitled to support pilot projects to explore 

incentives for employing people with disabilities, including in the private sector. In Iceland, there is no quota system but 

the Act on the Affairs of Persons with Disabilities provides assistance when necessary to workers with disabilities, and 

priority should be given for positions in the public sector if their qualifications are equivalent to other applicants.

Main  grounds  and  fields  where  positive  action  is  used  in  practice  (in  the  case  of  decentralised  states 

according to federal law)

AUSTRIA

BELGIUM

BULGARIA

CROATIA

CYPRUS

CZECH 
REPUBLIC

DENMARK

ESTONIA

FINLAND

FRANCE

Ethnicity (employment in the police), national minorities (language, cultural rights, education), disability (in the 
workplace, vocational training, quota, protection against redundancy).

Disability (quotas for people with disabilities in the Federal Administration); Roma (integration, housing).

Race, ethnicity and Roma (education, healthcare, social assistance, housing and employment), disability 
(education, accessibility of buildings, infrastructure, information and communications, vocational training and 
employment, self-employment), age (social inclusion, education, healthcare).

Ethnicity and Roma (employment, education), disability (employment).

Disability (civic participation, employment), race and ethnic origin, religion (education). 

Disability (mandatory quota system in employment for disabled workers), Roma (education).

Disability and age (employment), race, ethnic origin, age, disability, religion or belief, sexual orientation (public/
governmental projects on employment/integration), 

Disability (employment), ethnic origin (employment)

Roma (education), disability (employment)

Disability (employment, education), age (employment).

296 

In the Czech Republic, employers with more than 25 employees have to implement one of three types of measures: employing 

at least 4% of employees with disabilities; commissioning goods or working programmes from employers who employ at least 

50% of employees with disabilities; or making payments to the State budget. The system has been criticised for its lack of 

effectiveness as most employers choose to make payments to the State budget. 

297  The quota system in Portugal is, however, not being enforced. 

298  However, figures in 2013 show that while the total number of people with disabilities working in the public administration in 

Turkey should be 58,749, only 32,877 civil servants with disabilities are effectively employed. 

82

Developing Anti-Discrimination Law in EuropeDecember 2014FORMER 
YUGOSLAV 
REPUBLIC of 
MACEDONIA

GERMANY

GREECE

HUNGARY

ICELAND

IRELAND

ITALY

Ethnicity including Roma and language (employment and education), age (social protection and housing), 
disability (employment).

Disability (social inclusion/integration including employment), age and race (integration including employment).

Race and disability (employment). 

Disability (employment, education), ethnic origin/social status (education).

Disability (employment).

Travellers (education, employment).

Disability (employment), linguistic minorities (all fields of social life, employment, education, health care, access 
to public services, access to justice).

LATVIA

Disability (employment).

LIECHTENSTEIN Disability (education, employment).

LITHUANIA

Disability (education, employment, integration), Roma and ethnic minorities (integration, employment, education), 
age (social protection).

LUXEMBOURG 
299

-

MALTA

Disability and age (employment).

NETHERLANDS

Race (employment).300

Ethnicity, disability (employment).

Ethnic origin (education, employment, healthcare, living conditions, security), age (employment), disability 
(employment and education).

Disability (inclusion, employment, housing and accessibility), age (employment, housing), Roma, race, ethnic 
origin or nationality (inclusion/integration, education, housing employment, health).

Roma (education), disability (housing, education, employment), youth (housing, employment).

Social and economic disadvantage/disadvantage resulting from disability and age (employment and occupation, 
social security and social advantages, healthcare, provision of goods and services including housing and educa-
tion), disability (employment, education, social security), age (employment, social security ), marital and family 
status, pregnancy, motherhood, early parenthood (employment), ethnicity (employment, social and community 
work, healthcare, housing and education).

Disability (employment), age (employment), Italian and Hungarian minorities (local self-government, representa-
tion in the National Assembly, special rights concerning language, culture, broadcasting), ethnicity including 
Roma (political representation, education).

Disability (employment).

Disability (employment), ethnicity (employment, integration, education)

Disability (employment), age (social services).

Race (education, training and welfare, under-representation in employment, membership among under-
represented racial groups – GB: England, Wales and Scotland (EWS) and NI), age (employment – EWS and NI), 
disability (employment, education, access to goods, facilities and services – EWS), religion or belief (employment 
– EWS and NI, access to goods and services – EWS), sexual orientation.

NORWAY

POLAND

PORTUGAL

ROMANIA

SLOVAKIA

SLOVENIA

SPAIN

SWEDEN

TURKEY

UNITED 
KINGDOM

299

300

299  Although there are no positive action measures per se, there are other measures such as the National Plan for Integration and 

against Discrimination targeting the grounds of race or ethnic origin, religion or belief, age, disability and sexual orientation.

300  Special schemes for disabled persons do exist in the Netherlands such as general social policies aiming at enhancing/improving 

the equal opportunities of disabled persons to participate in society. Nevertheless, these are not officially listed as positive action 

measures.

83

December 2014Lauran | 1956

84

December 2014Chapter 4 
Access to justice and  
effective enforcement

85

December 2014Both access to justice and effective remedies are essential to victims of discrimination, otherwise there is a risk that 

non-discrimination obligations imposed on Member States will not be enforced.

A.  

Judicial and administrative procedures

Article 7(1) Racial Equality Directive and Article 9(1) Employment Equality Directive

‘Member States shall ensure that judicial and/or administrative procedures, including where they deem it 

appropriate conciliation procedures, for the enforcement of obligations under [these Directives] are avail-

able 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.’

In  no  state  are  discrimination  disputes  resolved  purely  in  the  courts.  The  vast  majority  of  states  combine  judicial 

proceedings – which may be civil, criminal, labour and/or administrative – with non-judicial proceedings. Mediation or 

conciliation proceedings may be available as a mandatory part of the court proceedings, as in France, Portugal, Spain 

and Sweden, or separately, as for example in Croatia, the former Yugoslav Republic of Macedonia, Hungary and 

Slovakia.301 The Romanian Mediation Act, as amended in 2009, provides that judges are obliged to inform the parties 

to all civil cases of the possibility of using mediation and its advantages.302 However, mediation remains optional in 

Romania. Some national proceedings are exclusively for private or public sector complaints, while others deal with both.

Some non-judicial proceedings are general but provide an effective forum for discrimination cases, whereas others have 

been established especially for discrimination cases as an alternative, complementary dispute resolution procedure to the 

normal courts. Among the general non-judicial procedures are inspectorates, ombudsmen and human rights institutions. 

In Turkey, besides proceedings before judicial or administrative courts, victims of discrimination can file their complaints 

to the Human Rights Boards that have been established in every province and district and to the Human Rights Inquiry 

Commission of the Turkish Grand National Assembly. Two additional institutions were created in Turkey in 2012, both 

of which are competent to hear individual complaints of alleged human rights violations. The Ombudsman Institution is 

tasked with reviewing the acts and operations of the administration while the mandate of the Human Rights Institution 

of Turkey covers promotion and protection of human rights, although this institution has no specific competence in the 

discrimination field. The decisions of these different institutions in Turkey are, however, not legally binding.

Legal actions in the private sector

Labour  inspectorates  are  charged  with  enforcing  employment  law,  including  equal  treatment  provisions,  in  Finland, 

Hungary,  Latvia,  Lithuania,  France,  Greece,  Poland,  Portugal,  Romania,  Slovakia  and  Spain.303  In  addition,  in 

Lithuania employment dispute commissions, regulated by the Employment Code, are the primary bodies mandated 

to resolve employment disputes. The responsibility for establishing an employment dispute commission in a company, 

agency or organisation rests with the employer. They are made up of an equal number of representatives of employers 

and employees. The employment dispute commission can award compensation to an individual in cases of discrimination 

that have breached the Labour Code. In Spain victims can also submit complaints to the Education Inspectorate, and in 

Hungary and Slovakia they can complain to the Consumer Protection Inspectorate.

301  There is however no record that mediation has been used in discrimination cases. 

302  Romanian Act 370/2009 amending Act 192/2006 on Mediation (26 November 2009).

303  For a detailed analysis of the role and competences of labour inspectorates in discrimination cases in Europe, see Janka 

Debrecéniová, Ex officio investigations into violations of the principle of equal treatment: the role of labour inspectorates and 

other bodies, in European Anti-discrimination Law Review, issue 17, page 23.

86

Developing Anti-Discrimination Law in EuropeDecember 2014In  a  number  of  Member  States,  specialised  bodies  may  be  entitled  to  examine  complaints  brought  by  victims  of 

discrimination. Powers and outcomes differ greatly, as in certain countries compensation or sanctions may be imposed, 

whereas in others the specialised body may only issue non-binding recommendations.

Some  countries  propose  conciliation,  such  as  Austria  (mandatory  for  disability  cases)304  or  Latvia  where  the 

Ombudsman’s  Office  examines  and  reviews  complaints  of  human  rights  violations  and  attempts  to  resolve  conflicts 

through  conciliation,  which,  if  unsuccessful,  is  followed  by  non-binding  recommendations.  Similarly,  the  Estonian 

Chancellor  of  Justice  provides  an  impartial  conciliation  procedure  upon  application  by  the  victim.  In  the  context  of 

discrimination by natural or legal persons in private contexts, the decision of the Chancellor of Justice is legally binding, 

while the Chancellor of Justice (in cases of discrimination by public institutions) and Commissioner for Gender Equality 

and  Equal  Treatment  (public  and  private  domain)  are  empowered  to  conduct  ombudsman-like  procedures  with  non-

legally binding results. Participation in the conciliation procedure before the Chancellor of Justice is not compulsory. In 

Liechtenstein, the ordinary courts are entitled to designate an arbitration board to reach an agreement between the 

conflicting parties instead of initiating a trial in the courts. In Malta, the National Commission for Persons with Disability 

(NCPD) can investigate complaints alleging failure to comply with the 2000 Equal Opportunities (Persons with Disability) 

Act and, where appropriate, provide conciliation in relation to such complaints. In addition, since 2012, the NCPD has 

been allowed to take any appropriate administrative and/or judicial action to eliminate discrimination.305 By virtue of the 

2007 Equal Treatment of Persons Order on the one hand and subsequently of Act IX of 2012 on the other, the remit of 

the National Commission for the Promotion of Equality for Men and Women has been extended to cover the promotion 

of equal treatment irrespective of racial or ethnic origin within the meaning of the provisions of the Order, as well as 

the grounds of sexual orientation, age, religion or belief and gender identity. In Finland, the Discrimination Tribunal may 

confirm a settlement between the parties or prohibit the continuation of conduct that is contrary to the prohibition of 

discrimination or victimisation. The Tribunal may also order a party to fulfil its obligations by imposing a conditional fine. 

It may also issue a statement on how non-discrimination law is to be interpreted at the request of the Ombudsman 

for Minorities, a court of law, a public authority or an NGO. Proceedings before the Discrimination Tribunal are free of 

charge and do not require the use of a legal counsel. The Ombudsman may issue statements on any discrimination 

case submitted to him/her, where necessary forward the complaint to the pertinent authorities and, if agreed to by the 

complainant, provide legal assistance and lead conciliation proceedings.

Some countries provide for the equality bodies the possibility to impose fines. For instance, in Bulgaria the Protection 

against Discrimination Commission can make a finding of discrimination and order preventative or remedial action; it can 

also impose financial sanctions, but it cannot award compensation to a victim. In addition, the procedure is universally 

applicable to both the public and private sectors. The Portuguese High Commissioner for Immigration and Intercultural 

Dialogue (ACIDI) can act as a mediator to try to avoid formal legal procedures. The High Commissioner can also initiate 

administrative procedures and decide whether fines should be imposed. Respondents have the right to appeal to the 

courts against the fines imposed. Neither the victim nor associations have the right to appeal or to intervene in the 

appeal procedure. By contrast, the Equality Tribunal in Norway has a limited competence restricted to the issuance of 

administrative orders. It can order the payment of a coercive fine only if the time limit foreseen to comply with the order 

is exceeded. Except for this coercive power (which has never been used in practice), the Equality Ombud and the Equality 

Tribunal cannot award compensation to victims.

In Hungary, the Equal Treatment Authority can take action against any discriminatory act and can impose severe sanctions 

on  people  and  entities  violating  the  prohibition  of  discrimination.  On  1  January  2012  the  Hungarian  Ombudsman 

304  Paras. 14-16 Federal Disability Equality Act.

305  Act No 2 of 2012, entitled the Various Laws (Disability Matters)(Amendment) Act, 2012.

87

December 2014(Commissioner  for  Fundamental  Rights)  replaced  the  previous  four  Ombudsmen  and  can  also  investigate  cases  of 

discrimination  by  any  public  authority  or  public  service  provider,  provided  that  all  administrative  remedies  have  been 

exhausted or none exist. The Austrian Equal Treatment Commission and the Netherlands Institute for Human Rights306 

can both issue non-binding opinions. These do not preclude applicants from seeking binding court judgments on the same 

case, in which case the courts are obliged to take the opinion into consideration and give clear reasons for any dissenting 

decisions. In the former Yugoslav Republic of Macedonia, the Anti-discrimination Act provides for an administrative 

procedure before the Commission for Protection against Discrimination which can issue opinions and recommendations. 

If an opinion is not implemented, the Commission can initiate a procedure before the competent authority.307

In Romania, a victim of discrimination or any interested NGO can choose between filing a complaint with the National 

Council for Combating Discrimination and/or filing a civil complaint for civil damages with a court of law unless the act 

is criminal, in which case Criminal Code provisions apply. The two venues (the national equality body and civil courts) 

are not mutually exclusive, and the plaintiff can choose to use them simultaneously, which in practice creates difficulties 

for the parties, the equality body and the judiciary. Moreover, an action before the equality body does not suspend the 

period of prescription (time limit) for filing a civil case. In Finland, non-employment-related complaints of discrimination 

on the grounds of ethnic origin can be submitted to the Ombudsman for Minorities and/or the Discrimination Tribunal.

There are special court procedures in a number of countries. Spain has an emergency procedure in the social (labour) 

courts for actions for the defence of fundamental rights and civil liberties. The United Kingdom’s employment tribunals 

adjudicate the full range of employment disputes, including those on discrimination; each tribunal has a legally qualified 

chairperson  and  two  lay  members.  In  Italy,  the  2003  decrees  transposing  the  Anti-discrimination  Directives  and 

subsequent national law provided a special procedural regime for discrimination cases. This procedure was abolished 

in 2011 and general provisions on fast track procedures under the Code of Civil Procedure now apply to discrimination 

cases at first instance. Under these provisions, a simplified procedure is followed for discrimination cases but is not as 

informal as in the past. The judge issues an order but an application for review may be filed with a court of appeal, as it 

can in ordinary cases. If an order is not appealed, it has the same binding force as a final judgment.

In Ireland, a specialised Equality Tribunal has an investigative role in hearing complaints.308 The procedure is informal. 

Complainants  may  represent  themselves  and  costs  may  not  be  awarded  against  either  party.  Hearings  are  held 

in  private.  In  2004  the  jurisdiction  for  dismissal  cases  was  transferred  to  the  Equality  Tribunal,  which  now  has  the 

power to award remedies, including a specific power to order reinstatement. The option of mediation is provided for in 

Section 78 of the Employment Equality Act 1998-2011. A mediated settlement agreed by the parties becomes legally 

binding  and  its  terms  can  be  enforced  at  the  Circuit  Court.309  The  Equality  Authority  may  provide  assistance  in  the 

enforcement procedures.310 In Poland a ‘compensation complaint’ procedure has been operating under the Labour Code 

since 1 January 2004:311 victims of discrimination in employment are entitled to initiate judicial proceedings and seek 

compensation. The Labour Court determines the compensation to be awarded, taking into consideration the type and 

gravity of the discrimination. This specific remedy was intended to avoid the need to use more general legal remedies 

such as Article 415 of the Civil Code (general compensation clause), though use of general remedies is not excluded. 

In addition, the 2010 Act on Equal Treatment introduced a compensation complaint available to any person (natural or 

306  As of 2 October 2012 the Netherlands Institute for Human Rights (NIHR) has replaced the previous Equal Treatment Commission. 

307  However, the Act does not specify which authority. 

308  The Government has announced its intention to merge a number of existing institutions in the field of employment relations, 

including the Equality Tribunal, into a new Workplace Relations Service. The implementing legislation has not yet been adopted.

309  Section 91(2), Employment Equality Act 1998-2011.

310  Section 67(1)(b)(iii) Employment Equality Act 1998-2011.

311  Article 18, 3d. .

88

Developing Anti-Discrimination Law in EuropeDecember 2014legal) who claims an infringement to the principle of equal treatment, in any field of application of the act. The relevant 

general provisions of the Civil Code and the Civil Procedure Code apply.

Legal actions in the public sector

Complaints  with  regard  to  the  public  sector  are  commonly  dealt  with  separately  from  the  private  sector.  In  Italy, 

cases concerning public sector employees are heard in the civil courts. In Croatia, civil procedures are the same for 

employment in the private and public sectors, with the exception of the obligation for a plaintiff wishing to file a claim 

against the State to send a request to the State Attorney’s office for amicable settlement. In Lithuania, complaints about 

administrative acts and acts or omissions by civil servants and municipal employees in the field of public administration, 

including social protection, social advantages, education, and access to and supply of goods and services which are 

available to the public, can be filed with the administrative disputes commission or the administrative courts. Cases of 

alleged discrimination by public institutions in Latvia can be filed with the same public institution that has treated the 

person differently, with a higher institution, with an administrative court, or with the public prosecutor’s office. In France, 

the administrative courts hear complaints from civil servants and contractual employees in the public sector and from 

citizens bringing actions against the State. In the Netherlands, if the discrimination occurs in public sector employment, 

ordinary administrative law procedures apply. In Liechtenstein employment disputes in the private sector are referred 

to the ordinary courts, whereas discrimination complaints in the public sector are examined by an administrative court, 

with the Constitutional Court acting in last instance.

Obstacles to effective access to justice

Although the number of complaints submitted to courts or equality bodies has been gradually rising, the still relatively 

low volume of case law on discrimination in most countries may well point towards barriers to justice, real and perceived. 

Transposition of the Directives has gone some way towards improving this situation due to the Directives’ enforcement 

provisions (see below) and the increased likelihood of civil procedures being used over the criminal law procedures which 

have traditionally been used but which pose difficulties in terms of proof and the prerogative of the state prosecutor. 

One potentially important barrier to effective access to justice is the lack of effective remedies, including compensation, 

for victims of discrimination.312

A  number  of  deterrents  and  potential  barriers  to  litigation  can,  however,  still  be  identified.  First,  some  experts  are 

concerned that the complexity of discrimination law may be deterring victims of discrimination in, for instance, Austria 

and the United Kingdom from bringing cases. Skilled, experienced assistance to victims can help counter this, but this 

type of aid remains limited in availability (in contrast to the professional advice and representation usually available to 

respondents).

The lack of sufficient financial means to pursue a case is another barrier cited in a number of countries and is closely 

related to the lack of adequate representation. In Norway, fees related to the representation by a legal counsel in courts 

are high and it is difficult to obtain free legal aid in discrimination cases. In Croatia, similarly to many countries, the 

plaintiff is not obliged to instruct a lawyer, but due to the complexity of the legislation and procedures, the help of a 

lawyer is de facto necessary. Procedures to access free legal aid are too complicated, and the lawyers’ fee paid by the 

State is symbolic. In the Czech Republic and Lithuania, legal aid is provided in very limited circumstances and therefore 

is of very little effect. In Slovakia, the ceiling for entitlement to free legal aid (or against a symbolic contribution) is 

quite low and hence a relatively large number of people cannot afford legal services. In addition, NGOs cannot claim in 

312  For further information, please see section E below, page 107.

89

December 2014courts reimbursement for expenses which cannot be borne by the victims or their own resources, in contrast to attorneys, 

limiting further access to free legal aid.313 At the same time, court fees may be too high to encourage victims to initiate 

a legal action, for instance in the Netherlands and Slovakia.

Another potential barrier is posed by short time limits for bringing a case. The Directives leave it to the national legislature 

to set any time limits it deems appropriate (Article 7(3) of the Racial Equality Directive, Article 9(3) of the Employment 

Equality Directive). In all countries, individuals can bring cases after the employment relationship has ended, provided the 

time limits for submitting a claim are respected. In the Netherlands, an applicant who wishes to contest the lawfulness 

of the termination of an employment contract (discriminatory dismissal or victimisation dismissal) under civil law must 

do so within two months of termination of the employment contract. Under Germany’s General Equal Treatment Act 

there is a time limit of two months for claims, beginning either with the receipt of the rejection of a job application by 

the applicant or with the knowledge of the disadvantageous behaviour. In Ireland, the Equal Status Act 2000-2011 

requires a complainant to notify the respondent in writing within two months of the date of the incident (or the date of 

the last incident) of the nature of the complaint and the intention to pursue the matter with the Equality Tribunal if there 

is no satisfactory response. Even with the possibility of an extension, if there is reasonable cause that prevented the 

complainant from sending the notification within the normal time period, there is concern that such short time limits can 

be problematic for victims, especially people with literacy difficulties, people with inadequate command of the state’s 

official language and disabled people. In Croatia, employees must file their complaints with their employer within 15 

days. The employer has 15 days to decide on the complaint and if the employee is not satisfied with this decision, a claim 

can be filed with the court within 15 days. In Hungary, for certain types of legal dispute (such as disputes concerning the 

termination of an employment relationship under Article 202 of the Labour Code), claims have to be initiated within 30 

days of the injurious measure; in Sweden if the claim aims to have a dismissal declared void, the time limit for filing is 

a matter of weeks from the act of dismissal or – in certain cases – one month after the termination of the employment.

Furthermore, the length and the complexity of procedures may act as deterrents to those seeking redress, as is said to be 

the case for instance in Austria, Cyprus, Estonia, Slovakia and Croatia, and there are serious concerns in Hungary 

and Slovenia that some judicial proceedings take over three years to complete. In Portugal, lengthy procedures may 

be explained by the poor institutional mechanisms for communication between the ACIDI, the general inspectorates and 

the public prosecutor. In Cyprus, the equality body is unable to provide any remedy in cases of discrimination when the 

delay in treating the case has caused a third party to acquire rights which cannot be revoked, as it does not have the 

power to award compensation.314

Basic adjustments to proceedings and court buildings to accommodate the needs of disabled complainants are often 

lacking and can deter disabled complainants, such as in France, Portugal or Turkey, where the effective removal of all 

barriers has been postponed.

In the Netherlands there are no specific rules requiring courts or the equality body to be accessible. Physical access to 

courts and other public buildings is not guaranteed in Slovakia. Access to public buildings is not always guaranteed in 

practice in, for instance, Hungary, Portugal and Slovakia, despite legal requirements. While the provision of information 

in Braille or sign language is required in Lithuania and Portugal, it is not mandatory in the Czech Republic, Malta or 

Slovakia. In Ireland, sign language interpretation in the court system is required in the context of criminal actions, but 

there is no corresponding provision for civil actions. In Estonia and Hungary, sign language is available in the courts, 

but Braille is rare. A further barrier in Estonia is that in practice courts usually reject complaints in Russian, in spite of 

313  Amendment to the Civil Procedure Act in 2011, Act No 332/2011 Coll. 

314  See, for instance, Report Ref. Α.Κ.Ι. 32/2008 dated 06 April 2012, regarding discriminatory age requirements for recruitment to 

police special services.

90

Developing Anti-Discrimination Law in EuropeDecember 2014the claimants’ right to interpretation in court. In Cyprus, legal documents are not made available in Braille in the courts. 

No countries mention specific procedural rules for individuals with learning disabilities. The French Disability Act creates 

a structure which centralises all administrative procedures to enforce the rights of disabled people. For instance, a claim 

referee will forward a disabled person’s claim to the competent authority or jurisdiction. In Slovenia, the 2010 Act on 

Equal Opportunities of People with Disabilities ultimately introduces the obligation to make courts accessible for people 

with disabilities and to make the court’s writings accessible either in scripts or in any other way chosen by the individual 

concerned (such as Braille).

Finally, the infrequency of litigation may itself be a deterrent to victims of discrimination as the impression may prevail 

that success is improbable. The more that cases are reported in the media, the more knowledgeable victims will become 

about their rights and options for upholding these rights. There is a tendency for the media to report on high-profile cases 

involving racial or ethnic and religious discrimination rather than age or disability cases. The media are likely to report 

even less in countries where cases are not made public. For instance, in Turkey only a selection of Court of Cassation 

and Council of State rulings is published. Likewise, in Italy and the former Yugoslav Republic of Macedonia, there 

is  no  systematic  publication  of  decisions  by  either  the  judges  or  the  equality  body.  Little  information  is  available  in 

Liechtenstein regarding court cases, especially from the first instance (ordinary instance) courts which are competent 

to decide upon civil and criminal discrimination claims.

B.  

Legal standing and associations

Article  7(2)  of  the  Racial  Equality  Directive  and  Article  9(2)  of  the  Employment  Equality 

Directive

‘Member States shall ensure that associations, organisations or other legal entities which have, in accord-

ance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions 

of [these Directives] 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 [these Directives].’

Under the Directives, EU Member States have some discretion as to how this clause is implemented in terms of the type 

of assistance that can be provided by associations to victims, and therefore national legal orders present many different 

patterns that are difficult to compare. Being able to ‘support’ a victim is more common than the power to engage in 

proceedings ‘on behalf’ of a victim.

Entities which may engage in procedures

No special regulations on the engagement of associations in discrimination procedures are found in Denmark, Finland 

and  the  United  Kingdom.  Individual  lawyers  (working  for  organisations)  may  represent  –  and  thereby  ‘engage  in 

support of’ – a victim in court upon his or her authorisation, and trade unions and employers’ organisations can represent 

their members. In Iceland, court procedures must be carried out in person or by a mandated representative, which can 

be a lawyer or an association. In the former Yugoslav Republic of Macedonia, the Law on Labour Relations grants 

the right to engage in judicial or other proceedings only to trade unions, but the Anti-discrimination Act extends this 

to all organisations and institutions dealing with equality issues. Similarly in Liechtenstein, trade unions and equality 

organisations may act as representative provided that a specific proxy is given  by  the complainant. Under Swedish 

procedural law, anyone can engage in proceedings or support a complaint. Trade unions have legal standing where one 

of their members is involved. NGOs have the right to bring actions in their own name as a party provided that their 

91

December 2014statutes envisage the possibility of taking into account their members’ interests, depending on their own activities and 

the circumstances of the case and on condition that consent is given. Greek procedural law permits NGOs and trade 

unions  with  a  legitimate  interest  in  ensuring  the  principle  of  equal  treatment  to  represent  people  before  any  court 

or  administrative  authority,  as  long  as  they  have  that  person’s  written  consent  (Article  13(3),  Act  3304/2005).  The 

organisation must act before the court through an authorised lawyer.

In the United Kingdom, associations with sufficient interest (locus standi) in a matter may bring judicial review actions 

under administrative law against public authorities, even if they have not themselves been the victims of a wrongful act. 

This requirement of sufficient interest has been given a generous interpretation in recent years by the UK courts, and 

trade unions, NGOs and the equality commissions have brought important actions against public authorities through 

judicial review proceedings. In addition, courts and tribunals may at their discretion permit associations with relevant 

expertise to make a ‘third-party intervention’ in any case, whereby associations may present legal arguments on a point 

of law that is at issue in the proceedings. Such ‘third-party interventions’ are often permitted in complex discrimination 

law  cases.  In  practice,  complainants  are  supported  by  the  equality  bodies,  trade  unions,  race  equality  councils, 

other voluntary sector advice agencies and complainant aid organisations under the normal rules of civil procedure. 

Employment Tribunal and Employment Appeal Tribunal procedures allow complainants to represent themselves or to be 

represented by any person.

In Croatia, the right to intervene is given to bodies, organisations, institutions, associations or other people engaged 

in the protection of the right to equal treatment related to the group whose rights are at issue in the proceedings. In 

Bulgaria,  public  interest  NGOs  and  trade  unions  may  join  proceedings  brought  by  a  victim  in  their  support,  and  do 

not formally need the complainant’s consent for this, or else they may represent complainants, for which consent is 

necessary.315 Furthermore, they can initiate proceedings themselves without an individual complainant where the rights 

of many parties are affected.316 Trade unions and public interest NGOs can also join such actio popularis proceedings 

brought by other associations in an amicus curiae capacity. NGOs and trade unions can intervene in support of class 

actions.

In Ireland, an individual or body may be authorised by an individual complainant to represent them before the Equality 

Tribunal or Labour Court (Article 77(11), Employment Equality Act 1998-2011), while only the Equality Authority may 

represent victims before the civil courts.317 In Estonia, staff members of associations of workers and other entities with 

a legitimate interest may represent or advise victims of discrimination in criminal, civil and administrative procedures 

if they meet certain criteria. Associations and other entities have a right to involvement in discrimination disputes in 

private employment as well as in the framework of the conciliation procedure before the Chancellor of Justice, where 

a person who has a legitimate interest in ensuring compliance with the equal treatment guarantee may also act as a 

representative (Article 23(2) of the Chancellor of Justice Act). Representation of victims by legal entities (such as NGOs) 

is also allowed under the Slovakian Anti-discrimination Act. The legal entity has to be given the authority to do so 

under a separate law (e.g. as is the case for the National Centre for Human Rights) or has to deal with discrimination. 

Additionally, a 15 October 2008 amendment to the Code of Civil Procedure offers the opportunity to ‘a legal entity whose 

activity is the protection of rights under a special law’, to join a pending court proceeding. The Slovak Anti-discrimination 

Act is one such ‘special law’. This means that the national equality body (the Slovak National Centre for Human Rights) 

or an NGO that seeks to protect the victims of discrimination can intervene as a third party in a court proceedings.

315 

In practice, however, if the complainant and NGO are not in communication, it would be difficult for the NGO to learn about the 

case in order to file a motion to join it. 

316  Article 72(3), Protection against Discrimination Act.

317  Other bodies and associations may only represent discrimination victims in civil courts at the informal discretion of the court.

92

Developing Anti-Discrimination Law in EuropeDecember 2014In Germany, under the General Equal Treatment Act, anti-discrimination associations are entitled to support claimants 

in  court  proceedings,  provided  that  they  fulfil  certain  criteria  (such  as  having  at  least  75  members  and  operating 

permanently rather than on an ad hoc basis to support one claim). In Luxembourg, under the General Discrimination 

Act of 28 November 2006, for associations to assist a victim of discrimination before the courts they must have legally 

existed for five years and be recognised by the Ministry of Justice as being nationally representative in the field of anti-

discrimination. In Norway, organisations must bear the ‘purpose, wholly or partly, to oppose discrimination according to 

the grounds as prohibited by law’.

In Austria, although anyone can represent alleged victims of discrimination in informal proceedings before the Equal 

Treatment Commission, for court proceedings only one statutory organisation, the Litigation Association of NGOs against 

Discrimination, has been given third-party intervention rights in the courts on behalf of the complainant, with his or her 

consent (Section 62 of the Equal Treatment Act). All specialised NGOs can join this Association, but non-members are 

not granted any special procedural rights. If they want to intervene they have to prove their legal interest in the case. 

An NGO, the Austrian National Council of Disabled Persons, has been given a similar right of intervention in disability 

cases, in addition to the Litigation Association’s own right to act. Similarly, the Maltese Equal Opportunities (Persons 

with Disability) Act was amended in 2012 to provide any person or legal entity which has a legitimate interest in ensuring 

compliance with the provisions of the Act, including associations and organisations, with the power to initiate legal action 

before the First Hall of the Civil Court against alleged perpetrators of discrimination on the ground of disability.

Legal standing in court of organisations for discrimination cases

318

319

NGOs/trade unions have legal standing in court for discrimination cases

Law

AUSTRIA
320

Equal Treatment Act (with limitations)318

321

Employment of People with Disabilities Act

Federal Disability Equality Act

BELGIUM

Racial Equality Federal Act

BULGARIA

CROATIA

CYPRUS

General Anti-discrimination Federal Act

Protection Against Discrimination Act

Anti-discrimination Act

Act on Equal Treatment Irrespective of Race or Ethnic Origin

Act on Equal Treatment and Occupation

Act on Persons with Disabilities

CZECH 
REPUBLIC

Anti-discrimination Act

Civil Procedure Code

DENMARK

Administration of Justice Act (with restrictions)319

ESTONIA

FINLAND

Labour Conflict Resolution Act320

No321

Article

§ 62

§ 7q

§ 13

Art. 32

Art. 30

Art. 71(2) 

Art. 24

Art. 12

Art. 14

Art. 9D

Section 11

Section 26

Art. 260(6)

Art. 14 (21)

-

318  This right is only granted for the Litigation Association of NGOs against Discrimination. The right to intervention and/or 

representation varies between the provinces.

319  The Act makes a difference between trade unions and other membership organisations and NGOs. NGOs do not have the same 

standing. The law also includes restrictions.

320  This possibility exists for the resolution of labour conflicts. Trade unions have a guaranteed right to represent and defend their 

members (Article 17(7) of the Law on Trade Unions).

321  The role of organisations is limited to requesting a statement from the tribunal. This statement can only regard the application 

of the Non-Discrimination Act in general and not in individual cases.

93

December 2014Nora | 2003

94

December 2014NGOs/trade unions have legal standing in court for discrimination cases

322

Law

323

FRANCE322

Labour Code323

Article

Arts 1132-1, 1134-2 
and 1134-3

Act on the Adaptation of National Law to Community Law in Matters of Discrimination

Art. 6

New Code of Civil Procedure

Prevention and Protection against Discrimination Act

Art. 31

Arts 39 and 41

324

325

326
FORMER 
YUGOSLAV 
327
REPUBLIC of 
328
MACEDONIA

GERMANY

General Equal Treatment Act324

GREECE

HUNGARY

ICELAND

IRELAND

Equal Treatment Act325

Act on Equal Treatment and the Promotion of Equal Opportunities

Civil Procedure Act 

Employment Equality Act

Equal Status Act

ITALY

Legislative Decree No 215/2003 on the Implementation of Directive 43/2000326

Legislative Decree No 216/2003 on the Implementation of Directive 78/200 

Law No 67/2006 on Measures for the Judicial Protection of Persons with Disabilities 
who are Victims of Discrimination327

LATVIA

Law on Organisations and Foundations

LIECHTENSTEIN Code of Civil Procedure

Act on Equality of People with Disabilities

LITHUANIA328

Equal Treatment Act

LUXEMBOURG

Equal Treatment Act

MALTA

Equal Treatment of Persons Order

Equal Treatment in Employment Regulations

Equal Opportunities (Persons with Disabilities) Act 

NETHERLANDS

Civil Code

NORWAY

POLAND

Act on Civil Procedures/Dispute Resolution Act

Code of Civil Procedure

PORTUGAL

Racial Equal Treatment Act 

Labour Procedure Code

Act on the Prohibition of Discrimination based on Disability and Pre-Existing Risk to 
Health

Art. 23

Art. 13.3

Arts 3 and 18 

Arts 16(1) and 25(3)

Ss 67 and  77(11)

Ss 67 and 77(11)

Art. 5

Art. 5

Art. 4

Art. 10(3)

Arts 11, 25, 26 and 28

Art. 31

Art. 12, para. 2

Arts 7 and 18

Art. 16

Regulation 11

Art. 33A

Art. 3:305a

Art. 1-4(1)

Art. 61

Art. 5

Art. 5

Art. 15(1)

ROMANIA

Act 324/2006 amending the Ordinance on the Prevention and Punishment of All Forms 
of Discrimination

Art. 28

322  Other legislation also provides for legal standing in courts of organisations in discrimination cases, such as Law No 2001-1066 

on the Fight against Discrimination (Art. 2) and Law No 2002-73 on Social Modernisation (Art. 24-1).

323  For cases relating to private-sector labour matters.

324  Organisations can support plaintiffs but not represent them.

325  Organisations in Greece have legal standing subject to certain restrictions. Their official objects should include the guarantee 

and protection of the principle of equal treatment.

326  Regarding race and ethnicity only, legal standing is granted to organisations that are included in a list approved by a joint Decree 

of the Ministries of Labour and Welfare.

327  Similarly, regarding disability, legal standing is granted to organisations identified by a joint Decree of the Ministries of Labour 

and Equal Opportunities.

328  Legal standing for organisations and trade unions is also stipulated in the Code of Civil Procedure, Arts 12, para. 2, and 56, paras 

5 and 6.

95

December 2014NGOs/trade unions have legal standing in court for discrimination cases

Law

SLOVAKIA

Act on Equal Treatment in Certain Areas and Protection against Discrimination329

329

Civil Procedure Act330

SLOVENIA
330

Act Implementing the Principle of Equal Treatment331

331

SPAIN
332

333

Civil Procedure Act332

Act on Fiscal, Administrative and Social Measures333

General Law on the Rights of Persons with Disabilities and their Social Inclusion

SWEDEN
334

Discrimination Act334

TURKEY335

335

UNITED 
336
KINGDOM

No

No336

To engage ‘on behalf of’

Article

S. 10

Art. 26, para. 2

Art. 23

Arts 199-202

Art. 31

Art.76

Ch. 6, S. 2

-

-

A number of countries allow associations to engage in proceedings ‘on behalf of’ victims of discrimination, including 

Belgium, Bulgaria, Cyprus, the Czech Republic, Estonia, the former Yugoslav Republic of Macedonia, France, 

Greece,  Hungary,  Ireland,  Italy,  Latvia,  Liechtenstein,  Lithuania,  Malta,  the  Netherlands,  Norway,  Poland, 

Portugal,  Romania,  Slovakia,  Spain,  and  Sweden.  However,  the  conditions  for  associations  to  engage  on  behalf 

of  victims  of  discrimination  as  well  as  the  scope  of  such  potential  action  vary  among  the  countries.  Spanish  Act 

62/2003  transposing  the  Directives  (Article  31)  provides  that  in  cases  outside  employment,  ‘legal  entities  legally 

authorised to defend legitimate collective rights and interests may engage on behalf of the complainant, with his or her 

approval, in any judicial procedure in order to make effective the principle of equal treatment based on racial or ethnic 

origin’. There is no corresponding provision for employment-related cases, in which only trade unions and employers’ 

organisations can engage. With complainants’ consent, trade unions can appear in court in the name and interest of their 

members. Furthermore, the Constitution entitles any natural or legal person invoking a legitimate interest to be party to 

proceedings relating to the violation of fundamental rights and freedoms, and entitles legal entities with a legitimate 

interest  to  engage  in  administrative  procedures.  In  Austria,  although  associations  and  other  legal  entities  may  act 

on behalf of victims of discrimination, this possibility is limited to proceedings where representation by a barrister is 

not mandatory, which are very rare. In Latvia, associations may represent victims of discrimination before the courts, 

although  amendments  were  adopted  in  late  2013  restricting  this  possibility  to  the  lower  instances.337  Thus,  as  of  1 

January 2014, an association having acted on behalf of a victim of discrimination before the first two instances may no 

longer appeal the decision of the court of appeal before the court of cassation, where a barrister needs to be present. 

It is noteworthy that most cases of discrimination have hereto been brought before the civil courts by NGOs or legal 

practitioners other than barristers, which may indicate that the amended provisions could have a very negative impact 

329  This Act grants legal standing to NGOs and the Slovak National Centre for Human Rights.

330  The Civil Procedure Act grants legal standing to trade unions.

331  As the general provision included in the Act is too vague to be operational, legal standing is restricted by other procedural laws.

332  Organisations need to ask for and be granted status of a third party intervener by the court.

333  Organisations do have the possibility to engage in civil and administrative proceedings but not in labour proceedings or in pre-

judicial matters.

334  Trade unions also have the right to represent their members in all disputes regarding employment (Procedure in Labour Law 

Cases Act, Ch. 4, S. 5 and Ch. 6 Art.2).

335  Judicial interpretation is needed of the Law on Trade Unions.

336 

In the UK, only victims of discrimination may litigate, although bodies with a ‘sufficient interest’ may bring judicial review 

challenges against actions of public authorities. Judicial interpretation of the Senior Court Act 1981 is therefore required.

337  Amendments to the Civil Procedure Law (Grozījumi Civilprocesa likumā), 19 December 2013, published in the Latvian Herald 

(Latvijas Vēstnesis) 2(5061), 03.01.2014, available in Latvian at: www.vestnesis.lv/?menu=doc&id=263490.

96

Developing Anti-Discrimination Law in EuropeDecember 2014on the (already low) number of court decisions in discrimination cases in Latvia. However, in 2003 the Constitutional 

Court  found  a  similar  provision  to  be  in  violation  of  the  Constitution,  and  was  repealed.338  In  Lithuania,  the  Equal 

Treatment Act has stipulated since 2008 that associations whose field of activity encompasses representation of victims 

of discrimination on a particular ground of discrimination in the courts have the right to engage on behalf or in support 

of complainants, with their approval, in judicial and administrative procedures. However, it is unclear how this provision 

will interact with more restrictive general provisions of the Code of Civil Procedure. In Finland, the right to bring a case 

before the Discrimination Tribunal is reserved to the victim or the Ombudsman for Minorities. With regards to legal action 

before the courts, as of 1 January 2013, only individual lawyers who have been granted a special authorisation to act as 

a legal attorney can represent victims in courts. However, according to the exception laid down in Section 2 of the Judicial 

Procedure Code, lawyers working for bodies such as the Ombudsman for Minorities and social partners (trade unions and 

employer organisations) do not need to apply for such authorisation. In Italy, only those associations that have been 

included in a list established by a joint decree of the Ministries of Labour and of Equal Opportunities may act on behalf 

or in support of victims of discrimination. The list was updated in 2013 and now contains more than 550 associations.339

In Poland general rules under the Civil Procedure Code allow non-profit social organisations to bring a claim on behalf 

of  individuals  or  join  such  labour  and  administrative  proceedings.  Organisations  whose  statutory  objectives  include 

equality  protection  and  protection  against  discrimination  by  unfounded  direct  or  indirect  violation  of  the  rights  and 

duties of citizens may, in the case of claims in this field and with the consent of the citizens, institute actions on behalf 

of the citizens. With the consent of the plaintiff, they may join proceedings at any stage. In Slovenia, only law firms can 

represent victims in courts, and this concretely means that NGOs can intervene only if they engage an entity entitled 

to  go  to  courts,  most  frequently  a  qualified  lawyer.  The  Hungarian  Equal  Treatment  Act  allows  ‘social  and  interest 

representation organisations’ as well as the Equal Treatment Authority to engage on behalf of the victim in proceedings 

initiated due to alleged infringement of the principle of equal treatment and to engage in administrative procedures. 

Turkish law does not fully guarantee the right of associations, organisations or other legal entities with a legitimate 

interest to engage in judicial or administrative procedures in support of victims of discrimination.

Collective redress

The European Commission has been assessing the need for a common EU approach to collective redress. In a working 

document  published  in  2011,340  it  recognised  that  collective  redress  is  necessary  where  the  same  breach  of  rights 

provided under EU law affects a large number of persons, in particular when individual actions fail to reach effective 

redress, in terms of stopping unlawful conduct and securing adequate compensation. Following this public consultation, 

the Commission issued in 2013 a Recommendation to the effect that all Member States should introduce collective 

redress mechanisms to facilitate the enforcement of the rights that all EU citizens have under EU law.341 Such action 

is not covered by the two Anti-discrimination Directives but can be divided into class action or group action (claims on 

behalf of an undefined group of claimants or identified claimants and multiple claims) and actio popularis.342 In many 

338  Decision of the Constitutional Court of the Republic of Latvia in Case No 2003-04-01 of 27 June 2003, available in Latvian at: 

http://www.satv.tiesa.gov.lv/?lang=1&mid=19.

339  Decree of the Labour and Social Policy Office of 13 March 2013, available at: http://www.asgi.it/public/parser_download/save/

decreto_min_lavoro_13032013.pdf.

340  Commission Staff Working Document Public Consultation: Towards a coherent European approach to collective redress, 4 

February 2011.

341  Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress 

mechanisms in the Member States concerning violations of rights granted under Union Law, OJ L 201, 26.7.2013, p. 60–65.

342  For further information, see L. Farkas, ‘Collective actions under European anti-discrimination law’, European Anti-discrimination 

Law Review, Issue 19, November 2014, p. 25.

97

December 2014countries, there is no specific procedure for discrimination cases but consumer protection law envisages group action, 

which can be relevant in the field of access to goods and services. However, in practice, application of these provisions 

is subject to judicial interpretation.

Actio popularis

yes
no
judicial interpretation required 

Actio popularis is a very useful tool as it allows organisations 

to act in the public interest on their own behalf, without a 

specific  victim  to  support  or  represent.  Actio  popularis  is 

permitted  by  national  law  for  discrimination  cases  in  16 

countries 

(Bulgaria,  Croatia,  France, 

the  former 

Yugoslav Republic of Macedonia, Germany,343 Hungary, 

Italy,  Liechtenstein,344  Luxembourg,  the  Netherlands, 

Norway,  Portugal,  Romania,  Slovakia,  Spain345  and 

Turkey). In Turkey for example, the Procedural Act adopted on 12 January 2011 introduced actio popularis claims. 

According to Article 113, associations and other legal entities may initiate a ‘group action’ to protect their interests or 

the interests of their members or the sector they represent ‘for the determination of the rights of the related parties on 

their behalf, removal of the illegal situation or the prevention of any future breach of their rights.’ However, general rules 

concerning the shifting of the burden of proof apply. In Hungary, social and interest representation organisations, the 

Equal Treatment Authority and the Public Prosecutor can bring actio popularis claims, provided that the violation of the 

principle of equal treatment was based on a characteristic that is an essential feature of the individual, and that the 

violation affects a larger group of persons that cannot be determined accurately.

In three countries judicial interpretation would be required. In Austria, even though some kind of group litigation is 

possible, the group litigation model neither clearly allows actio popularis nor establishes class action, therefore judicial 

interpretation is needed of the Federal Disability Equality Act.346 In Malta the Equal Treatment of Persons Order needs 

to be interpreted by courts. In England and Wales the Senior Court Act 1981 also needs interpretation.

Where actio popularis is not permitted by law for discrimination cases, it should be noted that in Cyprus the equality 

body accepts and investigates complaints from organisations acting in the public interest on their own behalf without a 

specified victim. This approach should nevertheless be attributed to the liberal approach followed by the equality body 

rather than to an interpretation of the law allowing actio popularis.

Class action

Class actions (possibility given to organisation to act in the 

interest of more than one individual victim for claims arising 

from the same event) are permitted by law for discrimination 

cases  in  12  countries:  Bulgaria,  Denmark,  the  former 

yes
no
judicial interpretation required 

343  This possibility exists only on the basis of disability law.

344  This possibility is nevertheless restricted. Articles 27 to 29 and 31 of the Act on Equality of People with Disabilities entitle 

associations for people with disabilities to make legal claims on their own behalf for accessibility provision in public buildings, for 

accessibility of public roads and traffic areas, and for accessibility on public transport systems.

345  Actio popularis is possible in Spain only in criminal proceedings.

346 

It has to be noted that in Austria, § 13 of the Federal Disability Act gives the NGO the Austrian National Council of Disabled 

Persons the restricted possibility to file an action on behalf of an unidentifiable group of affected persons with disabilities. 

Nevertheless, no financial compensation or any other remedies are possible. 

98

Developing Anti-Discrimination Law in EuropeDecember 2014Yugoslav  Republic  of  Macedonia,  France,  Iceland,347  Liechtenstein,  the  Netherlands,  Norway,  Portugal, 

Romania, Slovakia and Slovenia. In France where class action is only permitted for housing cases, a draft law was 

tabled in 2006 but it has not progressed further. In 2013, however, two additional draft laws were proposed introducing 

class action into national legislation with regard to discrimination cases.

Judicial interpretation is required in four countries. As mentioned above the Austrian model does not clearly establish 

either  actio  popularis  or  class  action,348  and  the  Federal  Disability  Equality  Act  needs  further  interpretation.  Judicial 

interpretation is also required for the Cypriot Law on the Courts of Justice, the Maltese Equal Treatment of Persons 

Order and the Polish Act on Pursuing Claims in Collective Actions.

As regards countries where class action is not permitted, it is interesting to note that the Hungarian legal system does 

not prevent associations from obtaining authorisations from more than one victim and bringing a single case, but in such 

a case the claims of each victim will be examined individually.

Neither actio popularis nor class action is permitted in the following countries: Belgium, the Czech Republic, Estonia, 

Finland, Greece, Ireland, Italy, Latvia, Lithuania, and Sweden.

Legitimate interest

According to the Court of Justice, Member States are not precluded ‘from laying down, in their national legislation, the 

right  of  associations  with  a  legitimate  interest  in  ensuring  compliance  with  that  directive,  or  for  the  body  or  bodies 

designated pursuant to Article 13 thereof, to bring legal or administrative proceedings to enforce the obligations resulting 

therefrom without acting in the name of a specific complainant or in the absence of an identifiable complainant. It is, 

however, solely for the national court to assess whether national legislation allows such a possibility’.349 In practice, this 

gives considerable discretion to Member States in the criteria they set for determining which legal entities can have a 

legitimate interest and which cannot. Further administrative provisions or formal requirements often reduce the scope 

for organisations to act. The French Act of 16 November 2001 permits representative trade unions and NGOs which 

have been established legally for at least five years and whose statutes mention combating against discrimination or 

slavery to intervene in an action brought by any apprentice, trainee, job applicant or employee who alleges they have 

been a victim of discrimination. Any person with a legitimate interest in the dismissal or granting of a civil action has 

legal standing before the civil courts, and NGOs working to combat discrimination on the grounds of ethnic origin, race or 

religion may be civil parties in some criminal actions. Although there is no specific provision in the Code of Administrative 

Justice, NGO interventions are common practice before administrative courts, provided that the purpose of the NGO 

corresponds to the subject matter of the case. However, the scope of the law is narrow and does not include employment 

cases for instance.

The Hungarian ‘social and interest representation organisations’ referred to above include any social organisation or 

foundation whose objectives, as set out in its articles of association or statutes, include the promotion of equal social 

opportunities for disadvantaged groups or the protection of human rights. As of 1 February 2012, the protected ground 

concerned by the legal action must be explicitly mentioned in the statutes. Judicial interpretation by the courts will be 

347  The Icelandic Civil Procedure Article 19a provides for a form of class action. Three or more individuals with claims against 

a party stemming from the same incident or situation can establish an ‘action association’ which can bring the case on the 

plaintiffs’ behalf.

348  The possibility of some sort of limited group litigation given to the Austrian National Council of Disabled Persons does not include 

the accumulation of interests of individuals.

349  Case C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV, [2008] ECR I-5187. 

99

December 2014needed to determine whether a restrictive or flexible interpretation will be adopted of this new provision, in particular 

with regard to cases of intersectional discrimination. This includes the minority self-governments of particular national 

and ethnic minorities and trade unions for matters related to employees’ material, social and cultural circumstances 

and  living  and  working  conditions  (Article  3(f)  Equal  Treatment  Act).  In  Belgium,  the  Inter-federal  Centre  for  Equal 

Opportunities and Opposition to Racism and Discrimination, officially recognised associations, associations which have 

had a legal personality for at least three years and state as their objective the defence of human rights or the fight 

against discrimination, and workers’ and employers’ organisations may engage in discrimination proceedings. However, 

where the victim of the alleged discrimination is an identifiable (natural or legal) person, an action brought by such 

bodies will only be admissible if they prove that the victim has consented to the action.

In  Italy,  associations  and  bodies  active  in  the  fight  against  discrimination  can  engage  in  proceedings  in  cases  of 

discrimination on the grounds of race and ethnicity in support or on behalf of complainants if they are included in a list 

approved by a joint decree of the Ministries of Labour and of Welfare and Equal Opportunities.350 Such organisations 

are  listed  on  the  basis  of  criteria  set  out  in  the  joint  decree,  which  include  establishment  for  one  year  and  having 

promotion of equal treatment and combating discrimination as their only or primary aim. With regard to all the grounds 

of  discrimination  dealt  with  in  Directive  2000/78/EC,  standing  to  litigate  –  previously  limited  by  Decree  216/2003 

to trade unions – is now accorded on an ad hoc basis to other organisations and associations regarded as having a 

‘legitimate interest’ in the enforcement of the relevant legislation. Portuguese associations may engage in judicial or 

other procedures in support of a complainant as they have the right to legal standing in civil and criminal cases concerning 

race discrimination and in some administrative proceedings. In particular, Act 18/2004 provides that ‘associations whose 

objective  is  the  defence  of  non-discrimination  based  on  racial  or  ethnic  origin  have  the  right  to  engage  in  judicial 

procedures on behalf or in support of the interested persons, with their approval’ (Article 5).

C.  

Burden of proof351

As a result of the difficulties inherent in proving discrimination, Article 8 of the Racial Equality Directive and Article 10 

of the Employment Equality Directive lay down that people who feel they have faced discrimination must only establish, 

before a court or other competent authority, facts from which it may be presumed that there has been discrimination.352 

The burden of proof will then shift to the respondent, who must prove that there has been no breach of the principle of 

equal treatment. This does not affect criminal cases (Article 8(3)/10(3)), and Member States can decide not to apply it to 

cases in which courts have an investigative role (Article 8(5)/10(5)). Thus, for example, in France the burden of proof is 

not shifted in administrative procedures which are inquisitorial in nature. Nevertheless, the Council of State (the supreme 

administrative court) held in 2009 that, while in discrimination cases it is the responsibility of the petitioner to submit 

the facts in order to presume a violation of the principle of non-discrimination, the judge must actively ensure that the 

respondent provides evidence that all elements which could justify the decision are based on objectivity and devoid of 

discriminatory objectives. Portuguese law states that the principle does not apply to criminal procedures nor to actions 

in which, in terms of the law, it is up to the court to carry out the investigation. In the Netherlands, the burden of proof is 

shifted in court proceedings, while this is not necessary in procedures before the Netherlands Institute of Human Rights 

(previously the Equal Treatment Commission), although the NIHR nevertheless does apply the shift in the burden of proof 

on a voluntary basis. This rule applies for all forms of discrimination, including harassment. In contrast, in Bulgaria, the 

350  Decree of the Ministry of Labour and Social Affairs of 13 March 2013, available at http://www.asgi.it/public/parser_download/

save/decreto_min_lavoro_13032013.pdf.  

351  A thematic report on the shift of the burden of proof in discrimination cases is currently under preparation by Lilla Farkas: 

Reversing the burden of proof: Practical dilemmas at the European and national level (to be published 2015).

352  The shift of burden of proof was originally developed under gender legislation (see Council Directive 97/80/EC of 15 December 

1997 on the burden of proof in cases of discrimination based on sex). 

100

Developing Anti-Discrimination Law in EuropeDecember 2014shift of the burden of proof is applicable to both judicial proceedings and proceedings before the equality body, although 

the  wording  of  the  national  provisions  differs  slightly  from  that  of  the  Directives.353  Although  the  shift  is  uniformly 

applicable to all forms of discrimination, including harassment and victimisation, it is not always applied consistently in 

all cases. Further training for judges and staff of the equality body would be advisable.

A  minority  of  states  appear  to  have  failed  to  transpose  the  burden  of  proof  provision  in  line  with  the  Directives.  In 

Latvia the shift of the burden of proof applies mainly to employment, but also to natural persons who are economic 

operators, education and access to goods and services. The provision on the burden of proof in the Austrian federal 

Equal  Treatment  Act  (applicable  in  the  private  sector)  lowers  the  burden  for  the  plaintiff  but  in  a  way  that  is  not 

considered to comply satisfactorily with the Directives. However, the Supreme Court has provided an interpretation in 

line with the Directive by ruling that, ‘If discriminatory infringements are successfully established, it is for the respondent 

to prove that he or she did not discriminate’. In 2013, the same provision contained in the Federal-Equal Treatment Act 

(applicable in the federal public sector) was amended to comply with the Directives.354 In Poland, before the adoption 

of the new Equal Treatment Act in 2010, the burden of proof only shifted in employment cases. Article 14 of the Act 

eventually introduced the shift of the burden of proof in all compensation proceedings dealing with the principle of equal 

treatment enshrined in the Act. In the former Yugoslav Republic of Macedonia, the Anti-discrimination Act places 

the burden to a great extent on the complainant, as he or she must submit ‘facts and evidence from which the act or 

action of discrimination can be established’,355 contrasting with the Directives, which merely require the establishment 

of the facts. Turkish law provides for a shift in a limited number of cases, as does Icelandic law, where the shift applies 

to gender discrimination cases only. In Liechtenstein, the plaintiff must establish the discrimination claim as ‘credible’. 

Moreover, against allegations of direct discrimination defendants must bring forward a ‘crucial’ reason justifying the 

difference in treatment. In Norway, the rule of shared burden of proof applies to all grounds of discrimination, as well 

as reasonable accommodation, harassment, victimisation and instructions to discriminate.

Provisions on burden of proof in Romania

Until 2013, the Romanian Anti-discrimination Ordinance stipulated that ‘the person concerned has the 

obligation  to  prove  the  existence  of  facts  which  allow  the  presumption  of  the  existence  of  direct  or 

indirect discrimination, and the person against whom a complaint has been filed has the duty to prove 

that the facts do not amount to discrimination’.356 The equality body’s interpretation was not always in 

compliance  with  the  Directives,  and  some  courts  interpreted  the  concept  in  a  manner  that  placed  an 

unreasonable burden on the victim. A draft proposal to amend the Anti-discrimination Ordinance was 

submitted and adopted by the Senate in 2010, proposing a new definition of the burden of proof.

The proposed amendment was however heavily criticised, firstly because it only referred to the burden 

of proof before the national equality body and not before the courts; secondly and more importantly, the 

proposed wording maintained the duty of the plaintiff to provide evidence leading to a presumption of 

discrimination but removed the duty of the defendant, replacing it by an option. The draft was delayed 

353  After the cut-off date of this report, on 16 January 2014, Parliament adopted at first reading an amendment to Article 9 of the 

Protection Against Discrimination Act, to bring the wording into line with the Directives regarding the shift of the burden of proof. 

The amendment is awaiting second reading.

354  BGBl. I No 81/2013 of 27 December 2013, amended §20a.

355  Act on the Prevention of and Protection against Discrimination (Закон за спречување и заштита од дискриминација), Official 

Gazette of the Republic of Macedonia, No.50/10. Articles 25 (para.2), 38.

356  Previous Article 20(6) of Governmental Ordinance 137/2000.

101

December 2014Ruwensley | 1982

102

December 2014and  finally  amended  in  2013,  to  be  adopted  by  the  Chamber  of  Deputies  on  26  February  2013.  The 

provision finally adopted reads as follows:

‘The  person  concerned  shall  present  facts  based  on  which  it  can  be  presumed  that  direct  or  indirect 

discrimination exists, and the person against whom the complaint was filed has the duty to prove that no 

infringement of the principle of equal treatment occurred.’357

The meaning of this phrase, ‘facts from which it may be presumed that there has been direct or indirect discrimination’ 

was one of several questions on the burden of proof put before the Court of Justice of the EU in the Case of C-54/07 

Centrum voor gelijkheid van kansen en voor racismebestrijding v NV Firma Feryn decided by the Court on 1 July 2008. 

Further guidance was also provided by the Court on this issue in case C-81/12 Asociaţia Accept v Consiliul Naţional 

pentru  Combaterea  Discriminării,  where  it  held  that  ‘a  defendant  employer  cannot  deny  the  existence  of  facts  from 

which it may be inferred that it has a discriminatory recruitment policy merely by asserting that statements suggestive 

of the existence of a homophobic recruitment policy come from a person who, while claiming and appearing to play an 

important role in the management of that employer, is not legally capable of binding it in recruitment matters.’358

There are different types of evidence for plaintiffs to establish facts from which it may be presumed that there has 

been  direct  or  indirect  discrimination,  including  statistics;  situation  testing  (Belgium,  Hungary,  the  Netherlands, 

Romania  and  Sweden);  questionnaires;  audio  or  video  recording  (Slovakia);  expert  opinions  or  inferences  drawn 

from circumstantial evidence (such as in France, where the chronological order of relevant events, a foreign physical 

appearance or a foreign surname359 were accepted as means of proof in discrimination cases on grounds of racial or 

ethnic origin).

Belgian court accepts recording as means of establishing a prima facie case of discrimination

The  complainant,  who  has  syndactyly,  a  congenital  hand  malformation,  was  employed  under  a  short 

term contract as a salesman in a computer hardware shop. The shop manager promised that he would 

be hired under a permanent contract on the condition that he immediately terminated his parallel em-

ployment as a car park attendant, which he did. However, the shop manager did not keep her promise. 

The complainant’s parents visited the shop and recorded their discussion with the manager, who then 

revealed that the decision not to employ the complainant was based on his congenital hand deformities, 

as the manager was afraid of customers’ reactions. As a consequence, the complainant and the (then) 

Centre for Equal Opportunities and Opposition to Racism each brought a case before the Labour Tribunal 

of  Bruges  in  order  to  obtain  an  injunction  imposing  the  cessation  of  the  discriminatory  practice,  the 

publication  of  the  judicial  decision  in  several  newspapers  and  its  display  on  the  premises  where  the 

discrimination occurred, as well as an award of damages.

On 10 December 2013, the President of the Labour Tribunal of Bruges ruled on both cases in emergency 

proceedings.360 Firstly, the injunction actions were declared inadmissible because there was no danger 

that the discriminatory practice would be repeated against the complainant. Secondly, the Tribunal held 

that  the  recording  provided  was  admissible  as  a  way  to  prove  a  prima  facie  case  of  discrimination, 

357  Articles 20(6) and 27(4) of Governmental Ordinance 137/2000, as amended on 25 June 2013.

358  Case C-81/12, judgment of 25 April 2013, ECLI:EU:C:2013:275.

359  See Airbus Operations SAS No K10-15873 where the Court of Cassation inferred discrimination from the list of surnames of 

company staff. 

360  President of the Labour Tribunal of Bruges, Judgments No 12/2552/A and No 12/2596/A of 10 December 2013.

103

December 2014as  there  had  been  no  violation  of  the  manager’s  rights.  In  this  regard,  the  Court  considered  that  the 

manager’s rights were not violated due to the absence of a confidential, personal or employment rela-

tionship between the complainant’s parents and the manager. In addition, the Court found it relevant 

that the recorded conversation had the sole object of discussing the alleged discrimination against the 

complainant. Finally, the Labour Tribunal held that an employer cannot directly distinguish an employee 

based on a physical or genetic characteristic and/or an alleged disability in order to respond to the needs 

and preferences of colleagues and/or customers. This kind of direct distinction can neither be considered 

as a genuine and determining occupational requirement nor as a difference in treatment imposed by, or 

by virtue of, legislation. Furthermore, no reasonable accommodation was provided to make the function 

possible.  Consequently,  the  President  of  the  Labour  Tribunal  of  Bruges  ruled  that  the  shop  manager 

was guilty of direct discrimination and sentenced her to pay the equivalent of six months of salary as 

compensation, but did not order the publication and display of the judicial decision.

D.  

Victimisation

Member States must ensure that individuals are protected from any adverse treatment or adverse consequences in 

reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment (Article 

9,  Racial  Equality  Directive;  Article  11,  Employment  Equality  Directive).  There  is  still  a  major  inconsistency  with  this 

principle  in  some  states,  where  protection  is  restricted  to  the  employment  field  and  thereby  fails  to  protect  against 

victimisation in the areas outside employment protected by the Racial Equality Directive (Luxembourg and Spain). In 

Malta, amendments to national law adopted in 2012 extend protection against victimisation for complaints brought on 

the grounds of sexual orientation, age, religion or belief and gender identity to certain fields beyond employment, such 

as education and financial services.361 In addition, the amended Equal Opportunities (Persons with Disability) Act now also 

prohibits victimisation of anyone having made a complaint or initiated or participated in proceedings for redress on the 

grounds of an alleged breach of the Act, or for having disclosed information, confidential or otherwise, to a designated 

public regulatory body, regarding alleged discriminatory behaviour, activities or practices.362 According to Danish law, 

the protection applies to a person who files a complaint regarding differential treatment of her/himself and to a person 

who files a complaint of differential treatment of another person, and it is a prior condition that a causal link can be 

established between the victimisation and the employee’s request for equal treatment. In Italy, amendments to the 

Anti-discrimination Decrees were introduced to extend protection against victimisation to ‘any other person’ beyond the 

complainant.363 In both Croatia and the former Yugoslav Republic of Macedonia, anti-discrimination acts prohibit 

placing in a less favourable position a person who has reported discrimination or filed a complaint or who has witnessed 

discrimination. Icelandic law,364 as well as Turkish labour law, merely prohibits the dismissal of an employee who seeks 

judicial redress. In Liechtenstein a complainant or a witness is protected against reprisals for initiating a complaint or 

a legal action related to a violation of anti-discrimination law.

For example, in Belgium, protection against victimisation is limited to victims filing a complaint of discrimination and 

any formal witness in the procedure. This limitation seems to mean that not ‘all persons’ involved are protected, for 

instance persons who provided assistance or support to the victim as required by the Directives. In Bulgaria, protection 

361  Equality for Men and Women Act, Article 4.

362  Equal Opportunities (Persons with Disability) Act, Article 5.

363  Legislative Decree of 8 April 2008, No 59 (later converted into an ordinary law by the Act of 6 June 2008, No 101, converting 

into an Act, with modifications, the Legislative Decree of 8 April 2008, containing urgent provisions for the implementation of EU 

obligations and the execution of judgments of the Court of Justice of the European Communities, published in Official Journal No 

132 of 7 June 2008.

364  Victimisation is only explicitly prohibited under the Gender Equality Act. 

104

Developing Anti-Discrimination Law in EuropeDecember 2014is accorded for victimisation by presumption and by association as well. Action for protection against discrimination may 

include, but is not limited to, bringing proceedings before the equality body or a court, in either the capacity of victim 

or as a third party, or testifying in proceedings. In the United Kingdom it is not required that the perpetrator of the 

victimisation should have been involved in the initial complaint. For example, an employer who refuses to employ a person 

because he or she complained of discrimination or assisted a victim of discrimination in a previous job would still be 

liable for victimisation. Since the adoption of the Equality Act 2010, the United Kingdom provision defining victimisation 

no longer requires the complainant to show less favourable treatment than a real or hypothetical comparator, bringing 

national law into line with the Directives, which do not require a comparator. However, protection against victimisation in 

the United Kingdom is retrospective only: the law does not require preventative measures as are implicitly required by 

the Directives. Finally, the Equality Act 2010 did not extend to post-employment acts of victimisation.

UK courts deliver contrasting decisions on post-employment victimisation

In the spring of 2013, two Employment Appeal Tribunals (EATs) adopted contrasting decisions regard-

ing the scope of the prohibition of victimisation contained in the Equality Act 2010. The Equality Act 

explicitly excludes victimisation from the provision which ensures protection against discrimination after 

the termination of the employment contract (Section 108(7)), which is why the EAT in the first case found 

that the Act provides no remedy for post-employment victimisation, although it recognised that the gap 

in statutory protection was probably accidental.365 The EAT did not accept that it had the power to fill the 

statutory gap itself, which would have required extensive re-writing of primary legislation.

However, the EAT in the second case came to the conclusion that the drafters of the Equality Act must 

have been familiar with the earlier case law which extended protection against discrimination after the 

termination of the employment contract, and that their failure to explicitly exclude such victimisation 

from the Act must be interpreted to mean that it was implicitly included.366 In addition, a construction 

compatible with EU law would have achieved the same result.

Slovenian protection against victimisation is proactive: upon finding discrimination in the original case, the Advocate 

of the Principle of Equality should order in writing the legal person in which discrimination allegedly occurred to apply 

appropriate measures to protect the person who faced discrimination, or persons assisting the victim of discrimination, 

from  victimisation  or  adverse  consequences  of  the  complaint.  In  the  event  that  an  alleged  offender  does  not  obey 

the  Advocate’s  order,  the  inspector  has  the  duty  to  prescribe  appropriate  measures  that  protect  the  person  from 

victimisation. In Lithuania, the provision in the Equal Treatment Act repeats the wording of the Directives, stating that 

an employer is obliged to take necessary measures to ensure that employees are protected against dismissal or other 

adverse treatment which could occur as a reaction to a complaint within the organisation or to any legal proceedings 

aimed at enforcing compliance with the principle of equal treatment. In Romania, protection against victimisation is 

not limited to the complainant but extends to witnesses. As the law does not distinguish, victimisation is prohibited not 

only in relation to complaints filed with the national equality body but also in relation to complaints submitted to any 

other public or private institution (labour inspectorate, consumer protection office etc.). In Norway, protection against 

discrimination is limited when the complainant acted with gross negligence. Otherwise, provisions on victimisation apply 

to the complainant, as well as to witnesses or anyone who assists the victim in bringing the claim, such as a workers’ 

representative.

365  Rowstock Ltd & Anor v Jessemey, 5 March 2013, Appeal No UKEAT/0112/12/DM.

366  Onu v Akwiwu & Anor, 1 May 2013, Appeal No UKEAT/0283/12/RN & UKEAT/0022/12/RN.

105

December 2014French Act No 2008-496 has introduced specific protection against victimisation applicable to the entire scope of civil 

remedies for direct or indirect discrimination covered by the Directives. In particular, it provides that no one having testified 

in good faith about discriminatory behaviour or having reported it can be treated in an unfavourable manner and that 

‘Unfavourable measures cannot be taken against a person because he or she was a victim of discrimination or because 

of his or her refusal to submit to discrimination prohibited by Article 2’. This law clarifies that protection extends to victims 

and non-victims but does not provide any indication as to the burden of proof applicable to claims of victimisation.

Prohibition of victimisation in national law (in the case of decentralised states only federal law is indicated)

§§ 27, 39

§ 20/b

§ 7i

§ 9(5)

Arts 14 and 15

Arts 16 and 17

Arts 5 and § 1.3-4 
Additional Provisions

Art. 7 and 28

Art. 10

Art. 11

Art. 7

S. 4, para. 3

Art. 7(2)

Art. 8

Art. 3(6)

S. 8

- 

S. 74(2)

S. 3(2)(j)

Art. 4bis

Art. 4bis

Arts 8(2) and 9

Art. 23§4

AUSTRIA
367

Equal Treatment Act

368

369

370

Federal Equal Treatment Act367

Employment of People with Disabilities Act

Federal Disability Equality Act368

BELGIUM
371

Racial Equality Federal Act369

General Anti-discrimination Federal Act 

BULGARIA

Protection Against Discrimination Act 

Anti-discrimination Act

Act on Equal Treatment in Employment and Occupation 

Act on Equal Treatment irrespective of Race or Ethnic Origin 

Act on Persons with Disabilities

Anti-discrimination Act

Act on Prohibition of Discrimination in the Labour Market etc.

Ethnic Equal Treatment Act

Equal Treatment Act

Non-Discrimination Act

CROATIA

CYPRUS

CZECH 
REPUBLIC

DENMARK

ESTONIA

FINLAND

FRANCE

FORMER 
YUGOSLAV 
REPUBLIC of 
MACEDONIA

GERMANY

GREECE

HUNGARY

ICELAND

IRELAND

Act on the Adaptation of National Law to Community Law in Matters of Discrimination 

Arts 2 and 3

Prevention and Protection against Discrimination Act

General Equal Treatment Act

Equal Treatment Act 

Art. 10

Art. 16

Art. 15

Act on Equal Treatment and the Promotion of Equal Opportunities

Arts 10, para. 3

-370

Employment Equality Act

Equal Status Act

ITALY

Legislative Decree No 215/2003 on the Implementation of Directive 43/2000 

Legislative Decree no. 216/2003 on the Implementation of Directive 78/2000 

LATVIA

Labour Law371

LIECHTENSTEIN Act on Equality of People with Disabilities

367  The Federal Equal Treatment Act and the Employment of People with Disabilities Act include protection against victimisation in 

employment discrimination cases only.

368  The Federal Disability Equality Act includes protection against victimisation outside the employment field only.

369  Belgian law only protects victims, their representatives and witnesses against victimisation while the EU Directives cover ‘all 

persons’ involved.

370  Victimisation is only defined and prohibited in the Gender Law.

371  Victimisation is also dealt with outside the employment field in the following laws: the 1995 Law on Social Security, Art. 34(2), 

the 1999 Law on Consumer Protection, Art. 3(1), and the 2012 Law on Prohibition of Discrimination against Natural Persons who 

are Economic Operators, Art. 6.

106

Developing Anti-Discrimination Law in EuropeDecember 2014LITHUANIA

Equal Treatment Act

LUXEMBOURG

Equal Treatment Act

MALTA

Employment and Industrial Relations Act

Equal Treatment of Persons Order

Equal Opportunities (Persons with Disability) Act

Equality for Men and Women Act

NETHERLANDS General Equal Treatment Act

Disability Discrimination Act 

Age Discrimination Act 

Art. 7, para. 8

Arts 4 and 18

Art. 28

Art. 7

Art. 5

Art. 4

Arts 8(1) and 8(a)

Arts 7(a) and 9

Arts 10 and 11

NORWAY

Anti-discrimination Act on Prohibition of Discrimination based on Ethnicity, Religion, etc. Art. 10

Working Environment Act

Anti-discrimination and Accessibility Act on Prohibition of Discrimination on the Basis of 
Disability

Act relating to a Prohibition against Discrimination on the Basis of Sexual Orientation, 
Gender Identity and Gender Expression

POLAND

Act on the Implementation of Certain Provisions of the European Union in the Field of 
Equal Treatment

PORTUGAL372

Labour Code373

Arts 2-5

Art. 9

Art. 9

Art. 17

Art. 129(1)(a)

ROMANIA

SLOVAKIA

SLOVENIA

SPAIN

SWEDEN

TURKEY

UNITED 
KINGDOM
372

373

374

375

Act 324/2006 amending the Ordinance on the Prevention and Punishment of All Forms 
of Discrimination

Art. 2(7)

Act on Equal Treatment in Certain Areas and Protection against Discrimination 

S. 2a, paras 8 and 10

Act Implementing the Principle of Equal Treatment

Employment Relationship Act

 Act on Fiscal, Administrative and Social Measures

Discrimination Act

-374

(UK) Equality Act

(NI) Race Relations Order (RRO)

(NI) Fair Employment and Treatment Order

(NI) Employment Equality (Sexual Orientation) Regulations375

(NI) Disability Discrimination Act

(NI) Employment Equality (Age) Regulations 

Art. 3(2)

Art. 6(8)

Art. 37

Ch. 2, Ss. 18-19

Art. 18

S. 27

Art. 4

Art. 3(4)

Reg. 4

S. 55

Reg. 4

E.  

Sanctions and remedies376

Infringements of anti-discrimination laws must be met with effective, proportionate and dissuasive sanctions, which 

may include compensation being paid to the victim (Article 15, Racial Equality Directive; Article 17, Employment Equality 

Directive). The concept of effective, proportionate and dissuasive remedies was first developed in the Court of Justice’s 

case law on sex discrimination. Due to the parallels of EU sex discrimination law with the Racial Equality and Employment 

Equality Directives, this case law is of relevance to the latter Directives. The meaning of the concept must be determined 

in each concrete case in the light of individual circumstances.

372  Prohibition of acts of retaliation (both within and outside the employment field) is also granted by Art. 7 of the Principle of Racial 

Equality Act.

373  Only in relation to employment.

374  Protection against victimisation, although not comprehensive enough, is available in limited situations under the Labour Law.

375  The (NI) Equality Act (Sexual Orientation) Regulations, Reg. 4, provide for protection against victimisation outside employment.

376  A thematic report on this topic produced by the European Network of Legal Experts in the Non-discrimination Field provides a 

more detailed analysis, cf. the thematic study by Christa Tobler, Remedies and sanctions in EC non-discrimination law: Effective, 

proportionate and dissuasive sanctions and remedies, with particular reference to upper limits on compensation to victims of 

discrimination. Some of the findings of this study are reproduced in this section. 

107

December 2014CJEU ruling on sanctions in discrimination cases: Asociaţia ACCEPT

When ruling on the Asociaţia ACCEPT case, the Court of Justice of the EU was provided a rare opportunity 

to examine and provide guidance on the effectiveness, proportionality and dissuasiveness of sanctions 

available in discrimination cases.

The case concerned a shareholder of a football club who presented himself and was generally perceived as 

the ‘patron’ of that club, and who made a statement in the media criticising the recruitment by the club of 

homosexual players. The association ACCEPT lodged a complaint before the Romanian quasi-judicial equal-

ity  body  (National  Council  for  Combating  Discrimination,  NCCD),  claiming  discrimination  in  recruitment 

matters on the ground of sexual orientation. The NCCD found that as the statements did not emanate from 

an employer or a person responsible for recruitment, they did not fall within the sphere of employment al-

though they were found to constitute harassment. The claimant association brought an action against that 

decision, and the Bucharest Court of Appeal subsequently referred questions to the CJEU for a preliminary 

ruling, including questions related to the sanctions available in Romanian anti-discrimination law.

In its judgment of 25 April 2013, the Court observed that Directive 2000/78 applies to situations such as 

the present one, which involve statements concerning the conditions for access to employment, including 

recruitment conditions. The specificities of the recruitment of professional football players were found 

to be irrelevant in this regard, as was the fact that the statements were made by a person who was 

not legally capable of binding the employer in recruitment matters. Thus, statements made in relation 

to  recruitment  matters  by  a  person  who  claims  to  play  an  important  role  in  the  management  of  an 

employer and who appears to do so, can constitute ‘facts from which it may be presumed that there has 

been discrimination’ in the sense of the Directive.

Finally, the Court examined the national regulation which provided that the only sanction available after the 

expiry of six months from the date on which the facts occurred was a ‘warning’. In this regard, the Court 

found that the Directive precludes such a regulation, unless the specific remedy can be considered to be 

effective, proportionate and dissuasive. The Court underlined that symbolic sanctions are not compatible 

with the Directive. Thus, not only pecuniary sanctions are compatible with the Directive, but non-pecuniary 

sanctions should be accompanied by a sufficient degree of publicity. In addition, the Court noted that each 

remedy available in national legislation should individually fulfil the criteria of the Directive.

In practice, a wide range of possible remedies exist depending, for example, on the type of law (e.g. civil, criminal, or 

administrative  remedies),  the  punitive  or  non-punitive  character  of  the  remedies,  their  orientation  as  backward-  or 

forward-looking (the latter meaning remedies seeking to adjust future behaviour) and the level at which they are intended 

to operate (individual/micro or group/macro level). Remedies may be available through various, possibly complementary, 

enforcement  processes  (administrative,  industrial  relations  and  judicial  processes).  Depending  on  such  features,  the 

remedies  offered  by  a  particular  legal  order  will  reflect  different  theories  of  remedies  (e.g.  remedial,  compensatory, 

punitive  and  preventative  justice)  and  also  different  concepts  of  equality  (e.g.  an  individual  justice  model,  a  group 

justice model or a model based on equality as participation). It follows that a comprehensive enforcement approach 

is very broad indeed. This approach addresses not only procedural aspects and the substance of remedies (relief and 

redress for the victims of discrimination) but also broader issues such as victimisation, compliance, mainstreaming and 

positive action, as well as other innovative measures such as corrective taxation. Financial compensation to the victim 

may include compensation for past and future loss (most common), compensation for injury to feelings, damages for 

personal injury such as psychiatric damage, or exemplary damages to punish the discriminator (much less common).

108

Developing Anti-Discrimination Law in EuropeDecember 2014As a whole, no single national enforcement system appears to be truly all-encompassing. Essentially, they are all mostly 

based on an individualistic and remedial – rather than a preventative – approach. Irish law provides a broad range of 

remedies, including compensation awards, reinstatement and re-engagement, as well as orders requiring employers to 

take specific courses of action. In particular, there is case law relating to compliance with these orders: the creation of an 

equal opportunities policy; reviewing recruitment procedures; reviewing sexual harassment procedures; formal training 

of interview boards; review of customer service practices; and equality training for staff. In Spain penalties have been 

established in the employment field for all the grounds (Directive 2000/78/EC) and for the ground of disability in all 

fields (Act 49/2007), but not in the other fields covered by Directive 2000/43/EC on grounds of racial or ethnic origin, 

except in criminal law.

In  some  Member  States  the  specialised  body  is  empowered  to  issue  sanctions  in  cases  where  they  have  found 

discrimination. The Bulgarian Protection against Discrimination Commission has powers to impose financial sanctions 

between the equivalents of EUR 125 and EUR 1,250, amounts that would be dissuasive to the majority.377 These sanctions 

are administrative fines and are not awarded to the victim as compensation but go to the state budget. The British 

Equality and Human Rights Commission and the Equality Commission for Northern Ireland are able to use their powers 

of formal investigation to investigate organisations they believe to be discriminating and, where they are satisfied that 

unlawful acts have been committed, they can serve a binding ‘compliance notice’ requiring the organisation to stop 

discriminating and to take action by specified dates to prevent discrimination from recurring. They also have the power 

to enter into (and to enforce via legal action if necessary) binding agreements with other bodies who undertake to avoid 

discriminatory acts and to seek an injunction to prevent someone committing an unlawful discriminatory act. In addition, 

tribunals in the United Kingdom have the power to make broad recommendations as regards future steps to be taken 

by employers shown to have discriminated, thereby going beyond the respondent’s treatment of the claimant. However, 

the  Deregulation  Bill  currently  being  debated  in  Parliament  will,  if  adopted  in  its  current  form,  repeal  the  provisions 

allowing for such broad recommendations.378

Lack of appropriate mechanisms to monitor compliance with decisions in Romania

Although Article 19 of Ordinance 137/2000 (the Romanian anti-discrimination law) lists the monitoring 

of discrimination among the tasks of the National Council for Combating Discrimination (NCCD), there 

is no mechanism which would permit adequate monitoring of compliance with the NCCD’s decisions. In 

principle, an individual who is ordered to pay a fine has the duty to send a proof of payment. However, 

there is no information related to effective compliance in practice or whether the NCCD compiles such 

information.  Enforcement  would,  in  practice,  only  be  monitored  if  the  member  of  the  NCCD  Steering 

Board who is responsible for the case in question takes an interest, or in the case of significant visibility 

provided by the media.

Interesting administrative remedies are found in Portugal. The following remedies are avail-

able in Portugal in all cases of discrimination:

• 

• 

• 

publication of the decision;

censure of the perpetrators of discriminatory practices;

confiscation of property;

377  Article 78-80 of the Protection against Discrimination Act.

378  Deregulation Bill 2013-14 to 2014-15, available at: http://services.parliament.uk/bills/2014-15/deregulation.html.

109

December 2014• 

prohibition of the exercise of a profession or activity which involves a public prerogative or depends 

on authorisation or official approval by the public authorities;

removal of the right to participate in trade fairs;

removal of the right to participate in public markets;

prohibition of access to their premises for the perpetrators;

suspension of licences and other authorisations; and

removal of the right to the benefits granted by public bodies or services.

• 

• 

• 

• 

• 

For  certain  cases,  the  Court  of  Justice  of  the  European  Union’s  case  law  contains  specific  indications  regarding  the 

European Union legal requirements in relation to remedies. Thus, in the case of discriminatory dismissal, the remedy (or 

remedies) granted must in all cases include either reinstatement or compensation. Furthermore, where compensation is 

chosen as a remedy it must fully make good the damage. Upper limits are not acceptable, except for situations where 

the damage was not caused through discrimination alone.

In Finland, the law specifies an upper limit of EUR 16,430,379 but this is only theoretical as it can be exceeded for special 

reasons, such as if the breach of equal treatment laws took place over an extended period of time; if the respondent 

is indifferent to requirements posed by law; if the breach was particularly severe; or if the complainant felt particularly 

offended by the breach. Statutory upper limits on compensation for non-pecuniary damages apply in Malta for disability 

cases (EUR 2,500), although this upper limit was significantly raised in 2012.380

There appear to be no limits either in relation to pecuniary or non-pecuniary damages in the national laws of Bulgaria, 

Croatia,  the  Czech  Republic,  Denmark,  the  former  Yugoslav  Republic  of  Macedonia,  France,  Iceland,  Italy, 

Liechtenstein,381 Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain 

and the United Kingdom. In Estonia, the Public Service Act (Article 135) was amended in December 2008 to the effect 

that the upper limit of compensation provided for illegal termination of employment or service does not apply if there 

has been a discriminatory termination as specified in the Equal Treatment Act or the Gender Equality Act. Although there 

are no statutory limits on compensation for damages in Croatia, in 2002 the Supreme Court published guiding criteria 

for  non-pecuniary  damages  which  the  courts  are  using  as  guidelines  to  determine  levels  of  compensation,  without 

necessarily taking into account the effectiveness, proportionality and dissuasiveness of the sanction.

Upper limit for unpaid salary damages under the Hungarian Labour Code

Under  Article  82  of  the  Labour  Code,  if  discrimination  is  manifested  in  the  unlawful  termination  of 

employment,  the  employer  must  compensate  the  employee  for  the  damage  suffered.  Paragraph  (2), 

however, provides that, if the claimant demands lost income as an element of damages, no more than 

twelve months’ salary may be claimed by the employee under this heading. The reason for this provision 

(which means a significant change to the previous situation as no such cap existed) was that protracted 

lawsuits put employers into very difficult situations if after several years they had to pay the unlawfully 

dismissed employee’s unpaid salary in full if he/she did not find a new job during that time. The change 

has a very detrimental effect on employees, as it introduces a maximum ‘penalty’ that employers have 

to pay for an unlawful dismissal, which may dissuade them from trying to reach a friendly settlement 

instead  of  making  the  case  as  long  as  possible  through  appealing  the  subsequent  judicial  decisions 

(since delaying tactics will not have an impact on how much they have to pay in the end).

379  TyA 59/2010, Section 1.

380  Article 34 of the Equal Opportunities (Persons with Disability) Act, as amended by Act II of 2012.

381  No upper limit for disability under the Act on Equality of People with Disabilities. 

110

Developing Anti-Discrimination Law in EuropeDecember 2014Judicial interpretation will be required to determine how this provision will be applied in correlation with 

Article 83 of the Labour Code, which allows an unlawfully dismissed employee to request the courts 

to order his/her reinstatement. Indeed, it remains unclear what happens if an employee is reinstated 

following a lawsuit which has lasted longer than one year. According to some practitioners, the employ-

ment has to be regarded as continuous, so that the employee receives his/her lost income as ‘unpaid 

salary’ and not as ‘damages’, and so the cap does not apply. According to others, even in such cases no 

more than 12 months’ salary can be claimed retroactively. No judicial decisions are available yet on this 

matter, so it needs to be seen how jurisprudence will evolve in this respect.

In Latvia, there is no maximum amount for damages under civil law, but the Reparation of Damages caused by State 

Administrative Institutions Act sets maximum amounts of damages for material harm at LVL 5,000 (approx. EUR 8,000), 

or LVL 7,000 (approx. EUR 10,000) in cases of grievous bodily harm, and LVL 20,000 (approx. EUR 24,000) if life has 

been endangered or grievous harm has been caused to health. The maximum amount of damages for non-pecuniary 

harm is set at LVL 3,000 (approx. EUR 4,800) or LVL 5,000 (approx. EUR 8,000) in cases of grave non-pecuniary harm 

and  LVL  20,000  (approx.  EUR  24,000)  if  life  has  been  endangered  or  grievous  harm  has  been  caused  to  health.  It 

is  as  yet  unclear  whether  the  courts  would  award  damages  for  both  material  and  non-pecuniary  harm  in  cases  of 

discrimination. The definitions of material and non-pecuniary harm permit cases of discrimination to be brought under 

both, and the law permits applications for several kinds of damages at the same time. Austrian law specifies an upper 

limit  of  EUR  500  as  non-pecuniary  damages  in  cases  of  non-recruitment  or  non-promotion  if  the  employer  proves 

that the victim would not have been recruited or promoted anyway. Of the countries where limits do exist, Ireland is 

particularly interesting because there are no comparable statutory limits on compensation for discrimination on grounds 

of sex. In Poland, there is a minimum level of compensation which is linked to the minimum wage. Articles 5 and 21 of 

the Turkish Labour Law provide that an employee may ask compensation for the actual damage suffered, in addition to 

a compensation of up to four months’ wages.

The following examples illustrate sanctions in a number of Member States which can hardly be regarded as effective or 

dissuasive remedies. In France, judges are still reluctant to award substantial amounts when calculating pecuniary loss, 

and amounts awarded remain rather low. In Sweden, damages for violations of non-discrimination legislation range 

between EUR 1,700 and EUR 11,000, depending on the circumstances. In Slovakia, the Anti-discrimination Act (Section 

9, paragraph 3) requires a finding of a ‘considerable impairment of the dignity, social status or social achievement of 

the person injured’ for financial compensation for non-pecuniary damage to be awarded. This provision may explain 

the inconsistent and varying approach taken to financial compensation in general and the often symbolic levels of non-

pecuniary compensation when it is awarded. Dutch courts are generally reluctant to grant damages for non-pecuniary 

loss. In Norway, the fact that the Equality Ombud and the Equality Tribunal cannot award compensation to victims has 

been widely criticised and sanctions can hardly be considered as effective or dissuasive.

On initial examination, with the exception of the United Kingdom and Ireland for employment cases, the levels of 

compensation awarded in most countries seem relatively low. This, coupled with the length of time it can take to obtain 

a decision, throws doubt on the effectiveness of remedies and even whether they in actual fact make good the loss. 

Their dissuasiveness is also questionable, in particular with regard to the issue of whether such sums will deter larger 

employers. Spanish and Portuguese legislation provides criteria based on company turnover to determine the level of 

penalty in some cases. This approach presents an interesting option.

111

December 2014Martijn | 1987

112

December 2014Chapter 5 
The role of equality  
bodies compared382

382  Please also see the complete tables for the specialised bodies in the annex. 

113

December 2014Article 13, Racial Equality Directive:

‘1. Member States shall designate a body or bodies for the promotion of equal treatment of all persons 

without discrimination on the grounds of racial or ethnic origin. These bodies may form part of agencies 

charged at national level with the defence of human rights or the safeguard of individuals’ rights.’

All EU Member States have now designated a specialised body for the promotion of equal treatment irrespective of 

racial or ethnic origin, as required by Article 13 of the Racial Equality Directive. However, in Finland, the Ombudsman for 

Minorities seems not to be in compliance with the Racial Equality Directive with regard to dealing with matters falling 

within the field of employment.383 In Turkey384 there is no single specialised body which would be able to fulfil all three 

functions under Article 13(2) of the Racial Equality Directive. No body or institution has been officially designated in the 

transposition process to comply with the Directive. There is no specialised body in Iceland either. As far as EEA countries 

are concerned, only Norway has a specialised body for the promotion of equal treatment irrespective of racial or ethnic 

origin, in accordance with Article 13 of the Racial Equality Directive.385 Liechtenstein has established the Office of Equal 

Opportunities to deal with gender equality, but it is also mandated to cover other grounds of discrimination including 

disability, sexual orientation, racial and ethnic origin.

Some Member States have set up completely new bodies such as France,386 Germany,387 Greece,388 Hungary,389 Italy,390 

Romania,391  Slovenia,392  Spain  and  Poland.  Bodies  that  already  existed  but  which  have  been  given  the  functions 

designated by Article 13 include the Cypriot Ombudsman,393 the Estonian Chancellor of Justice, the Lithuanian Equal 

Opportunities Ombudsperson, the Maltese Equality Commission, the Slovak National Centre for Human Rights and the 

Croatian Ombudsman. In Latvia the National Human Rights Office was re-organised in 2007 as the Ombudsman’s 

Office with increased competences after the parliament appointed the Ombudsman on 1 March 2007. In some states, 

Article 13 functions are fulfilled by, or shared between, a number of organisations (e.g. Greece). A new trend has arisen 

with the merging of existing institutions into one single body to exercise different competences in a variety of areas. 

The French Equal Opportunities and Anti-discrimination Commission was merged in 2011 with several other statutory 

authorities to become the Defender of Rights. In the Netherlands, a new law created the Human Rights Institute in 

383  The European Commission initiated infringement proceedings against Finland in June 2013 for failure to provide the equality 

body with the competences required by the Racial Equality Directive.

384  The draft law tabled in March 2010 foresees the creation of an equality body, and in September 2013 the Government 

announced its intention to establish an anti-discrimination and equality council. 

385  Equality and Anti-discrimination Ombuds. Decisions may be appealed before the Equality Tribunal. 

386  The French Equal Opportunities and Anti-discrimination Commission (HALDE) was set up by law on 30 December 2004. The 

HALDE was incorporated into a new institution named the Defender of Rights, effective since 1 May 2011 (Act No 2011-333 of 

29 March 2011 creating the Defender of Rights). 

387  The Federal Anti-discrimination Agency. 

388  The Equal Treatment Committee and Equal Treatment Service, which share the task of promoting the principle of equal 

treatment with the Ombudsman, the Work Inspectorate and the Economic and Social Committee. However, the National 

Commission of Human Rights recommends the merger of all existing equality bodies into the Ombudsman. 

389  Equal Treatment Authority.

390  National Office against Racial Discrimination. 

391  National Council for Combating Discrimination (NCCD). 

392  Advocate of the Principle of Equality. In April 2012, the Government Office for Equal Opportunities was abolished and 

incorporated into the Ministry of Labour, Family and Social Affairs.

393  The Ombudsman was appointed as the national specialised body and two separate authorities have been created: the 

Equality Authority that deals with employment issues and the Anti-discrimination Authority dealing with discrimination beyond 

employment.

114

Developing Anti-Discrimination Law in EuropeDecember 2014November 2011,394 incorporating the Equal Treatment Commission. A bill was also introduced by the Minister for Justice, 

Equality and Defence in Ireland to merge the Irish Equality Authority and the Human Rights Commission. The Swedish 

Equality Ombudsman was created in 2009 through the merger of four pre-existing ombudsmen institutions working 

with different grounds of discrimination: sex, ethnic origin and religion; disability and sexual orientation.395

Belgian Inter-Federal Centre for Equal Opportunities and Opposition to Racism and Discrimi-

nation

On 12 June 2013, the Belgian Federal State, the Regions and the Communities signed a cooperation 

agreement  to  turn  the  pre-existing  Centre  for  Equal  Opportunities  and  Opposition  to  Racism,  the 

national equality body, into the Inter-federal Centre for Equal Opportunities and Opposition to Racism 

and  Discrimination  (Centre  interfédéral  pour  l’égalité  des  chances  et  la  lutte  contre  le  racisme  et  les 

discriminations).

According to the Cooperation Agreement, the new centre is competent to promote equal opportunities 

and  to  fight  all  forms  of  discrimination  based  on  the  prohibited  grounds  contained  in  various  anti-

discrimination instruments adopted at both regional and federal levels. Previously, the existing equality 

body was competent only to deal with issues at the federal level although some protocols of collaboration 

had already enlarged its scope of competence.

The collaboration agreement entered into force on 15 March 2014.

A.  

Grounds covered

The minimum requirement on Member States is to have one or more bodies for the promotion of equality irrespective of 

racial and ethnic origin. A large number of states went further than the Directive’s wording, either in terms of the grounds 

of discrimination that specialised bodies cover, or in terms of the powers that they have to combat discrimination. The 

Directive left Member States with a wide degree of discretion with regard to how to set up their specialised bodies, 

creating differentiated levels of protection throughout the EU. Although there are undeniably pros, such as strategic 

litigation and cost-effectiveness, multiple-ground bodies may face the challenge of implementing different standards 

of  protection  for  different  grounds  of  discrimination.  Interpretations  given  by  national  courts  of  concepts  may  differ 

between the grounds protected, and specialised bodies may find it tricky to find the right balance between horizontal 

implementation  of  non-discrimination  provisions  and  the  particular  features  of  specific  grounds,  with  the  danger  of 

creating a hierarchy among them.

AUSTRIA

Specialised body designated by law in compli-
ance with Article 13

Equal Treatment Commission – ETC
(Act on the Equal Treatment Commission and the 
Office for Equal Treatment, Art. §§ 1, 2, 8-23)

National Equality Body – NEB (Act on the Equal 
Treatment Commission and the Office for Equal 
Treatment, §§ 3-7)

Does this body cover other grounds than race or 
ethnic origin as specified by Article 13? If so, which 
ones?

Gender, ethnic affiliation, religion, belief, age, sexual 
orientation

Gender, ethnic affiliation, religion, belief, age, sexual 
orientation

394  Staatsblad 2011, 573, entered into force on 1 October 2012.   

395  Equality Ombudsman Act (2008:568).

115

December 2014396

397

398
BELGIUM
399

400

Specialised body designated by law in compli-
ance with Article 13

Centre for Equal Opportunities and Opposition 
to Racism
(Act establishing the Centre for Equal Opportunities 
and Opposition to Racism,396 Art. 1)397

BULGARIA

Protection Against Discrimination Commission,
(Protection Against Discrimination Act, Art. 40)

CROATIA

People’s Ombudsman398
(Anti-discrimination Act, Art. 12)

Does this body cover other grounds than race or 
ethnic origin as specified by Article 13? If so, which 
ones?

Alleged race, colour, descent, national origin, nationality, 
age, sexual orientation, civil status, birth, wealth/income 
(fortune in French), religious or philosophical belief, actual 
or future health condition, disability, physical charac-
teristics, political opinion, trade union opinion, genetic 
characteristics and social origin 

Race, ethnicity, sex, national origin, human genome, 
nationality, origin, religion or faith, education, beliefs, 
political affiliation, personal or public status, disability, 
age, sexual orientation, family status, property status, 
or any other ground provided for by law or international 
treaty to which the Republic of Bulgaria is a party 

Racial or ethnic affiliation or colour, language, religion, 
political or other belief, national or social origin, property, 
trade union membership, education, social status, marital 
or family status, age, health condition, genetic heritage 

CYPRUS

CZECH 
REPUBLIC

DENMARK

ESTONIA

Equality Authority and Anti-discrimination 
Authority
(Act on the Combating of Racial and Other Forms of 
Discrimination (Commissioner), Arts 5 and 7)

Race/ethnic origin, religion or belief, age, sexual orienta-
tion, disability, community, race, language, sex,  political 
or other beliefs, national or social descent, birth, colour, 
wealth, social class or any other ground399

Public Defender of Rights
(Act on Public Defender of Rights, Art. 21b)

Sex, race, ethnic origin, sexual orientation, age, disability, 
religion, belief or other conviction, ‘national origin’ 

Danish Institute for Human Rights
– The National Human Rights Institute of 
Denmark400
(Act on the Institute for Human Rights – the National 
Human Rights Institute of Denmark, Art. 2.2)

Commissioner for Gender Equality and Equal 
Treatment
(Equal Treatment Act, Arts 15-22)

Chancellor of Justice
(Chancellor of Justice Act, Art. 19-3516)

Race, ethnic origin, gender and disability

Sex, ethnic origin, race, colour, religion or other beliefs, 
age, disability or sexual orientation. 

Public sector: grounds other than race and ethnic origin 
not specified; private sector: sex, race, ethnic origin, 
colour, language, origin, religious, political or other belief, 
property or social status, age, disability, sexual orientation 
or other ground of discrimination provided for by the law

396  Further amended by the General Anti-discrimination Federal Act.

397  See p. 115. A cooperation agreement was approved on 12 June 2013 by the Federal State, the Regions and the Communities to 

turn the Centre for Equal Opportunities and Opposition to Racism into an inter-federal centre.

398  The People’s Ombudsman is competent for all the grounds covered by the Anti-discrimination Act except those grounds 

that are the responsibility of a special ombudsman. The ground of disability is covered by the Ombudsman for Persons with 

Disabilities and the grounds of gender, gender identity and expression and sexual orientation are covered by the Gender Equality 

Ombudsman.

399  The Equality and Anti-discrimination Authority also covers the ground of nationality (although not expressly mentioned in its 

mandate) as included in the protected grounds under Protocol 12 to the European Convention of Human Rights, the Cypriot 

Constitution and in international conventions ratified by the Republic of Cyprus. The Authority also covers all rights guaranteed 

in the ECHR and all its protocols, the International Convention for the Elimination of All forms of Racial Discrimination, the 

Convention against Torture and Other Forms of Inhumane or Humiliating Treatment, the International Covenant on Civil and 

Political Rights and the Framework Convention on the Protection of National Minorities. The equality body itself has always 

considered nationality to be part of its mandate and refers to it repeatedly in its annual reports when it lists the grounds covered.

400  The Board of Equal Treatment is a quasi-judicial body (Act on the Board of Equal Treatment, Art. 1) competent to deal with 

individual complaints of discrimination in the labour market for the following grounds: gender, race, skin colour, religion or belief, 

political opinion, sexual orientation, age, disability or national, social or ethnic origin and only for race, ethnic origin, gender and 

disability outside the labour market.

116

Developing Anti-Discrimination Law in EuropeDecember 2014401

402

403

FINLAND401

404

405
FRANCE
406

407

Specialised body designated by law in compli-
ance with Article 13

Ombudsman for Minorities402
(Act on the Ombudsman for Minorities and the 
National Discrimination Tribunal, Section 1-2 )403

Defender of Rights
(Institutional Act creating the Defender of Rights, Art. 
4, para. 3)

FORMER 
408
YUGOSLAV 
409
REPUBLIC of 
MACEDONIA
410

Commission for Protection against Discrimina-
tion
(Prevention and Protection against Discrimination 
Act, Arts 16-24 and 25-33)406

Does this body cover other grounds than race or 
ethnic origin as specified by Article 13? If so, which 
ones?

Race and ethnicity404

Any ground protected by national405 or European legisla-
tion and international conventions

Sex, race, colour, gender, belonging to a marginalised 
group, ethnic affiliation, language, citizenship, social 
origin, religion or religious belief, other beliefs, education, 
political affiliation, personal or social status, mental 
or physical impairment, age, family or marital status, 
property status, health condition, any other ground 
prescribed by law or ratified international treaty

GERMANY

GREECE

Federal Anti-discrimination Agency
(General Equal Treatment Act, Art. 25) 

Race or ethnic origin, sex, religion or belief (Weltanschau-
ung), disability, age, sexual identity

Ombudsman
(Law 2477/1997, Art. 1 and Equal Treatment Act, 
Art. 19, para. 1)407

Racial or ethnic origin, religion or other beliefs, disability, 
age or sexual orientation, gender and human rights in 
general

Labour Inspectorate
(Act 2639/1998, Art. 6 and Equal Treatment Act, 
Art.19, para. 3)408

Racial or ethnic origin, religion or other beliefs, 
disability, age or sexual orientation

Equal Treatment Committee
(Equal Treatment Act, Art. 19, para. 2)409

Racial or ethnic origin, religion or other beliefs, 
disability, age or sexual orientation

HUNGARY

Equal Treatment Authority
(Act on Equal Treatment and the Promotion of Equal 
Opportunities, Art. 14-17B)

Sex, racial affiliation, colour of skin, nationality, 
belonging to a national or ethnic minority, mother 
tongue, disability, health condition, religion or belief, 
political or other opinion, family status, maternity 
(pregnancy) or paternity, sexual orientation, sexual 
identity, age, social origin, financial status, part-time 
nature of employment legal relationship or other legal 
relationship connected with labour, or the determined 
period thereof, belonging to an interest representation 
organisation, other situation, attribute or condition of a 
person or group

ICELAND

No specific body410

-

401  The Office of the Ombudsman for Discrimination in the Åland Islands was established by the Provincial Act on the Ombudsman 

for Discrimination 67/2005.

402  The Discrimination Tribunal may prohibit discriminatory conduct outside the employment field (Non-Discrimination Act, Section 

13), its decisions are binding.

403  Role also limited to discrimination outside the employment field.

404 

In practice the Ombudsman for Minorities also deals with nationality discrimination.

405 

In French legislation the protected grounds are: sex, pregnancy, belonging (whether real or supposed) to an ethnic origin, a nation, 

a race or a certain religion, morals, sexual orientation, sexual identity, age, family situation; genetic characteristics, physical 

appearance, family name, health, disability, union activities and political convictions.

406  The Ombudsman also plays a role against discrimination on the grounds of sex, race, colour, national, ethnic and social origin, 

political affiliation, religious and cultural background, language, property, social background, disability and origin.

407  The Ombudsman covers discrimination by public sector bodies.

408  The Labour Inspectorate covers discrimination in the private sector and in the field of employment and occupation for the five 

grounds protected by the Directives.

409  The Equal Treatment Committee covers discrimination in any field with the exception of the public sector and does not deal with 

employment and occupation for the five grounds protected in the two Directives.

410  The Parliamentary Ombudsman may deal with equality/discrimination in relation to administrative procedure. There is no human 

rights institution either in Iceland.

117

December 2014IRELAND

Specialised body designated by law in compli-
ance with Article 13

Equality Authority
(Employment Equality Act, S. 38 and Equal Status 
Act, S. 39)

Equality Tribunal
(Employment Equality Act, S. 75 and Equal Status 
Act, S. 39)

ITALY

National Office against Racial Discrimina-
tion – UNAR (Legislative Decree No 215 on the 
Implementation of Directive 2000/43/EC, Art. 7)

Does this body cover other grounds than race or 
ethnic origin as specified by Article 13? If so, which 
ones?

Gender, age, racial or ethnic origin including membership 
of the Traveller community, religion, family status, 
disability, marital status, sexual orientation, membership 
of the Traveller community

Gender, age, racial or ethnic origin including membership 
of the Traveller community, religion, family status, 
disability, marital status, sexual orientation, membership 
of the Traveller community

Race, ethnic origin, sex, religion or personal belief, 
disability, age, sexual orientation411 

LATVIA

Ombudsman, (Ombudsman Act, Art. 11.2)

Grounds not specified, hence any ground 

LIECHTENSTEIN Office for Equal Opportunities

(Act on Equality between Women and Men, Art. 19)

LITHUANIA

Equal Opportunities Ombudsperson
(Act on Equal Opportunities for Women and Men, 
Chapter IV, Art. 10 - 17 and Equal Treatment Act, 
Art. 14)

LUXEMBOURG

Centre for Equal Treatment
(Equal Treatment Act, Art. 8)

MALTA

National Commission for the Promotion of 
Equality for Men and Women413
(Equality for Men and Women Act, Art. 11)

Gender, migration and integration (including race 
and ethnicity),412 sexual orientation, disability,  social 
disadvantage

Age, disability, sexual orientation, race, ethnicity, origin, 
religion, beliefs or convictions, language and social status

Race, ethnic origin, religion or belief, disability, age, 
gender, sexual orientation 

Sex, family responsibilities, sexual orientation, age, 
religion or belief, racial or ethnic origin, gender identity ,

NETHERLANDS Netherlands Institute for Human Rights (the 
Netherlands Institute for Human Rights Act, Arts 
9-13, originally the General Equal Treatment Act, 
Arts 11-21)

Race, religion and belief, political opinion, hetero- or 
homosexual orientation, sex, nationality, civil or marital 
status, disability, age, working time and type of labour 
contract 

NORWAY

411

412
POLAND

413

414

PORTUGAL
415

416

ROMANIA

The NGO Art. 1414
(Law on Local Anti-discrimination Bureaus, Art. 2a)

Equality and Anti-discrimination Ombud415 and 
Anti-discrimination Tribunal
(Act on the Equality and Anti-discrimination Ombud 
and the Equality and Anti-discrimination Tribunal, 
Art. 1)

Commissioner for Civil Rights Protection 
(‘Ombudsman’)
(Act on the Commissioner for Civil Rights Protection, 
Art. 1)

Race, religion and belief, political opinion, hetero- or 
homosexual orientation, sex, nationality, civil or marital 
status, disability, age 

Gender, ethnicity, disability, language, religion, sexual 
orientation and age416

The Act on the Commissioner for Civil Rights Protection 
does not specify any protected grounds 

ACIDI (High Commissioner for Immigration and 
Intercultural Dialogue)
(Decree-Law 167/2007, Art. 1)

Nationality

National Council for Combating Discrimination
(Government Decision 1194/2001 establishing the 
National Council on Combating Discrimination, Art. 1)

Race, nationality, ethnic origin, language, religion, social 
status, beliefs, gender, sexual orientation, age, disability, 
non-contagious chronic disease, HIV positive status, 
belonging to a disadvantaged group or any other criterion

411  UNAR’s remit was extended through a ministerial directive in 2012. In practice the Italian body also deals with nationality.

412  Religion and age are not explicitly mentioned, but due to the general mission of the Office it can be assumed that these grounds 

would be covered by the Office for Equal Opportunities in Liechtenstein.

413  The Commission is generally referred to as the National Commission for the Promotion of Equality.

414  This NGO includes around 430 local anti-discrimination bureaus.

415  The Equality and Anti-discrimination Tribunal is the appeal instance of the Gender and Anti-discrimination Ombud.

416  The Ombud also implicitly covers national origin, descent, skin colour and language as these were formerly explicitly in the 

legislation, and the preparatory works to the new law in force since 1 January 2014 say that these grounds are to be covered 

under ethnicity. Discrimination because of political affiliation and membership in trade unions are handled by the courts only.

118

Developing Anti-Discrimination Law in EuropeDecember 2014Specialised body designated by law in compli-
ance with Article 13

Slovak National Centre for Human Rights
(Act No 308/1993 on the Establishment of the 
Slovak National Centre for Human Rights, Section 1, 
paras 2a, e, f, g, h and Section 1, paras 3 and 4)

Does this body cover other grounds than race or 
ethnic origin as specified by Article 13? If so, which 
ones?

Sex, religion or belief, race, affiliation to a nationality or 
an ethnic group, disability, age, sexual orientation, marital 
status and family status, colour of skin, language, politi-
cal or other opinion, national or social origin, property, 
lineage/gender or other status, unfavourable health 
condition, family duties, membership or involvement in a 
political party or a political movement, a trade union or 
another association

Advocate of the Principle of Equality417
(Act Implementing the Principle of Equal Treatment, 
Art. 11-19a)

Gender, ethnicity, race or ethnic origin, religion or belief, 
disability, age, sexual orientation, or other personal 
circumstance

Council for the Promotion of equal treatment 
of all persons without discrimination on the 
grounds of racial or ethnic origin
(Act 62/2003, of 30 December on Fiscal, Administra-
tive and Social Measures, Art. 33)

No

Equality Ombudsman
(Discrimination Act, Ch. 4 and Ch. 6 S. 2 and the 
whole of the Equality Ombudsman Act) 

Sex, transgender identity or expression, ethnicity, religion 
and other belief, disability, sexual orientation, age

No specialised body

-

SLOVAKIA

SLOVENIA

SPAIN

SWEDEN

TURKEY

UNITED 
KINGDOM

Great Britain: Equality and Human Rights 
Commission
(UK Equality Act 2006, SS. 1-43)

417

Northern Ireland: Equality and Human Rights 
Commission for Northern Ireland
(Northern Ireland Act, Part VII, SS. 73-74)

Ethnic origin, national origin, colour, nationality (including 
citizenship), sexual orientation, religion, belief, disability, 
age, sex (including gender reassignment, marriage/civil 
partnership status, pregnancy)

Ethnic origin, national origin, colour, nationality (including 
citizenship), sexual orientation, religion, belief, disability, 
age, sex (including gender reassignment, marriage/civil 
partnership status, pregnancy)

Out  of  the  33  countries  included  in  this  report,  all  but  Iceland  and  Turkey  have  a  specialised  body  which  at  least 

deals  with  race  and  ethnicity.  Four  countries  have  two  specialised  bodies:  Austria,  Estonia,  the  Netherlands  and 

the United Kingdom. In Denmark, Finland, Ireland and Norway, the equality bodies are accompanied by another 

institution,  namely  the  Board  of  Equal  Treatment  for  Denmark,  the  Discrimination  Tribunal  in  Finland,  the  Equality 

Tribunal for Ireland and the Anti-Discrimination Tribunal for Norway.418 In Cyprus there is only one specialised body 

divided into two departments with distinct competences: the Anti-Discrimination Authority which deals with fields beyond 

employment and the Equality Authority which deals only with employment issues. Greece has three specialised bodies 

(the Ombudsman, the Labour Inspectorate and the Equal Treatment Committee). This makes a total of 37 bodies.

Of  these  37  bodies,  in  one  country  (Spain)  the  specialised  body  only  deals  with  race  and  ethnicity.  In  Finland  and 

Portugal, the specialised bodies deal with race, ethnicity and nationality only. In Greece (the Labour Inspectorate and 

the Equal Treatment Committee) and Luxembourg, the specialised bodies only deal with the five grounds protected 

by both Anti-discrimination Directives. In Austria, Denmark, Estonia (the Chancellor of Justice), Liechtenstein, and 

Malta the grounds protected include race/ethnicity and one or more other grounds that are not necessarily identical 

to the other four protected by the Employment Equality Directive. In Austria for example both bodies (i.e. the Equal 

Treatment Commission and the National Equality Body) deal with gender, ethnic affiliation, religion, belief, age and sexual 

orientation, but the ground of disability is covered by a separate structure: the Ombud for Persons with Disabilities. In 

Estonia, the Chancellor of Justice deals with race and other grounds including ‘other grounds of discrimination provided 

for in the law’ in the private sector. It is interesting to note that some countries have chosen an open-ended list, for 

example in Bulgaria, the former Yugoslav Republic of Macedonia, Hungary, Romania and Slovenia, in addition 

417  The tasks performed by the Advocate might not be seen as independent as the Advocate is a civil servant working for the 

Ministry.

418  For the purposes of this report, only one specialised body has been counted on the national level for these four countries.

119

December 2014Eline | 1984

120

December 2014to race and ethnicity and potential other enumerated grounds, the list of grounds includes ‘any other circumstances’, 

‘any other criterion’ or ‘any other status’. In the former Yugoslav Republic of Macedonia, for example, there is a list 

of grounds that does not mention sexual orientation but does specify any other ground prescribed by law or ratified 

international treaty.

In  20  countries,  22  bodies  deal  with  the  five  grounds  protected  by  the  two  Anti-discrimination  Directives  and  other 

grounds.419 In Latvia and Poland no grounds are specified under the competencies of the body.

Grounds dealt with by the Equality Bodies

25

20

15

10

5

0

no grounds speciﬁ ed

race / ethnicity

race / ethnicity / nationality

race / ethnicity & other ...

only 5 grounds of the 2 AD ...

5 grounds + other grounds

B.  

Competencies of equality bodies

Article 13, Racial Equality Directive:

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

•  without  prejudice  to  the  right  of  victims  and  of  associations,  organisations  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 discrimi-

nation.’

In terms of the powers of specialised bodies, it is notable that the respective bodies provide assistance to victims of 

discrimination in a variety of ways. Member States ensure that ‘associations, organisations or other legal entities’ may 

engage in support of complainants in judicial or administrative proceedings, but such engagement is not required by 

the Directive. Some specialised bodies provide assistance in the form of support in taking legal action – the Belgian, 

Finnish, Hungarian, Irish, Italian, Slovak, Swedish, British, Northern Irish, Norwegian and Croatian bodies can 

419  These 22 bodies include Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia (the Commissioner for Gender 

Equality and Equal Treatment), France, Germany, Greece (the Ombudsman), Hungary, Ireland (both the Equality Authority 

and the Equality Tribunal), Italy, Lithuania, the Netherlands (both the Netherlands Institute for Human Rights and Article1), 

Norway (both the Equality and Anti-discrimination Ombud and the Equality and Anti-discrimination Tribunal), Romania, 

Slovakia, Slovenia, Sweden and the United Kingdom (the Equality and Human Rights Commission and the Equality and 

Human Rights Commission for Northern Ireland).

121

December 2014do this. Others give their – usually non-binding – opinion on complaints submitted to them, e.g. the Austrian and Dutch 

Equal Treatment Commissions, the Danish Board of Equal Treatment, the Hungarian Equal Treatment Authority, the 

Latvian Ombudsman’s Office, the Greek Ombudsman and Equal Treatment Committee, and the Slovenian Advocate 

of the Principle of Equality.420 Such proceedings do not preclude the victim from subsequently taking legal action before 

the courts with a view to obtaining a binding remedy.

Provide independent 
assistance to victims

30

20

10

0

yes 

no 

judicial
interpretation
required

Out of the 37 specialised bodies, 28 provide independent assistance to 

victims,421 eight do not422 and one country requires judicial interpretation. 

In  the  following  countries,  the  equality  bodies  provide  independent 

assistance: Austria (the National Equality Body), Belgium, Bulgaria, 

Croatia, the Czech Republic, Denmark (the National Human Rights 

Institute  of  Denmark)  Estonia  (the  Commissioner),  Finland,423  the 

former  Yugoslav  Republic  of  Macedonia,  France,  the  Greek 

Ombudsman, Liechtenstein, Germany, Hungary, Italy, Ireland (the 

Equality  Authority),  Latvia,  Luxembourg,  Malta,  the  Netherlands  (the  organisation  Art.1),  Norway,  Portugal, 

Romania, Slovakia, Slovenia, Sweden and the UK (both in Great Britain and Northern Ireland). Judicial interpretation 

is required in Poland.424

Of the 37 specialised bodies, 30 conduct independent surveys and seven do 

not. The latter are: the Austrian Equal Treatment Commission, the Estonian 

Chancellor  of  Justice,  the  Greek  Labour  Inspectorate  and  Equal  Treatment 

Committee425 and the Liechtenstein, Slovenian and Spanish bodies.

40

20

0

Conduct independent
surveys

yes 

no 

Conduct independent
reports

40

20

0

Some 32 specialised bodies publish independent reports; five bodies do not. 

The difference with the previous point lies in the fact that although only the 

Austrian National Equality Body can conduct independent surveys, both this 

body and the Equal Treatment Commission can publish independent reports, 

similarly the Liechtenstein body can conduct independent report but does not 

yes 

no 

conduct independent surveys.

420  The Office for Equal Opportunities was abolished on 1 April 2012 and has been transferred, including the Advocate of the 

Principle of Equality, to the Ministry of Labour, Family and Social Affairs. New rules concerning the nomination and budget of the 

Advocate are not yet known. 

421  Please note that although Denmark, Finland, Ireland and Norway, are counted as having only one equality body for the 

purposes of this report, only respectively the Danish Institute for Human Rights – The National Human Rights Institute of 

Denmark, the Finnish Ombudsman for Minorities outside the employment field, the Irish Equality Authority and the Norwegian 

Equality and Anti-discrimination Ombud can provide independent assistance to victims, conduct independent surveys, publish 

independent reports and issue recommendations on discrimination issues.

422  These bodies are the Austrian Equal Treatment Commission, Cyprus (although in practice both the Equality Authority and the 

Anti-discrimination Authority do inform victims of their rights), the Estonian Chancellor of Justice (that nevertheless does so 

in practice) the Greek Labour Inspectorate and Equal Treatment Committee (although they both have the mandate to do so), 

Lithuania, the Dutch Institute for Human Rights and Spain.

423  The Finnish Ombudsman for Minorities can only provide independent assistance to victims, conduct independent surveys, publish 

independent reports and issue recommendations outside the employment field.

424  Under the Polish Constitution and the new law the Ombud’s competencies are limited regarding conflicts between private 

parties.

425  Although the Greek Labour Inspectorate and Equal Treatment Committee both have the mandate to conduct independent 

surveys, they do not do so in practice.

122

Developing Anti-Discrimination Law in EuropeDecember 2014Issue recommandations

40

20

0

Specialised bodies should also have the task of issuing recommendations on 

discrimination issues. This is the case for 34 specialised bodies, but not for the 

Greek Labour Inspectorate, the Greek Equal Treatment Committee, and the 

Spanish Council for the Promotion of Equal Treatment of all Persons without 

yes 

no 

Discrimination on the Grounds of Racial or Ethnic Origin.

Although the Directive does not require it, a number of specialised bodies (e.g. in Austria, Bulgaria, Cyprus, France, 

Hungary, Ireland, Lithuania, Romania and Sweden) can investigate complaints of discrimination and can usually 

compel  compliance  with  their  investigations  from  all  persons  involved.  In  France,  the  Defender  of  Rights  concludes 

an investigation by adopting a decision which may propose recommendations, suggest mediation or decide to present 

observations  to  the  courts.  The  Protection  against  Discrimination  Commission  in  Bulgaria  has  the  power  to  impose 

sanctions, including fines, and ‘soft’ penalties, such as public apology or publication of its decision. The Hungarian Equal 

Treatment Authority can apply sanctions on the basis of an investigation. In Ireland, the Equality Authority may serve 

a ‘non-discrimination notice’ following an investigation. This notice may set out the conduct that gave rise to the notice 

and what steps should be taken to prevent further discrimination. Non-compliance with this notice may result in an order 

from either the High Court or the Circuit Court requiring compliance.

Whether the specialised bodies are quasi-judicial institutions or not (please see below), a large majority of them deal 

with complaints of discrimination brought to them by victims for attention or advice. As mentioned above they provide 

assistance  to  victims  in  27  countries.  A  massive  amount  of  information  is  consequently  available  to  these  bodies 

regarding who is or feels discriminated against and what are the grounds or the fields that are at issue. It is therefore 

of interest to know whether they record the number of complaints received and/or dealt with, or the decisions taken, 

whether  they  have  data  on  at  least  the  ground  of  discrimination  concerned  in  these  complaints/decisions  and  also 

whether  these  data  are  available  to  the  public  through  their  website  or  their  annual  report.  Keeping  such  data  and 

making it available to the public is extremely important for a better knowledge of the issues at stake in the field of 

fighting discrimination as a matter of societal information but also as a clear signal indicating what is or is not lawful 

according to national anti-discrimination legislation.

Some  30  bodies  in  28  countries  keep  record  officially  of  complaints/decisions.  However,  in  addition  to  Iceland  and 

Turkey where no specialised bodies exist, no such data are collected in Lithuania, Spain and the United Kingdom, by 

the Austrian National Equality Body (as opposed to the Equal Treatment Commission) or by either the Greek Labour 

Inspectorate or the Committee for Equal Treatment (as opposed to the Ombudsman). The information provided by these 

30 bodies regarding the number of complaints/decisions is broken down at least by grounds of discrimination. For the 

majority of them the information also indicates the field of discrimination.

Among the 30 bodies mentioned, only the Macedonian Commission for Protection against Discrimination does not provide 

information on complaints or decisions on their website and/or in their annual report. The Macedonian Commission does 

keep a registry for its own purposes and use, but the registry is not yet available to the public. In Germany, although 

the equality body keeps record of the complaints and decisions by ground, field and type of discrimination, these data 

are only partially and not systematically available to the public. In Malta, data are not published on a regular basis 

even though information on the complaints received each year and their division by ground is included in the equality 

body’s annual report. In most of the countries, such as Romania and Slovakia for example, the information is available 

through the bodies’ website, in annual reports and also upon request by individuals.

123

December 2014 
Abolition of the Slovenian Office for Equal Opportunities426

On 1 April 2012 the Government Office for Equal Opportunities was closed down, pursuant to the enter-

ing into force of the newly adopted Act amending the Public Administration Act. Its staff of twelve people, 

including the Advocate of the Principle of Equality (the Slovenian equality body), was transferred to the 

Ministry of Labour, Family and Social Affairs. Consequently, the Advocate is now a civil servant employed 

by the Ministry who can be dismissed before the end of his mandate.

The Office for Equal Opportunities, established in 2001, was primarily responsible for promoting equal 

opportunities and gender equality, in addition to the preparation of legislative proposals for the purpose 

of transposing EU directives in the field of non-discrimination. This responsibility is now transferred to 

the Ministry of Labour, Family and Social Affairs. The duties of equality body under Directive 2000/43/EC 

will continue to be performed by the Advocate of the Principle of Equality, now under the authority of the 

Ministry of Labour, Family and Social Affairs.

Most bodies can arrange for conciliation between the parties and most can review and comment on legislative proposals 

and the reform of existing laws.

Is a quasi-judicial 
institution

40

20

0

yes 

no 

Although  this  is  not  required  by  the  Racial  Equality  Directive,  some 

specialised  bodies  are  also  quasi-judicial  institutions,  the  decisions  of 

which are ultimately binding. Only in 13 countries are these bodies quasi-

judicial institutions: Austria (the Equal Treatment Commission), Bulgaria 

(the Protection against Discrimination Commission), Cyprus (the Equality 

Authority  and  Anti-Discrimination  Authority),  Denmark  (the  Board  of 

Equal  Treatment),  Estonia  (the  Chancellor  of  Justice),427  Finland  (the 

Discrimination  Tribunal),  the  former  Yugoslav  Republic  of  Macedonia  (the  Commission  for  Protection  against 

Discrimination),  Hungary  (the  Equal  Treatment  Authority),  Ireland  (the  Equality  Tribunal),  Lithuania  (the  Equal 

Opportunities Ombudsperson), the Netherlands (the Equal Treatment Commission), Norway (the Equality and Anti-

Discrimination Ombud) and Romania (the National Council for Combating Discrimination). Some bodies, such as the 

Macedonian Commission for Protection against Discrimination, can issue opinions or recommendations regarding the 

complaints it receives.

426  Article 15 of the Act Amending the Public Administration Act (Zakon o spremembah in dopolnitvah Zakona o državni upravi), 

Official Journal of the Republic of Slovenia No 21.2012.

427  Only in conciliation procedures.

124

Developing Anti-Discrimination Law in EuropeDecember 201450

0

Its decisions are binding

yes 

no 

N/A

Among these 13 bodies, only nine issue binding decisions. This is the 

case  for  the  Bulgarian,  Cypriot,428  Danish,429  Estonian,430  Finnish, 

Hungarian, 

Irish,431  Lithuanian432  and  Romanian  bodies. 

Nevertheless, in some countries, such as the Netherlands, due to the 

long  experience,  expertise  and  practice  of  the  Equal  Treatment 

Commission, its decisions are very much respected by both parties.

Some specialised bodies do include specific competencies or powers that are not necessarily listed in Article 13.2.

Interesting and useful powers which are not listed in Article 13(2) include the following:

The  French  Defender  of  Rights  has  the  role  of  legal  adviser  (‘auxiliaire  de  justice’),  whereby  criminal, 

civil  and  administrative  courts  may  seek  its  observations  in  cases  under  adjudication.  In  addition,  its 

powers have been extended to include the right to seek permission to submit its observations on civil, 

administrative and criminal cases.

In the case of an investigation of a complaint which results in a finding of direct intentional discrimina-

tion (a criminal offence), the French Defender of Rights can propose a transaction pénale – a kind of 

negotiated criminal sanction – to a perpetrator, who can either accept or reject it. This could be a fine 

or publication (for instance a press release). If the proposed negotiated criminal sanction is rejected, or 

having been accepted there is a subsequent failure to comply with it, the Authority can initiate a criminal 

prosecution, in place of the public prosecutor, before a criminal court.

The Dutch Equal Treatment Commission has the power to advise organisations (including governmental 

bodies) whether their employment practices contravene non-discrimination law.

The Hungarian Equal Treatment Authority may initiate an actio popularis with a view to protecting the 

rights of persons and groups whose rights have been violated.

The Irish Equality Authority enjoys legal standing to bring complaints to the Equality Tribunal relating 

to patterns of discrimination, discriminatory advertising or the contents of a collective agreement. The 

Equality Authority may also carry out equality reviews, i.e. an audit of the level of equality that exists in 

a particular business or industry. Based on the results of this audit, an equality plan will be developed. 

The plan will consist of a programme of actions to be undertaken in employment or business to further 

the promotion of equality of opportunity. Where there are more than 50 employees, the Authority may 

instigate the review itself and produce an action plan. If there is a failure to implement the action plan, 

the Equality Authority may issue a notice detailing what steps are required for its implementation. Non-

428 

In practice the Cypriot equality body does not issue decisions but prefers recommendations or mediation. Its recommendations 

are generally taken seriously into consideration by the private and public sector with the exception of the police and immigration 

authorities, which have the lowest rate of compliance.

429  The Board of Equal Treatment.

430  The Chancellor of Justice only in conciliation procedures.

431  The Equality Tribunal.

432  The decisions from the Equal Opportunities Ombudsperson are binding when they relate to administrative sanctions but not 

when they are recommendations.

125

December 2014compliance with this notice may result in an order from either the High Court or Circuit Court requiring 

compliance.

In Slovakia, if a breach of the principle of equal treatment violates the rights, interests protected by the 

law or freedoms of a higher or non-specified number of persons, or if public interest is seriously endan-

gered by such violation, the right to invoke the protection of the right to equal treatment is also vested 

in the Slovak National Centre for Human Rights or in NGOs active in the field of anti-discrimination. The 

latter can request that the entity breaching the principle of equal treatment refrain from such conduct 

and, where possible, rectify the illegal situation (the list of these two options is exhaustive).433

Finally, some concerns in relation to particular countries may be highlighted. There is concern that some specialised 

bodies  are  too  close  to  government,  thereby  jeopardising  the  independence  of  their  work.  For  instance,  the  Italian 

National Office against Racial Discrimination operates as a department of the Ministry for Immigration and Integration. 

The  Slovenian  Advocate  of  the  Principle  of  Equal  Treatment  does  not  have  its  own  budget,  but  is  actually  funded 

through the Ministry of Labour, Family and Social Affairs, and irregularities in the appointment mechanism established 

in 2009 as well as the Advocate’s position as a civil servant of the Ministry cast doubts on the Advocate’s independence. 

Some  members  of  the  Commission  for  Protection  against  Discrimination  also  work  in  the  executive  and  legislative 

branches of the Government of the former Yugoslav Republic of Macedonia. Finally, the Spanish Council for the 

Promotion  of  Equal  Treatment  and  Non-Discrimination  on  the  Grounds  of  Racial  or  Ethnic  Origin  is  attached  to  the 

Equality Ministry through its Anti-discrimination Directorate-General. It is not part of the Equality Ministry’s hierarchal 

structure and representatives of all ministries with responsibilities in the areas referred to in Article 3(1) of the Racial 

Equality Directive have a seat on it.434 Moreover, the word ‘independent’ is not included in the Act defining the Council’s 

functions, although it does appear in a Royal Decree redefining these functions. This text is, however, purely rhetorical as 

the Council cannot de jure and de facto exercise its functions fully independently.

Official report casts doubts on independence and effective functioning of the Slovak equality 

body435

On 1 June 2011 the Slovak Government approved the Analytical report on the functioning and status of 

the Slovak National Centre for Human Rights in the context of institutional protection of human rights in 

the Slovak Republic. The report, drafted by the Human Rights and Equal Treatment Section of the Office 

of the Government constitutes the first attempt of its kind to monitor and assess the national equality 

body, which also undertakes tasks of the national human rights institution.

The report stressed the lack of powers or the lack of clarity with regard to powers. This has placed the 

equality body in a weak position, for instance as to its competences to initiate new laws or to modify 

existing legislation and to comment on legislative measures. The duty to secure legal aid for victims 

remains unclear in terms of definition and content and the equality body cannot impose sanctions on 

third  organisations  in  cases  where  they  fail  to  facilitate  the  good  conduct  of  duties  and  tasks,  such 

as  investigations  concerning  discrimination.  The  report  also  highlighted  the  lack  of  professional  and 

personal capacities of the equality body and the inefficient management of public resources allocated. 

In addition, the bodies established in order to govern and monitor the equality body were deemed inap-

propriate and inefficient.

433  For the first actio popularis case filed in Slovakia, see page 65.

434  Royal Decree 1262/2007 (modified by Royal Decree 1044/2009) details the composition of the Council. 

435  See http://www.rokovania.sk/File.aspx/ViewDocumentHtml/Mater-Dokum-133077?prefixFile=m_.

126

Developing Anti-Discrimination Law in EuropeDecember 2014The report reproached the lack of a preventative approach and of strategic planning. In addition, activities 

and the impact on human rights and equal treatment lack visibility. A very small number of discrimina-

tion cases have been brought to the courts by the Centre for Human Rights (and only one succeeded in 

court) or been solved by the equality body itself.

In terms of independence, the equality body generally lacks mechanisms for protection against abuse 

from particular interests, including political.

The Human Rights and Equal Treatment Section recommended changes with regard to governing and 

monitoring bodies and financing. It also suggested defining powers of the equality body. Concretely, it 

proposes to install the Centre for Human Rights as the equality body and to transfer all powers related 

to the national human rights institution to the Public Defender of Rights.

Independence, but also effectiveness, is greatly affected by the recent budgetary cuts faced by many equality bodies 

due to the economic crisis. In 2011 this concerned, for instance, Ireland, Hungary (which also faced difficulties in the 

past in carrying out tasks other than its quasi-judicial functions436) and the United Kingdom. Financial cuts in previous 

years had already affected Ireland, Latvia, Romania and the UK, while the Commission for the Protection against 

Discrimination in the former Yugoslav Republic of Macedonia has consistently been allocated a very limited budget 

since  its  creation.  In  addition,  new  problems  have  arisen  due  to  the  fact  that  the  national  equality  body  is  severely 

under-equipped  and  understaffed,  such  as  in  Austria  or  Cyprus.  In  Poland,  anti-discrimination  legislation  recently 

adopted did not envisage any extra resources for the Ombudsman in spite of the allocation of additional competences 

related to discrimination. In Bulgaria, the Government tabled a bill to reduce the members of the equality body from 

nine to five, and then to seven after many protests were made. At time of writing, the bill introduced in April 2010 was 

still waiting for a second hearing before the parliament.

436  As also highlighted in the fifth Hungarian Country Report under the International Covenant for Civil and Political Rights published 

in October 2010 by the UN Human Rights Committee.

127

December 2014Joran | 1991

128

December 2014Chapter 6 
Implementation  
and compliance

129

December 2014A.  

Dissemination of information and social and civil dialogue

Article 10, Racial Equality Directive; Article 12, Employment Equality Directive

‘Dissemination of information

Member States shall take care that the provisions adopted pursuant to [these Directives], together with 

the  relevant  provisions  already  in  force,  are  brought  to  the  attention  of  the  persons  concerned  by  all 

appropriate means throughout their territory.’

Article 11, Racial Equality Directive; Article 13, Employment Equality Directive

‘Social dialogue

1.  Member  States  shall,  in  accordance  with  national  traditions  and  practice,  take  adequate  measures 

to promote the social dialogue between the two sides of industry with a view to fostering equal treat-

ment, including through the monitoring of workplace practices, collective agreements, codes of conduct, 

research or exchange of experiences and good practices.

2. Where consistent with national traditions and practice, Member States shall encourage the two sides of 

the industry without prejudice to their autonomy to conclude, at the appropriate level, agreements laying 

down anti-discrimination rules in the fields referred to in Article 3 which fall within the scope of collective 

bargaining. These agreements shall respect the minimum requirements laid down by this Directive and 

the relevant national implementing measures.’

Article 12, Racial Equality Directive; Article 14, Employment Equality Directive

‘Dialogue with non-governmental organisations

Member States shall encourage dialogue with appropriate non-governmental organisations which have, 

in accordance with their national law and practice, a legitimate interest in contributing to the fight against 

discrimination on grounds of [racial and ethnic origin, religion or belief, disability, age or sexual orienta-

tion] with a view to promoting the principle of equal treatment.’

Of all of the Directives’ articles, it is those on the dissemination of information and social and civil dialogue that have 

seen the least formal implementation by Member States and candidate countries and probably the most varied response. 

To some extent, this is due to the vagueness of these articles and the interpretation by some governments that they are 

not bound to transpose these provisions into law but simply to take some steps towards achieving their objectives. The 

impression prevails that the provisions have been insufficiently implemented in at least Bulgaria, Cyprus, Estonia, the 

former Yugoslav Republic of Macedonia, Greece, Latvia, Luxembourg, Slovenia, Spain and Turkey, and, with 

particular regard to Directive 2000/78/EC, Portugal and Italy. More generally, it seems that the duty to disseminate 

information and establish mechanisms for dialogue is not a high priority at the national level.

130

Developing Anti-Discrimination Law in EuropeDecember 2014Dissemination of information and awareness-raising

Information dissemination activities include ministerial publications providing basic information on the principle of equal 

treatment,  information  campaigns  through  the  media  and  the  organisation  of  seminars  as  in,  for  instance,  Austria, 

Bulgaria, Malta and Portugal. In Hungary, a National Network for Equal Opportunities has an office in each county and 

in Budapest. It organises research and conferences, produces and disseminates information materials, maintains contacts 

with civil society and establishes networks of civil society organisations. In Romania, the National Council for Combating 

Discrimination  has  carried  out  national  awareness-raising  campaigns,  cultural  events,  summer  schools,  courses  and 

training,  round  tables  discussing  public  policies,  and  affirmative  measures  targeting  children,  students,  teachers,  civil 

servants, police officers, gendarmes, judges, lawyers, NGO representatives, medical doctors and healthcare workers. In 

addition, a draft Strategy for Promoting Equal Opportunities and Non-discrimination on the Labour Market for Vulnerable 

Groups was presented by the Ministry of Labour, Family and Social Protection for public consultations in June 2012.437 

The strategy aims at proposing new policies and improving existing policies in order to promote equal opportunities in 

the labour market. In Croatia, noteworthy initiatives have included research on citizens’ attitudes to discrimination and 

their  knowledge  of  the  Anti-discrimination  Act,  which  was  conducted  by  the  Ombudsman’s  Office  in  cooperation  with 

the Centre for Peace Studies (an NGO). The Lithuanian Government has adopted an Inter-institutional Action Plan for 

Promotion of Non-discrimination 2012-2014,438 appointing the Ombudsperson as one of the main institutions responsible 

for its implementation. During the first year of implementation the Ombudsman organised training and other educational 

activities for trade unions, municipalities and state institutions, informational meetings, lectures and seminars targeting 

specific  audiences  such  as  university  students  or  journalists.  In  2012  the  Ministry  of  Labour  and  Social  Policy  of  the 

former Yugoslav Republic of Macedonia started in collaboration with the British Council a cycle of training on various 

topics related to non-discrimination and equality for 600 representatives of the judiciary, bodies working on social policy 

as  well  as  education,  health  services,  trade  unions  and  other  organisations.  In  2012,  the  Luxembourg  Government 

adopted a five-year action plan for the implementation of the CRPD, focusing on a number of key points. The field of 

‘information, awareness and accessible communications’ was identified as the focus for the year 2013.

Enhancing the Equal Treatment Authority’s effectiveness and accessibility in Hungary

The Social Renewal Operative Programme 5.5.5 (TÁMOP project) is financed by the European Social Fund 

and the Hungarian State for a duration of 46 months, starting in 2009.439 The total TÁMOP project budget 

is HUF 911 million (EUR 3,141,000).

As the first element of the project, an equal treatment referee system was established in September 

2009.  The  20  referees  (attorneys-at-law)  are  based  in  ‘Houses  of  Opportunities’  (regional  equal  op-

portunities networks) in every county and in the capital. They forward discrimination complaints, provide 

assistance to the complainants in formulating their petitions and operate as a kind of filtering system.

The TÁMOP project consists of three further elements. The first element is a series of campaigns, aimed 

at sensitising the general public.

437 ‘

Împuternicirea femeilor rome pe piața muncii’ / POSDRU/97/6.3/S/52040, activitatea 5 - Crearea unei rețele interprofesionale 

care să lucreze cu și pentru femeile rome.

438  Lithuania / Lietuvos Respublikos Vyriausybes nutarimas ‘Nediskriminavimo skatinimo 2012–2014 metu tarpinstitucinio veiklos 

plano patvirtinimo’, 2011-11-02, Valstybes žinios, 2011-11-10, Nr. 134-6362, Available in Lithuanian at http://www3.lrs.lt/pls/

inter3/dokpaieska.showdoc_p?p_id=410523.

439  For the project grant see http://www.nfu.hu/megjelent_a_tamop_5_5_5_kiemelt_projekt.

131

December 2014The second element consists of training held by the specialised body for teachers, social workers and the 

media, combined with workshops with NGOs and public administration staff members. A training module 

has been developed, combining sensitisation and the transfer of legal knowledge.

Seven research studies and a final study constitute the third element of the project: four studies dealt 

with discrimination in the field of employment, one analysed clients’ awareness of their rights and the 

remaining two have looked into discriminatory practices within the system of public administration. In 

the framework of the project surveys have been and will be conducted testing social attitudes towards 

non-discrimination and diversity.

The project also contains a travelling exhibition of works of young people related to the issue of non-

discrimination. The exhibition’s aim is to raise the awareness of youth about this problem.440

Information should be disseminated in a way that is accessible to all people with disabilities and in languages understood 

by minorities in that country. In Finland, for instance, a leaflet on the Non-Discrimination Act has been produced by the 

Ministry of Labour and the SEIS-project,441 and made available in sign language and in Braille as well as both in print 

and on the internet in Finnish, Swedish, English, Sami, Russian, Arabic, French and Spanish. French television campaigns 

and websites are adapted for the visually and hearing impaired. In contrast, information is not provided in a manner 

that caters for disabled people’s needs in some countries including Bulgaria, the Czech Republic, Hungary, Latvia, 

Portugal, Slovakia and, to some extent, Poland.442

The mandates of specialised bodies in most countries include awareness-raising activities, for instance in Denmark, 

Estonia,  France,  Ireland,  Romania,  Sweden  and  the  United  Kingdom.  Where  the  body  only  has  competences 

relating to race and ethnic origin, however, other arrangements must be made for the grounds of religion and belief, 

age, disability and sexual orientation. This is a shortcoming for example in Italy, where the National Office against Racial 

Discrimination has begun to disseminate information but no particular measures are planned for the other grounds.

European  Union  campaigns  and  project  funding  must  be  acknowledged  for  their  role  in  many  countries  in  raising 

awareness.443 Although some activities had been carried out previously, the designation of 2007 as the European Year 

of  Equal  Opportunities  for  All  resulted  in  various  activities  being  organised  at  national  level  in  each  Member  State, 

aimed at raising awareness and promoting debate on the benefits of diversity for European societies. For example, the 

National Commission for the Promotion of Equality for Men and Women, in collaboration with the European Commission 

delegation  in  Malta,  organised  a  media  campaign  entitled  A  National  Campaign  Promoting  Equal  Opportunities  for 

All as a follow-up to the European Year of Equal Opportunities for All 2007. This campaign sought to highlight the six 

grounds of discrimination recognised by the EU.444 In Croatia, the Government Office for Human Rights was proactive in 

attracting EU and other funds in order to speed up implementation of the law and develop a network of stakeholders.

440  http://www.egyenlobanasmod.hu/tamop/#vandorkiallitas.

441 

‘STOP – Finland Forward without Discrimination’, funded by the Community Action Programme to Combat Discrimination.

442  The website of the Ministry of the Interior and Administration was designed in a way that made it accessible to people with 

visual impairments using Intelligent Web Reader software.

443  See for example the European Commission information campaign For Diversity Against Discrimination launched in 2003 that 

aimed at raising awareness of discrimination, increasing understanding of the EU anti-discrimination laws and promoting the 

benefits of diversity. This campaign was followed in 2012 by an advertising campaign. http://ec.europa.eu/justice/discrimination/

awareness/information/index_en.htm.

444  The five grounds included in the two Anti-discrimination Directives and gender.

132

Developing Anti-Discrimination Law in EuropeDecember 2014A  small  number  of  Member  States,  including  Malta,  Poland  and  Portugal,  have  included  in  their  legislation  an 

obligation on employers to inform employees of discrimination laws. Malta goes further, specifying that, ‘any person 

or organisation to whom these regulations apply’ should bring the laws to the attention of the organisation’s members 

or  to  any  other  persons  who  may  be  affected  by  the  organisation’s  actions.445  Implementation  of  the  obligation  on 

employers in Poland is monitored by the National Labour Inspectorate.

However,  in  the  vast  majority  of  countries,  serious  concerns  around  perception  and  awareness  still  persist  and  are 

particularly acute in Croatia, the former Yugoslav Republic of Macedonia and Turkey. Individuals are often not 

informed  of  their  rights  to  protection  against  discrimination  and  protection  mechanisms.  Reports  from  the  former 

Yugoslav Republic of Macedonia indicate that age is commonly not perceived as a ground of discrimination as people 

still believe discriminatory practices based on age to be acceptable, and public opinion is also strongly homophobic.

Social and civil dialogue

Few countries have put in place permanent structures specifically for dialogue with civil society and the social partners on 

equality issues. In Bulgaria, the Protection against Discrimination Commission has signed a partnership agreement with 

one of the two principal trade unions. Slovenian law requires the Government and competent ministries to co-operate 

with NGOs that are active in the field of equal treatment and with the social partners (Article 8 of the Act Implementing 

the Principle of Equal Treatment). In Belgium, a specific taskforce has been operational within the Federal Public Service 

(Ministry) of Employment since July 2001 (cellule entreprise multiculturelle), with the active cooperation of the Centre 

for Equal Opportunities and Opposition to Racism, in order to establish more systematic links with the social partners. In 

2012, the Croatian Ombudsman’s Office signed cooperation agreements with five independent NGOs, making them the 

contact points of the Ombudsman’s Office at regional level.

Some countries consulted NGOs and social partners for support in the transposition of the 

Directives:

In Slovakia, cooperation between the Government and NGOs was shown in the process of amending the 

Anti-discrimination Act. An NGO representative was invited to become a member of the body commis-

sioned to prepare the amendment that resulted into the Act being finally adopted in spring 2008. The 

process was transparent and democratic, and led to a relatively satisfactory result.

In Hungary, the legislative conceptual paper and draft law were sent to NGOs and posted on the Ministry 

of Justice’s website with a call for comments.

In  Ireland,  the  Department  of  Justice,  Equality  and  Law  Reform  produced  a  discussion  document  on 

the employment issues that arose from the Directives and invited submissions from other government 

departments, the social partners, the Equality Tribunal and the Equality Authority.

In Croatia, the Ombudsman’s Office invited the social partners, civil society organisations dealing with 

human rights, organisations protecting the rights of various marginalised and minority groups, churches 

and religious organisations to provide their input regarding implementation of the Anti-discrimination 

Act in February 2010.

445  Regulation 12 of Legal Notice 461 of 2004.

133

December 2014In the UK, well over 10,000 copies of the draft text were sent to a diverse range of organisations, includ-

ing employers’ organisations, public and private sector employers, trade unions, NGOs with a particular 

interest in any of the areas of discrimination within the Directives, lawyers’ organisations, academics 

and  others  in  the  United  Kingdom  during  the  first  consultation  in  early  2000.  Consultations  on  anti-

discrimination legislation are now standard practice in the United Kingdom.

In  the  Netherlands,  the  proposal  for  a  General  Equal  Treatment  Act,  incorporating  four  distinct  equal 

treatment laws, was subject in 2010 to an online consultation and the Equal Treatment Commission was 

asked for its advice.

A different problem emerged in Denmark and Finland: a lack of public debate was attributable to the 

fact that the actors who would normally generate public discussion were participants in the committees 

charged with considering implementation of the Directives and felt they could not discuss the issues until 

that (lengthy) process was over.

In  Turkey  civil  society  organisations  representing  groups  such  as  national  and  religious  minorities  as  well  as  the 

LGBT community were invited to participate directly in the process of drafting a new constitution. Alongside experts, 

academics and political parties a number of NGOs were invited to present their suggestions before the parliamentary 

commission tasked with drafting the new constitution, while  anyone (whether a natural or legal person) was invited 

to  provide  suggestions  or  ideas  in  writing.  Finland  has  a  good  record  of  government  co-operation  with  NGOs  and 

social partners through advisory bodies on youth issues, disability, rehabilitation and Roma affairs. An Advisory Body 

on Minority Issues has been set up which will develop means of co-operation between the Government and NGOs in 

matters relating to the supervision and monitoring of the implementation of equal treatment legislation. Key ministries, 

the association of municipalities, social partners and five NGOs are represented on the board of the advisory body. In 

Romania,  the  national  equality  body  works  closely  with  NGOs  representing  various  vulnerable  groups  and  consults 

with the main NGOs when developing its programmes in the relevant areas. There is, however, increasing criticism from 

NGOs regarding the difficulties in engaging in a dialogue on amending the anti-discrimination law or on the assessment 

of the equality body’s national strategy. In Spain a Strategic Plan for Citizenship and Integration designed to promote 

the integration of immigrants was adopted in February 2007 and renewed for 2010-2014. One of the key points of the 

Plan is equal treatment and combating all forms of discrimination. The Plan is implemented through a number of action 

programmes in collaboration between various levels of government and NGOs. At local level in France, Commissions for 

the Promotion of Equality (COPEC) bring together all the interested parties in a given administrative area (département) 

under  the  authority  of  the  Préfet  (the  local  representative  of  the  central  government)  to  generate  co-operation  and 

dialogue for the promotion of equality, addressing all grounds of discrimination.

There appear to be more instances of structured dialogue for disability than for the other grounds of discrimination. 

The Latvian National Council for the Affairs of Disabled Persons brings together representatives of NGOs and state 

institutions to promote the full integration of disabled people in political, economic and social life based on the principle 

of equality. In Spain, structures for dialogue include the Advisory Commission on Religious Freedom and the National 

Disability Council, which represents disabled people’s associations of various kinds. Its functions include issuing reports 

on draft regulations on equal opportunities, non-discrimination and universal accessibility. The French Disability Act of 

2005 created département-level Commissions for the Rights and Autonomy of the Disabled, which are competent for 

all decisions relating to the support of disabled people. Their members are representatives of public authorities, NGOs, 

trade unions and social partners and at least 30% are representatives of people with disabilities. The same law creates 

an obligation on the social partners to hold annual negotiations on measures necessary for the professional integration 

of people with disabilities.

134

Developing Anti-Discrimination Law in EuropeDecember 2014As with the dissemination of information, it is often the role of the specialised equality bodies to generate dialogue with 

the social partners and civil society. This is the case for the Belgian Centre for Equal Opportunities and Opposition to 

Racism, the Estonian Chancellor of Justice, the Irish Equality Authority and the Italian National Office against Racial 

Discrimination.

General structures for social dialogue may be used for dialogue on equality issues in the Czech Republic, Denmark, 

Lithuania,  Malta,  Norway,  Poland,  Portugal,  Slovakia,  Sweden  and  the  United  Kingdom.  However,  there  is 

significant variation in their effectiveness in practice. The United Kingdom has a good record of governmental agencies 

and ministerial departments co-operating with non-governmental organisations.

Specific structures dealing with Roma have emerged over the past few years. For instance, in the framework of the 

National Implementation Strategy coordinated by the Portuguese equality body, an advisory group for the integration 

of Roma communities, composed of public entities, NGOs and Roma community representatives is planned to be set 

up. In France, the National Consultative Commission on the Travellers was set up in 2009 to discuss draft legislation 

and policy which concern Travellers. Spanish Royal Decree 891/200550 set up a collegiate participatory and advisory 

body (the National Roma Council) the overriding purpose of which is to promote the participation and cooperation of 

Roma associations in the development of general policy and the promotion of equal opportunities and treatment for the 

Roma population. Of its 40 members, half come from the central government and the other half are representatives of 

Roma associations. In Norway, the Roma National Association is used as a dialogue point for organised interaction with 

the Equality Ombud and key ministries such as the Ministry for Children, Equality and Social Inclusion, the Ministry of 

Education and the Ministry of Labour. In the context of the development of a National Strategy for Roma Integration, the 

Austrian Federal Chancellery set up a National Contact Point for Roma Integration in 2012. This contact point mainly 

coordinates  governmental  activities  regarding  the  Roma  strategy  and  supports  a  corresponding  ‘dialogue  platform’ 

which  also  maintains  contacts  with  NGOs.  The  Swedish  Government  has  adopted  a  Roma  strategy  for  inclusion  in 

society 2012-2032, with the aim of eliminating the differences in living standards between the Roma minority and the 

majority with regard to housing, education, and employment etc., by the end of the 20-year period. One of the elements 

of this strategy is to establish documentation of all the violations committed by the State in the last 100 years and 

to  correct  them  where  possible.446  In  contrast  to  this  trend,  in  Slovenia  the  Government  Office  for  Ethnic  Minorities 

which was the competent authority for Roma issues was abolished in 2012. The Hungarian Government established 

a Consultation Council for Roma Affairs in 2013, chaired by the Prime Minister and co-chaired by the President of the 

National Roma Self-Government.447

B.  

Ensuring compliance

Article 14 of the Racial Equality Directive and Article 16 of the Employment Equality Directive require Member States 

to  ensure  that  legal  texts  comply  with  the  Directives,  demanding  on  the  one  hand  that,  ‘any  laws,  regulations  and 

administrative provisions that are contrary to the principle of equal treatment are abolished’, and on the other that, ‘any 

provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal 

rules  of  undertakings  or  rules  governing  the  independent  occupations  and  professions  and  workers’  and  employers’ 

organisations are, or may be, declared void or are amended’. The wording of these provisions would appear to prescribe 

the systematic repeal of all discriminatory laws, whereas more leeway is left for annulling contractual provisions and 

bringing them into line with the Directives.

446  After the cut-off date of this report, on 25 March 2014, the Swedish Government presented its ‘White Book’ on Roma 

discrimination throughout the 20th century (Official Inquiry DS2014:8).

447  Resolution 1048/2013 of 12 February 2013.

135

December 2014Few countries have systematically ensured that all existing legal texts are in line with the principle of equal treatment. 

In transposing the two Directives, only the relevant ministries in Finland seem to have reviewed legislation in their 

respective administrative fields. They did not find any discriminatory laws, regulations or rules, and it was therefore 

deemed unnecessary to abolish any laws. In the United Kingdom, government departments reviewed the legislation 

for which they were responsible to ensure that any legislation which was contrary to the Directives’ principles of equal 

treatment  in  relation  to  disability,  religion  or  belief  and  sexual  orientation,  and  most  recently  age,  was  repealed  or 

amended. However, independent experts in other countries have identified laws that were discriminatory, for example, 

Article 175 of Portugal’s Criminal Code, which punished homosexual acts with persons aged 14 to 16 or the instigation 

of such acts, while the same type of acts were not punished if the 14-to-16-year-old was of the opposite sex. In the 

new Criminal Code (Act 59/2007 of 4 September 2007) Article 175 has been replaced by Article 173 (sexual acts with 

adolescents), which does not violate the above-mentioned principle. In 2012, a new provision was introduced in the 

Bulgarian Protection against Discrimination Act, requiring all public authorities, including local governments, to respect 

the aim of not allowing any direct or indirect discrimination when drafting legislation, as well as when applying it.448 This 

general mainstreaming duty complements the original duty under the Act for all public authorities to take all possible 

and necessary measures to achieve the aims of the Act.449

In most countries therefore, discriminatory laws are likely to be repealed following a complaint before the courts. In most 

countries, the constitutional equality guarantee already acts as a filter for discriminatory laws, with the constitutional 

court having the power to set aside any unconstitutional provisions. However, proceedings before constitutional courts for 

this purpose can be lengthy, requiring the prior exhaustion of all other remedies. On this basis it is questionable whether 

this is sufficient to fulfil this provision of the Directives. Aside from constitutional clauses, there are often clauses in 

primary legislation which allow lower courts to declare void laws that are in breach of the principle of equal treatment. 

For  instance,  in  France,  the  Constitution,  Civil  Code  and  Labour  Code  all  ensure  that  provisions  and  clauses  which 

breach the ‘superior rule’ of equality are void. In Lithuania, the Labour Code provides that courts can declare invalid 

acts adopted by state institutions, municipalities or individual officials if they are contrary to the law. In Romania, as 

the principle of equality is clearly guaranteed in the Constitution, any contrary provisions would be unconstitutional and 

illegal under the Anti-discrimination Ordinance as lex specialis. Following the decisions of the Romanian Constitutional 

Court  which  limited  both  the  mandate  of  the  NCCD450  and  of  the  civil  courts  in  relation  to  discrimination  generated 

by  legislative  rules,451  only  the  Constitutional  Court  may  tackle  rules  containing  provisions  contrary  to  the  principle 

of equality. As legal standing before the Constitutional Court is limited by the Constitution to specifically mentioned 

categories (courts of law or the Ombudsman), the Romanian legal framework currently has a de facto gap in protection 

against discrimination induced by legislative provisions.

Article  26  of  the  Greek  Anti-discrimination  Act  states:  ‘Once  in  force,  this  Act  repeals  any  legislation  or  rule  and 

abrogates any clause included in personal or collective agreements, general terms of transactions, internal enterprise 

regulations,  charters  of  profit  or  non-profit  organisations,  independent  professional  associations  and  employee  or 

employer associations opposed to the equal treatment principle defined in this Act’.

In Cyprus, the Equal Treatment Act stipulates the repeal of any contrary provisions. It seems that a recommendation by 

the equality body, following an investigation and a finding that a law or practice is discriminatory, can normally trigger 

the procedure that will lead to the repeal of discriminatory laws, but this does not necessarily always happen. In Ireland, 

448  Article 6(2).

449  Article 10.

450  Romania / Curtea Constituţională / Decision 997 of 7 October 2008 finding that Article 20(3) of the Anti-discrimination Act, 

defining the mandate of the NCCD in relation to discrimination triggered by legislative provisions, is unconstitutional.

451  Romania / Curtea Constituţională / Decision 818 (3 July 2008) published in the Official Gazette 537 of 16 July 2008. 

136

Developing Anti-Discrimination Law in EuropeDecember 2014there is concern that the Equal Status Act 2000-2011 remains subordinate to other legislative enactments, because 

Section 14(a)(i) provides that nothing in that Act will prohibit any action taken under any enactment.

In some jurisdictions, an entire agreement is invalidated if it includes a discriminatory clause. However, legislation which 

can annul individual discriminatory rules in contracts or collective agreements, internal rules of undertakings or rules 

governing the independent occupations and professions and workers’ and employers’ organisations is more common 

among the Member States. This is the case in the Netherlands where the main equal treatment acts stipulate that 

‘agreements’  which  are  in  contravention  of  the  equal  treatment  legislation  are  void.  General  labour  law  is  relied  on 

to this end in many countries, including Hungary,452 where Article 27 of the Labour Code provides that an agreement 

(individual or collective) that violates labour law regulations is void. If annulled or successfully contested the agreement 

is invalid (Article 28) and, if invalidity results in loss, compensation must be paid (Article 30). Similar general labour 

law provisions are found in Latvia (Article 6 of the Labour Act), Poland (Article 9.2 of the Labour Code)453 and Estonia 

(Article 4(2) of the Collective Agreements Act, which provides that the terms and conditions of a collective agreement 

which are ‘less favourable to employees than those prescribed in a law or other legislation’ are invalid, unless exceptions 

are explicitly permitted).

There are provisions in some Member States which specifically render discriminatory provisions in contracts or collective 

agreements etc. void. In Spain, Article 17(1) of the Workers’ Statute declares void any discriminatory clauses in collective 

agreements,  individual  agreements  and  unilateral  decisions  of  discriminatory  employers.  Section  10  of  the  Finnish 

Non-Discrimination Act provides that a court may, in a case before it, change or ignore terms in contracts or collective 

agreements that are contrary to the prohibition provided in Section 6 (on discrimination) or Section 8 (on victimisation) 

of the Act. The Employment Contracts Act also has a special provision concerning employment contracts: a provision of 

a contract which is plainly discriminatory is to be considered void (Section 9(2)).

Significantly,  the  Irish  Employment  Equality  Act  1998-2011  provides  that  all  employment  contracts  are  deemed  to 

have  an  equality  clause  that  transforms  any  provisions  of  the  contracts  that  would  otherwise  give  rise  to  unlawful 

discrimination (Section 30). All discriminatory provisions in collective agreements are deemed void and it is not possible 

to opt out of the terms of the equality legislation (Section 9). While it is the case that discriminatory clauses are not valid, 

the reality is that this fact may only be established through litigation. Where the Equality Tribunal holds that the clause 

in question is contrary to the legislation, that part of the collective agreement or contract cannot be enforced and must 

be modified. In Malta, Regulation 12 of Legal Notice 461 of 2004 provides that any provisions in individual or collective 

contracts or agreements, internal rules of undertakings, or rules governing registered organisations that are contrary to 

the principle of equal treatment, will, on entry into force of these regulations, be considered void. The UK Equality Act 

2010 contains specific provisions to this effect for each of the relevant grounds.

452  Article 200 of the Hungarian Civil Code also contains a similar provision applicable outside of the employment field. 

453  Since 2011 a similar provision has been applicable outside of the employment field, by application of Articles 58.1 and 58.3 of 

the Civil Code.

137

December 2014Maryse | 1997

138

December 2014Conclusion

139

December 2014The transposition of the Racial Equality and Employment Equality Directives has immensely enhanced legal protection 

against discrimination on the grounds of racial and ethnic origin, religion and belief, age, disability and sexual orientation 

across Europe. It is encouraging to note that a majority of Member States provide further protection compared to the 

requirements  of  EU  law  and  that  the  levelling  up  of  protection  across  grounds  continues  in  a  number  of  countries. 

However, this ninth comparative overview454 has revealed that, although huge progress has been made and significant 

gaps have been plugged, a small number of shortcomings still appear to remain in the legislation of some Member 

States and candidate countries and it is now imperative that any remaining problems are resolved, especially more than 

10 years after the adoption of the Directives.

Ultimately it is up to the courts to decide whether or not national law is consistent with EU law and to ensure effective 

implementation. Case law at national level is becoming more frequent, although the number of cases in some countries 

remains very low or focuses on some grounds in particular to the detriment of the others. Unfortunately, in several 

countries public access to case law is not available or decisions are not published on court websites, which makes it 

difficult to monitor discrimination cases. On a positive note, there has been a large increase in the number of preliminary 

references lodged at the Court of Justice, especially on the grounds of age, but it remains to be seen how these rulings 

will be applied at national level. Given the ambiguities in the text of the Directives, and therefore also in many national 

provisions, judicial interpretation is more than welcome to clarify important boundaries.

A challenge identified in many countries is the application of anti-discrimination laws in practice. Most countries have 

outlawed discrimination on at least some grounds for some time, yet the number of cases brought by victims seeking 

to  assert  their  equality  rights  remains  rather  low.  Polls  regularly  show  that  the  discrepancy  between  the  levels  of 

discrimination experienced and discrimination reported needs to be seriously addressed. Victims still have difficulty in 

recognising a discriminatory situation. Awareness is low not only among the public but also among the members of 

the legal professions, although for the latter change has slowly started, thanks to training organised on the national 

level. Some countries have made some slight progress regarding positive action and dissemination of information on 

anti-discrimination laws, but much more remains to be done to increase dialogue among governments, civil society and 

the social partners across all grounds and to raise awareness among the public. In addition, most Member States have 

delegated  the  responsibilities  as  regards  dissemination  of  information  regarding  anti-discrimination  legislation  and 

awareness-raising to national specialised bodies without necessarily granting them the adequate resources.

As  already  expressed  in  previous  editions  of  this  publication,  the  detail  added  to  the  law  in  many  countries,  and  in 

particular specific procedural rights in the remedies and enforcement rules, could possibly change this situation. Although 

much of this machinery has been put in place by many states, it may be held that there is a possible correlation between 

countries with low levels of case law and countries which transposed the Directives by simply ‘lifting’ wording from the 

Directives for their national laws. Certain procedural difficulties that affect access to justice and effective enforcement 

also stem from the short limitation periods foreseen in legislation, lengthy procedures, high costs and failures in the 

provision of legal aid, as well as barriers in the form of language, access for people with disabilities and issues relating 

to legal standing or legitimate interest. The law remains complex and remedies often inadequate. Further work is needed 

to ensure the credibility and admissibility of methods of proof, such as statistical evidence (which touches on the issue 

of data collection) and, to a lesser extent, situation testing or inferences drawn from circumstances. In addition, effective 

access to justice could be solved through class action, which would constitute an adequate solution to redress situations 

where ridiculously low compensation sums are awarded to victims; to address issues related to the fact that victims 

have to bear all the costs; and to counter the problem of limited access to free legal aid. Along the same lines, actio 

454  Eight previous issues of this publication compared the situation in the (now) 28 Member States (and, since 2011, the EU 

membership candidate countries and the EEA countries). They were completed in September 2005, November 2006, July 2007, 

November 2009, November 2010, November 2011, July 2013 and May 2014. 

140

Developing Anti-Discrimination Law in EuropeDecember 2014popularis, if and when generally permitted, could constitute an ideal vehicle for bringing legal action to court in cases of, 

for instance, hate speech against a particular vulnerable group when there is no specific victim identified but where the 

public interest is nevertheless harmed. Finally, when a decision is rendered by courts or equality bodies, sanctions are not 

always observed by respondents and recommendations are not always followed by public authorities.

As a final point, the economic downturn has led to budget cuts that have greatly affected equality bodies and NGOs in 

many Member States. Even more worrisome, the crisis has had a grave impact on the prospects for future developments 

in many Member States. Generally speaking, complementary policy measures adopted by the states and allocation of 

resources to specialised bodies or other organisations are also likely to be seriously impeded or brought to a standstill.

141

December 2014Tobias | 1992

142

December 2014Annex 1 
Signature/ratification of 
international conventions

143

December 2014n
o

n
o
i
t
n
e
v
n
o
C
n
a
e
p
o
r
u
E

s
t
h
g
i
R
n
a
m
u
H

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

-: not signed,  
   not ratified

/: signed

X: ratified

AUSTRIA

BELGIUM

BULGARIA

CROATIA

CYPRUS

CZECH 
REPUBLIC

DENMARK

ESTONIA

FINLAND

FRANCE

FORMER 
YUGOSLAV 
REPUBLIC of 
MACEDONIA

GERMANY

GREECE

HUNGARY

ICELAND

IRELAND

ITALY

LATVIA

LIECHTENSTEIN

LITHUANIA

LUXEMBOURG

MALTA

NETHERLANDS

NORWAY

POLAND

PORTUGAL

ROMANIA

SLOVAKIA

SLOVENIA

SPAIN

SWEDEN

TURKEY

UNITED 
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455  Liechtenstein is not an ILO member. Liechtenstein is not an ILO member.

144

Developing Anti-Discrimination Law in EuropeDecember 2014 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
145

December 2014Luisna | 1995

146

December 2014Annex 2 
Main national specific  
anti-discrimination  
legislation

147

December 2014The information in these tables is based on the updated executive summaries and country reports for the European 

Network of Legal Experts in the Non-discrimination Field which contain information valid as at 1 January 2012. This is 

a non-exhaustive list which contains only the main pieces of anti-discrimination legislation in each Member State and it 

does not include references to other specific legislation. Inclusion of national legislation in the tables does not imply that 

it complies with Directives 2000/43/EC and 2000/78/EC.456

Country

AUSTRIA

Constitutional
anti-
discrimination 
provisions 

Article 7 Federal 
Constitutional 
Act (B-VG), Arti-
cle 2 Basic Law

Main specific anti-discrimination 
legislation

Federal Equal Treatment Act of 23 June 
2004, as last amended by Federal Law 
Gazette I 2010/2013

Grounds covered

Gender, ethnic affiliation, religion, belief, age, 
sexual orientation

Equal Treatment Act of 23 June 2004, as last 
amended by Federal Law Gazette I 107/2013

Gender, ethnic affiliation, religion, belief, age, 
sexual orientation

Equal Treatment Commission and Office for 
Equal Treatment Act of 23 June 2004, as last 
amended by Federal Law Gazette I 107/2013

Gender, ethnic affiliation, religion, belief, age, 
sexual orientation

Federal Disability Equality Act of 10 August 
2005, as last amended by Federal Law 
Gazette I 138/2013

Disability

Employment of People with Disabilities Act  of 
10 August 2005, as last amended by Federal 
Law Gazette I 138/2013

Disability

Styrian Equal Treatment Act of 28 October 
2004, as last amended by Styrian Provincial 
Law Gazette 165/2013

Gender, race or ethnic origin, religion or belief, 
disability, disability of a relative, age, sexual 
orientation

Viennese Service Order of 22 September 
2006, as last amended by Viennese Provincial 
Law Gazette 49/2013

Gender, race, ethnic origin, religion, belief, 
disability, age, sexual orientation

Viennese Anti-discrimination Act of 8 Septem-
ber 2004, as last amended by Viennese 
Provincial Law Gazette 88/2012

Race, ethnic origin, religion, belief, age, sexual 
orientation, sexual identity, gender, pregnancy, 
maternity, disability 

Lower Austrian Anti-discrimination Act of 29 
April 2005, as last amended by the Lower 
Austrian Provincial Law Gazette 113/2011

Lower Austrian Equal Treatment Act of 
11 July 1997, as last amended by Lower 
Austrian Provincial Law Gazette 109/2011

Carinthian Anti-discrimination Act of 28 
December 2004, as last amended by the 
Carinthian Provincial Law Gazette 18/2013

Vorarlberg Anti-discrimination Act of 19 May 
2005, as last amended by the Vorarlberg 
Provincial Law Gazette 91/2012

Upper Austrian Anti-discrimination Act of 6 
May 2005, as last amended by the Upper 
Austrian Provincial Law Gazette 90/2013

Burgenland Anti-discrimination Act of 5 
October 2005, as last amended by the 
Burgenland Provincial Law Gazette 79/2013

Tyrolian Equal Treatment Act of 11 January 
2005, as last amended by the Tyrolian 
Provincial Law Gazette 40/2013

Gender, ethnic affiliation, religion or belief, 
disability, age, sexual orientation

Gender, ethnic affiliation, religion or belief, 
disability, age, sexual orientation

Gender, ethnic affiliation, religion or belief, 
disability, age, sexual orientation

Gender, ethnic affiliation, religion, belief, 
disability age, sexual orientation

Gender, ethnic affiliation, religion, belief, 
disability age, sexual orientation

Gender, ethnic affiliation, religion, belief, 
disability, age, sexual orientation 

Gender, ethnic affiliation, religion, belief, 
disability, age, sexual orientation 

456  Please note that in most countries protection against discrimination is also granted in the Labour and Penal Codes. These have 

not been indicated unless there is no other protection in national law. Regarding disability and age, specific legislation has 

been indicated in the tables where specific anti-discrimination law did not include these two grounds, and has been included in 

footnotes where anti-discrimination law also covered them. 

148

Developing Anti-Discrimination Law in EuropeDecember 2014Constitutional
anti-
discrimination 
provisions 

Country

BELGIUM

Articles 10 
and 11 of the 
Constitution

Main specific anti-discrimination 
legislation

Tyrolian Anti-discrimination Act of 31 March 
2005, as last amended by the Tyrolian 
Provincial Law Gazette 114/2013

Salzburg Equal Treatment Act of 31 March 
2006, as last amended by the Salzburg 
Provincial Law Gazette 41/2013

Grounds covered

Gender, ethnic affiliation, religion, belief, 
disability, age, sexual orientation 

Gender, ethnic affiliation, religion, belief, 
disability, age, sexual orientation 

Racial Equality Federal Act,457 as last 
amended by Act of 10 May 2007

Alleged race, colour, descent, ethnic and 
national origin and nationality

General Anti-discrimination Federal Act,458 
as last amended by the Act of 30 December 
2009

Flemish Region / Community: Decree 
establishing a Framework Decree for a Flem-
ish Equal Opportunities and Equal Treatment 
Policy of 10 July 2008

Wallonia-Brussels Federation: Decree on the 
Fight Against Certain Forms of Discrimination 
of 12 December 2008

Walloon Region: Decree on the Fight Against 
Certain Forms of Discrimination, including 
discrimination between Women and Men, 
in the fields of Economy, Employment and 
Vocational Training of 6 November 2008 as 
last amended in 2012

German-speaking Community: Decree aimed 
at Fighting Certain Forms of Discrimination of 
19 March 2012

Region of Brussels-Capital: Ordinance related 
to the Fight Against Discrimination and Equal 
Treatment in the Employment field of 4 
September 2008 as last amended in 2010 

Region of Brussels-Capital: Ordinance related 
to the Promotion of Diversity and the Fight 
Against Discrimination in the Civil Service 
of the Region of Brussels-Capital of 4 
September 2008

Commission communautaire française 
(COCOF): Decree on the Fight Against certain 
forms of discrimination and on the implemen-
tation of the principle of equal treatment of 
9 July 2010

Commission communautaire française 
(COCOF): Decree on Equal Treatment between 
Persons in Vocational Training of 22 March 
2007, as last amended in 2012

Age, sexual orientation, civil status, birth, 
property, religious or philosophical belief, 
actual of future state of health, disability, 
physical characteristics, political opinion, 
trade union opinion, language, genetic 
characteristics and social origin

All grounds in the two Directives and 
additional grounds

All grounds in the two Directives and 
additional grounds

All grounds in the two Directives and 
additional grounds

All grounds in the two Directives and 
additional grounds

All grounds in the two Directives and 
additional grounds

All grounds in the two Directives and 
additional grounds

All grounds in the two Directives and 
additional grounds

All grounds in the two Directives (open list of 
prohibited criteria)

BULGARIA

Article 6(2) of 
the Constitution

Protection against Discrimination Act of 16 
September 2003, as last amended in 2013

All grounds in the two Directives and 
additional grounds

457

458
CROATIA

Integration of Persons with Disabilities Act 
of 02 September 2004, as last amended in 
2010

Disability

Article 14 of the 
Constitution

Anti-discrimination Act of 9 July 2008, as last 
amended in 2012

All grounds in the two Directives and 
additional grounds 

457 

Initially Federal Act Criminalising Certain Acts inspired by Racism or Xenophobia of 30 July 1981.

458 

Initially the Act on the Fight against Certain Forms of Discrimination of 10 May 2007.

149

December 2014Country

CYPRUS

Constitutional
anti-
discrimination 
provisions 

Article 28 of the 
Constitution

CZECH 
REPUBLIC

Article 3.1 of 
the Charter of 
Fundamental 
Rights and 
Freedoms (part 
of the Constitu-
tional order)

DENMARK

None459

Main specific anti-discrimination 
legislation

Act on Equal Treatment Irrespective of Race 
or Ethnic Origin 59(I) /2004 of 31 March 
2004, as last amended in 2006

Act on Equal Treatment in Employment and 
Occupation 58(1)/2004 of 31 March 2004, as 
last amended in 2009

Act on Persons with Disabilities  
127(I)/2000 of 31 March 2004, as amended 
by Act 57(I)/2004 in 2004 and last amended 
in 2007

Grounds covered

Racial and ethnic origin

Racial and ethnic origin, religion or belief, age, 
sexual orientation

Disability

Anti-discrimination Act 198/2009 of 23 April 
2009, as last amended in 2012

All grounds in the two Directives, national 
origin and sex

Act on Prohibition of Discrimination due to 
Race etc., Act 289 of 9 June 1971, as last 
amended in 2000

Act on Prohibition of Discrimination in the 
Labour Market etc., Act 31 of 1 July 1996, as 
last amended in 2008

Ethnic Equal Treatment Act of 28 May 2003, 
as last amended in 2012

Race, skin colour, national or ethnic origin, 
religion/belief, sexual orientation

All grounds in the two Directives and 
additional grounds

Race and ethnic origin

ESTONIA

Article 12(1) of 
the Constitution

Chancellor of Justice Act of 25 February 
2002, as last amended in 2005 

All grounds in the two Directives and 
additional grounds

Equal Treatment Act of 11 December 2008, 
as last amended in 2012

All grounds in the two Directives and colour

FINLAND

Art. 6 of the 
Constitution 

Non-Discrimination Act 21/2004 of 20 
January 2004, as last amended in 2009

All grounds in the two Directives and 
additional grounds

FRANCE

Preamble to the 
Constitution, 
Article 1 of the 
Constitution

Province of Åland: Provincial Prevention of 
Discrimination Act 66/2005, 

Act on the Fight Against Discrimination, Act 
2001-1066 of 16 November 2001 as last 
amended in 2012

Act on the Adaptation of National Law to 
Community Law in Matters of Discrimination, 
Act 2008-496 of 27 May 2012

Act for the Equal Opportunities and 
Integration  of Persons with Disabilities, Act 
2005-102 of 11 February 2005

All grounds in the two Directives

All grounds in the two Directives and 
additional grounds

All grounds in the two Directives

Disability

Article 9 of the 
Constitution 

Prevention and Protection against Discrimina-
tion Act of 8 April 2010

Sex, race, colour, gender, belonging to 
a marginalised group, ethnic affiliation, 
language, citizenship, social origin, religion 
or religious belief, other beliefs, education, 
political affiliation, personal or social status, 
mental or physical impairment, age, family 
or marital status, property status, health 
condition, any other ground prescribed by law 
or ratified international treaty

FORMER 
YUGOSLAV 
REPUBLIC of 
MACEDONIA

459

459  Articles 70 and 71 are both special clauses respectively dealing with the right to civil and political rights, and deprivation of 

liberty on the basis of political or religious convictions and descent.

150

Developing Anti-Discrimination Law in EuropeDecember 2014Country

GERMANY

Constitutional
anti-
discrimination 
provisions 

Article 3, German 
Basic Law

Main specific anti-discrimination 
legislation

Act Implementing European Directives Putting 
into Effect the Principle of Equal Treatment 
including the General Equal Treatment Act 
(General Equal Treatment Act) of 14 August 
2006, as last amended in 2013

Grounds covered

All grounds in the two Directives and 
additional grounds (belief not in civil law)

Act Promoting the Equality of the Disabled of 
27 April 2002 as last amended in 2007

Disability

GREECE

Article 5.2 of the 
Constitution 

Act on Punishing Actions or Activities Aiming 
at Racial Discrimination, Act 927/1979 of 25 
June 1979, as last amended in 1984

Race or ethnic origin and religion

Act on the Implementation of the Principle 
of Equal Treatment regardless of Racial 
or Ethnic Origin, Religion or other Beliefs, 
Disability, Age or Sexual Orientation (Equal 
Treatment Act), Act 3304/2005 of 27 January 
2005

All grounds in the two Directives

HUNGARY

Article XV of the 
Constitution 

Act on Equal Treatment and the Promotion 
of Equal Opportunities No CXXXV of 28 
December 2003, as last amended in 2013 

All grounds in the two Directives460 and 
additional grounds

Act on the Rights of Persons with Dis-
abilities and the Guaranteeing of their Equal 
Opportunities No XXVI of 1 April 1998 as last 
amended in 2013461

Disability

ICELAND462

IRELAND

Article 65 of the 
Constitution

-

Article 40.1 of 
the Constitution

Employment Equality Act 1998-2011 of 18 
June 1998, as last amended in 2013

All grounds in the two Directives and 
additional grounds

Equal Status Act 2000-2012 of 26 April 
2000, as last amended in 2012

All grounds in the two Directives and 
additional grounds

ITALY

Article 3 of the 
Constitution

Legislative Decree No 215/2003 transposing 
Directive 2000/43/EC of 9 July 2003, as last 
amended in 2011

Legislative Decree No 216/2003 transposing 
Directive 2000/78/EC of 9 July 2003, as last 
amended in 2013

Law 67/2006, Provisions on the Judicial 
Protection of Persons with Disabilities who 
are Victims of Discrimination of 1 March 
2006 as last amended in 2011

Racial and ethnic origin

Religion or belief, age, disability and sexual 
orientation

Disability

460
LATVIA
461

462

463

Article 91 of the 
Constitution

Labour Law of 20 June 2001, as last 
amended in 2012

All grounds in the two Directives and 
additional grounds 

Law on Prohibition of Discrimination against 
Natural Persons who are Economic Operators 
of 19 December 2012

All grounds in the two Directives and gender

464
LIECHTENSTEIN -463

Act on Equality of People with Disabilities of 
25 October 2006, as last amended in 2011464

Disability

460  Please note that there is also specific legislation on disability: the Act on the Rights of Persons with Disabilities and the 

Guaranteeing of their Equal Opportunities, Act XXVI of 16 March 1998.

461  After the cut-off date of this report, the Act on the Rights of Persons with Disabilities and the Guaranteeing of their Equal 

Opportunities was amended (1 January 2014).

462  There is no comprehensive anti-discrimination law in Iceland, protection may be granted through diverse pieces of specific 

legislation including: the Act on the Affairs of Persons with Disabilities No 59/1992 of 2 June 1992 as last amended in 2012, 

the Act on the Affairs of the Elderly No 125/1999 of 31 December 1999 as last amended in 2012, and the Act Amending Laws 

relating to the Legal Status of Homosexual Persons No 65/2006 of 14 June 2006.

463  The only anti-discrimination clause that exists in the Constitution of Liechtenstein (Art. 31) regards women and men.

464  Please note that the Penal Code also includes provisions regarding all the grounds in the two directives and additional grounds.

151

December 2014Country

LITHUANIA

Constitutional
anti-
discrimination 
provisions 

Main specific anti-discrimination 
legislation

Grounds covered

Article 29 of the 
Constitution

Equal Treatment Act of 18 November 2003, 
as last amended in 2013

All grounds in the two Directives and 
additional grounds

Social Integration of the Persons with 
Disabilities Act of 28 November 1991 as last 
amended in 2013

Disability

LUXEMBOURG

Article 10bis of 
the Constitution 
(for nationals 
only)

Equal Treatment Act of 28 November 2006, 
as last amended in 2008

All grounds in the two Directives

Disabled Persons Act of 12 September 2003 
as last amended in 2008

Disability

MALTA

Article 45 of the 
Constitution

Employment and Industrial Relations Act of 2 
December 2002, as last amended in 2014465

Equal Treatment in Employment Regulations 
of 5 November 2004 (issued under the 
Employment and Industrial Relations Act), as 
last amended in 2011 

Equality for Men and Women Act of 9 
December 2003 as last amended in 2012466

Marital status, pregnancy or potential 
pregnancy, sex, colour, disability, religious 
conviction, political opinion or membership of 
a trade union or of an employers’ association

All grounds in the two Directives and 
additional grounds

Sex, family responsibilities, sexual orientation, 
age, religion or belief, racial or ethnic origin 
and gender identity

Equal Opportunities (Persons with Disabilities) 
Act of 10 February 2000, as last amended 
in 2012

Disability

Equal Treatment of Persons Order, Legal 
Notice 85 of 3 April 2007

Racial and ethnic origin

NETHERLANDS

Article 1 of the 
Constitution

General Equal Treatment Act of 2 March 
1994, as last amended in 2011 

Race, religion and belief, political opinion, 
hetero or homosexual orientation, sex, 
nationality and civil (or marital) status

Disability Discrimination Act of 3 April 2003 
as last amended in 2011

Disability

Age Discrimination Act of 17 December 2003 
as last amended in 2011

Age

Anti-discrimination Act on Prohibition of 
Discrimination based on Ethnicity, Religion, 
etc. of 21 June 2013 replacing the previous 
Anti-discrimination Act of 3 June 2005, as 
last amended in 2008

Ethnicity, religion and belief467

Working Environment Act of 12 June 2005, as 
last amended in 2012

Age, political affiliation, membership of a 
trade union, part-time/temporary work

Anti-discrimination and Accessibility Act on 
Prohibition of Discrimination on the Basis of 
Disability of 24 June 2008, as last amended 
in 2011

Act relating to a Prohibition against Discrimi-
nation on the Basis of Sexual Orientation, 
Gender Identity and Gender Expression of 21 
June 2013

Disability

Sexual orientation, gender identity and gender 
expression

NORWAY

None

465

466

467

465  After the cut-off date of this report, Legal Notice 274 of 2014 amended the Employment and Industrial Relations Act. The 

amendments came into force on 12 August 2014.

466  After the cut-off date of this report, the Equality for Men and Women Act was amended by Act XVIII of 2014, adopted on 26 May 

2014.

467  Until 1 January 2014, national origin, descent, skin colour and language were explicitly covered in the legislation. The preparatory 

works to the new Anti-discrimination Act in force from 1.January 2014 indicate that these grounds are still to be covered under 

the ADA.

152

Developing Anti-Discrimination Law in EuropeDecember 2014Country

POLAND

PORTUGAL

Constitutional
anti-
discrimination 
provisions 

Article 32 of the 
Constitution 

Article 13. 2 
and 26.1 of the 
Constitution

Main specific anti-discrimination 
legislation

Act on the Implementation of Certain 
Provisions of the European Union in the Field 
of Equal Treatment of 3 December 2010468

Law 18/2004 transposing the Council 
Directives 2000/43 of 29 June 2000 into 
Portuguese Law, and Establishing the 
Principle of Equality of Treatment between 
Persons Irrespective of Racial or Ethnic 
Origin, and a Legal Framework to Combat 
Discrimination on the Grounds of Racial or 
Ethnic origin of 11 May 2004469

Act 134/99 on Prohibition of Discrimination 
based on Race, Colour, Nationality or Ethnic 
Origin of 28 August 1999470

Decree-Law 86/2005 transposing the Racial 
Equality Directive into National Law of 2 May 
2005

Act 46/2006 Prohibiting and Punishing 
Discrimination based on Disability and on a 
Pre-existing Risk to Health

Grounds covered

All grounds in the two Directives and 
additional grounds 

Race, ethnic origin, colour and nationality

Race, colour, nationality, ethnic origin

Racial and ethnic origin

Disability and pre-existing risk to health

ROMANIA

Articles 4 and 16 
of the Constitu-
tion

Act 324/2006 amending Government 
Ordinance 137/2000 on the Prevention and 
Punishment of All Forms of Discrimination of 
31 August 2000, as last amended in 2006471

All grounds in the two Directives472 and 
additional grounds

SLOVAKIA

Article 12 of the 
Constitution

Act 448/2006 on the Protection and Promo-
tion of the Rights of Persons with a Handicap 
of 6 December 2006 as last amended in 
2012

Act on Equal Treatment in Certain Areas 
and Protection against Discrimination No 
365/2004 of 20 May 2004, as last amended 
in 2013

Disability

All grounds in the two Directives and 
additional grounds

SLOVENIA

Article 14 of the 
Constitution

Implementing the Principle of Equal Treat-
ment Act of 22 April 2004, as last amended 
in 2007

All grounds in the two Directives473 and 
additional grounds

468

469

470

SPAIN
471

472

473

474

Employment Relationship Act of 5 March 
2013474

All grounds in the two Directives and 
additional grounds

Act on Equal Opportunities of People with 
Disabilities of 16 November 2010, as last 
amended in 2010

Disability

Arts 14 of the 
Constitution 

Fiscal, Administrative and Social Measures Act 
No 62/2003, of 30 December 2003

All grounds in the two Directives

General Law on the Rights of Persons with 
Disabilities and their Social Inclusion of 29 
November 2013

Disability

468  Referred to in this report as the ‘Equal Treatment Act’.

469  Referred to in this report as the ‘Principle of Racial Equal Treatment Act’.

470  Referred to in this report as the ‘Prohibition of Racial Discrimination Act’.

471 

In March 2013 Law 61/2013 and in June 2013 Law 189/2013 for the Ratification of Emergency Ordinance 19/2013 both further 

amended Governmental Ordinance 137/2000.

472  Please note that there is specific legislation on disability: Act 448/2006 on the Promotion and Protection of the Rights of Persons 

with Disabilities.

473  Please note that there is specific legislation on disability: the Act on Equal Opportunities of People with Disabilities of 16 

November 2010.

474  The Employment Relationship Act of 5 March 2013 replaces the same Act from 24 April 2002.

153

December 2014Constitutional
anti-
discrimination 
provisions 

Chapter 1, S. 
2 and Chapter 
2, S. 12 of the 
Constitution

Main specific anti-discrimination 
legislation

Grounds covered

Discrimination Act (2008:567) of 5 June 
2008, as last amended in 2011

All grounds in the two Directives and 
additional grounds

Art. 10 of the 
Constitution

Law on Persons with Disabilities No  5378 of 
1 July 2005 as last amended in 2013

Disability

No written 
constitution

UK: Equality Act of 16 February 2006 as last 
amended in 2010476

All grounds in the two Directives and 
additional grounds

Northern Ireland: Race Relations Order of 19 
March 1997, as last amended in 2012

Racial grounds including ethnic origin, colour, 
nationality, national origin, membership of the 
Irish Traveller Community

Northern Ireland: Disability Discrimination 
Act of 8 November 1995, as last amended 
in 2006

Northern Ireland: Employment Equal-
ity (Sexual Orientation) Regulations of 1 
December 2003

Northern Ireland: Fair Employment and Treat-
ment Order of 16 December 1998, as last 
amended by Fair Employment and Treatment 
Regulations in 2013

Disability

Sexual orientation

Religion belief, political opinion and belief

Northern Ireland: Employment Equality 
(Age) Regulations of 1 October 2006 as last 
amended in 2011

Age

Northern Ireland Equality Act (Sexual 
Orientation) 2006

Sexual orientation 

Country

SWEDEN

TURKEY475

UNITED 
KINGDOM

475

476

475  Please note that anti-discrimination provisions can be found in the Labour Code for the grounds of language, race, gender, 

political opinion, philosophical belief, religion and sect or any such considerations and in the Criminal Code for the grounds of 

language, race, colour, gender, disability, political opinion, philosophical belief, religion and sect or any such considerations.

476  The 2006 Equality Act created the Equality and Human Rights Commission in Great Britain, and in the UK prohibited religious 

discrimination outside employment and created a basis for secondary legislation to do the same in relation to sexual orientation. 

The 2010 Act for Great Britain only consolidates all the grounds and amends the 2006 provisions in relation to sexual 

orientation, religion and belief beyond employment in Great Britain.

154

Developing Anti-Discrimination Law in EuropeDecember 2014155

December 2014Martin | 1994

156

December 2014Annex 3 
National specialised bodies 
(only federal law/bodies  
are indicated)

157

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No

No

Yes

Yes

Yes

No

Does this body cover other 
grounds than race or ethnic 
origin as specified by Article 
13? If so, which ones?

Gender, ethnic affiliation, religion, 
belief, age, sexual orientation

Gender, ethnic affiliation, religion, 
belief, age, sexual orientation

Yes

Yes

Yes

Yes

No

N/A

Yes

Yes

Yes

Yes

No

N/A

Yes 

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

No

N/A

Alleged race, colour, descent, 
national origin, nationality, age, 
sexual orientation, civil status, 
birth, wealth/income (fortune in 
French), religious or philosophical 
belief, actual or future health 
condition, disability, physical 
characteristics, political opinion, 
trade union opinion, genetic 
characteristics, social origin

Sex, national origin, human 
genome, nationality, origin, 
religion or faith, education, beliefs, 
political affiliation, personal or 
public status, disability, age, 
sexual orientation, family status, 
property status, or any other 
ground provided for by law or 
international treaty to which the 
Republic of Bulgaria is a party 

Racial or ethnic affiliation or 
colour,  language, religion, political 
or other belief, national or social 
origin, property, trade union 
membership, education, social 
status, marital or family status, 
age, health condition,  genetic 
heritage, 

Country

AUSTRIA

BELGIUM

Specialised body designated by 
law in compliance with Article 
13

Equal Treatment Commission 
–ETC
(Act on the Equal Treatment 
Commission and the Office for 
Equal Treatment, §§ 1, 2, 8-23)

National Equality Body –NEB 
(Act on the Equal Treatment 
Commission and the office for 
Equal Treatment, §§ 3-7)

Centre for Equal Opportunities 
and Opposition to Racism
(Act establishing the Centre for 
Equal Opportunities and Opposi-
tion to Racism,477 Art. 1)478

BULGARIA

Protection Against Discrimina-
tion Commission
(Protection Against Discrimination 
Act, Art. 40)

CROATIA

People’s Ombudsman479
(Anti-discrimination Act, Art. 12)

477

478

479

477  Further amended by the General Anti-discrimination Federal Act.

478  See p. 115. A cooperation agreement was approved on 12 June 2013 by the Federal State, the Regions and the Communities to 

turn the Centre for Equal Opportunities and Opposition to Racism into an inert-federal centre.

479  The People’s Ombudsman is competent for all the grounds covered by the Anti-discrimination Act except those grounds that 

are the responsibility of a special Ombudsman. The ground of disability is covered by the Ombudsman for Persons with 

Disabilities and the grounds of gender, gender identity and expression and sexual orientation are covered by the Gender Equality 

Ombudsman.

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Yes

Yes

Yes

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481

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Yes 
482

Yes

Yes

Yes

Yes

No

N/A

Yes

Yes

Yes

Yes

No

No

Does this body cover other 
grounds than race or ethnic 
origin as specified by Article 
13? If so, which ones?

Race/ethnic origin, religion or 
belief, age, sexual orientation, 
disability, community, race, 
language, sex,  political or other 
beliefs, national or social descent, 
birth, colour, wealth, social class or 
any other ground 480

Sex, race, ethnic origin, sexual 
orientation, age, disability, religion, 
belief or other conviction, national 
origin 

Race, ethnic origin, gender, 
disability

Gender, race, skin colour, religion 
or belief, political opinion, sexual 
orientation, age, disability or 
national, social or ethnic origin

No

No

No

No

Yes

Yes

Specialised body designated by 
law in compliance with Article 
13

Equality Authority and Anti-
discrimination Authority
(Act on the Combating of Racial 
and Other Forms of Discrimination 
(Commissioner), Arts 5 and 7)

Public Defender of Rights
(Act on Public Defender of Rights, 
Art. 21b)

Institute for Human Rights 
– The National Human Rights 
Institute of Denmark
(Act on the Institute for Human 
Rights – the National Human 
Rights Institute of Denmark, Art. 
2.2)

Board of Equal Treatment483
(Act on the Board of Equal 
Treatment, Art. 1)

Commissioner for Gender 
Equality and Equal Treatment
(Equal Treatment Act, Arts 15-22)

Sex, ethnic origin, race, colour, 
religion or other beliefs, age, 
disability and sexual orientation 

Yes 

Yes,  Yes 

Yes  No

N/A

Chancellor of Justice
(Chancellor of Justice Act, Art. 
19-3516)

Public sector: other grounds than 
race and ethnic origin are not 
specified. Private sector: sex, race, 
ethnic origin, colour, language, 
origin, religious, political or other 
belief, property or social status, 
age, disability, sexual orientation 
or other ground of discrimination 
provided for by the law

No 
484

No

No

Yes 

Yes 
485

Yes 
486

Country

CYPRUS

CZECH 
REPUBLIC

DENMARK

ESTONIA

480

481

482

483

484

485

486

480  The Equality and Anti-discrimination Authority also covers the ground of nationality (although not expressly mentioned in its 

mandate) as included in the protected grounds under Protocol 12 to the European Convention of Human Rights, the Cypriot 

Constitution and in international conventions ratified by the Republic of Cyprus. The Authority also covers all rights guaranteed 

in the ECHR and all its protocols, the International Convention for the Elimination of All forms of Racial Discrimination, the 

Convention against Torture and Other Forms of Inhumane or Humiliating Treatment, the International Covenant on Civil and 

Political Rights and the Framework Convention on the Protection of National Minorities. The equality body itself has always 

considered nationality to be part of its mandate and refers to it repeatedly in its annual reports when it lists the grounds covered.

481 

In practice, the Equality Authority and the Anti-discrimination Authority do inform victims of their rights.

482  Although the law entitles it to issue binding decisions, the sanctions foreseen are marginal and the equality body chooses to use 

its mediation function instead.

483  The Board of Equal Treatment adjudicates individual complaints of discrimination in the labour market regarding all the grounds 

mentioned above.  For complaints outside the labour market, the Board of Equal Treatment only deals with the grounds of race, 

ethnic origin or gender.

484 

In practice, the Chancellor informs victims of their rights.

485 

In conciliation procedures.

486 

In conciliation procedures.

159

December 2014 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Does this body cover other 
grounds than race or ethnic 
origin as specified by Article 
13? If so, which ones?

No489

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Yes 
490

Yes 
491

Yes 
492

Yes 
493

No

N/A

Specialised body designated by 
law in compliance with Article 
13

Ombudsman for Minorities487
(Act on the Ombudsman for 
Minorities and the National 
Discrimination Tribunal,  Section 
1-2 488)

Defender of Rights (Institu-
tional Act creating the Defender of 
Rights, Art. 4, para. 3)

Any ground protected by 
national494 or European legislation 
and international conventions

Yes

Yes

Yes

Yes  No

N/A

Country

FINLAND

FRANCE

Sex, race, colour, gender, belonging 
to a marginalised group, ethnic 
affiliation, language, citizenship, 
social origin, religion or religious 
belief, other beliefs, education, 
political affiliation, personal or 
social status, mental or physical 
impairment, age, family or marital 
status, property status, health 
condition, any other ground 
prescribed by law or ratified 
international treaty

Race or ethnic origin, sex, religion 
or belief (Weltanschauung), 
disability, age, sexual identity

Yes

Yes

Yes

Yes

yes

No

Yes

Yes

Yes

Yes

No

N/A

FORMER 
YUGOSLAV 
REPUBLIC of 
MACEDONIA

Commission for Protection 
against Discrimination
(Prevention and Protection against 
Discrimination Act, Arts 16-24 and 
25-33)495

Federal Anti-discrimination 
Agency
(General Equal Treatment Act, 
Art. 25) 

GERMANY

487

488

489

490

491

492

493

494

495

487 

Its role is limited to discrimination outside the employment field. Responsibility for the supervision of the prohibition of 

discrimination in employment is given to the occupational safety and health authorities (Section 11 of the Non-Discrimination 

Act). Please note that as mentioned on p. 114 the European Commission has initiated infringement proceedings against Finland 

in relation to the lack of adequate competencies of the Ombudsman for Minorities.

488  The Discrimination Tribunal, which is a judicial body, was also created by the Act on the Ombudsman for Minorities and the 

National Discrimination Tribunal, but it is not considered to be an equality body.

489  The Finnish body does deal in practice with nationality.

490  Only outside the employment field.

491  Only outside the employment field.

492  Only outside the employment field.

493  Only outside the employment field.

494 

In French legislation the protected grounds are: sex, pregnancy, belonging (whether real or supposed) to an ethnic origin, a nation, 

a race or a certain religion, morals, sexual orientation, sexual identity, age, family situation; genetic characteristics, physical 

appearance, family name, health, disability, union activities and political convictions.

495  The Ombudsman also plays a role against discrimination on the grounds of sex, race, colour, national, ethnic and social origin, 

political affiliation, religious and cultural background, language, property, social background, disability and origin.

160

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Yes

No

Yes

Yes

No

N/A

No

No

No

No

No

N/A

No

No

No

No

No

N/A

Yes 

Yes

Yes

Yes

Yes

Yes 
499 

Country

GREECE

Specialised body designated by 
law in compliance with Article 
13

Greek Ombudsman496 (Law 
2477/1997, Art. 1 and Equal 
Treatment Act, Art. 19, para. 1)

Does this body cover other 
grounds than race or ethnic 
origin as specified by Article 
13? If so, which ones?

Racial or ethnic origin, religion or 
other beliefs, disability, age, sexual 
orientation, gender. human rights 
in general

Labour Inspectorate Body497
(Act 2639/1998, Art. 6 and Equal 
Treatment Act, Art. 19, para. 3)

Racial or ethnic origin, religion 
or other beliefs, disability, age, 
sexual orientation

Equal Treatment Committee498
(Anti-discrimination Act, Art. 19, 
para. 2)

Racial or ethnic origin, religion 
or other beliefs, disability, age, 
sexual orientation

HUNGARY

Equal Treatment Authority
(Act on Equal Treatment and the 
Promotion of Equal Opportunities; 
Art. 14-17B) 

Sex, racial affiliation, colour of 
skin, nationality, belonging to 
a national or ethnic minority, 
mother tongue, disability, health 
condition, religion or belief, 
political or other opinion, family 
status, maternity (pregnancy) 
or paternity, sexual orientation, 
sexual identity, age, social origin, 
financial status, part-time nature 
of employment legal relationship 
or other legal relationship 
connected with labour, or deter-
mined period thereof, belonging 
to an interest representation 
organisation, other situation, 
attribute or condition of a person 
or group

ICELAND

No specific body500

-

-

-

-

-

-

-

IRELAND

Equality Authority
(Employment Equality Act, S. 38 
and Equal Status Act, S. 39)

Equality Tribunal
(Employment Equality Act, S. 75 
and Equal Status Act, 39)

496

497

498

499

500

Gender, age, race, religion, family 
status, disability, marital status, 
sexual orientation, membership of 
the Traveller community

Gender, age, racial or ethnic 
origin including membership of 
the Traveller community, religion, 
family status, disability, marital 
status, sexual orientation

Yes 

Yes

Yes

Yes

No

N/A

Yes

Yes

Yes

Yes

Yes

Yes

496  The Ombudsman covers discrimination by public sector bodies.

497  The Labour Inspectorate covers discrimination in the private sector and in the field of employment and occupation for the five 

grounds protected by the Directives. Although the Labour inspectorate has the mandate to provide independent assistance to 

victims and to publish independent reports, in practice it does not do so.

498  The Equal Treatment Committee covers discrimination in the private sector in any field other than employment and occupation 

for the five grounds protected in the two Directives. Although the Equal Treatment Committee has the mandate to provide 

independent assistance to victims and to publish independent reports, in practice it does not do so.

499  However, the Equal Treatment Authority focuses on its quasi-judicial function.

500  The Parliamentary Ombudsman may deal with equality/discrimination in relation to administrative procedure.

161

December 2014 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country

ITALY

Specialised body designated by 
law in compliance with Article 
13

National Office against Racial 
Discrimination –UNAR (Legisla-
tive Decree No 215/2003 on 
the Implementation of Directive 
2000/43/EC, Art. 7)

Does this body cover other 
grounds than race or ethnic 
origin as specified by Article 
13? If so, which ones?

Race, ethnic origin, sex, religion or 
personal belief, disability, age and 
sexual orientation501 

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Yes

Yes  No

N/A

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502

LATVIA

Ombudsman, (Ombudsman Act, 
Art. 11.2)

Grounds not specified, hence any 
ground 

Yes

Yes

Yes

Yes

No

N/A

LIECHTENSTEIN Office for Equal Opportunities 
(Act on Equality between Women 
and Men, Art. 19)

LITHUANIA

Equal Opportunities Ombud-
sperson
(Equal Opportunities for Women 
and Men Act, Chapter IV, Articles 
10-17 and Equal Treatment Act, 
Articles 14)

LUXEMBOURG

Centre for Equal Treatment
(Equal Treatment Act, Art. 8)

National Commission for the 
Promotion of Equality for Men 
and Women506
(Equality for Men and Women Act, 
Art. 11)

Gender, migration and integration 
(including race and ethnicity),503 
sexual orientation, disability,  
social disadvantage

Age, disability, sexual orientation, 
race, ethnicity, origin, religion, 
beliefs or convictions, language, 
social status

Race, ethnic origin, religion or 
belief, disability, age, gender, 
sexual orientation 

Sex, family responsibilities, sexual 
orientation, age, religion or belief, 
racial and ethnic origin, gender 
identity

The Netherlands Institute for 
Human Rights
(the Netherlands Institute for 
Human Rights Act, Arts 9-13, 
originally General Equal Treatment 
Act, Arts 11-21)

Race, religion and belief, political 
opinion, hetero- or homosexual 
orientation, sex, nationality, civil 
(or marital) status, disability, age, 
working time and type of labour 
contract 

The NGO ‘Art. 1’507 (Law on Local 
Anti-discrimination Bureaus, Art. 
2a)

Race, religion and belief, political 
opinion, hetero- or homosexual 
orientation, sex, nationality, civil 
(or marital) status, disability, age 

MALTA

NETHERLANDS

501

502

503

504

505

506

507

Yes

No

Yes

Yes

No

N/A

No 
504

Yes

Yes

Yes

Yes

Yes 
505

Yes

Yes

Yes

Yes

No

N/A

Yes

Yes

Yes

Yes

No

N/A

No 

Yes 

Yes   Yes 

Yes

No

Yes

Yes

Yes

Yes

No

N/A

501  UNAR’s remit has been extended through a ministerial directive in 2012. In practice, the Italian body also deals with nationality.

502  There have been serious concerns in 2013 regarding the interference of the state in UNAR’s activities and therefore its 

independence in dealing with its tasks (such as providing independent assistance to victims, surveys and reports and issuing 

recommendations).

503  Religion and age are not explicitly mentioned, but due to the general mission of the Office for Equal Opportunities, it can be 

assumed that these grounds would be covered in Liechtenstein.

504 

In practice, the Ombudsman tries to act as mediator and to reach a settlement between the victim and the perpetrator.

505  The Ombudsperson’s administrative sanctions are binding but not her/his recommendations.

506 

In practice the Commission is generally referred to as the National Commission for the Promotion of Equality.

507  This organisation includes around 430 local anti-discrimination bureaus.

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Developing Anti-Discrimination Law in EuropeDecember 2014 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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509

510

511

512

513

Country

NORWAY

POLAND

PORTUGAL

ROMANIA

SLOVAKIA

Specialised body designated by 
law in compliance with Article 
13

Equality and Anti-discrimi-
nation Ombud508 (Act on the 
Equality and Anti-discrimination 
Ombud and the Equality and Anti-
discrimination Tribunal, Art. 1).

Commissioner for Civil Rights 
Protection (‘Ombudsman’)
(Act on the Commissioner for Civil 
Rights Protection, Art. 1)

ACIDI (High Commissioner for 
Immigration and Intercultural 
Dialogue)
(Decree-Law 167/2007, Art. 1)

National Council on Combating 
Discrimination
(Government Decision 1194/2001 
establishing the National Council 
on Combating Discrimination, Art)

Slovak National Centre for 
Human Rights
(Act No 308/1993 on the 
Establishment of the Slovak 
National Centre for Human Rights, 
S. 1, paras 2a, e, f, g, h and S. 1, 
paras 3 and 4)

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Yes

Yes

Yes

Yes

No

t
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m

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a

Yes 
510

Does this body cover other 
grounds than race or ethnic 
origin as specified by Article 
13? If so, which ones?

Gender, ethnicity, disability, 
language, religion, sexual orienta-
tion and age509

The Act on the Commissioner for 
Civil Rights Protection does not 
specify any protected grounds

Yes 
511

Yes

Yes

Yes

No

N/A

Nationality

Yes

Yes

Yes

Yes

No

N/A

Yes

Yes

Yes

Yes

Yes

Yes/
No 
512

Yes

Yes

Yes

Yes

No

N/A

Race, nationality, ethnic origin, 
language,  religion, social status, 
beliefs, gender, sexual orientation, 
age, disability, non-contagious 
chronic disease, HIV positive 
status, belonging to a disadvan-
taged group or any other criterion

Sex, religion or belief, race, 
affiliation to a nationality or 
an ethnic group, disability, age, 
sexual orientation, marital status 
and family status, colour of skin, 
language, political or other 
opinion, national or social origin, 
property, lineage/gender or other 
status, unfavourable health condi-
tion, family duties, membership 
or involvement in a political party 
or a political movement, a trade 
union or another association

SLOVENIA513

Advocate of the Principle of 
Equality
(Act Implementing the Principle of 
Equal Treatment, Art. 11.19a)

Gender, ethnicity, race or ethnic 
origin, religion or belief, disability, 
age, sexual orientation, other 
personal circumstance

Yes

No

No

Yes

No

N/A

508  The Equality and Anti-discrimination Tribunal is the appeal instance of the Equality and Anti-discrimination Ombud.

509  The Ombud also implicitly covers national origin, descent, skin colour and language as these were formerly explicitly in the 

legislation, and the preparatory works to the new law in force as of 1 January 2014 say that these grounds are to be covered 

under ethnicity. Discrimination because of political affiliation and membership in trade unions are handled by the courts only.

510  The Ombud’s role is to provide guidance to victims of discrimination on the content of the law and not to give assistance in the 

form of legal counselling or legal aid.

511  Judicial interpretation is required as under the Polish Constitution and the new law, the competences of the Ombudsman are 

limited regarding conflicts between private parties.

512 

Issuing recommendations is not specifically provided for in the law, but the national equality body does so in practice.

513  The tasks performed by the Advocate might not be seen as independent as the Advocate is a civil servant working for the 

Ministry.

163

December 2014 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country

SPAIN

SWEDEN

TURKEY

UNITED 
KINGDOM

Does this body cover other 
grounds than race or ethnic 
origin as specified by Article 
13? If so, which ones?

t
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d
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i

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u
s

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P

-

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r

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u
s
s
I

s
n
o
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t
a
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m

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t
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o
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y
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l
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n
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n
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b

No

No

No

No

No 

No

N/A

Specialised body designated by 
law in compliance with Article 
13

Council for the Promotion of 
Equal Treatment of all Persons 
without Discrimination on the 
Grounds of Racial or Ethnic 
Origin
(Act 62/2003, of 30 December on 
Fiscal, Administrative and Social 
Measures, Art. 33)

Equality Ombudsman
(Discrimination Act, Ch. 4 and 
Ch. 6, S. 2, and the whole of the 
Equality Ombudsman Act) 

Sex, transgender identity or 
expression, ethnicity, religion and 
other belief, disability, sexual 
orientation, age

Yes

Yes

Yes

Yes

No

N/A

No

-

Great Britain: Equality and 
Human Rights Commission (UK 
Equality Act 2006, SS. 1-43)

Northern Ireland: Equal-
ity Commission for Northern 
Ireland, (Northern Ireland Act, 
Part VII, SS. 73-74)

Ethnic origin, national origin, 
colour, nationality (including 
citizenship), sexual orientation, 
religion, belief, disability, age, sex 
(including gender reassignment, 
marriage/civil partnership status, 
pregnancy)

Ethnic origin, national origin, 
colour, nationality (including 
citizenship), sexual orientation, 
religion, belief, disability, age, sex 
(including gender reassignment, 
marriage/civil partnership status, 
pregnancy)

-

-

-

-

-

-

Yes

Yes

Yes

Yes

No

N/A

Yes

Yes

Yes

Yes

No

N/A

164

Developing Anti-Discrimination Law in EuropeDecember 2014 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
165

December 2014European Commission

Developing Anti-Discrimination Law in Europe 

The 28 EU Member States, the Former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Norway and 

Turkey compared

Luxembourg: Publications Office of the European Union

2015 — 166 pp. — 21 x 29.7 cm

ISSN 2314-9663
ISBN 978-92-79-46193-4
Doi 10.2838/94057

The Comparative Analysis provides a detailed comparison of the anti-discrimination legislation in the 28 EU Member 

States, the Former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Norway and Turkey, as comprehensively 

described in the country reports written by the European Network of Legal Experts in the Non-discrimination Field 

and summarised in this publication. The grounds of discrimination listed in the Directives 2000/43/EC and 2000/78/

EC are considered individually and collectively, while the overall purpose of this document is to provide an overview 

of the national legal framework across the EU.

HOW TO OBTAIN EU PUBLICATIONS

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  via EU Bookshop (http://bookshop.europa.eu);

•  more than one copy or posters/maps:

from the European Union’s representations (http://ec.europa.eu/represent_en.htm);
from the delegations in non-EU countries
(http://eeas.europa.eu/delegations/index_en.htm); 

  by contacting the Europe Direct service (http://europa.eu/europedirect/index_en.htm) 

or calling 00 800 6 7 8 9 10 11 (freephone number from anywhere in the EU) (*).

(*)  The information given is free, as are most calls (though some operators, phone boxes or hotels may 

charge you).

Priced publications:

•  via EU Bookshop (http://bookshop.europa.eu).

 
 
 
 
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