Country report non-discrimination : transposition and implementation at national level of Council Directives 2000/43 and 2000/78 : Spain 2021.
Date: 2021-09-02
Institutions: Directorate-General for Justice and Consumers
Subjects: Spain, age discrimination, anti-discriminatory measure, discrimination based on disability, discrimination on the basis of sexual orientation, equal treatment, ethnic discrimination, national law, religious discrimination, report, sexual discrimination, social policy

Spain 

2021 

including summary 

 
 
 
 
 
 
EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 
Directorate D — Equality and Union citizenship 
Unit D.1 Non-discrimination and Roma coordination 

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Country report  

Non-discrimination 

Transposition and implementation at national level of 
Council Directives 2000/43 and 2000/78 

Spain 

Ferran Camas Roda 

Reporting period 1 January 2020 – 31 December 2020 

2021  Directorate-General for Justice and Consumers 

   The author has gratefully built on the reports written until 2020 by the previous expert Lorenzo Cachón. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Luxembourg: Publications Office of the European Union, 2021 

© European Union, 2021 

PDF  

ISBN 978-92-76-35932-6 

ISSN 2599-9176  

doi:10.2838/35422     DS-BB-21-033-EN-N 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Spain – 2021 

CONTENTS 

EXECUTIVE SUMMARY ........................................................................................ 5 
INTRODUCTION ................................................................................................ 14 
GENERAL LEGAL FRAMEWORK .................................................................. 15 
1 
THE DEFINITION OF DISCRIMINATION .................................................... 17 
2 
2.1  Grounds of unlawful discrimination explicitly covered ................................ 17 

3 

4 

2.1.1 Definition of the grounds of unlawful discrimination within the directives

 .............................................................................................. 17 
2.1.1  Multiple discrimination ............................................................... 21 
2.1.3 Assumed and associated discrimination ........................................... 21 
2.2  Direct discrimination (Article 2(2)(a)) ...................................................... 22 
Indirect discrimination (Article 2(2)(b)) ................................................... 22 
2.3 
Statistical evidence ................................................................... 25 
2.3.1 
2.4  Harassment (Article 2(3)) ...................................................................... 26 
2.5 
Instructions to discriminate (Article 2(4)) ................................................ 27 
2.6  Reasonable accommodation duties (Article 2(2)(b)(ii) and Article 5 Directive 

2000/78) ............................................................................................. 28 
PERSONAL AND MATERIAL SCOPE ............................................................ 35 
3.1  Personal scope ..................................................................................... 35 

3.1.1 

EU and non-EU nationals (Recital 13 and Article 3(2), Directive 
2000/43 and Recital 12 and Article 3(2), Directive 2000/78) .......... 35 
3.1.2  Natural and legal persons (Recital 16, Directive 2000/43) .............. 35 
Private and public sector including public bodies (Article 3(1)) ........ 36 
3.1.3 
3.2  Material scope ...................................................................................... 36 
3.2.1  Conditions for access to employment, to self-employment or to 

3.2.2 

3.2.3 

occupation, including selection criteria, recruitment conditions and 
promotion, whatever the branch of activity and at all levels of the 
professional hierarchy (Article 3(1)(a)) ........................................ 36 
Employment and working conditions, including pay and dismissals 
(Article 3(1)(c)) ........................................................................ 37 
Access to all types and all levels of vocational guidance, vocational 
training, advanced vocational training and retraining, including 
practical work experience (Article 3(1)(b)) ................................... 39 

3.2.4  Membership of, and involvement in, an organisation of workers or 

3.2.5 

employers, or any organisation whose members carry on a particular 
profession, including the benefits provided for by such organisations 
(Article 3(1)(d)) ........................................................................ 39 
Social protection, including social security and healthcare (Article 
3(1)(e) Directive 2000/43) ......................................................... 40 
Social advantages (Article 3(1)(f) Directive 2000/43) .................... 42 
Education (Article 3(1)(g) Directive 2000/43) ............................... 43 
Access to and supply of goods and services that are available to the 
public (Article 3(1)(h) Directive 2000/43) .................................... 46 
3.2.9  Housing (Article 3(1)(h) Directive 2000/43) ................................. 48 
EXCEPTIONS ............................................................................................. 50 
4.1  Genuine and determining occupational requirements (Article 4) .................. 50 
4.2  Employers with an ethos based on religion or belief (Article 4(2) Directive 

3.2.6 
3.2.7 
3.2.8 

2000/78) ............................................................................................. 50 

4.3  Armed forces and other specific occupations (Article 3(4) and Recitals 18 and 

19 Directive 2000/78) ........................................................................... 51 
4.4  Nationality discrimination (Article 3(2)) ................................................... 53 
4.5  Health and safety (Article 7(2) Directive 2000/78) .................................... 54 
4.6  Exceptions related to discrimination on the ground of age (Article 6 Directive 

2000/78) ............................................................................................. 54 
4.6.1  Direct discrimination ................................................................. 54 
Special conditions for younger and older workers .......................... 58 
4.6.2 

3 

Country report - Non-discrimination – Spain – 2021 

4.6.3  Minimum and maximum age requirements ................................... 58 
4.6.4  Retirement ............................................................................... 59 
4.6.5  Redundancy ............................................................................. 62 
4.7  Public security, public order, criminal offences, protection of health, protection 
of the rights and freedoms of others (Article 2(5) Directive 2000/78) .......... 63 
4.8  Any other exceptions ............................................................................. 63 
POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 
2000/78) .................................................................................................. 64 
REMEDIES AND ENFORCEMENT ................................................................. 67 
6.1 

Judicial and/or administrative procedures (Article 7 Directive 2000/43, Article 
9 Directive 2000/78) ............................................................................. 67 

6.2  Legal standing and associations (Article 7(2) Directive 2000/43, Article 9(2) 

Directive 2000/78) ................................................................................ 70 
6.3  Burden of proof (Article 8 Directive 2000/43, Article 10 Directive 2000/78).. 73 
6.4  Victimisation (Article 9 Directive 2000/43, Article 11 Directive 2000/78) ...... 75 
6.5  Sanctions and remedies (Article 15 Directive 2000/43, Article 17 Directive 

2000/78) ............................................................................................. 76 

BODIES FOR THE PROMOTION OF EQUAL TREATMENT (Article 13 Directive 
2000/43) .................................................................................................. 80 
IMPLEMENTATION ISSUES........................................................................ 90 
8.1  Dissemination of information, dialogue with NGOs and between social partners
 .......................................................................................................... 90 

8.2  Measures to ensure compliance with the principle of equal treatment (Article 

5 

6 

7 

8 

14 Directive 2000/43, Article 16 Directive 2000/78) .................................. 92 
9 
COORDINATION AT NATIONAL LEVEL ....................................................... 94 
10  CURRENT BEST PRACTICES ....................................................................... 96 
11  SENSITIVE OR CONTROVERSIAL ISSUES .................................................. 99 
11.1  Potential breaches of the directives at the national level ............................ 99 
11.2  Other issues of concern ......................................................................... 99 
12  LATEST DEVELOPMENTS IN 2020 ............................................................ 101 
12.1  Legislative amendments ...................................................................... 101 
12.2  Case law ............................................................................................ 101 
BIBLIOGRAPHY .............................................................................................. 104 
ANNEX 1: MAIN TRANSPOSITION AND ANTI-DISCRIMINATION LEGISLATION

 ............................................................................................................... 106 
ANNEX 2: INTERNATIONAL INSTRUMENTS ..................................................... 108 

4 

EXECUTIVE SUMMARY 

1. Introduction 

There have been great social and political changes in Spain over the past 45 years. Major 
transformations have taken place in the country’s social structure, forming a much more 
diverse  society  in  ethnic  and  religious  (and  other)  terms.  Two  of  the  major  interrelated 
changes  have  been  a  demographic  transformation  and  the  conversion  of  Spain  into  a 
country of net immigration.  

Between 1975 and 2020 the population has grown from 36 million to just over 47 million 
(47 450 795).1 

The  most  interesting  data  for  this  report  are  as  follows.  First,  it  should  be  noted  that 
immigration has played an important role in population growth. At the turn of the century, 
Spain went from being a country of emigration in the 20th century, with people emigrating 
to  third  countries,  to  a  country  of  immigration,  or  a  destination  country  for  foreign 
migrants.  As  at  30 December  2020,  there  were  5 800 468  foreign  residents.  Of  these, 
61 %  belonged  to  the  European  Union  free  movement  regime,  a  proportion  that  has 
increased by almost 10 percentage points in the last decade. The top 10 countries of origin 
are  Romania,  Morocco,  the  United  Kingdom,  Italy,  China,  Bulgaria,  Germany,  Portugal, 
France and Venezuela. The group of migrants that has increased the most in the last year 
is from Venezuela, by 53 %. It should be noted that 45 % of immigrants belonging to the 
general regime (foreigners who do not enjoy the right of European citizens to freedom of 
movement)  are  from  Morocco  and  China.  Also  included  in  this  group  are  nationals  from 
South  America,  mainly  from  Ecuador,  Colombia  and  Venezuela,  totalling  436 753 
persons).2 

It should also be noted that 2020 saw the smallest interannual increase (137 120 people, 
or 2 %) in immigration since 2016, breaking the sustained rise observed since 2014. The 
reduction in the annual increase in foreign residents  can be  explained by the COVID-19 
health situation and the international mobility restrictions associated with it.3  

The rapid rise in immigration poses new challenges to Spanish society, including increased 
risks related to discriminatory practices.  

Regarding religion, the survey conducted in December 2020 by the Centre for Sociological 
Research  should  be  taken  into  consideration.  It  found  that  61.7 %  of  the  population 
declared themselves Catholic. That is, two out of every three people living in Spain self-
identified as Catholics. That said, 20.1 % considered themselves practising Catholics and 
41.6 %  non-practising.  Only  2.7 %  of  the  population  declared  themselves  members  of 
another  religious  faith  (mainly  Islam  and  Protestantism).  In  addition,  in  2020,  it  was 
detected that agnostics (10.3 % of respondents) and people who considered themselves 
non-believers or indifferent (10.5 %) already outnumbered practising Catholics. Moreover, 
13.6 % of respondents self-identified as atheists.4 

1   See Royal Decree 1147/2020 of December 15 2020, declaring official the population figures resulting from 
the revision of the Municipal Population Register of 1 January 2020. Incidentally, the latest demographic 
data showed that the population of Spain as of January 2021 was estimated to be 47 344 649, with a 
significant decrease of 106 146 people compared with the beginning of 2020. 

2   Observatorio Permanente de la Inmigración (31/03/2021): 

https://extranjeros.inclusion.gob.es/ficheros/estadisticas/operaciones/con-
certificado/202012/Principales_resultados_residentes.pdf. 
3   Observatorio Permanente de la Inmigración (31/03/2021): 

https://extranjeros.inclusion.gob.es/ficheros/estadisticas/operaciones/con-
certificado/202012/Principales_resultados_residentes.pdf. 

4   Centro de Investigaciones Sociológicas, December 2020: http://datos.cis.es/pdf/Es3303sdMT_A.pdf. 

5 

 
 
 
 
 
 
 
 
 
 
 
 
The average age  of the population living in Spain registered in the Municipal Register is 
43.6 years. The average age of Spanish nationals is 44.5 years and of foreign residents, 
36.2  years  (the  average  age  of  foreign  citizens  from  EU  countries  is  40.6  years).5  In 
general, it can be confirmed that the age structure of the foreign population is contributing 
considerably to the rejuvenation of the Spanish population.  

By  age,  15.4 %  of  the  population  are  under  16,  36.0 %  are  aged  between  16  and  44, 
29.2 % are aged between 45 and 64, and 19.4 % are 65 or over.6 These data enable us 
to visualise the ageing  process  of the population living in Spain. If current demographic 
trends are maintained, the largest age group in January 2020, people born between 1970 
and 1979 (currently 40-49 years  old), would still be the largest group in  2050 (by then 
aged  70-79).  It  should  be  mentioned  that  the  percentage  of  the  population  aged  65  or 
over, which currently stands at 19.6 % of the overall population, would reach a maximum 
of 31.4 % in about 2050. From then on, it should begin to decrease. 

Up until the mid-1980s, the only notable differentiated ethnic group was that formed by 
the 750 000 Spanish Roma. 

The Spanish Constitution of 1978 laid down the legal framework of a coexistence governed 
by democratic principles, making equal treatment and non-discrimination one of the basic 
pillars  of  a  non-confessional  state.  Although  few  actions  are  brought  before  the  courts, 
discriminatory practices occur  relatively  often,  on various grounds. These discriminatory 
practices chiefly affect certain migrant groups and Roma, but also concern grounds such 
as sexual orientation and disability. 

for  combating 
There  are  several  specific  social  and  employment  programmes 
discrimination on various grounds. There are also positive action programmes to combat 
discrimination in gender and disability. All these programmes are of value, although they 
are not very effective in their overall impact. 

There  have  been  numerous  conflicts  between  the  rights  of  organisations  with  an  ethos 
based on religion or belief (in particular the Catholic Church, with which Spain signed an 
agreement in 1976 that is still in force) and other rights to non-discrimination. This has 
generated a significant amount of jurisprudence in Spain7 and the ECtHR.8 

The  great  recession  suffered  by  Spain  between  2008  and  2014  and  the  policies  that 
Governments have been implementing to address it have led to a marked change in policy 
priorities.  

A new coalition Government was formed on 7 January 2020, comprising the Socialist Party 
and  the  Unidas  Podemos  (a  coalition  of  leftist  political  parties).  On  30  December  2019, 
both  parties  signed  a  Government  programme  entitled  ‘Progressive  Coalition.  A  New 
Agreement  for  Spain’,  in  which  they  committed  to  promoting  a  package  of  measures  to 
foster  equal  treatment,  non-discrimination  and  positive  attitudes  towards  diversity.  In 
particular,  they  agreed  to  pass  a  comprehensive  law  to  address  discrimination  against 
LGBTI  persons.  The  coalition  Government  also  agreed  to  adopt  public  policies  aimed  at 
improving access and permanence in education and employment for the Roma people. 

Finally,  as  an  example  of  good  practice  developed  in  2020  in  Spain  in  the  field  of  non-
discrimination, we should mention the National Artificial Intelligence Strategy promoted by 

5   Data from 21 April 2020. Avance de la Estadística del Padrón Continuo a 1 de enero de 2020 (Preview of 

continuous register statistics as at 1 January 2020). Instituto Nacional de Estadística: 
https://www.ine.es/prensa/pad_2020_p.pdf. 

6   Instituto Nacional de Estadística: Población (Population), https://www.ine.es/prensa/pp_2020_2070.pdf. 
7   Constitutional Court Judgments 5/1981 of 13 February 1981; 47/1985 of 27 March 1985; 106/1996 of 12 

June 1996; and 51/2011 of 14 April 2011. 

8   Fernández Martínez v. Spain, No. 5603/07, 12 June 2014. 

6 

 
 
 
 
 
 
 
 
 
 
 
 
the Spanish Government. For the purpose of this report on Spain, it should be noted that 
the Strategy provides for appropriate measures to develop AI based on ethical principles, 
including inclusion and non-discrimination. 

2. Main legislation 

Equality  is  one  of  the  highest  values  of  the  legal  system  established  by  the  Spanish 
Constitution of 1978. Article 14 of the Constitution says: ‘Spaniards are equal before the 
law and may not in any way be discriminated against on the grounds of birth, race, sex, 
religion,  opinion  or  any  other  condition  or  personal  or  social  circumstance’.  The 
Constitutional  Court  has  established  that  age,9  disability10  and  sexual  orientation11  are 
included under ‘any other condition or personal or social circumstance’. 

The  most  notable  international  instruments  combating  discrimination  have  been  ratified 
during  Spain’s  democratic  period  since  1976,  and  these  instruments  have  informed  the 
Constitution and the laws passed since then: 

− 
− 
− 
− 
− 
− 
− 
− 
− 

the International Convention on the Elimination of All Forms of Racial Discrimination; 
the International Covenant on Civil and Political Rights; 
the International Covenant on Economic, Social and Cultural Rights; 
the Convention on the Elimination of All Forms of Discrimination against Women; 
the Convention on the Rights of Persons with Disabilities and its Optional Protocol; 
ILO Convention 97 on Migration for Employment; 
ILO Convention 111 on Discrimination (Employment and Occupation); 
the Convention for the Protection of Human Rights and Fundamental Freedoms;  
Protocol  No.  12  to  the  Council  of  Europe  Convention  for  the  Protection  of  Human 
Rights and Fundamental Freedoms.  

Spanish law has developed the principle of equal treatment in various legal fields, mainly 
labour and criminal law. The main labour legislation is Royal Legislative Decree 2/2015 of 
23  October  2015,  approving  the  consolidated  text  of  the  Workers’  Statute,  which 
establishes  that  discriminatory  legislative  provisions,  clauses  of  collective  agreements, 
individual agreements and unilateral managerial decisions are considered as null and void, 
and  discriminatory  acts  by  employers  are  specified  as  very  serious  offences.  Under  the 
criminal law, racism or xenophobia is an aggravating circumstance in the commission of a 
crime, and several provisions specify racist offences and consider serious discrimination in 
employment  as  an  offence.  There  are  also  anti-discriminatory  measures  in  the 
administrative, civil and educational spheres. 

The transposition of Directives 2000/43 and 2000/78 was made in Chapter III of Title II of 
Law  62/2003,12  on  fiscal,  administrative  and  social  measures.  Articles  27-28  contain  a 
general  transposition  of  the  definitions  of  direct  and  indirect  discrimination,  harassment 
and  instructions  to  discriminate.  Law  62/2003  was  amended  in  2014  in  relation  to  the 
independent  body,  the  Council  for  the  Elimination  of  Racial  or  Ethnic  Discrimination.13 
Following Law 62/2003, EU directives have been implemented in various other laws and 
have  influenced  policy  changes  in  Spain  on  anti-discrimination  legislation  for  different 
grounds and in different fields. 

9    Constitutional Court Judgment 31/1984, 7 March 1984. 
10   Constitutional Court Decision 269/1994, October 1994. 
11   Constitutional Court Decision 41/2006, February 2006. 
12   Law 62/2003 of 30 December 2003 on Fiscal, Administrative and Social Measures (Ley 62/2003, de 30 de 

diciembre, de medidas fiscales, administrativas y de orden social) (Official State Bulletin (Boletín Oficial del 
Estado) (BOE), 31 December 2003). 

13   Law 15/2014 of 16 September 2014 on the rationalisation of the public sector and other measures of 

administrative reform (Ley 15/2014, de 16 de septiembre, de racionalización del Sector público y otras 
medidas de reforma administrativa) (BOE, 17 September 2014), 
https://www.boe.es/boe/dias/2014/09/17/pdfs/BOE-A-2014-9467.pdf. 

7 

 
 
 
 
 
 
 
 
 
 
 
Various  other  laws  are  relevant.  Royal  Legislative  Decree  3/2015  of  23  October  2015, 
approving  the  consolidated  text  of  the  Employment  Act,  establishes  that  guaranteeing 
effective equality of opportunities and non-discrimination is the objective of employment 
policies.  Under  this  decree,  public  employment  services,  collaborating  entities  and 
employment  agencies  that  manage  labour  mediation  must  specifically  ensure  that  both 
direct and indirect discrimination in access to employment are avoided. Of note in the area 
of  disability  is  RLD  1/201314  of  29  November  2013,  approving  the  General  Law  on  the 
Rights of Persons with Disabilities and their Social Inclusion, which regulates all aspects of 
disability and replaces the three pieces of disability legislation that were in force up to that 
date. Law 27/2007 of 23 October 2007 recognises ‘Spanish sign languages’ and regulates 
‘speech  communication  aids  for  the  deaf,  hard  of  hearing  and  deafblind’.  Note  that  the 
Spanish title of the law has been translated literally into English.15 

In the area of religion, we can highlight Organic Law 7/198016 of 7 July 1980, on Religious 
Freedom, as well as Laws 24, 25 and 26 of 1992, approving the Agreement of Cooperation 
between the State and the Federation of Evangelical Religious Entities, the Federation of 
Israeli Communities and the Islamic Commission of Spain, respectively. 

Finally, it is worth mentioning a law adopted by one region (autonomous community) of 
Spain, namely the Autonomous Community of Catalonia. This is an equality law not related 
to gender equality, on the basis of which may other regions in Spain have adopted their 
own laws; rather, it is a generic equality law: Act 19/2020 of 30 December 2020. Applicable 
exclusively on the territory of Catalonia, it aims to prevent any form of discrimination on 
the following grounds, set out here in general terms: territorial or national origin; sex or 
gender; sexual orientation or gender identity and any form of LGBTI phobia or misogyny; 
age;  race  or  ethnic  origin;  language  or  cultural  identity;  ideology  or  political  opinion; 
religious convictions; social or economic condition; disability; health problems or illness; 
physical appearance or clothing, or for any other characteristic of the human condition. 

Article 2 establishes that the Act shall apply to all natural and juridical persons in both the 
public and private sector, located or acting within the territory of Catalonia. Accordingly, 
within the scope of their powers, the Public Administrations must ensure the right to equal 
treatment and non-discrimination in a broad range of areas. 

3. Main principles and definitions 

The Spanish Constitution states that Spaniards are equal before the law and that they may 
not in any way be discriminated against on account of birth, race, sex, religion, opinion or 
any  other  condition  or  personal  or  social  circumstance  (Article  14).  Moreover,  it  enjoins 
the public authorities to promote conditions that ensure that the freedom and equality of 
individuals and of the groups that they form are real and effective; to remove obstacles 
that impede or hamper the fulfilment of such freedom and equality; and to facilitate the 
participation  of  all  citizens  in  political,  economic,  cultural  and  social  life  (Article  9).  The 
Spanish Constitutional Court17 has ruled that the principle of equality is not breached by 
action on the part of the public authorities to counter the disadvantages experienced by 
certain social groups even when they are given more favourable treatment, as the aim is 
to give different treatment to effectively different situations.  

Prohibition of discrimination on various grounds is addressed in the Spanish legal system, 
and the grounds of unlawful discrimination specified are a person’s origin, including racial 

14   Royal Legislative Decree (RLD) 1/2013, General Law on the Rights of Persons with Disabilities and their 

Social Inclusion (Ley General de derechos de las personas con discapacidad y de su inclusión social) (BOE, 3 
December 2013). 

15   See the English translation of the law on the Disability Information Service website (Government of the 

Region of Castile and León) at: https://sid.usal.es/idocs/F3/LYN11795/LEYLSE.pdf. 

16   Organic Law 7/1980 of 5 July 1980 on Religious Freedom (BOE, 24 July 1980). 
17   Constitutional Court Decision 128/1987, 1 July 1987. 

8 

 
 
 
 
 
 
 
 
 
 
or  ethnic  origin,  sex,  age,  marital  status,  religion  or  belief,  political  opinion,  sexual 
orientation, trade union membership, social status or disability. 

National law has implemented the duty to provide reasonable accommodation for disabled 
people, both in general terms and specifically in the field of employment. 

The  Criminal  Code18  specifies  racial  or  ethnic  motives  as  aggravating  circumstances  in 
various offences and misdemeanours.  

Organic Law 7/198019 of 7 July 1980, on Religious Freedom, proclaims the principle of non-
discrimination, establishing that religious beliefs shall not constitute a reason for inequality 
or  discrimination  before  the  law.  Religious  reasons  may  not  be  a  ground  for  preventing 
anyone from performing any work, activity, responsibility or public office.  

Law 62/2003 contains a rather minimal – and sometimes not exactly literal – transposition 
of Directives 2000/43 and 2000/78, covering all grounds of discrimination. The definitions 
of both direct and indirect discrimination are included, although in the definition of direct 
discrimination there is no reference to the situation where a person ‘has been or would be 
treated’  less  favourably,  but  only  to  ‘present  situations  of  unfavourable  treatment’. 
Harassment is defined and prohibited. Instructions to discriminate are prohibited but not 
defined in national law. There are legal measures of protection against victimisation, but 
only in the field of employment: Law 62/2003  introduces a modification in the Workers’ 
Statute, annulling employers’ decisions which constitute adverse treatment of employees 
as  a  reaction  to  a  complaint  within  the  company  or  to  any  legal  proceedings  aimed  at 
enforcing compliance with the principle of equal treatment and non-discrimination.  

There 
is  no  explicit  mention 
perception’ or ‘discrimination by assumption’. 

in  Spanish 

legislation  of 

‘discrimination  by 

In  the  area  of  disability,  RLD  1/2013  addresses  disability  discrimination  based  on 
‘association’. For other grounds, discrimination by association may be regarded as implicitly 
covered by the law, and judicial interpretation might be required. 

The exceptions to the principle of equal treatment provided for in Spanish legislation are 
along the lines of those in Article 4 of Directives 2000/43 and 2000/78. As for churches 
and organisations with a specific ethos, Organic Law 7/1980 on Religious Freedom sets out 
the  right  of  registered  churches  and  religious  communities  to  lay  down  their  own 
organisational rules and internal and staff regulations, which may include clauses on the 
safeguarding  of  their  religious  identity  and  personality,  as  well  as  due  respect  for  their 
beliefs, without prejudice to the rights and freedoms recognised by the Constitution and in 
particular those of freedom, equality and non-discrimination. In private organisations with 
a  specific  ethos,  the  exemptions  apply  at  three  stages  of  the  employment  relationship: 
access  to  employment;  performance  of  activities  in  the  organisation;  and  dismissal 
because of those activities.  

There are no specific national rules about multiple discrimination. 

4. Material scope 

The material scope of the prohibition of discrimination is of a general nature. All the fields 
mentioned  by  Directives  2000/43  and  2000/78  are  covered  by  the  general  principle  of 
equality laid down in Article 14 of the Spanish Constitution. Besides gender, racial or ethnic 
origin, religion or beliefs, disability, age and sexual orientation, other grounds are expressly 
mentioned in Spanish laws:  marital status; place  of  origin; social status; political ideas; 

18   Organic Law 10/1995 of 23 November 1995 on the Criminal Code (BOE, 24 November 1995), modified by 

Organic Law 1/2015 of 30 March 2015 (BOE, 31 March 2015). 

19   Organic Law 7/1980 of 5 July 1980 on Religious Freedom (BOE, 24 July 1980). 

9 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
ideology; affiliation to a trade union; language within the State of Spain; and  family ties 
with  other  workers  in  the  same  enterprise.  In  some  fields,  especially  employment, 
discrimination is expressly prohibited by current legislation, in both the public and private 
sectors.  

In fields such as social protection, social benefits, education and access to education, and 
in relation to the supply of goods and services available to the public, including housing, 
the applicable  regulations do not usually contain explicit anti-discrimination clauses, but 
they  are  subject  to  the  general  principle  stated  in  the  Constitution.  Law  62/2003 
establishes anti-discrimination measures in these fields, but only for discrimination on the 
grounds of racial or ethnic origin. 

5. Enforcing the law 

The Spanish Constitution provides that all fundamental rights are protected by the ordinary 
courts of law. Moreover, appeals for protection in respect of such rights may be lodged at 
the Constitutional Court once ordinary proceedings have been exhausted. As well as having 
recourse  to  administrative  proceedings  (through  the  Labour  Inspectorate  and  the 
Education  Inspectorate),  the  conciliation  procedures  for  civil  and  social  matters,  the 
ordinary courts and the Constitutional Court, victims of discrimination may appeal to the 
ombudsmen if the issue concerns acts by the public administration. 

The Spanish Constitution entitles any physical or legal person invoking a legitimate interest 
to be a party to proceedings relating to the violation of fundamental rights and freedoms. 
Organisations  and  trade  unions  are  entitled  to  act  on  behalf  of  (but  not  in  support  of) 
victims of discrimination. This general rule (Law 1/200020 of 7 January  2000, regulating 
civil procedure, and Law 29/199821 of 13 June 1998, regulating administrative jurisdiction) 
also relates to anti-discrimination legislation: in Law 62/2003 (in cases of discrimination 
on the ground of racial or ethnic origin and only in fields other than employment); in Law 
36/2011  on  Social  Jurisdiction  (on  grounds  of  racial  or  ethnic  origin,  religion  or  beliefs, 
disability, age or sexual orientation in the field of employment); and in the General Law on 
the  Rights  of  Persons  with  Disabilities  (RLD  1/2013)  (on  the  ground  of  disability  in  the 
fields of access to and supply of goods and services and employment). 

Law  36/201122  of  10  October  2011,  the  Law  on  Social  Jurisdiction,  in  its  regulation  of 
capacity  and  procedural 
legitimate 
representatives  if  the  former  are  incompetent  or  if  the  claimant  is  a  legal  entity. 
Furthermore, this law provides that trade unions may appear in court for and on behalf of 
their members who authorise them to do so, in order to defend their individual rights.  

legitimisation,  mentions  workers  or 

their 

The Criminal Code includes racist motives as an aggravating circumstance in any offence 
and  penalises,  among  other  acts,  incitement  to  discriminate,  dissemination  of  abusive 
material,  discrimination  in  public  services  and  professional  or  corporate  discrimination, 
along with associations promoting discrimination. Racial discrimination is also penalised in 
the context of offences against employees.  

The Civil Procedure Law (Law 1/2000) regulates the burden of proof in court and shifts the 
burden  of  proof  in  certain  cases.  In  the  field  of  anti-discrimination  law,  Law  62/2003 
establishes the possibility of a shift in the burden of proof on the ground of discrimination 
by racial or ethnic origin (in all fields) (Article 32), and in the field of employment on the 
ground of discrimination by racial or ethnic origin, religion or belief, disability, age or sexual 
orientation  (Article  36).  The  General  Law  on  the  Rights  of  Persons  with  Disabilities  and 
their Social Inclusion (RLD 1/2013) establishes a shift in the burden of proof on the ground 
of disability (Article 77). 

20   Law 1/2000 of 7 January 2000 regulating civil procedure (BOE, 8 January 2000). 
21   Law 29/1998 of 13 June 1998 regulating administrative jurisdiction (BOE, 14 June 1998). 
22   Law 26/2011 of 10 October 2011 on Social Jurisdiction (BOE, 11 October 2011). 

10 

 
 
 
 
 
 
 
 
 
 
 
Sanctions  for  discrimination  have  been  established  in  the  field  of  employment  for  all 
grounds  and  for  the  ground  of  disability  in  all  fields.  In  the  field  of  employment,  Law 
5/200023 of 4 August 2000, on offences and penalties in social matters, was amended by 
Law  62/2003.  Any  unilateral  decisions  by  an  employer  involving  unfavourable  direct  or 
indirect  discrimination  on  the  grounds  of  age  or  disability  or  unfavourable  or  adverse 
treatment  relating  to  remuneration  and  other  working  conditions,  on  the  grounds  of 
gender, racial or ethnic origin, civil or social status, religion or belief, political ideas, sexual 
orientation, membership or non-membership of a trade union, adherence to trade union 
agreements,  family  ties  with  other  employees  or  language  within  the  Spanish  State,  as 
well as decisions of the employer entailing unfavourable treatment of workers as a reaction 
to  a  complaint  within  the  company  or  to  any  legal  proceedings  aimed  at  enforcing 
compliance with the principle of equal treatment and non-discrimination, are very serious 
offences.  On  the  ground  of  disability,  the  General  Law  on  the  Rights  of  Persons  with 
Disabilities  and  their  Social  Inclusion  (RLD  1/2013)  establishes  a  system  of  sanctions. 
Legislation  establishes  a  maximum  amount  for  the  fines  (EUR 187 515  in  the  field  of 
employment  and  EUR 1 million  in  the  field  of  disability  discrimination)  but  does  not 
establish any ceiling for compensation. 

There are generally few rulings on racial discrimination in the courts, which usually treat 
cases  as  violations  of  other  types  of  legal  right,  such  as  aggression  and  damage  to 
property, without taking account of racist motivation. A further complication is that those 
concerned do not bring many actions, owing to bureaucracy and to the small number of 
convictions.  However,  court  actions  have  been  brought  on  account  of  discrimination  – 
against  Roma,  immigrants  or  black  Spaniards  –  that  have  attracted  a  degree  of  public 
interest. 

Situation testing is not expressly provided for in Spanish law, but it is not forbidden either. 
It  might  therefore  be  used  as  a  form  of  evidence  in  discrimination  cases.  Statistical 
evidence has been used in some judgments, especially in cases of sex discrimination in the 
employment field. 

The main positive action measures in place on a national level are (1) broad social policy 
measures (such as positive action for Roma or the use of  sign language and speech aid 
systems for people with disabilities); (2) quotas for persons with disabilities; and (3) some 
preferential treatment for persons with disabilities (such as access to special employment 
centres and occupational centres or a preferential right to geographical mobility). 

The directives were transposed in Spain in 2003 with no formal social dialogue, either with 
the social partners or with NGOs.  

6. Equality bodies 

Law  62/2003  (amended  by  Law  15/2014  on  the  rationalisation  of  the  public  sector  and 
other  measures  of  administrative  reform)  established  the  Council  for  the  Elimination  of 
Racial or Ethnic Discrimination (Consejo para la eliminacion de la discriminación racial o 
étnica). The council was set up on 28 October 2009 and became operational on that date. 
Royal  Decree  1262/2007  (modified  by  RD  1044/2009)  regulates  the  composition, 
competences  and  regulations  of  the  council.  The  council  is  attached  to  the  Ministry  of 
Equality, it is a collegiate Spanish governmental body, and its functions include the three 
functions described in Article 13(2) of Directive 2000/43: providing independent assistance 
to victims; conducting independent surveys; and making recommendations and publishing 
independent  reports.  Since  the  enactment  of  Law  15/2014,  the  council  has  formally 
developed its functions ‘with independence’. 

23   Law 5/2000 of 4 August 2000 on offences and penalties in social matters (BOE, 5 August 2000).  

11 

 
 
 
 
 
 
 
 
 
 
 
The council’s make-up is of a fundamentally governmental nature, as the law states that 
it is to be formed by all the ministries with responsibilities in the areas referred to in Article 
3(1)  of  Directive  2000/43,  with  the  participation  of  the  autonomous  regions,  the  local 
authorities,  the  employers’  organisations  and  trade  unions,  and  other  organisations 
representing interests related to the racial or ethnic origin of persons. The council consists 
of a chair and 28 members: 14 are members of the public administration and 14 are social 
partners  and  stakeholders.  Seven  members  represent  central  Government,  all  with  the 
rank  of  director  general;  seven  members  come  from  other  tiers  of  government;  four 
members  are  drawn  from  among  the  social  partners;  and  10  members  represent 
organisations  and  associations  whose  activities  are  linked  to  the  promotion  of  equal 
treatment and non-discrimination on grounds of racial or ethnic origin. 

In  June  2010,  the  council  launched  the  Network  of  Centres  of  Assistance  for  Victims  of 
Racial or Ethnic Discrimination, involving seven major NGOs. In 2013, the contract for the 
provision of services was signed with the Fundación Secretariado Gitano (FSG). To achieve 
the best service, FSG has outsourced services with six other organisations that specialise 
in  assisting  victims  of  discrimination:  ACCEM,  Cruz  Roja  Española,  Fundación  CEPAIM, 
Movimiento  contra la Intolerancia,  Movimiento  por la Paz and Red Acoge. From  October 
2018  to  October  2019  the  network  assisted  with  756  cases:  479  individual  and  277 
collective.24  

The council is not yet well known by the public, and its scope for anti-discrimination action 
is limited, but the formal recognition of its independence by Law 15/2014 and the launch 
of the network could improve the understanding of its roles and improve its efficiency. 

Currently, in addition to the Council for the Elimination of Racial or Ethnic Discrimination, 
there  are  other  organisations  that  can  facilitate  social  dialogue:  the  National  Disability 
Council  (which  formalises  collaboration  between  associations  of  persons  with  disabilities 
and national Government; this council started its work in 2005), the National Roma Council 
(a  participatory  and  advisory  body  on  general  and  specific  public  policy  affecting  the 
integral  development  of  the  Roma  population  in  Spain),  the  Advisory  Commission  on 
Religious Freedom (created in 1980, the commission aims to review, report on and present 
proposals  with  respect  to  issues  relating  to  the  enforcement  of  the  law,  religious 
discrimination  being  one  of  these  issues),  and  the  Forum  for  the  Social  Integration  of 
Immigrants (a collegiate consultative, informative and advisory body on the integration of 
immigrants). 

7. Key issues 

Potential breaches of the directives include the following: 

− 

− 

− 

The  provision  prohibiting  direct  discrimination  does  not  provide  for  past  and 
hypothetical discrimination. 
The words ‘hostile’ and ‘degrading’ are not included in the definitions of harassment. 
Judicial intervention can correct this legislative shortcoming. 
It could be said that the requirement to establish a degree of impairment (of 33 % 
or  greater)  in  order  to  be  protected  from  disability  discrimination  and  to  claim  a 
reasonable  accommodation  (under  General  Law  on  the  Rights  of  Persons  with 
Disabilities and their Social Inclusion, RLD 1/2013) is a potential breach of Directive 
2000/78, as the directive does not specify that certain degrees of impairment must 
be established in order for persons to be recognised as such. 

24   The final figures for 2019 and 2020 are not yet known. 

12 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Other issues of concern are: 

− 

− 

− 

− 

− 

The effectiveness of the Council for the Elimination of Racial or Ethnic Discrimination 
is questionable, because it is made up primarily of Government representatives. This 
could jeopardise the independence of the council. 
The legislation based on the directives is not well known or understood by the main 
players in the legal system. This is one of the main reasons why there have so far 
been hardly any proceedings in Spain in which these provisions have been applied. 
Given  the  legislative  dispersal  of  the  norms  on  (shifting)  the  burden  of  proof,  the 
differences in their definitions and the  jurisprudence  of the Constitutional Court, it 
would be appropriate to merge the definitions into one legal text. 
Notable progress has been made in the fields of disability and sexual orientation, with 
highly significant legal innovations. However, this notable legal progress has not been 
accompanied by actual changes in behaviour in society. 
The situation of teachers of religion in state schools is difficult to resolve because of 
the international agreement between the Holy See and Spain signed in 1976. 

Current best practice in Spain includes: 

− 

− 

− 

Positive actions for Roma (racial or ethnic origin in all fields), that alleviate some of 
the problems suffered by the Roma population. 
Sign languages and speech aid systems (positive action measures on the ground of 
disability),  a  pioneering  law  in  its  time  that  has  allowed  an  extensive  use  of  sign 
language. 
The  National  Disability  Council  (for  disability  in  all  fields),  in  which  disability 
organisations can be heard and defend their interests before the administration. 

Integral Laws on the rights of gay and lesbian persons (sexual orientation) in five Spanish 
regions:  Andalusia,  the  Balearic  Islands,  Catalonia,  the  Valencian  Community  and 
Navarre). Despite these regional laws, it may be necessary to adopt an equality and non-
discrimination law with regard to sexual orientation and gender identity issues. In 2020, 
the Government was preparing a draft bill on this. 

13 

 
 
 
 
 
 
INTRODUCTION 

The national legal system 

The  public  administration,  as  defined  in  the  Spanish  Constitution  (SC)25  of  1978,  is 
structured  on  three  levels:  central  Government;  autonomous  communities  (regional 
Governments); and local authorities. Central Government has a series of exclusive powers 
(SC, Article 149) that include criminal and procedural law, civil legislation, labour and social 
security  law,  the  basic  structure  and  coordination  of  healthcare,  the  basic  structure  of 
education  and  the  basic  legal  system  for  public  administration.  The  autonomous 
communities  manage  some  of  these  fields,  such  as  health  and  education,  and  have  the 
power  to  adopt  legal  regulations  developing  or  complementing  central  Government 
legislation in some fields. In some of the fields mentioned in Directive 2000/43, such as 
‘social advantages’ (i.e. benefits), and access to and supply of goods and services that are 
available to the public, including housing, all three tiers of government – central, regional 
and  local  –  have  jurisdiction.  Conflicts  of  power  between  central  Government  and  the 
autonomous communities are resolved by the Constitutional Court (SC, Article 161). 

International treaties signed by Spain are included in the domestic legal system (SC, Article 
96).  Spain  has  ratified  practically  all  the 
instruments  combating 
discrimination, including Protocol 12 to the ECHR. These instruments can be relied upon 
before national courts. 

international 

Spain is a non-confessional state: the Spanish Constitution clearly proclaims a separation 
between church and state. In practice, religions are treated in different ways. Catholicism 
is the dominant religion, and is expressly mentioned in the Constitution. 

List of main legislation transposing and implementing the directives 

The main pieces of legislation  transposing and implementing the two  anti-discrimination 
directives are the following two laws: 

Law  62/2003  of  30  December  2003  on  Fiscal,  Administrative  and  Social  Measures  (Ley 
62/2003, de 30 de diciembre, de medidas fiscales, administrativas y de orden social)26 
Date of adoption: 30 December 2003 
Grounds  covered:  Racial  or  ethnic  origin,  religion  or  beliefs,  disability,  age,  sexual 
orientation 
Material scope: Employment, social protection, social advantages (i.e. benefits), education, 
access to goods and services 

General  Law  on  the  Rights  of  Persons  with  Disabilities  and  their  Social  Inclusion  (RLD 
1/2013, 29 November 2013) (Ley General de derechos de las personas con discapacidad 
y de su inclusión social)27 
Date of adoption: 29 November 2013 
Ground covered: Disability 
Material scope: Equal opportunities, non-discrimination and universal access for persons 
with  disability  in  all  fields  (employment,  social  protection,  social  advantages,  education, 
access to goods and services) 

25   Spanish Constitution (Constitución Española) (BOE, 29 December 1978), 

https://www.boe.es/eli/es/c/1978/12/27/(1)/con. 

26   Law 62/2003 of 30 December 2003 on Fiscal, Administrative and Social Measures (Ley 62/2003, de 30 de 

diciembre, de medidas fiscales, administrativas y de orden social) (BOE, 31 December 2003),  
http://www.boe.es/boe/dias/2003/12/31/pdfs/A46874-46992.pdf. 

27   RLD 1/2013, General Law on the Rights of Persons with Disabilities and their Social Inclusion (Ley General 

de derechos de las personas con discapacidad y de su inclusión social), 29 November 2013 (BOE, 3 
December 2013), https://www.boe.es/buscar/pdf/2013/BOE-A-2013-12632-consolidado.pdf. 

14 

 
 
 
 
 
 
 
 
 
 
 
 
1 

GENERAL LEGAL FRAMEWORK  

Constitutional provisions on protection against discrimination and the promotion 
of equality  

The Constitution of Spain includes the following articles dealing with non-discrimination: 

Article 14: ‘Spaniards are equal before the law and may not in any way be discriminated 
against  on  the  grounds  of  birth,  race,  sex,  religion,  opinion  or  any  other  condition  or 
personal or social circumstance’. 

Age,  disability  and  sexual  orientation  are  not  expressly  included  in  Article  14  of  the 
Constitution,  but  the  Constitutional  Court  ruled  that  age  (Decision  31/1984,  7  March 
1984),28 disability (Decision 269/1994, October 1994)29 and sexual orientation (Decision 
41/2006, February 2006)30 are included in the generic phrase ‘any other personal or social 
circumstance’.31 

Article  16:  ‘Freedom  of  ideology,  religion  and  worship  of  individuals  and  communities  is 
guaranteed, with no other restriction on their expression than that necessary to maintain 
public order according to the law’. 

Article  23(2):  Citizens  ‘have  the  right  to  access  on  equal  terms  to  public  office,  in 
accordance with the requirements determined by law’. 

Article 49: ‘The public authorities shall carry out a policy of preventive care, treatment, 
rehabilitation and integration of the physically, sensorially and mentally handicapped by 
giving them the specialised care they require, and affording them special protection for 
the enjoyment of the rights granted by this Part to all citizens.’32 

Article  53  introduces  guarantees  of  fundamental  rights  and  freedoms  and  also  of  the 
principle of equality and non-discrimination.  

28   Constitutional Court Decision 31/1984, 7 March 1984, 

http://hj.tribunalconstitucional.es/HJ/docs/BOE/BOE-T-1984-8175.pdf. 

29   Constitutional Court Decision 269/1994, 3 October 1994, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/2786. 

30   Constitutional Court Decision 41/2006, 13 February 2006, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/5643.  
(See also Constitutional Court Decisions 92/2014 of 10 June 2014 and 157/2014 of 6 October 2014). 
31   The doctrine of the Constitutional Court on the principle of equality and the prohibition of discrimination 

(Article 14 CE) was summarised in Constitutional Court Decision 200/2001, 4 October 2001, 
http://hj.tribunalconstitucional.es/HJ/docs/BOE/BOE-T-2001-20621.pdf. 

32   The Spanish Constitution approved in 1978 included Article 49 to protect people with disabilities, but the 

last 40 years have caused the constitutional text to ‘age’ due, among other factors, to the approval of the 
Convention on the Rights of Persons with Disabilities of 2006. On 7 December 2018, the Spanish 
Government adopted a draft text to reform this article of the Constitution to adapt it to the 2006 
convention. The wording proposed by the Government for Article 49 is based on the work carried out in the 
commission for comprehensive disability policies of the Congress of Deputies. Furthermore, the Spanish 
Committee of Representatives of People with Disabilities, which had been demanding this change of 
orientation in the constitutional text for several years, participated in the drafting (the draft amendment is 
still pending). 
In the Government draft, Article 49 of the Spanish Constitution is worded as follows: 
1.  

‘Persons with disabilities are holders of the rights and duties set forth in this Title in conditions of real 
and effective freedom and equality, without discrimination. 

2.   The public authorities shall carry out the necessary policies to guarantee full personal autonomy and 

social inclusion of persons with disabilities. These policies will respect their freedom of choice and 
preferences and will be adopted with the participation of organisations representing persons with 
disabilities. The specific needs of women and girls with disabilities will be particularly addressed. 
3.   The reinforced protection of persons with disabilities will be regulated for the full exercise of their 

rights and duties. 

4.   Persons with disabilities enjoy the protection provided in international agreements that ensure their 

rights.’ 

15 

 
 
 
 
  
 
 
 
 
 
 
 
 
Article 9 provides a positive obligation on the part of public authorities to promote equality, 
since  they  have  to  ‘promote  conditions  that  ensure  that  the  freedom  and  equality  of 
individuals and of the groups that they form are real and effective; to remove obstacles 
that impede or hamper the fulfilment of such freedom and equality; and to facilitate the 
participation of all citizens in political, economic, cultural and social life’. This article views 
positive  action  and  measures  promoting  equality  not  as  exceptions  to  the  principle  of 
equality but rather as constitutionally legitimate ways to implement equality. 

The Constitutional Court33 has ruled that the principle of equality is not breached by action 
on the part of the public authorities to counter the disadvantages experienced by certain 
social groups ‘even when they are given more favourable treatment, for the aim is to give 
different treatment to effectively different situations’. 

Article 10(2) recognises the role of the international treaties on human rights in construing 
domestic provisions: ‘provisions relating to fundamental rights and freedoms recognised 
by the Constitution shall be interpreted pursuant to the Universal Declaration on Human 
Rights and the international treaties and agreements ratified by Spain’.34 

These  provisions  apply  to  all  areas  covered  by  the  directives.  Their  material  scope  is 
broader than those of the directives. 

These provisions are directly applicable. 

These provisions can be enforced against private individuals (as well as against the state).  

33   Constitutional Court Decision 128/1987, 1 July 1987, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/860. 

34   For example, Constitutional Court Decision 41/2006 on sexual orientation discrimination cites international 
law such as the European Convention for the Protection of Human Rights and Fundamental Freedoms 
(Art. 14), the International Covenant on Civil and Political Rights (Art. 26) and numerous examples of 
international jurisprudence. 

16 

 
 
 
 
 
 
 
 
 
 
 
 
2 

THE DEFINITION OF DISCRIMINATION  

2.1  Grounds of unlawful discrimination explicitly covered  

The  following  grounds  of  discrimination  are  explicitly  prohibited  in  the  main  legislation 
transposing the two EU anti-discrimination directives (as listed in the Introduction):  

− 
− 
− 
− 
− 

racial or ethnic origin;  
religion or belief; 
disability; 
age; 
sexual orientation. 

2.1.1 Definition of the grounds of unlawful discrimination within the directives 

a) 

Racial or ethnic origin 

National law on discrimination (in particular, the Workers’ Statute and the Criminal Code) 
does not define the terms ‘racial origin’ or ‘ethnic origin’.  

Neither of the two decisions of the Constitutional Court (STC 13/200135 and STC 69/2007)36 
which  have  addressed  the  issue  of  racial  or  ethnic  origin  provides  a  definition  of  ‘racial 
origin’ or ‘ethnic origin’. The court refers to ‘Romani ethnic origin’ (étnia gitana) but without 
defining traits that might characterise it. 

b) 

Religion and belief 

Religion is not defined in Spanish legislation. There is, however, a  negative definition of 
religion. In other words, legislators have specified only what religion is not, not what it is. 
Article  3(2)  of  the  Organic  Law  on  Religious  Freedom37  states  that  ‘activities,  intentions 
and  entities  relating  to  or  engaging  in  the  study  of  and  experimentation  on  psychic  or 
parapsychological  phenomena  or  the  dissemination  of  humanistic  or  spiritual  values  or 
other similar non-religious aims do not qualify for the protection provided in this Act’.  

The Directorate General for Religious Affairs, under the authority of the Ministry of Justice, 
used  a  definition  of  ‘religious  organisation’:  in  order  for  a  group  or  organisation  to  be 
properly described as religious, the following prerequisites must be met: (1) belief in the 
existence  of  a  higher  being,  transcendent  or  otherwise,  with  whom  communication  is 
possible;  (2)  belief  in  a  body  of  doctrine  (dogma)  and  rules  of  behaviour  (moral  rules), 
somehow derived from this higher being; (3) ritual practice, whether individual or collective 
(worship),  constituting  the  adherents’  institutional  means  of  communication  with  the 
higher being. 

Consequently,  for  a  long  time  the  practice  of  the  Directorate  was  to  refuse  to  register 
religious  denominations  on  the  Register  of  Religious  Entities  on  the  ground  of  these 
denominations’ lack of religious aims. Based on this criterion, the Directorate denied the 
registration of the Unification Church (Iglesia de la Unificación) in the register of religious 
organisations,  because  the  Unification  Church  lacked  a  true  religious  nature,  and  was 
beyond the scope of protection under the Law on Religious Freedom (according to Article 
3(2)).  The  Unification  Church  challenged  the  resolution  of  the  Director-General  for 
Religious Affairs of 22 December 1992 and the judgments of the National Court (Audiencia 

35   Constitutional Court Decision 13/2001, 29 January 2001, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/4309.  

36   Constitutional Court Decision 69/2007, 16 April 2007, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/6036. 

37   Organic Law 7/1980, the Organic Law on Religious Freedom (Ley Orgánica de Libertad religiosa) (BOE, 6 

July 1980), http://www.boe.es/boe/dias/1980/07/24/pdfs/A16804-16805.pdf. 

17 

 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
Nacional)  (30  September  1992)  and  of  the  Supreme  Court  (14  June  1996),  refusing  to 
include this church in the register.  

However,  the  situation  has  changed  since  Constitutional  Court  Decision  46/2001.38  The 
Court asserted that the administrative resolution violated the right to collective religious 
freedom because the state, in the activity of registration, can only check that the entity is 
not  excluded  by  Article  3(2)  of  the  Organic  Law  on  Religious  Freedom.  Following  this 
Decision, the Government cannot judge the religious character of entities wishing to join 
the register, and must confine itself to verifying that, in view of their statutes, goals and 
aims, these entities are not excluded by Article 3(2).  

Article 3(2) of the Law on Religious Freedom allows ‘sects’ to be excluded from the Register 
of  Religious  Associations.  Registration  on  the  register  is  voluntary  for  religious 
organisations, but it gives them a religious legal personality, which gives their places of 
worship  the  right  of  inviolability  and  provides  some  tax  benefits.  Religious  freedom  is 
protected regardless of whether a religious organisation is inscribed on the register. There 
is no special legislation or specific register for sects. 

c)  Disability 

In  Article  4,  the  General  Law  on  the  Rights  of  Persons  with  Disabilities  and  their  Social 
Inclusion (RLD 1/2013), which prohibits disability discrimination, provides that they ‘Are 
persons  with  disabilities  who  have  physical,  mental,  intellectual  or  sensory  impairments 
which, in interaction with various barriers, may hinder their full and effective participation 
in  society  on  an  equal  basis  with  others  (Article  4(1))  ...  For  the  purposes  of  this  law, 
persons  with  a  disability  shall  be  deemed  to  be  those  with  a  recognised  degree  of 
impairment equal to or greater than 33 %’. In any event, those (under the general system) 
with a recognised entitlement to social security pensions for permanent disability rated as 
total,  absolute  or  severe  ‘shall  be  deemed  to  be  affected  by  an  impairment  equal  to  or 
greater than 33 % … with a recognised entitlement to a retirement pension or a pension 
for  retirement  due  to  permanent  incapacity’  (Article  4(2)).  This  provision  affects  the 
existing material scope of the law on the social integration of disabled persons and covers 
social  benefits,  social  security,  education,  work  and  housing,  and  access  to  goods  and 
services. 

This  definition  has  two  parts,  with  very  different  orientations  and  implications.  The  first 
part (Article 4(1)), inspired by the CRPD, is based on the social model of disability and is 
coherent with the concept of ‘disability’ established by the Court of Justice of the European 
Union in joined cases C-335/11 and C-337/11.39 The second part (Article 4(2)) retains the 
medical perspective of disability and has an administrative utility: individuals need to have 
this degree of impairment in order to claim some rights. It could be said that the need to 
establish a degree of impairment (of 33 % or greater and which has been officially assessed 
as such) is potentially in breach of Directive 2000/78, as the directive does not specify that 
certain degrees of impairment must be established for a person to be recognised as having 
a disability (see CJEU joined cases C-335/11 and C-337/11). 

The jurisprudence, which was well established in Spain, did not accept that an incapacity 
for  work  could  be  considered  as  a  disability  (and,  therefore,  dismissal  could  not  be 
considered null because it did not amount to discrimination by disability). For that reason, 
a  Spanish  judge  decided  to  submit  a  preliminary  ruling  before  the  CJEU.  Among  other 
questions,  the  judge  raised  the  interpretation  of  the  concept  of  disability  in  Directive 

38  Constitutional Court Decision 46/2001, 15 February 2001, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/4342. 

39   Judgment of 6 December 2012, joined cases of HK Denmark (Ring), C-335/11 HK, and HK Denmark 

(Skouboe Werge), C-337/11, http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A62011CA0335. 

18 

 
 
 
 
 
 
 
 
 
 
2000/78/EC. On 1 December 2016, the CJEU delivered its decision on the Daouidi case (C-
395/15).40 

In the synthesis of the answer to the question of the Spanish judge, the Court established 
‘that Directive 2000/78 must be interpreted as meaning that: 

–  

–  

–  

the fact that the person concerned finds himself or herself in a situation of temporary 
incapacity for work for an indeterminate amount of time, as the result of an accident 
at work, does not mean, in itself, that the limitation of that person’s capacity can be 
classified as being ‘long-term’, within the meaning of the definition of ‘disability’ laid 
down by that directive; 
the  evidence  which  makes  it  possible  to  find  that  such  a  limitation  is  ‘long-term’ 
includes the fact that the incapacity of the person concerned does not display a clearly 
defined prognosis as regards short-term progress or the fact that that incapacity is 
likely to be significantly prolonged before that person has recovered; and 
in the context of the verification of that ‘long-term’ nature, the referring court must 
base its decision on all of the objective evidence in its possession’ (Paragraph 59). 

Regarding  the  sentence  that  the  Spanish  judge  should  issue,  the  CJEU  clarifies  three 
questions. First, the Court noted that it is necessary to determine whether the claimant’s 
limitation is ‘long-term’. Second, the ‘long-term’ nature of the limitation must be assessed 
in  relation  to  the  claimant’s  condition  of  incapacity  at  the  time  of  the  allegedly 
discriminatory act. Finally, if the limitation is found to be ‘long-term’ the Court recalled that 
unfavourable treatment on grounds of disability undermines the protection provided for by 
the  directive  only  in  so  far  as  it  constitutes  discrimination  within  the  meaning  of  Article 
2(1). 

After the decision of the CJEU, Social Court  No. 33 of Barcelona issued a decision on 23 
December 2016 (case 1219/2014) and declared the claimant’s dismissal null and void for 
discrimination on the ground of disability. The judge ruled that, at the time of the allegedly 
discriminatory act, the claimant’s incapacity did not display a clearly defined prognosis as 
regards  short-term  progress  and  thus  constituted  a  long-term  limitation.  Therefore,  his 
‘temporal incapacity’ must be regarded as a disability. The judge further considered that 
the claimant’s dismissal had occurred due to his condition as a person with disability and, 
therefore, must be declared null by discrimination: ‘The dismissal of the injured worker, 
almost two months after the accident, when he was still on sick leave and had  reported 
that his reinstatement would not be in the short term, constitutes direct discrimination on 
the grounds of disability’ (Para. XI.10). 

In 2016, Social Court No. 1 of Cuenca referred another issue to the CJEU concerning the 
interpretation of the concept of disability in Directive 2000/78. Under Spanish legislation 
(Workers’  Statute,  Article  52(d)),  an  employer  is  entitled  to  dismiss  an  employee  on 
objective grounds for intermittent absences from work, even if justified, if this amounts to 
20 % of the employee’s working hours in two consecutive months or 25 % of their working 
hours  over  four  non-consecutive  months  within  a  12-month  period.  Given  that  workers 
with disabilities are more likely to have work absences, the judge asked the CJEU whether 
the Spanish legislation was in line with the provisions of Directive 2000/78. On 18 January 
2018 the CJEU passed judgment,41 declaring that Article 2(2)(b)(i) of Directive 2000/78 
(indirect discrimination) ‘must be interpreted as precluding national legislation under which 
an employer may dismiss a worker on the grounds of his intermittent absences from work, 
even  if  justified,  in  a  situation  where  those  absences  are  the  consequence  of  sickness 
attributable to a disability suffered by that worker, unless that legislation, while pursuing 

40   Judgment of 1 December 2016, Daouidi, C-395/15, 

http://curia.europa.eu/juris/liste.jsf?language=en&num=C-395/15. 
41   Judgment of 18 January 2018, Ruiz Conejero v. Ferroser, C-270/16, 
http://curia.europa.eu/juris/liste.jsf?language=en&num=C-270/16. 

19 

 
 
 
 
 
 
 
 
 
the  legitimate  aim  of  combating  absenteeism,  does  not  go  beyond  what  is  necessary  in 
order to achieve that aim, which is a matter for the referring court to assess’. 

On  7  March  2018,  Social  Court  No. 1  of  Cuenca  ruled  in  Decision  171/2018  that  the 
dismissal of the worker was null and void because there had been ‘indirect discrimination’ 
by  disability.  The  ruling  of  the  Cuenca  court  cites  both  Directive  2000/78  and  CJEU 
judgment C-270/16. 

In 2018, Social Court No. 3 of Barcelona referred another issue to the CJEU about whether 
the concept of ‘workers particularly susceptible to certain risks’ (under Article 25 of Law 
31/1995 on the Prevention of Occupational Risks) is equivalent to the concept of ‘disability’ 
within the meaning of Directive 2000/78, as interpreted by the Court. In its 2019 judgment 
on  Case  C-397/18,  D.W.  v.  Nobel  Plastiques  Ibérica  SA,42  the  CJEU  ruled  that  ‘Council 
Directive  2000/78/EC  of  27  November  2000  establishing  a  general  framework  for  equal 
treatment in employment and occupation must be interpreted as meaning that the state 
of health of a worker  categorised as being particularly susceptible to  occupational  risks, 
within the meaning of national law, which prevents that worker from carrying out certain 
jobs on the ground that such jobs would entail a risk to his or her own health or to other 
persons, only falls within the concept of ‘disability’, within the meaning of that directive, 
where that state leads to a limitation of capacity arising from, inter alia, long-term physical, 
mental or psychological impairments which, in interaction with various barriers, may hinder 
the full and effective participation of the person concerned in their professional life on an 
equal  basis  with  other  workers.  It  is  for  the  national  court  to  determine  whether  those 
conditions are satisfied in the main proceedings.’ 

Regarding the criteria on the objective dismissal established by the company and applied 
in  the  dismissal  of  D.W.,  the  CJEU  indicated  in  its  judgment  that  this  could  constitute 
indirect discrimination if the company has not established a reasonable accommodation for 
the worker: ‘Article 2(2)(b)(ii) of Directive 2000/78 must be interpreted as meaning that 
dismissal for ‘objective reasons’ of a disabled worker on the ground that he or she meets 
the selection criteria taken into account by the employer to determine the persons to be 
dismissed, namely having productivity below a given rate, a low level of multi-skilling in 
the undertaking’s posts and a high rate of absenteeism, constitutes indirect discrimination 
on  grounds  of  disability  within  the  meaning  of  that  provision,  unless  the  employer  has 
beforehand provided that worker with reasonable accommodation, within the meaning of 
Article  5  of  that  directive,  in  order  to  guarantee  compliance  with  the  principle  of  equal 
treatment  in  relation  to  persons  with  disabilities,  which  it  is  for  the  national  court  to 
determine.’ 

d) 

Age 

The  national  law  on  discrimination  does  not  define  the  term  ‘age’,  and  neither  does  the 
Workers’  Statute  or  the  Criminal  Code.  The  courts  do  not  give  a  definition  of  ‘age’. 
However,  ‘age’  is  commonly  understood  to  mean  the  number  of  years  attained  by  an 
individual, and ‘age discrimination’ to mean discrimination on the ground of young age or 
older age.43 

42   Judgment of 11 September 2019, D.W. v. Nobel Plastiques Ibérica SA, C-397/18, 

http://curia.europa.eu/juris/document/document.jsf?text=&docid=217624&pageIndex=0&doclang=EN&mo
de=lst&dir=&occ=first&part=1&cid=501000. 

43   For example, Constitutional Court Decision 66/2015 of 13 April 2015, which accepts that the criterion of an 
age over 55 years is used as a criterion for the selection of workers affected by a collective dismissal and 
that this does not constitute age discrimination because of the rigorous demands of justification and 
proportionality, http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/24413. 

20 

 
 
 
 
 
 
 
 
 
 
 
 
 
e) 

Sexual orientation 

The national law on discrimination does not define the term ‘sexual orientation’, and neither 
does  the  Workers’  Statute  or  the  Criminal  Code.  Constitutional  Court  Decision  STC 
41/2006,  in  PC  v.  Alitalia  Italian  Airlines,44  recognises  that  ‘sexual  orientation’  is  a 
protected ground under Article 14 of the Spanish Constitution. However, the Constitutional 
Court does not define ‘sexual orientation’. 

2.1.1  Multiple discrimination 

In Spain, multiple discrimination is not explicitly prohibited by law. 

However, Organic Law 3/2007 on the Effective Equality of Women and Men45 contains the 
first reference to multiple discrimination in Spanish law. Article 20 provides that ‘the public 
authorities  shall,  in  the  preparation  of  studies  and  statistics,  devise  and  introduce  the 
necessary  mechanisms  and  indicators  to  show  the  incidence  of  other  variables  whose 
recurrence generates situations of multiple discrimination in the various spheres of action.’ 

Turning to case law, Constitutional Court Decision 3/2018 of 22 January 201846 concerned 
multiple discrimination. A.R.S. was a 67-year-old man with a severe chronic psychosocial 
disability. He submitted a request to the Community of Madrid to recognise his disability 
and grant him a place in a specialist residence for people with psychosocial disabilities. The 
Government  of  the  Autonomous  Community  of  Madrid  recognised  the  disability  as 
requested, but denied A.R.S. a place in the residence for one particular reason: at 67, he 
was  too  old,  as  the  maximum  age  established  in  Order  1363/1997,  which  regulates 
residences for persons with psychological disability  in the Community of Madrid, was 60 
years.  Order  1363/1997  sets  out  the  requirement  ‘to  have  an  age  ...  between  eighteen 
and  sixty  years’  in  order  to  access  such  residences.  The  rule  does  not  include  any 
exceptions,  and  no  justification  for  this  age  exclusion  rule  is  provided,  nor  has  any 
explanation been provided for the Community of Madrid’s denial of the request made by 
A.R.S. 

The  Constitutional  Court  noted  in  its  decision  that  the  appellant  has  suffered  multiple 
discrimination. First, this was because of his disability: as a result of the application of the 
regulation, the appellant lost the right to the medical care he needed for his psychosocial 
disability. In addition, the identification of an age criterion, which is based on a personal 
circumstance,  imposes  a  further  cause  of  discrimination  in  addition  to  the  original  one. 
According to the Constitutional Court, there was therefore multiple discrimination, due to 
disability and age. The Court consequently declared ‘that his fundamental right to not be 
discriminated against has been violated on the ground of age and disability,’ and it ordered 
the Community of Madrid to review the application of A.R.S. for a place in the specialist 
residence and to ‘issue a new resolution respecting the declared fundamental right’. 

2.1.3 Assumed and associated discrimination 

a)  Discrimination by assumption 

In Spain, discrimination based on a perception or assumption of a person’s characteristics, 
is not explicitly prohibited in national law.  

44   Constitutional Court Decision 41/2006, 13 February 2006, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/5643. 

45   Organic Law 3/2007 of 22 March 2007 for the effective equality of women and men (Ley Orgánica 3/2007, 

de 22 de marzo, para la igualdad efectiva de mujeres y hombres) (BOE, 23 March 2007), 
https://www.boe.es/buscar/pdf/2007/BOE-A-2007-6115-consolidado.pdf. 

46   Constitutional Court Decision 3/2018, 22 January 2018, https://hj.tribunalconstitucional.es/docs/BOE/BOE-

A-2018-2459.pdf. 

21 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Workers’ Statute, Article 28 of Law 62/2003 (transposing Directives 2000/43 and 2000/78) 
and  the  Criminal  Code  speak  only  of  personal  characteristics  and  not  of  ‘assumed 
characteristics’. However, discrimination on the ground of ‘assumed characteristics’ may 
be regarded as implicitly included in these laws. 

b)  Discrimination by association 

In Spain, discrimination based on association with persons with particular characteristics, 
is prohibited in national law, but only in the field of disability. 

The General Law on the Rights of Persons with Disabilities and their Social Inclusion (RLD 
1/2013)  formally  introduced  into  Spanish  legislation  the  concept  of  discrimination  by 
association  in  the  field  of  disability.  RLD  1/2013  defines  discrimination  by  association 
(Article 2(e)): ‘Discrimination by association exists when a person or group to which they 
belong is subjected to discriminatory treatment due to their relationship with another by 
reason of disability’. Article 63 of RLD 1/2013 notes that the principle of equal opportunities 
for  persons  with  disabilities  is  infringed  when  ‘direct  or  indirect  discrimination, 
discrimination by association’, etc. occur. 

Although not explicitly covered by anti-discrimination legislation (except for disability), this 
principle may be assumed to be implicitly covered by Law 62/2003 (Article 28). However, 
this is a matter to be decided on by judges, considering the CJEU judgment in Coleman v. 
Attridge Law and Steve Law.47 

2.2  Direct discrimination (Article 2(2)(a)) 

a) 

Prohibition and definition of direct discrimination 

In  Spain,  direct  discrimination  is  prohibited  in  national  law.  It  is  defined.  However,  the 
prohibition  is  not  in  full  compliance  with  the  directives,  because  it  does  not  explicitly 
provide for past and hypothetical comparisons. 

Law 62/2003 on Fiscal, Administrative and Social Measures (Article 28(1)(b)) defines direct 
discrimination as ‘where a person is treated less favourably than another in a comparable 
situation on grounds of racial or ethnic origin, religion or belief, disability, age or sexual 
orientation’. 

The expression ‘has been or would be treated’ (Directive 2000/43 and Directive 2000/78, 
Article 2(2)(a)) is not included in the Spanish definitions of direct discrimination. 

Article 2(c) of the General Law on the Rights of Persons with Disabilities and their Social 
Inclusion (RLD 1/2013) states that direct discrimination ‘shall be taken to occur where a 
person is treated less favourably than another in a comparable situation on the grounds of 
his or her disability’. 

b) 

Justification for direct discrimination 

The  law  does  not  permit  justification  of  direct  discrimination  generally,  or  in  relation  to 
particular grounds (excluding specific exceptions stipulated by the directives, for which see 
Chapter 4).  

2.3  Indirect discrimination (Article 2(2)(b)) 

a) 

Prohibition and definition of indirect discrimination 

47   Judgment of 17 July 2008, Coleman v. Attridge Law and Steve Law, C-303/06, 

http://curia.europa.eu/juris/liste.jsf?language=en&num=C-303/06. 

22 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
In Spain, indirect discrimination is prohibited in national law. It is defined.  However, the 
prohibition is not in full compliance with the directives. 

Law 62/2003 defines indirect discrimination as ‘where a legal or administrative provision, 
a  clause  of  a  collective  agreement  or  contract,  an  individual  agreement  or  a  unilateral 
decision,  although  apparently  neutral,  would  put  a  person  of  a  certain  racial  or  ethnic 
origin, religion or belief, disability, age or sexual orientation at a particular disadvantage 
in relation to others, provided that such provision is not objectively justified by a legitimate 
aim and the means of achieving that aim are appropriate and necessary’ (Article 28(1)(c)). 

In the field of disability, the General Law on the Rights of Persons with Disabilities and their 
Social  Inclusion  (RLD  1/2013)  also  defines  indirect  discrimination:  ‘where  a  legal  or 
administrative  provision,  a  clause  of  a  collective  agreement  or  contract,  an  individual 
agreement or a unilateral decision, or a criterion or practice, or an environment, product 
or service, though apparently neutral, may put a person at a particular disadvantage in 
relation  to  others  owing  to  a  disability,  provided  that  such  provision  is  not  objectively 
justified  by  a  legitimate  aim  and  means  of  achieving  that  aim,  are  not  appropriate  and 
necessary’ (Article 2(d)).  

There are two differences in relation to Article 2(2)(b) of Directive 2000/43 (also included 
in  Directive  2000/78).  The  first  is  that  the  directive  refers  to  a  ‘provision,  criterion  or 
practice’, whereas the Spanish law transposing the directives (62/2003) refers to a ‘legal 
or administrative provision, a clause of a collective agreement or contract, an individual 
agreement or a unilateral decision’. All these situations are referred to as ‘provision’, and 
the words ‘criterion or practice’ are not included. The second difference is that the directive 
says ‘persons’ in the plural, whereas the Spanish transposition says ‘person’ in the singular. 
This use of the singular generates a certain ambiguity in both Law 62/2003 and RLD 1/2013 
as to whether a group of persons is covered as such. These differences in the literalness 
of  the  transposition  of  the  directives  have  no  practical  legal  consequences  since  the 
jurisprudence  interprets  indirect  discrimination  in  the  same  sense  as  the  European 
directives.48  This  need  for  ordinary  courts  to  take  into  account  EU  law  when  applying 
Spanish rules has been reiterated by the Constitutional Court (STC 64/1991 of 22 March 
1991; 58/2004 of 19 April 2004 and 329/2005 of 15 December 2005). 

In 2015, a worker with disability, Ruiz Conejero, was dismissed by his employer following 
several  periods  of  sickness  absence  from  work.  The  Spanish  Workers’  Statute  (Article 
52(d)), which concerns termination of the contract on objective grounds, provides that the 
labour  contract  may  be  terminated  ‘for  absences  from  work,  albeit  justified  but 
intermittent, that amount to 20 % of working hours in two consecutive months provided 
that total absences in the previous 12 months amount to 5 % of working hours, or 25 % 
of working hours in four non-continuous months within a 12-month period’. Social Court 
No. 1,  Cuenca  (Juzgado  de  lo  Social  No.  1  de  Cuenca),  decided  to  submit  a  preliminary 
ruling to the CJEU. The question was: 

‘Does Directive 2000/78 preclude the application of a provision of national law under 
which  an  employer  is  entitled  to  dismiss  an  employee  on  objective  grounds  for 
intermittent  absences  from  work,  even  if  justified,  which  amount  to  20 %  of  the 
employee’s  working  hours  in  two  consecutive  months,  provided  that  the  total 
absences  in  the  previous  12  months  amount  to  5 %  of  working  hours  or  25 %  of 
working hours in four non-consecutive months within a 12-month period, in the case 
of an employee who must be treated as disabled within the meaning of the directive 
when his absence from work was caused by his disability?’ 

48   See, for example, Constitutional Court Decision 61/2013, 14 March 2013, 
http://hj.tribunalconstitucional.es/HJ/docs/BOE/BOE-A-2013-3797.pdf. 

23 

 
 
 
 
 
 
 
 
 
 
Social Court No. 1 of Cuenca said that workers with disabilities are more exposed to the 
risk  of  being  dismissed  under  Article  52(d)  of  the  Workers’  Statute  than  other  workers, 
whether  the  employer  has  knowledge  of  the  disability  or  not.  There  is  a  difference  in 
treatment involving indirect discrimination based on disability within the meaning of Article 
2(2)(b) of Directive 2000/78 and that difference in treatment cannot be objectively justified 
by a legitimate aim (unlike the interpretation given by the CJEU in cases C-335/11 and C-
337/11, HK Danmark, in 2013, where the Danish legislation formed part of a policy for the 
integration of workers with disabilities). The referring court therefore considers that Article 
52(d)  of  the  Spanish  Workers’  Statute  is  contrary  to  Directive  2000/78  and  that  this 
provision should, therefore, be amended in order to take account of disabilities. 

The  CJEU’s  Judgment  C-270/16  of  18 January  2018  in  the  case  of  Ruiz  Conejero  v. 
Ferroser49 answered the question raised by Social Court No. 1 of Cuenca and upheld the 
approach of the Spanish judge. The Court (Third Chamber) established: 

‘Article 2(2)(b)(i) of Council Directive 2000/78/EC of 27 November 2000 establishing 
a  general  framework  for  equal  treatment  in  employment  and  occupation  must  be 
interpreted as precluding national legislation under which an employer may dismiss 
a worker on the grounds of his intermittent absences from work, even if justified, in 
a situation where those absences are the consequence of sickness attributable to a 
disability  suffered  by  that  worker,  unless  that  legislation,  while  pursuing  the 
legitimate aim of combating absenteeism, does not go beyond what is necessary in 
order to achieve that aim, which is a matter for the referring court to assess.’ 

On 7 March 2018, after the CJEU’s decision, Social Court No. 1 of Cuenca issued a judgment 
(case 171/2018) and declared the claimant’s dismissal null and void for discrimination on 
the  ground  of  disability.  The  judge  considers  that,  in  this  case,  there  is  indirect 
discrimination against the claimant, as an apparently neutral business decision  -such as 
the use of the Article 52(d) of the Workers’ Statute that allows the dismissal of a worker 
due to absences from work- causes a situation of particular disadvantage to a person with 
disability  with  respect  to  other  workers,  because  the  absences  from  work  are  due  to 
illnesses derived from his officially recognised disability. The fundamental argumentation 
of the judge is that the labour absences that have  caused the dismissal of the  claimant 
have occurred, ‘exclusively and precisely, for diseases attributable to his disability’, even 
if the employer was not aware of it. 

In addition, the Spanish judge, following the Judgment of the CJEU, ‘considers that there 
is an evident collision between the Spanish norm and the EU norm, and that, unlike the 
Danish case, there is no legislative integration element or objective, so a response from 
the Spanish legislator would be necessary to include in national law ... and, specifically, in 
Article 52(d)) of the Workers’ Statute ... the exception of its application, for the purposes 
of computing the days of absences from work, to workers who have a recognised disability 
status, when said temporary disability processes derive from or are linked to the diseases 
causing the recognition of their disability.’50 

49   See http://curia.europa.eu/juris/liste.jsf?language=en&num=C-270/16. 
50   As a result of this process, the Spanish Government approved Royal Decree-Law 4/2020 of 18 February 

2020 (BOE, 19 February 2020), which repeals the provisions on objective dismissal due to absences from 
work established in Article 52(d) of the Workers’ Statute, approved by Royal Legislative Decree 2/2015 of 
23 October 2015. Royal Decree-Law 4/2020 entered into force on 21 February 2020. In the explanatory 
statement on the Decree-Law, the Government relies on both Directive 2000/78/EC and the CJEU ruling in 
Ruiz Conejero. The Spanish Government points out that this legal reform ‘guarantees compliance with the 
regulations of the European Union and, specifically, of Council Directive 2000/78/EC thus complying with the 
principle of primacy of European law. In addition, it ensures the adequate and immediate transfer to the 
Spanish legal system of what is established by the CJEU in its Judgment of 18 January 2018, which admits 
only on an exceptional, limited and conditioned basis the application of Article 52(d) of the Workers’ Statute 
and subject to a specific analysis of adequacy and proportionality’, 
https://www.boe.es/boe/dias/2020/02/19/pdfs/BOE-A-2020-2381.pdf. 

24 

 
 
 
 
 
 
 
 
 
 
b) 

Justification test for indirect discrimination 

Law 62/2003 (neither RLD 1/2013) does not specify how indirect discrimination is to be 
justified. The general provision in Article 2(2)(b) includes the phrase: ‘unless [the indirect 
discrimination] is objectively justified by a legitimate aim and the means of achieving that 
aim  are  appropriate  and  necessary’.  The  courts  must  analyse  whether  the  measure  is 
appropriate and necessary to pursue a legitimate aim and whether there is any case law 
on this issue. In most cases of indirect discrimination, statistics are used as circumstantial 
evidence. 

2.3.1  Statistical evidence 

a) 

Legal framework 

In Spain, there is legislation regulating the collection of personal data. Since 25 May 2018, 
the European Regulation on Data Protection (Regulation (EU) 2016/679) has been directly 
applicable. Subsequently, in December 2018, Organic Law  3/2018 of 5 December 2018, 
on the Protection of Personal Data and the Guarantee of Digital Rights, was passed. 

According to these rules, age and disability are treated very differently from ethnic or racial 
origin,  religion  or  belief  or  sexual  orientation.  Article  9(1)  of  Regulation  (EU)  2016/679 
provides  that  ‘Processing  of  personal  data  revealing  racial  or  ethnic  origin,  political 
opinions, religious or philosophical beliefs, or trade union membership, and the processing 
of genetic data, biometric data  for the purpose of uniquely identifying  a natural person, 
data concerning health or data concerning a natural person's sex life or sexual orientation 
shall be prohibited’. Spanish legislation provides that this prohibition cannot be lifted by 
the  data  subject.  Article  9  of  Organic  Law  3/2018  on  the  Protection  of  Personal  Data 51 
establish that ‘for the purposes of Article 9(2)(a) of Regulation (EU) 2016/679, in order to 
avoid discriminatory situations, the consent of the affected party alone will not suffice to 
lift  the  prohibition  of  the  processing  of  data  whose  main  purpose  is  to  identify  their 
ideology, union affiliation, religion, sexual orientation, belief or racial or ethnic origin’. 

As a result, employers may not gather data on the ethnic or racial origin, religion or belief 
or sexual orientation of their workers. However, there are some exceptions to this general 
rule, such as those arising from Article 4(2) of Directive 2000/78 for ‘churches and other 
public or private organisations the ethos of which is based on religion or belief’. But these 
exceptions  are  only  for  positions  linked  to  spreading  the  religious  ethos,  and  not  for 
positions of purely technical expertise or restricted to the pure transmission of (neutral) 
knowledge in religious schools (see section 4.2, below). 

In  March  2011,52  the  Committee  on  the  Elimination  of  Racial  Discrimination  (CERD) 
reiterated its recommendation to Spain ‘on the collection of statistical information on the 
ethnic and racial composition  of its population and urges it to  conduct a census  of their 
population’, to include information on people’s ethnic and racial origin. In its last report in 
2016,53 the CERD noted the progress in gathering statistical data and information on racist 
and xenophobic incidents in previous years, although deficiencies remain. 

51   Organic Law 3/2018 of 5 December 2018 on the Protection of Personal Data and the Guarantee of Digital 
Rights (Ley Orgánica 3/2018, de 5 de diciembre, de Protección de Datos Personales y garantía de los 
derechos digitales) (BOE, 6 December 2018), https://www.boe.es/buscar/pdf/2018/BOE-A-2018-16673-
consolidado.pdf. 

52   UN Committee on the Elimination of Racial Discrimination (CERD) (2011), CERD/C/ESP/CO/18-20 

(Paragraph 8), 
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/ESP/CO/18-
20&Lang=En. 

53   UN CERD (2016), CERD/C/ESP/CO/21-23 (Paragraphs 4 and 6): 

http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2FC%2FESP%2F
21-23&Lang=en. 

25 

 
 
 
 
 
 
 
 
 
 
 
 
The  situation  is  different  in  the  field  of  disability.  Spanish  laws  not  only  allow,  but  also 
encourage the keeping of records inasmuch as employers (and those in other social fields, 
such  as  education)  must  gather  such  data  about  their  workforce  if  they  wish  to  benefit 
from the various measures for promoting job creation under which people with disabilities 
are specially protected. 

Data relating to age may be collected with no legal impediments. Such data are compiled 
from Government files, which is secondary data, or from surveys, which is primary data. 
Some of the data that provide statistical evidence of social inequality in various fields are 
used as evidence to justify positive action, but they have never been used in the courts to 
make a case of possible indirect discrimination. 

In  Spain,  statistical  evidence  may  be  admitted  under  national  law  in  order  to  establish 
indirect discrimination. 

Although this is not expressly provided for in law, complainants have a right to require or 
request  that  respondents  provide  data  that  may  be  necessary  for  them  to  determine 
whether there has been a prima facie case of discrimination. 

b) 

Practice 

In Spain, statistical evidence is used in practice in order to establish indirect discrimination. 
It  is  not  very  common,  but  it  is  spreading  in  the  Spanish  courts.  In  the  civil  and 
administrative fields (the spheres of application of Directives 2000/43 and 2000/78) there 
are no agencies or authorities that can conduct formal investigations. In criminal cases, 
the Public Prosecution Service can conduct all investigations that are deemed necessary. 
Statistical  evidence  has  been  used  in  some  judgments,  especially  in  cases  of  sex 
discrimination in the employment field, and there is no reluctance to use statistical data as 
evidence in court.  

Constitutional Court Decision 240/199954 used statistical evidence to qualify the failure to 
grant maternity leave to a female doctor working in Castilla y León as sex discrimination. 
According  to  the  judgment,  the  fact  that  those  permissions  are  granted  only  to  public 
service doctors and not to temporary doctors can be considered discriminatory, because 
the former group are almost exclusively men and the latter group are generally women. 
The ruling upheld the use of situation testing. 

As regards access to employment, Decision 1161/2005 of the Superior Court of Cantabria 
of  14  November  2005  notes  the  existence  of  indirect  sex  discrimination  in  the  selection 
process of a chemical company. The court concluded that the selection criteria used by the 
company  (regarding  the  holders  of  a  vocational  qualification  in  a  technical  branch) 
generated an adverse impact on women, because they are underrepresented in this field. 
The court considered a report from expert advisors to be acceptable as evidence and cited 
the example of reports by the Institute for Women (as this public body was known at the 
time). 

The  evolution  of  the  situation  in  other  countries  and  the  jurisprudence  of  the  Court  of 
Justice of the European Union have played an important role in the presentation of data 
collection in the Spanish courts. 

2.4  Harassment (Article 2(3)) 

a) 

Prohibition and definition of harassment 

54   Constitutional Court Decision 240/1999, 20 December 1999, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/3982. 

26 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
In Spain, harassment is prohibited in national law. It is defined. 

Law  62/2003  (Article  28(1)(d))  defines  harassment  as  ‘all  unwanted  conduct  related  to 
racial  or  ethnic  origin,  religion  or  belief,  disability,  age  or  sexual  orientation  that  takes 
place  with  the  purpose  or  effect  of  violating  the  dignity  of  a  person  and  creating  an 
intimidating, humiliating or offensive environment’. This law is applicable to all persons, in 
both the public sector and the private sector (Article 27). The full material scope of both 
directives is covered. On the ground of racial or ethnic origin, it expressly covers education, 
health, social services and social protection, housing and access to any goods and services, 
as well as access to employment, self-employment and professional practice, membership 
and participation in trade union and business organisations, working conditions, vocational 
promotion and vocational training (Article 29). On grounds of religion or belief, disability, 
age  or  sexual  orientation,  the  law  expressly  covers  access  to  employment,  membership 
and  participation  in  trade  union  and  business  organisations,  working  conditions, 
professional advancement and vocational training, as well as access to self-employment 
and professional activity (Article 34). 

The Workers’ Statute (RLD 2/2015), applicable to salaried workers on all grounds, states 
(in Article 4(2)(e)) that workers are entitled ‘to their privacy and to due respect of their 
dignity, including protection against harassment on the grounds of racial or ethnic origin, 
religion  or  belief,  disability,  age  or  sexual  orientation,  and  sexual  harassment  and 
harassment based on sex’. Besides this, Article 54(2)(g) of the Workers’ Statute considers 
‘harassment on the grounds of racial or ethnic origin, religion or belief, disability, age or 
sexual orientation, towards the employer or the people that work in the enterprise’ to be 
an offence meriting disciplinary dismissal. 

In Spain, harassment explicitly constitutes a form of discrimination.  

Law 62/2003 (Article 28(2)) and the General Law on the Rights of Persons with Disabilities 
and their Social Inclusion (Article 2) specify harassment as a form of discrimination.  

The words ‘hostile’ and ‘degrading’ (Directive 2000/43 and Directive 2000/78, Article 2(3)) 
are not included in the Spanish definition of harassment. 

b) 

Scope of liability for harassment 

In Spain, where harassment is perpetrated by an employee, the employee is liable but the 
employer is not liable. 

Liability  for  discrimination  is  personal  and  only  affects  individuals  or  organisations  that 
have  committed  acts  of  discrimination,  both  in  civil  and  criminal  law.  For  example, 
employers  or,  in  the  case  of  racial  or  ethnic  origin,  service-providers  such  as  landlords, 
schools and hospitals, cannot be held liable for the actions of employees or for the actions 
of  third  parties  (e.g.  tenants,  clients  or  customers).  Likewise,  trade  unions  or  other 
professional associations cannot be held liable for the actions of their members. 

2.5  Instructions to discriminate (Article 2(4)) 

a) 

Prohibition of instructions to discriminate 

In Spain, instructions to discriminate are prohibited in national law. Instructions are not 
defined. 

In Spain, instructions explicitly constitute a form of discrimination. 

27 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Law 62/2003 (Article 28(2)) provides that ‘any instruction to discriminate against persons 
on  the  grounds  of  racial  or  ethnic  origin,  religion  or  belief,  disability,  age  or  sexual 
orientation, will be considered discrimination’.  

In  the  disability  field,  RLD  1/2013  (Article  35(7))  states  that  ‘Any  order  to  discriminate 
against people on the basis of or by reason of their disability will equally be considered as 
discrimination.’ 

Instructions  to  discriminate  may  also  be  considered  to  be  covered  by  Article  314  of  the 
Criminal Code, which specifies ‘causing discrimination’ as an infringement against workers’ 
rights.  Article  18  of  the  Criminal  Code  includes  incitement  as  a  crime,  and  this  may  be 
applied to cases of incitement to discrimination. 

b) 

Scope of liability for instructions to discriminate 

In  Spain,  the  instructor  and  the  discriminator  are  liable.  The  jurisdictional  body  must 
determine  the  responsibility  of  each  one  of  them.  However,  RLD  1/2013  (Article  79(2)) 
states: ‘The liability shall be joint and several when there are several responsible and it is 
not possible to determine the degree of participation of each of them in the commission of 
the offence.’ The person acting under instruction could, through civil law, seek indemnity 
against the person who has ordered them to discriminate for the damages that that person 
has caused to them. 

Liability  for  discrimination  is  personal  and  only  applies  to  natural  or  legal  persons  who 
cause  discrimination  or  harassment  or  who  make  instructions  to  discriminate,  but  we 
should remember that the instruction to discriminate is a discriminatory act (as expressly 
noted in Article 28(2) of Law 62/2003 on Fiscal, Administrative and Social Measures). 

2.6  Reasonable  accommodation  duties  (Article  2(2)(b)(ii)  and  Article  5 

Directive 2000/78) 

a) 

Implementation  of  the  duty  to  provide  reasonable  accommodation  for  people  with 
disabilities in the area of employment 

In  Spain,  the  duty  on  employers  to  provide  reasonable  accommodation  for  people  with 
disabilities is included in the law and is defined. 

The General Law on the Rights of Persons with Disabilities and their Social Inclusion (RLD 
1/2013) sets out a duty to provide reasonable accommodation for persons with disabilities 
(Articles 2(m), 40(2) and 63). Article 2(m) defines reasonable accommodation as:  

‘Necessary and appropriate modifications and adaptations of the physical, social and 
attitudinal environment to the specific needs of persons with disabilities not imposing 
a disproportionate or undue burden, where needed in a particular case effectively, 
and practice to facilitate accessibility and participation and to ensure to persons with 
disabilities the enjoyment or exercise, on an equal basis with others,  of all human 
rights.’ 

Article 40(2) states that ‘Employers are obliged to take appropriate measures to adapt the 
job and the accessibility of the company, according to the needs of each specific situation, 
in  order  to  allow  people  with  disabilities  to  access  employment,  perform  their  work, 
progress  professionally  and  have  access  to  training,  unless  these  measures  place  an 
excessive burden on the employer.’ Article 63 states that ‘It is understood that the right 
to  equality  of  opportunity  for  persons  with  disabilities  is  violated  ...  when  by  reason  of 

28 

 
 
 
 
 
 
 
 
 
 
 
 
 
disability  ...  [a]  breach  [occurs]  of  the  requirements  of  accessibility  and  of  reasonable 
accommodation’.55 

The Spanish law therefore establishes a multilevel obligation of a general  nature but has 
not fixed how that obligation might be carried out. 

Law  3/2012  on  Urgent  Measures  to  Reform  the  Labour  Market56  has  established  some 
positive action measures in favour of persons with disabilities that could be regarded as 
specific kinds of reasonable accommodation measures. Among them is a preferential right 
to geographical mobility to protect the health of persons with disabilities: to exercise their 
right  to  health  protection,  workers  with  disabilities  evidencing  a  need  for  rehabilitation 
treatment in another city have a prior right to take another job in the same professional 
group  if  the  company  has  another  vacancy  in  a  locality  where  such  treatment  is  more 
accessible (Article 11(3)). This law also establishes the possibility of making priorities  in 
collective agreements for people with disabilities, as well as the possibility for them to stay 
in jobs in cases of redundancy or in relation to measures of geographical mobility (Article 
11(4)). These modifications have been incorporated into the Workers’ Statute (Article 40). 

The reasonable accommodation duty is imposed on both private and public employers and 
arises  if  the  employer  knows  of  the  existence  of  the  disability.  In  Spain,  persons  with 
disabilities do not have a general obligation to inform their employer about their disability; 
however, if they request a reasonable accommodation, they must notify their employer of 
their  disability  (RLD  1/2013,  Article  68(2)).  When  a  person  with  disabilities  requests  an 
accommodation, the employer should consider whether it is necessary and ‘reasonable’.  

The law states that:  

‘In order to determine whether an accommodation is reasonable ... the costs of the 
measure, the relevant discriminatory effects for people with disabilities of the non-
adoption  of  the  accommodation,  the  structure  and  characteristics  of  the  person, 
entity or organisation which must implement the accommodation and the possibility 
of obtaining official funding or other assistance shall be considered.  

To this end, the competent public authorities [the Regions of Spain] may establish a 
system  of  public  subsidies  to  help  cover  the  costs  of  the  obligation  to  provide 
reasonable accommodation’ (RLD 1/2013, Article 66(2)). 

In relation to the question: ‘Is the availability of financial assistance from the state to be 
taken into account in assessing whether there is a disproportionate burden?’ the following 
aspects should be considered: 

(1) As mentioned above, employers are obliged to adopt appropriate measures to adapt 
the workplace and access of disabled persons to the company ‘unless these measures imply 
a disproportionate burden for the employer’. 

(2)  Article  40(2)  of  RDL  1/2013  states  that,  to  determine  whether  the  burden  is 
disproportionate, the amount received by the company in ‘aid or public subsidies for people 
with disabilities’ will be taken into consideration. Likewise, financial and other costs entailed 
by the measure, as well as the company’s size and total turnover, will also be considered. 

55   The Workers’ Statute does not provide for a reasonable accommodation duty. Article 38(2) of Law 62/2003 
modified an article in Law 13/1982 on Social Integration of the Handicapped (new Article 37), introducing a 
reasonable accommodation duty. However, Law 13/1982 was superseded by the passing of the General Law 
on the Rights of Persons with Disabilities and their Social Inclusion (RLD 1/2013). 

56   Law 3/2012 of 6 July 2012 on Urgent Measures to Reform the Labour Market (Ley 3/2012, de 6 de julio, de 

medidas urgentes para la reforma del mercado laboral) (BOE, 7 July 2012), 
https://www.boe.es/buscar/pdf/2012/BOE-A-2012-9110-consolidado.pdf. 

29 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Consequently,  the  granting  of  financial  aid  by  the  state  is  a  factor  to  consider  in 
determining whether a disproportionate burden exists when applying measures to adapt a 
company’s workplace and access to it. 

(3)  To  combat  discrimination  against  disabled  people  in  general  (i.e.  in  all  areas  of 
employment and beyond), Article 66 of RDL 1/2013 states that reasonable accommodation 
shall be made ‘as long as it does not impose a disproportionate or undue burden’. It also 
states  that,  in  order  to  determine  whether  the  accommodation  made  is  reasonable,  the 
costs  of  the  measure  and  any  potential  official  funding  or  other  assistance  will  be 
considered. Finally, it sets out that, to this end, the competent public administrations may 
establish a public subsidy system to help cover the costs of this obligation. 

Thus,  in  the  fight  against  disability  discrimination,  official  financial  aid  is  a  factor  to  be 
taken  into  consideration  with  regard  to  the  proportionality  of  the  measure  to  provide 
reasonable accommodation in the workplace. 

In some regions of Spain, such as Andalusia and Catalonia, regulations have been adopted 
on the issue of reasonable accommodation. In Andalusia, for example, Law 4/2017 of 25 
September 2017, on the Rights and Care of Persons with Disabilities in Andalusia, sets out 
that  reasonable  accommodation  to  facilitate  the  access  and  participation  of  people  with 
disabilities  to  ensure  they  enjoy  or  exercise  all  their  rights  on  equal  terms  with  others 
should not impose a disproportionate  or undue burden.  During the year  covered by this 
report,  the  Autonomous  Community  of  Catalonia  passed  Act  19/2020  of  30  December 
2020,  on  equal  treatment  and  non-discrimination.  Article  4  defines  reasonable 
accommodation  as  ‘the  necessary  and  appropriate  modifications  and  adjustments  that, 
without  imposing  disproportionate  or  undue  burden,  are  applied  when  required  in  a 
particular  case,  to  guarantee  persons  with  disabilities  the  enjoyment  or  exercise  of  all 
human rights and freedoms on an equal basis with others’. It adds that ‘the burden cannot 
be  considered  disproportionate  if  it  is  sufficiently  compensated  by  measures  within  the 
framework of policies in favour of disabled people’. 

Although  the  regulations  that  establish  the  obligation  of  reasonable  accommodation  are 
state  regulations  (RLD  1/2013  and  Law  31/1995),  subsidies  to  facilitate  their  actual 
implementation depend on the 17 regional Governments. 

National law does not provide clearly for a shift in the burden of proof for claims relating 
to reasonable accommodation. However, Article 77 of Law RLD 1/2013 could allow a judge 
to shift the burden of proof if a person with disabilities is demanding the right to reasonable 
accommodation. 

Employers are required to consult the person with disabilities in question and may consult 
other accredited entities specialised in occupational risk prevention services (RD 39/1997, 
Articles 23-28) about what accommodations would be helpful or appropriate. The need for 
consultation is deduced from the reference in the law to possible ‘discrepancies’ between 
the  two  parties.  The  law  makes  it  clear  that  these  possible  discrepancies  between  the 
worker with disabilities and the employer ‘can be resolved through the arbitration system’ 
(RLD 1/2013, Article 66(2)). However, recourse to the arbitration system is voluntary (RLD 
1/2013, Article 74(2)). 

Employers  will  be  eligible  for  subsidies  or  other  state  funding  to  help  with  the  costs  of 
accommodation  needed  by  workers  with  disabilities  (RLD  1/2013,  Article  40).  However, 
the various regional Governments in Spain (including, in some cases, municipalities, which 
can provide some subsidies) set different conditions. 

30 

 
 
 
 
 
 
 
 
 
 
In addition to the reasonable accommodation duty foreseen by RLD 1/2013, Law 31/1995 
of 8  November 1995  on  the Prevention  of  Occupational Risks57 (Articles 14, 15 and 25) 
and Royal Decree 39/1997 of 17 January 1997 on the Regulation of Prevention Services58 
include  a  duty  to  provide  reasonable  accommodation  in  the  specific  context  of  risks  to 
health and safety in the workplace. 

In its judgment of 11 September 2019 on Case C-397/18, D.W. v. Nobel Plastiques Ibérica 
SA,59  the  CJEU  established  that  some  general  criteria  established  for  the  evaluation  of 
workers and their possible dismissal (such as their productivity being below a given rate, 
a low level of multi-skilling in the undertaking’s posts or a high rate of absenteeism) would 
constitute indirect discrimination on grounds of disability if the employer has not adopted 
effective and practical reasonable accommodation measures to adapt the workplace for the 
disability. Measures may include the adapting of premises, equipment, working patterns 
and the distribution of tasks, the provision of training and the provision of resources for 
integration. 

b) 

Case law 

There  have  been  no  court  rulings  of  interest  in  2020  regarding  the  right  to  reasonable 
accommodation to avoid disability-based discrimination in the area of employment.  

c) 

Definition of disability and non-discrimination protection 

The definition of disability for the purposes of requesting reasonable accommodation (both 
regarding  employment  and  more  generally)  is  the  same  as  for  seeking  protection  from 
discrimination  in  general.  This  means  that  only  those  meeting  the  threshold  of  33 % 
disability are entitled to reasonable accommodation. The person with disability (someone 
who is officially recognised as a person with disabilities) must inform the employer of his 
or  her  disability  status  in  order  to  request  a  reasonable  accommodation  (RLD  1/2013, 
Article 68(2)). This requirement could potentially be in breach of Directive 2000/78 and is 
not in line with CJEU joined cases C-335/11 and C-337-11. 

In Spain, several ground-breaking court rulings in this area made prior to 2020 should be 
mentioned.  It  is  worth  highlighting  two  Constitutional  Court  rulings  that  established  the 
doctrine in relation to this right: one of them is Constitutional Court sentence 10/2014 of 
27 January 2014, and the other is CC sentence 3/2018.  

In the first ruling, dating from 2014, the conflict arose when the education authorities of 
an autonomous community resolved that a minor with disabilities should attend a ‘special 
education’ state school instead of an ordinary state school. The ruling was upheld by the 
Constitutional  Court,  which  stated  that  the  education  authorities  should  promote  the 
schooling of minors with disabilities in regular schools, and only when the accommodation 
for  their  inclusion  was  disproportionate  or  unreasonable  should  they  provide  for  the 
schooling of these pupils in special schools. The Court considered that the decision of the 
authorities  was  justified,  since  it  took  into  consideration  the  minor’s  special  educational 
needs. 

The  second  Constitutional  Court  ruling  sought  to  protect  a  severely  mentally  disabled 
person who had been denied an individualised care programme in a government-run care 

57   Law 31/1995 of 8 November 1995 on the Prevention of Occupational Risks (Ley 31/1995, de 8 de 

noviembre, de Prevención de Riesgos Laborales) (BOE, 10 November 1995), 
http://www.boe.es/boe/dias/1995/11/10/pdfs/A32590-32611.pdf. 

58   Royal Decree 39/1997 of 17 January 1997 on the Regulation of Prevention Services (Real Decreto 39/1997, 
de 17 de enero, por el que se aprueba el Reglamento de Servicios de Prevención) (BOE, 31 January 1997),  
http://www.boe.es/boe/dias/1997/01/31/pdfs/A03031-03045.pdf. 

59   Judgment of 11 September 2019, D.W. v. Nobel Plastiques Ibérica SA, C-397/18, 

http://curia.europa.eu/juris/document/document.jsf?text=&docid=217624&pageIndex=0&doclang=EN&mo
de=lst&dir=&occ=first&part=1&cid=501000. 

31 

 
 
 
 
 
 
 
 
 
 
 
 
centre  for  people  with  disabilities  due  to  being  over  60  years  of  age.  The  Constitutional 
Court  found  in  favour  of  the  disabled  person  and  annulled  the  decision  of  the  public 
authorities. The Court observed double discrimination on grounds of age and disability. In 
relation  to  the  latter,  the  Court  stated  that,  based  on  the  right  to  reasonable 
accommodation,  the  public  authorities  should  ensure  the  provision  of  a  care  service 
adapted to the needs of the person with disabilities, as the authorities had centres for this 
purpose. 

d) 

Failure to meet the duty of reasonable accommodation for people with disabilities 

In Spain, failure to meet the duty of reasonable accommodation in employment for people 
with disabilities counts as discrimination (RLD 1/2013, Article 63). Failure on the part of a 
company to comply with its obligation to provide reasonable accommodation (with regard 
to employment) constitutes indirect discrimination. As established in Articles 2(d) and 2(m) 
of the General Law on the Rights of Persons with Disabilities and their Social Inclusion (RLD 
1/2013),  this  may  be  justified  only  if  such  accommodation  would  constitute  a 
disproportionate burden.  

The  breach  of  reasonable  accommodation  duties  is  considered  a  serious  offence  (RLD 
1/2013,  Article  81(3)).  Therefore,  the  public  administration  may  punish  the  perpetrator 
with  a  penalty  of  up  to  EUR 90 000  (RLD  1/2013,  Article  83(3)).  Furthermore,  it  may 
impose  additional  penalties  on  companies,  such  as  prohibiting  access  to  official  benefits 
(like economic subsidies or any other public aid). If the company persists with its breach 
of duties on reasonable accommodation, the infringement may be regarded as very serious 
(RLD 1/2013, Article 81(4)). Consequently, the sanctions may be higher (to a maximum 
of EUR 1 million). 

If the demand reaches a court, it may approve compensation for the claimant (the person 
with disability). The law does not impose any ceiling for this potential compensation: ‘Any 
payment  or  compensation  to  which  the  corresponding  claim  may  give  rise  shall  not  be 
limited  by  a  previously  established  ceiling.  Compensation  for  moral  damage  shall  be 
payable even where there are no damages of a pecuniary nature and shall be set according 
to the circumstances of the infringement and the seriousness of the injury’ (RLD 1/2013, 
Article 75.2). 

e)  Duties  to  provide  reasonable  accommodation  in  areas  other  than  employment  for 

people with disabilities 

In  Spain,  there  is  a  legal  duty  to  provide  reasonable  accommodation  for  people  with 
disabilities outside the area of employment. 

The  material  scope  of  Law  RLD  1/2013,  which  sets  out  a  duty  to  provide  reasonable 
accommodation for persons with disabilities, is: social protection; healthcare; education; 
employment;  telecommunications  and  the  information  society;  urbanised  public  spaces, 
infrastructure and construction; transport; goods and services to the public; relations with 
public administrations; the administration of justice; cultural heritage; and employment. 

As  regards  social  housing,  RLD  1/2013  establishes  the  reservation  of  social  housing  for 
people  with  disabilities  and  ensures  its  accessibility  (Article  32),  as  well  as  the 
refurbishment of housing for people with disabilities (support for the adaptation of housing 
to make it accessible for a person with a disability) (Article 33). 

On  2  November  2009,  the  National  Court60  resolved  an  interesting  case  of  disability 
discrimination  in  the  field  of  education.  L.X.,  a  person  with  physical  and  intellectual 
disabilities of 75 %, applied for a scholarship to study law during the academic year 2005-

60   See National Court (Audiencia Nacional), Appeal 160/2007, 2 November 2009. 

32 

 
 
 
 
 
 
 
  
 
 
 
 
 
06.  The  ministry  denied  the  scholarship,  using  the  same  standards  as  applied  to  other 
students. The National Court began its judgment by recalling that, ‘on 21 April 2008 the 
Spanish Official Gazette published the Instrument of Ratification of the CRPD, made in New 
York on December 13, 2006’ (although the CRPD was not yet transposed into positive law 
in Spain, and this did not occur until 2011, with Law 26/2011). The court went on to recall 
that the CRPD required the introduction of ‘reasonable accommodation’ in education, and 
it  concluded  that  it  is  a  reasonable  accommodation  to  modify  some  scholarship 
requirements  for  certain  people  with  disabilities  (for  example,  the  requirement  to  have 
obtained an average rating of 5 out of 10 in the previous academic year; this means that 
the  requirements  for  obtaining  the  scholarship  were  set  at  a  lower  level).  The  court 
therefore ordered the scholarship that L.X. requested to be recognised. This was a highly 
innovative judgment, because it pointed directly to the CRPD and provided for reasonable 
accommodation that was not formally established in Spanish law at the time. 

The definition of ‘disproportionate burden’ in this context is the same definition that is used 
with regard to employment. 

f) 

Duties to provide reasonable accommodation in respect of other grounds 

In Spain, there is a legal duty to provide reasonable accommodation in respect of other 
grounds in the public sector and the private sector, but only on the ground of religion or 
belief. 

Laws 24, 25 and 26 of 1992, approving the Agreement of Cooperation between the state 
and the Federation of Evangelical Religious Entities, the Federation of Israeli Communities 
and the Islamic Commission of Spain, respectively, contain specific regulations to ensure 
reasonable accommodation for employees of these religions. The three agreements contain 
provisions in the field of employment (religious holidays) and in areas outside employment 
(special diets). 

The  weekly  day  of  rest  of  the  Seventh  Day  Adventist  and  Jewish  communities  (Friday 
evening and all of Saturday) can be granted instead of the day provided by Article 37(1) 
of the Workers’ Statute as the general rule (Saturday afternoon or Monday morning and 
all  of  Sunday),  but  only  with  the  agreement  of  all  the  parties,  which  case  law  has 
interpreted as being possible only if this is requested by the employee before the contract 
is signed.  

Moreover, members of the Islamic communities affiliated with the Islamic Commission may 
request to stop work every Friday from 13.30 to 16.30 and one hour before sunset during 
Ramadan. This right is also subject to an agreement with the employer, and the hours not 
worked must be made up. There is some interesting doctrine on this subject in the Madrid 
High  Court’s  judgment  of  27  October  1997.  In  this  case,  pursuant  to  a  request  for 
adaptation of working hours, the court – not once referring to the cooperation agreement 
– stated that, although the courts of first instance should make employers adapt working 
hours, thus allowing their employees to meet their religious obligations properly, as well 
as not making them behave in a way incompatible with their beliefs, the worker must show 
honesty and good faith by indicating his or her religious faith and the special working hours 
arising from it when applying for the job (Rossell, 2008: pp. 104-107). 

In the case of the Islamic Commission and the Jewish community, there is a list of religious 
holidays that can replace those established in Article 37 of the Workers’ Statute, again with 
the agreement of both parties. As for special diet (adaptation of food to Islamic religious 
precepts  and  mealtimes  during  the  Ramadan  fast),  this  possibility  is  provided  only  for 
Muslims  interned  in  public  establishments  (prisons  and  other  centres)  and  on  military 
premises, as well as in public and subsidised private schools, where requested, and not as 
an obligation, since Article 14(4) of the agreement clearly states only that, in such cases, 

33 

 
 
 
 
 
 
 
 
 
‘attempts shall be made’. In the field of employment, therefore, there are no provisions on 
this issue. 

Some  interesting  examples  of  collective  agreements  can  be  cited  that  regulate  specific 
issues  related to days  off work and the interruption or  reduction  of  the working day for 
religious  reasons.  Agreements  between  employers  and  employees  have  been  made  in 
which companies offer leave days to their workers based, above all, on their religion and 
their  migrant  status.  For  example,  workers  are  offered  the  possibility  of  celebrating 
traditional or religious festivities. However, taking time off to celebrate religious activities 
during  the  working  day  cannot  entail  any  reduction  in  the  working  hours  required  of  all 
workers.61 Moreover, the final decision to grant leave is made by the employer in line with 
the  company’s  working  arrangements.  Several  business  agreements  that  promote 
reconciliation  between  working  hours  and  the  working  day  and  the  worker’s  family 
commitments are also worth mentioning. These include emergency trips to the worker’s 
country of origin for family illness or for designated celebrations, always provided that this 
is ‘feasible in terms of organisation’.62 

Following the decision of Social Court No. 1 of Palma de Mallorca (Decision 31/2017 of 5 
February 2017: see section 3.2.3 of this report), the use of the hijab in employment may, 
under certain conditions, be considered as coming under a reasonable accommodation duty 
based on religion. 

61   Diversity Management Agreement in a slaughterhouse company in Girona, 2009. 
62   Diversity Management Agreement in Hotel Majestic SPA Barcelona, 2009; Diversity Management Agreement 

in Mantylim, S.A., 2008; Diversity Management Agreement in Ferroberica, S.L., 2010; Diversity 
Management Agreement in ABD, 2009. 

34 

 
 
 
 
 
 
 
 
 
 
 
3 

PERSONAL AND MATERIAL SCOPE  

3.1  Personal scope 

3.1.1  EU  and  non-EU  nationals  (Recital  13  and  Article  3(2),  Directive  2000/43 

and Recital 12 and Article 3(2), Directive 2000/78) 

In  Spain,  there  are  no  residence  or  citizenship/nationality  requirements  for  protection 
under  the  relevant  national  laws  transposing  the  directives.  The  personal  scope  of 
protection against discrimination is general for all residents.  

The seventh additional provision of Law 62/2003, entitled ‘Non-applicability to immigration 
law’,  states  that  the  articles  transposing  the  directives  do  not  affect  the  regulations 
provided ‘in  respect of  the entry,  stay, work and establishment  of aliens in Spain under 
Organic Law 4/2000’. This law is applicable only to third-country nationals, not EU citizens. 
The  justification  for  this  provision  is  based  on  Article  3(2)  of  Directives  2000/43  and 
2000/78.  

However,  it  should  not  be  forgotten  that  Law  4/2000  regulates  the  issues  of  ‘work  and 
establishment’, which are liable to be affected by the directives and are not covered by the 
exclusion outlined in Article 3(2) of the directives. In this regard, several aspects of interest 
should  be  considered.  First,  Law  4/2000  establishes  that  foreign  nationals  enjoy 
fundamental rights and freedoms (including non-discrimination) in the terms laid down in 
international  treaties  and  in  Law  4/2000  itself.  It  adds  that,  as  a  general  criterion  for 
interpretation, it is understood that foreign nationals exercise the rights recognised by this 
law in conditions of equality with Spanish nationals. 

Nonetheless, Article 10  only recognises the  right of  ‘resident’  foreigners to work, that is 
foreigners who have regularised their status because they have obtained the corresponding 
residence and work permits. Foreigners in an irregular situation are not authorised to reside 
or work, unlike foreigners who have obtained the corresponding permits. However, in the 
event that irregular migrants do work, Law 4/2000 recognises that their working conditions 
must be same as those provided for by law for all workers.  

3.1.2  Natural and legal persons (Recital 16, Directive 2000/43) 

a) 

Protection against discrimination 

In Spain, the personal scope of anti-discrimination law covers all natural and legal persons 
for the purpose of protection against discrimination. 

The prohibition of discrimination in the Constitution (Article 14), in Law 62/2003 (Article 
27(1)) and in the Workers’ Statute applies to both natural and legal persons. Article 27(2) 
of  Law  62/2003  provides  that  measures  for  the  application  of  the  principle  of  equal 
treatment under it apply to every person (both natural and legal), in both the public and 
private sectors.  

b) 

Liability for discrimination 

In Spain, the personal  scope  of anti-discrimination law covers natural  and legal persons 
for the purpose of liability for discrimination.  

The situation in respect of liability is the same as that for protection (Law 62/2003, Article 
27(2)), in that liability for discrimination is personal and affects individuals or organisations 
who  have  committed  acts  of  discrimination.  As  Rubio-Marín  (2004)  indicates,  for  the 
private sector, the prohibition on discrimination and the violation of workers’ fundamental 

35 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
rights  is  mainly  addressed  to  the  employer,  but  this  can  also  be  made  applicable  to 
managers, and presumably to co-workers or the relevant labour union. 

3.1.3  Private and public sector including public bodies (Article 3(1)) 

a) 

Protection against discrimination 

In Spain, the personal scope of national law covers the private sector and the public sector 
including public bodies for the purpose of protection against discrimination. 

The prohibition of discrimination in the Constitution (Article 14) and in the Workers’ Statute 
applies  to  both  private  and  public  bodies.  Article  27(2)  of  Law  62/2003  provides  that 
measures  for  the  application  of  the  principle  of  equal  treatment  under  it  apply  to  every 
person (both natural and legal), in both the public and private sectors. 

b) 

Liability for discrimination 

In Spain, the personal scope of anti-discrimination law covers the private sector and the 
public sector including public bodies for the purpose of liability for discrimination.  

Law  62/2003  (Article  27(2))  establishes  that  liability  for  discrimination  is  personal  and 
affects individuals or organisations who have committed acts of discrimination.  

3.2  Material scope 

The material scope of the prohibition of discrimination is of a general nature. All the fields 
mentioned by Article 3 of Directive 2000/43 on racial or ethnic origin are covered by the 
general principle of equality laid down in Article 14 of the Spanish Constitution. 

Although Directive 2000/78 refers only to the field of employment, discrimination on the 
grounds on religion or belief, disability, age or sexual orientation is prohibited in all areas, 
public and private. This applies not only to the fields mentioned in Directive 2000/43 (social 
protection, ‘social advantages’ (i.e. benefits), education, access to and supply of goods and 
services available to the public, including housing), but also to other possible fields, even 
if there is not an explicit anti-discrimination provision, because of the general and direct 
applicability of Article 14 of the Constitution. 

3.2.1  Conditions for access to employment, to self-employment or to occupation, 
including  selection  criteria,  recruitment  conditions  and  promotion, 
whatever  the  branch  of  activity  and  at  all  levels  of  the  professional 
hierarchy (Article 3(1)(a))  

In Spain, national legislation prohibits discrimination in relation to conditions for access to 
employment, to self-employment or to occupation, including selection criteria, recruitment 
conditions  and  promotion,  whatever  the  branch  of  activity  and  at  all  levels  of  the 
professional  hierarchy,  for  the  five  grounds,  and  in  both  private  and  public  sectors,  as 
described in the directives (Law 62/2003, Article 34). Article 34 makes a specific reference 
to  self-employed  workers:  in  particular,  it  says  that  the  principle  of  non-discrimination 
applies  to  access  to  self-employment  and  professional  practice.  Consequently,  the  law 
applies  to  all  types  of  self-employed  workers:  either  ordinary  self-employed  workers  or 
economically dependent self-employed workers – that is, those who obtain more than 75 % 
of their income from a single client.  

In  this  field,  it  is  important  to  mention  Law  20/2007  of  11 July  2007,  on  the  Statute  of 
Self-employment Work. This act states that public authorities and those who contract the 
professional  activity  of  self-employed  workers  are  subject  to  the  prohibition  of 
discrimination.  The  ban  on  discrimination  affects  both  free  economic  initiative  and  the 

36 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
hiring of the workers, as well as  working  conditions.  Therefore,  contractual clauses that 
violate the right to non-discrimination or any fundamental right will be null and void and 
will be deemed not to have been placed in the contract between the self-employed worker 
and their client. 

Article 4(2)(c) of the Workers’ Statute (RLD 2/2015) also applies to conditions of access to 
employment  and  internal  promotion.  Article  8(12)  of  Law  5/2000  considers  direct  or 
indirect discrimination in promotion in employment to be a very serious offence and subject 
to sanctions. 

Moreover,  Article  2  of  Royal  Decree-Law  3/2015,  which  confirms  the  text  of  the 
employment law,63 specifies the foremost general objective of employment as being: ‘To 
guarantee real equality of opportunities and non-discrimination, considering the provisions 
of Article 9.2 of the Spanish Constitution, in access to employment and in actions aimed 
at  providing  such  access,  along  with  a  free  choice  of  profession  or  trade  without 
discrimination, on the terms provided in Article 17 of the Workers’ Statute’. 

The General Law on the Rights of Persons with Disabilities and their Social Inclusion (RLD 
1/2013) establishes that conditions for access to employment must avoid discrimination, 
direct or indirect, on the ground of disability (Articles 35-47) and establishes a system of 
sanctions that mean that the prohibition can be said to be real and effective (Articles 80-
88). 

All labour regulations affect labour relations in both the private and public sectors.  

The  employment  of  civil  servants  is  regulated  by  the  Civil  Service  Statute,  which 
establishes special standards in the public sector, but all employees are equally subject to 
the principle of equal treatment. 

3.2.2  Employment and working conditions, including pay and dismissals (Article 

3(1)(c)) 

In Spain, national legislation prohibits discrimination in working conditions, including pay 
and dismissals, for all five grounds and for both private and public employment. 

Non-discrimination in employment and working conditions, including pay and dismissals, 
is expressly recognised in Article 17(1) of the Workers’ Statute (RLD 2/2015) (according 
to  the  wording  that  Law  63/2003  introduced  into  the  Statute),  which  is  headed  ‘Non-
discrimination in working relations’. It states:  

‘All  legislative  provisions,  clauses  of  collective  agreements,  individual  agreements 
and unilateral managerial decisions which provide for unfavourable direct or indirect 
discrimination on the grounds of age or disability, or which provide for unfavourable 
or  adverse  discrimination  in  employment,  whether  in  relation  to  remuneration, 
working time, or other working conditions, on the grounds of sex, origin, including 
racial or ethnic origin, civil status, social condition, religion or belief, political ideas, 
sexual orientation, membership or non-membership of a trade union, adherence to 
trade  union  agreements,  or  family  ties  to  other  workers  in  the  enterprise,  or  by 
reference to the languages of the Spanish state, shall be regarded as void and without 
effect.’ 

With the distinction between ‘unfavourable direct or indirect discrimination on the grounds 
of age or disability’ and ‘unfavourable or adverse discrimination in employment’ in relation 

63   Royal Legislative Decree 3/2015 of 23 October 2015, which approves the revised text of the Employment 

Law (Real Decreto Legislativo 3/2015, de 23 de octubre, por el que se aprueba el texto refundido de la Ley 
de Empleo) (BOE, 24 October 2015), https://www.boe.es/boe/dias/2015/10/24/pdfs/BOE-A-2015-
11431.pdf. 

37 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
to other grounds, the provision facilitates positive action in the fields of age and disability. 
Article 8(12) of RLD 2/2000 on violations and sanctions of labour laws (modified by Law 
62/2003,  Article  41)  considers  ‘unilateral  decisions  by  the  employer  which  involve 
unfavourable  direct  or  indirect  discrimination  for  reasons  of  age  or  disability  or  which 
contain positive or adverse discrimination relating to remuneration, working time, training, 
promotion, and other employment conditions, on the grounds of sex, origin, including racial 
or  ethnic  origin,  civil  status,  social  condition,  religion  or  belief,  political  ideas,  sexual 
orientation, membership or non-membership of a trade union, adherence to trade union 
agreements,  family  ties  with  other  workers  in  the  enterprise,  or  language  within  the 
Spanish State’ to be very serious infringements. 

The General Law on the Rights of Persons with Disabilities and their Social Inclusion (RLD 
1/2013) establishes that employment and working conditions must avoid discrimination, 
direct or indirect, on the ground of disability (Articles 35-47) and establishes a system of 
sanctions that mean that the prohibition can be said to be real and effective (Articles 80-
88). 

Two cases are relevant here. The first is the case of a homosexual worker dismissed by 
Aerolíneas Argentinas in 2008. The worker’s complaint was accepted by Madrid Social Court 
No.  35,  which  declared  the  dismissal  void  and  therefore  obliged  the  airline  to  take  the 
worker  back  and  pay  all  wage  arrears.  The  judgment  ruled  that  it  was  proven  in  the 
proceedings  that  the  worker’s  sexual  orientation  had  given  rise  to  various  forms  of 
unfavourable  treatment,  culminating  in  his  dismissal.  In  his  judgment,  the  judge  stated 
that unfavourable treatment based on sexual orientation was discriminatory, and therefore 
the worker’s dismissal was declared void.64 

The second is the case of a Muslim woman hired by ACCIONA Airport Services to provide 
customer service at Palma de Mallorca airport, starting in 2007. When she came to work 
on 21 December 2015, the claimant informed the company of her intention to wear the 
Islamic veil (hijab) during the working day as an expression of her religious sentiment. The 
employer imposed seven increasingly serious labour sanctions for using the hijab. In June 
2016,  the  claimant  brought  an  action  against  the  company  before  Social  Court  No. 1  in 
Palma de Mallorca. The claimant maintained that she was being discriminated against since 
other  workers  could  exhibit  necklaces  with  Christian  religious  symbols,  yet  she  was  not 
allowed to wear the hijab. The court issued its judgment on 5 February 2017 and declared 
‘the existence of violation of the fundamental right to religious freedom (of the claimant), 
and  consequently  the  nullity  of  the  sanctions  imposed  by  the  company’.  The  ruling 
recognised  that  the  company  had  the  right  ‘to  impose  on  its  employees  the  use  of  a 
uniform’, but that ‘there are no unlimited rights’ and that this right cease, if it clashes with 
a fundamental right, such as that to religious freedom. 

Occupational pensions in Spain are governed by RLD 1/2002 of 29 November 2002, which 
regulates  pension  plans  and  funds.  Occupational  pensions  constituting  part  of  pay  are 
designated as ‘pension plans by system of employment’ (planes de pensiones por sistema 
de empleo). These are plans, whose promoter is an entity or company and whose partners 
are  its  employees.  The  RLD  only  contains  a  general  anti-discrimination  clause  that 
establishes that the pension plan ‘must guarantee access as a participant to any natural 
person who meets the conditions of relationship with the promoter’ (Article 5(1)). 

In  general,  pension  plans  by  ‘employment  system’  (sector-specific  occupational  pension 
schemes) are established through collective agreements, and they are covered by the anti-
discrimination clauses for employment and working conditions laid down in Article 17.1 of 
the  Workers’  Statute  (RLD  2/2015)  and  Article  8(12)  of  RLD  2/2000  on  violations  and 
sanctions in labour laws. 

64   Social Court No. 35 of Madrid, Decision 84/2009, 23 February 2009. 

38 

 
 
 
 
 
 
 
 
 
 
3.2.3  Access  to  all  types  and  all  levels  of  vocational  guidance,  vocational 
training,  advanced  vocational  training  and  retraining,  including  practical 
work experience (Article 3(1)(b)) 

In  Spain,  national  legislation  prohibits  discrimination  in  vocational  training  outside  the 
employment  relationship,  such  as  adult  lifelong  learning  courses  or  vocational  training 
provided by technical schools or universities.  

The  Workers’  Statute  (Article  4(2))  recognises  promotion  and  professional  training  as 
rights.  These  are  protected  against  discrimination  on  all  of  the  grounds  included  in  the 
directives. 

Article 34 of Law 62/2003 includes this subject in relation to all the grounds of Directives 
2000/43  and  2000/78:  ‘measures  are  aimed  at  the  real  and  effective  realisation  of  the 
principle of equal treatment and non-discrimination in relation to access to ... professional 
promotion and vocational and continuous professional training’. Given the structure of the 
education and training system in Spain, this text includes all the aspects covered by Article 
3(1)(b) of Directive 2000/43. 

Law 62/2003 (Article 41) introduced modifications to Law 5/2000 on Offences and Penalties 
in Social Matters. Article 8 of Law 5/2000 contains a list of very serious infractions in the 
area of employment. With the revision introduced by Law 62/2003, Article 8(12) considers 
direct or indirect discrimination in vocational training in employment to be a very serious 
offence and subject to sanctions. 

Organic  Law  5/2002  on  Qualifications  and  Vocational  Training65  states  that  one  of  the 
principles  of  the  national  system  of  qualifications  and  vocational  training  is  ‘access,  on 
equal terms for all citizens, to the various forms of vocational training’ (Article 2). 

The General Law on the Rights of Persons with Disabilities and their Social Inclusion (RLD 
1/2013) establishes that vocational guidance must avoid discrimination, direct or indirect, 
on the ground of disability (Article 17) and establishes a system of sanctions that mean 
that the prohibition can be said to be real and effective (Articles 80-88). 

3.2.4  Membership  of,  and  involvement  in,  an  organisation  of  workers  or 
employers,  or  any  organisation  whose  members  carry  on  a  particular 
profession,  including  the  benefits  provided  for  by  such  organisations 
(Article 3(1)(d)) 

In  Spain,  national  legislation  prohibits  discrimination  in  relation  to  membership  of  and 
involvement in workers’ or employers’ organisations, as formulated in the directives for all 
five grounds and for both private and public employment. 

Article 34 of Law 62/2003 includes this subject in relation to all the grounds of Directives 
2000/43 and 2000/78: ‘measures are aimed at the real and effective accomplishment of 
the principle of equal treatment and non-discrimination in relation to ... membership of or 
involvement in organisations of workers or employers ... or to occupation and membership 
of and involvement in any organisation whose members carry on a particular profession’.  

Article 17(1) of the Workers’ Statute and Article 8(12) of the Law on Offences and Penalties 
in Social Matters also include this aspect of equal treatment. 

65   Organic Law 5/2002 of 19 June 2002 on Qualifications and Vocational Training (Ley Orgánica 5/2002, de 19 

de junio, de las Cualificaciones y de la Formación Profesional) (BOE, 20 June 2002), 
https://www.boe.es/buscar/pdf/2002/BOE-A-2002-12018-consolidado.pdf. 

39 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
3.2.5  Social protection, including social security and healthcare (Article 3(1)(e) 

Directive 2000/43) 

In Spain, national legislation prohibits discrimination in social protection, including social 
security and healthcare, as formulated in the Racial Equality Directive. 

The  social security  system is based on four principles: universality, unity, solidarity and 
equality (RLD 8/2015 of the General Social Security Act, Article 2).66 Furthermore, Article 
29(1) of Law 62/2003 states that its purpose is to ‘establish measures to ensure that the 
principle of equal treatment and non-discrimination on the grounds of racial or ethnic origin 
is  real  and  effective  in  education,  health,  social  benefits  and  services,  housing  and,  in 
general, the supply of and access to goods and services’. 

In the field of healthcare, Article 3 of General Health Law 14/198667 establishes that ‘Public 
healthcare will be extended to the entire Spanish population. Access and health benefits 
will be carried out under conditions of effective equality’. This declaration of universality in 
terms of equality has been regulated in Law 16/2003 on the Cohesion and Quality of the 
National Health System68 (as amended since 2012 and last reformed in 2018). Following 
the reform introduced by RLD 7/2018 on universal access to the National Health System,69 
Article 3(1)  of the amended  Law 16/2003 now establishes that  ‘They  are holders  of the 
right  to  protection  of  health  and  healthcare  for  all  persons  with  Spanish  nationality  and 
foreign  persons  who  have  established  (legally)  their  residence  in  Spanish  territory’. 
Furthermore,  Article  3(ter)(1)  establishes  that  ‘Foreign  persons  not  registered  or 
authorised as residents in Spain have the right to health protection and healthcare under 
the same conditions as people with Spanish nationality, as is established in article 3(1).’70 

Therefore,  there  is  a  general  recognition  of  the  principle  of  non-discrimination  on  the 
grounds  of  racial  or  ethnic  origin  in  these  areas  in  line  with  Article  3(1)  of  Directive 
2000/43,  and  discrimination  in  these  fields  is  unlawful.  However,  it  could  be  considered 
that there has been a violation of the directive, because the law does not provide for any 
sanctions and is therefore not ‘real and effective.’ 

66   Widowhood pensions were a focus of litigation in Spain a few years ago. The social security authorities did 

not recognise the right to a widow’s pension for surviving unmarried homosexual partners, because the law 
did not allow marriage between two people of the same sex. Litigation was brought to the Constitutional 
Court several times, and it had to rule on whether Art. 174(1) of the General Social Security Act (Royal 
Legislative Decree 1/1994, which was then in force) was discriminatory based on sexual orientation. In its 
Decision 92/2014 of 10 June 2014, the Constitutional Court accepted that both homosexual couples (not 
being able to marry) and de facto couples (not having been able to marry legally) were excluded from the 
widow’s pension, and that Article 174(1) of the General Social Security Act was not discriminatory for 
reasons of sexual orientation. The Court noted, however, that legislators could change that situation if they 
considered it convenient to do so. 
The events that gave rise to this sentence took place in 2002. Three years later, the Spanish Parliament 
passed Law 13/2005, which modifies the Civil Code regarding the right to marry, allowing the surviving 
spouses of gay marriages to request the corresponding widow’s pension. Law 40/2007 was passed a few 
years later. It extended the right to a widow’s pension to all stable couples, both heterosexual and 
homosexual, with certain limitations and requirements; the same amending legislation allows the law to be 
applied to situations that occurred prior to its entry into force. 

67   General Health Law 14/1986 of 24 April 1985 (Ley 14/1986, de 25 de abril de 1986, General de Sanidad) 

(BOE, 29 April 1986), 
https://www.boe.es/buscar/pdf/1986/BOE-A-1986-10499-consolidado.pdf. 

68   Law 16/2003 of 28 May 2003 on the Cohesion and Quality of the National Health System (Ley 16/2003, de 

28 de mayo, de cohesión y calidad del Sistema Nacional de Salud) (BOE, 29 May 2003), 
https://www.boe.es/buscar/pdf/2003/BOE-A-2003-10715-consolidado.pdf. 

69   Royal Decree-Law 7/2018 of 27 July 2018 on universal access to the National Health System (Real Decreto-
ley 7/2018, de 27 de julio, sobre el acceso universal al Sistema Nacional de Salud) (BOE, 30 July 2018), 
https://www.boe.es/buscar/pdf/2018/BOE-A-2018-10752-consolidado.pdf. 

70   Although both Law 14/1986 (in general terms) and Law 16/2003 (as drafted by RLD 7/2018) formally 

establish a universal system of access to health in Spain, as other articles of Law 16/2003 introduced some 
requirements to access healthcare from public funds, there are some groups (albeit very few) that may be 
excluded from access to the public health system, for example, older legal immigrants who do not work or 
who do not have social security coverage in their countries of origin. Paradoxically, all undocumented 
immigrants have the right to access publicly funded healthcare. 

40 

 
 
 
 
 
 
 
 
Law 62/2003 does not provide any measure to make the principle of equal treatment ‘real 
and effective’, because it does not establish any sanctions if the law is breached. However, 
judges must consider whether Article 512 of the Criminal Code (Organic Law 10/1995)71 is 
applicable. Article 512 states: 'Those who, in the exercise of their professional or business 
activities, deny a person a benefit to which they are entitled by virtue of their  ... religion 
or belief, their belonging to an ethnic or race ... their sexual orientation ... or, for reasons 
of ... disability, incur the penalty of special disqualification for the exercise of profession, 
trade, industry or commerce and special disqualification for educational profession or trade, 
in the field  of teaching, sports and leisure for  a period of  one to  four  years.’  The  key is 
whether social protection, social security and healthcare should come under the concept 
of ‘a benefit’ (una prestación) mentioned in the Criminal Code. 

The General Law on the Rights of Persons with Disabilities and their Social Inclusion (RLD 
1/2013) establishes that the social protection must avoid discrimination, direct or indirect, 
on the ground of disability (Articles 48-52) and establishes a system of sanctions that mean 
that the prohibition can be said to be real and effective (Articles 80-88). 

In  its  Decision  3/2018,72  the  Constitutional  Court  considered  a  resolution  (and  the  legal 
provisions on which it was based) of the Community of Madrid to be discriminatory. Under 
this  resolution,  a  person  with  psychosocial  disabilities  was  denied  a  place  in  a  specialist 
centre for people with such disabilities. It was argued that he was over the age of 60, which 
is  the  age  limit  established  in  a  formal  regulation  of  the  Community  of  Madrid.  In  its 
decision,  the  Constitutional  Court  noted  that  the  appellant  had  suffered  multiple 
discrimination. First, this was because of his disability: as a result of the application of the 
regulation,  the  person  lost  the  right  to  the  medical  care  he  needed  because  of  his 
psychosocial disability. The identification of an age criterion, which is based on a personal 
circumstance, introduces a further cause of discrimination. According to the Constitutional 
Court,  there  was  therefore  multiple  discrimination,  due  to  both  disability  and  age.  The 
Court  consequently  declared  ‘that  his  fundamental  right  to  not  be  discriminated  against 
has been violated on the ground of age and disability’. 

In  2015  there  was  a  judgment  that  recognised  the  right  to  public  assisted  human 
reproduction  on  the  part  of  a  female  couple,  regardless  of  their  sexual  orientation.  Law 
14/2006 of 26  May 2006 on Assisted Human Reproduction Techniques (AHR) and Royal 
Decree 1030/2006 of 15 September 2006 expressly exclude any discrimination based on 
sexual  orientation.  However,  an  order  of  the  Ministry  of  Health  (SSI/2065/2014  of  31 
October 2014) states that AHR ‘will apply to people who have undergone a sterility study’. 
For female couples, this last clause was discriminatory on the basis of sexual orientation. 
Tania and Isabel (fictitious names) are a married couple. In April 2014, one of the women 
began AHR treatment at a private clinic that receives public funds. When Ministerial Order 
SSI/2065/2014  was  published,  the  clinic  suspended  the  treatment.  Social  Court  No. 18 
ruled on 15 September 2015 (Auto 672/2015), condemning the clinic for discrimination on 
the  ground  of  sexual  orientation  and  noting  that  the  applicant  was  entitled  to  AHR 
treatment by direct application of Law 14/2006. It further ruled that, by not being provided 
this  treatment,  the  couple  had  been  discriminated  against  based  on  their  sexual 
orientation.73 

71   Organic Law 10/1995 of 23 November 1995 of the Criminal Code (Ley Orgánica 10/1995, de 23 de 

noviembre, del Código Penal) (BOE, 24 November 1995), 
https://www.boe.es/buscar/pdf/1995/BOE-A-1995-25444-consolidado.pdf. 

72   Constitutional Court Decision 3/2018, 22 January 2018, 

https://hj.tribunalconstitucional.es/docs/BOE/BOE-A-2018-2459.pdf. 
An explanation of the case can be seen in Section 2.1.2 (multiple discrimination) of this report. 

73   This judgment was not appealed, and the Ministry has not (yet) amended the Order of 31 October 2014. 

However, Law 14/2006 and Royal Decree 1030/2006, which regulate AHR, clearly establish that there can 
be no discrimination based on sexual orientation. Therefore, the Order of 31 October 2014 must be 
interpreted in this non-discriminatory manner. 

41 

 
 
 
 
 
 
 
 
 
a) 

Article 3(3) exception (Directive 2000/78) 

Law 62/2003 does not contain any specific provisions in relation to the exception in Article 
3(3) of Directive 2000/78 on the grounds of religion or belief, age, disability and sexual 
orientation. Various social security and social protection provisions establish differences on 
grounds  of  age,  and  of  other  conditions,  but  not  religion  or  belief,  disability,  sexual 
orientation or racial or ethnic origin. 

The ECtHR held on 3 April 2012, in the case of Manzanas v. Spain,74 that there had been 
a violation of Article 14 (prohibition of discrimination) of the ECHR. The case concerned a 
difference in treatment between priests of the Catholic Church and Evangelical ministers 
regarding the calculation of their pension rights before 1999. The  court agreed  with the 
Government that there had been objective and non-discriminatory reasons for integrating 
religious ministers into the general social security scheme at different times. However, the 
refusal to recognise Mr Manzanas’s right to receive a retirement pension amounted to a 
different  treatment,  the  only  difference  here  being  one  of  religious  faith.  Although  the 
reasons for the delay in bringing religious ministers into the general social security scheme 
fell within the  state’s margin of appreciation, the court  considered that the  Government 
had failed to justify the reasons why a difference of treatment between similar situations, 
based solely on grounds of religious belief, had been maintained. 

3.2.6  Social advantages (Article 3(1)(f) Directive 2000/43) 

In Spain, national legislation prohibits discrimination in social advantages (i.e. benefits), 
as formulated in the Racial Equality Directive. 

The  social security  system is based on four principles: universality, unity, solidarity and 
equality (RLD 8/2015 of the General Social Security Act, Article 2). Article 29(1) of  Law 
62/2003 recognises the principle of non-discrimination on the grounds of racial or ethnic 
origin in social benefits, in line with Directive 2000/43.  

However, this law does not provide any measure to make the principle of equal treatment 
‘real  and  effective’,  because  it  does  not  establish  any  sanctions.  Therefore,  it  could  be 
considered  that  there  has  been  a  violation  of  the  directive’s  requirements  regarding 
sanctions. 

However,  judges  must  consider  whether  Article  512  of  the  Criminal  Code  (Organic  Law 
10/1995) could be applied and must decide whether ‘social advantages’ should be included 
under the concept of ‘a benefit’ (una prestación) as mentioned in the Criminal Code. 

The General Law on the Rights of Persons with Disabilities and their Social Inclusion (RLD 
1/2013)  establishes  that  the  ‘social  advantages’  must  avoid  discrimination,  direct  or 
indirect, on the ground of disability (Articles 48-52) and establishes a system of sanctions 
that mean that the prohibition can be said to be real and effective (Articles 80-88). 

Any clauses introducing differences of treatment in ‘social advantages’ on the grounds of 
racial  or  ethnic  origin,  religion  or  belief,  disability  or  sexual  orientation  would  be 
discriminatory  (Spanish  Constitution,  Article  14),  but  not  on  the  grounds  of  age  if  the 
differences are ‘objectively and reasonably justified by a legitimate aim’. For example, it is 
common practice for there to be special discount rates for young people and the elderly 
for public transport and some private transport. 

Beyond the measures established by Law RLD 1/2013, there are some benefits available 
for persons with disabilities, such as special discounts for transport or in accessing some 
services  at  local  level.  Other  social  benefits,  such  as  benefits  for  large  families  and 

74   Manzanas v. Spain, No. 17966/10, 3 April 2012, http://hudoc.echr.coe.int/eng?i=001-110180. 

42 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
childbirth benefits, whether national, regional or local, must respect the principle of non-
discrimination and should be proportionate to the special circumstances for which they are 
designed. 

Law  RLD  1/2013  establishes  that  services  available  to  the  public,  buildings  and 
infrastructure should be designed and built in a disability-accessible way. 

In Spain, the lack of a definition of ‘social advantages’ does not raise legal problems. 

3.2.7  Education (Article 3(1)(g) Directive 2000/43) 

In  Spain,  national  legislation  prohibits  discrimination  in  education,  as  formulated  in  the 
Racial Equality Directive. 

Article 29(1) of Law 62/2003 recognises the principle of non-discrimination on the grounds 
of racial or ethnic origin in education in line with Directive 2000/43. But this law does not 
provide any measure to make the principle of equal treatment ‘real and effective’, because 
it does not establish sanctions. To be ‘real and effective’, judicial interpretation is required 
and judges must consider whether Article 512 of the Criminal Code (Organic Law 10/1995) 
could be applied and whether education should be included under the concept of ‘a benefit’ 
(una prestación) mentioned in the Criminal Code. 

The General Law on the Rights of Persons with Disabilities and their Social Inclusion (RLD 
1/2013) establishes that the education system must avoid discrimination, direct or indirect, 
on the ground of disability (Articles 16 and 18-21) and establishes a system of sanctions 
that mean that the prohibition can be said to be real and effective (Articles 80-88). 

Equal  treatment  and  non-discrimination  have  been  consolidated  as  basic  principles  of 
education in Spain.  

The  main  Spanish  legislation  in  this  area  comprises  Organic  Law  2/2006  on  Education 
(OLE),75  modified  by  Organic  Law  8/2013  on  Improving  the  Quality  of  Education76  and, 
more recently, Organic Law 3/2020 of 29 December 2020.  

The  new  law  adopted  in  2020,  amending  the  Organic  Law  on  Education,  introduces 
important references to the principle of equality and non-discrimination. 

First, with regard to the principles on which the Spanish education system is based, under 
the new principle set out in Article 1a bis), the education system must be based on quality 
education for all students without discrimination on grounds of birth, sex, racial, ethnic or 
geographical origin, disability, age, illness, religion or beliefs, sexual orientation or sexual 
identity,  or  any  other  personal  or  social  condition  or  circumstance.  According  to  the 
principle  set  out  in  Article  1b),  the  education  system  is  based  on  equity,  helping  to 
overcome any form of discrimination and affording universal access to education. It shall 
act  as  a  compensating  factor  for  personal,  cultural,  economic  and  social  inequalities, 
especially those stemming from any type of disability, in accordance with the Convention 
on the Rights of Persons with Disabilities, which was ratified by Spain in 2008. 

Second, following the amendments to the Organic Law on Education, the new law is aimed 
at providing education in respect for fundamental rights and freedoms, equality of rights 
and  opportunities  between  men  and  women,  equal  treatment  and  non-discrimination  of 

75   Organic Law 2/2006 of 3 May 2006 on Education (Ley Orgánica 2/2006, de 3 de mayo, de Educación) (BOE, 

4 May 2006),  
http://www.boe.es/boe/dias/2006/05/04/pdfs/A17158-17207.pdf. 

76   Organic Law 8/2013 of 9 December 2013 on Improving the Quality of Education (Ley Orgánica 8/2013, de 9 

de diciembre, para la mejora de la calidad educativa) (BOE, 10 December 2013), 
http://www.boe.es/boe/dias/2013/12/10/pdfs/BOE-A-2013-12886.pdf. 

43 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
people on grounds of birth, racial or ethnic origin, religion, beliefs, age, disability, sexual 
orientation or identity, illness, or any other condition or circumstance. 

Third,  the  new  law  lays  down  that  primary  education  (6-12  years)  should  contribute  to 
developing children’s capacity to know about, understand and respect different cultures, 
differences  between  peoples,  and  equal  rights  and  opportunities  for  men  and  women, 
without any discrimination against people based on ethnicity, sexual orientation or identity, 
religion or beliefs, disability, or any other condition. 

Fourth, the Baccalaureate (taken from the age of 16) must also contribute to developing 
students’  capacity  to  promote  real  equality  and  non-discrimination  based  on  birth,  sex, 
racial  or  ethnic  origin,  disability,  age,  religion  or  beliefs,  sexual  orientation  or  gender 
identity, or any other personal or social condition or circumstance. 

Fifth, it should also be noted that  state inspection interventions in the education system 
are based on the principle of respect for fundamental rights and public freedoms, on the 
defence  of  the  common  interest  and  democratic  values,  and  on  preventing  any  conduct 
that may generate discrimination on grounds of origin, gender, sexual orientation, religious 
convictions, opinion, or any other personal or social circumstance. 

Finally, the new law requires that equal treatment and non-discrimination be addressed at 
the different stages of basic education (as a general rule, basic education is considered to 
cover education between the ages of 6 and 16). It adds that the study of, and respect for, 
other  cultures,  particularly  those  of  the  Roma  and  other  groups,  shall  be  taken  into 
consideration. The aim is to contribute to appreciating cultural differences and recognising 
and  disseminating  the  history  and  culture  of  ethnic  minorities  in  Spain,  thus  promoting 
knowledge about them and reducing the use of stereotypes (41st additional provision). 

Although  the  law  establishes  the  general  principle  of  non-discrimination,  it  could  be 
considered  that  there  has  been  a  violation  of  the  directive,  given  that  the  law  does  not 
provide for any sanctions (except in respect of disability), and is therefore not ‘real and 
effective.’ 

Organic  Law  6/2001  on  Universities77  provides  that  students  are  entitled  to  ‘Equal 
opportunities and non-discrimination on the grounds of sex, race, religion or disability or 
any  other  personal  or  social  condition  or  circumstance78  in  access  to  the  university, 
admission to centres, permanence in the university and exercise of their academic rights’ 
(Article 46(2)). 

The debate on school ‘segregation’ has become high profile in Spain, with a large rise in 
the  number  of  immigrants  and  foreigners  of  school  age  over  the  past  years.  Foreign 
children are mostly concentrated in state schools (as opposed to private schools). There is 
a  consensus  in  Spanish  social  research  that  this  concentration  cannot  be  described  as 
‘segregation’ (there is no any legal coercion because the parents can choose the school), 
although the concentration is high due to the fact that most of the parents choose schools 
close  to  their  home  and,  therefore,  in  each  school  there  are  people  of  the  same  social 
condition. Public schools are of good quality compared with private schools, and according 
to several scholars the fact that the school performance of immigrant and Roma pupils is 
somewhat lower than the rest of the general population is due mainly to the socioeconomic 

77   Organic Law 6/2001 of 21 December 2001 on Universities (Ley Orgánica 6/2001, de 21 de diciembre, de 

Universidades) (BOE, 24 December 2001), 

   https://www.boe.es/buscar/pdf/2001/BOE-A-2001-24515-consolidado.pdf. 
78   The Constitutional Court ruled that age (Decision 31/1984, 7 March 1984), disability (Decision 269/1994, 

October 1994) and sexual orientation (Decision 41/2006, February 2006) are included in the generic phrase 
‘any other personal or social circumstance’ in Article 14 of the Spanish Constitution. See Section 1 (General 
legal framework) of this report. 

44 

 
 
 
 
 
 
 
 
 
 
 
and cultural characteristics of families, rather than the schools (see Garreta 2003; Cebolla 
2015). 

The OLE provides that ‘in no event shall there be discrimination on the grounds of birth, 
race,  sex,  religion,  opinion  or  any  other  personal  or  social  condition  or  circumstance’ 
(Article  84(3)  (this  article  of  the  OLE  guarantees  the  non-discrimination  of  migrants  in 
Spain in the field of education.) The same protection and equality among Spanish nationals 
are  established  by  Organic  Law  4/2000,  which  establishes  the  rights  and  freedoms  of 
foreigners in Spain. Article 8 of OL 4/2000 establishes a right to education for foreigners 
(both  legal  and  undocumented)  in  Spain  under  the  same  conditions  as  for  Spanish 
nationals. 

The OLE also provides that the various tiers of government must develop compensatory 
measures in relation to persons, groups and regions in adverse situations and provide the 
necessary economic resources and support. ‘Groups’ refers in particular to Roma people 
and immigrants. As discussed earlier, the 2020 Education Act has established that the basic 
education  syllabus  –  i.e.  the  set  of  objectives,  competencies,  contents,  pedagogical 
methods and assessment criteria – take into  consideration cultural aspects  of the Roma 
people and other groups and collectives. 

The Spanish Committee of Representatives of Persons with Disabilities (CERMI) promoted 
a series of proposals to make up for or mitigate shortcomings that became apparent during 
the  state  of  alarm  resulting  from  the  COVID-19  health  crisis.  Above  all,  it  called  for 
guaranteeing the use of accessible technological devices, including through the creation of 
lending  banks;  ensuring  access  to  assessment  channels,  materials  and  methods; 
promoting online leisure activities that favour the interaction of students with disabilities 
with  other  students;  and  combating  loneliness  and  isolation  aggravated  by  physical 
distance. It also called for the creation of a team of locum teachers to provide face-to-face 
support  to  students  with  disabilities  in  their  homes,  and  to  strengthen  coordination 
between teachers, support staff, students and families. The adoption of these measures or 
mechanisms  would  be  covered  by  the  General  Education  Act  (LO  2/2006).  Under  this 
legislation, the education authorities are assigned the task of encouraging students with 
special  educational  needs  to  continue  their  schooling  in  an  appropriate  manner  at  all 
compulsory  and  post-compulsory  levels  of  education.  They  are  also  responsible  for 
adapting  the  conditions  for  sitting  examinations,  as  set  out  by  law,  for  people  with 
disabilities who require this. Also specified is the responsibility of the education authorities 
to  provide  the  necessary  complementary  resources,  support  and  provision  for  special-
needs education relating to disability (regulated in Title 2 of the Act). 

a)   Trends and patterns regarding Roma pupils 

In  Spain,  there  are  no  specific  trends  and/or  patterns  (whether  legal  or  societal)  in 
education regarding Roma pupils (including immigrant Roma pupils), such as segregation. 

The OLE provides (under Article 74) that schooling for pupils with special educational needs 
‘shall be governed by the principles of standardisation and integration and shall guarantee 
non-discrimination and effective equality in access to and continuance in the [mainstream] 
education system’. The law also provides that the various tiers of government shall develop 
compensatory actions in relation to persons, groups and regions in adverse situations and 
shall provide the necessary economic resources and support. ‘Groups’ refers in particular 
to Roma people (and immigrants). 

As previously stated, Law 3/2020, adopted in 2020, amending the OLE, establishes in its 
41st additional provision that the study of and respect for other cultures, particularly the 
Roma and other groups, will be taken into consideration in the basic education ‘curriculum’. 
In  other  words,  the  basic  education  syllabus  (i.e.  the  set  of  objectives,  competencies, 
contents,  pedagogical  methods  and  assessment  criteria)  will  take  into  consideration 

45 

 
 
 
 
 
 
 
 
 
cultural  aspects  of  the  Roma  people  and  other  groups  and  collectives.  The  aim  is  to 
contribute  to  appreciating  cultural  differences  and  recognising  and  disseminating  the 
history  and culture  of  ethnic minorities in Spain, thus promoting knowledge about them 
and  reducing  the  prevalence  of  stereotypes.  Also  addressed  is  knowledge  of  historical 
events and conflicts that have seriously violated human rights, such as the Holocaust and 
the history of the fight for women’s rights. 

For the academic year 2017-2018 (according to the latest data released by the Ministry of 
Education), 668 769 non-university students in Spain (equivalent to 8.3 % of the student 
population)  have  had  some  kind  of  ‘educational  support’.  Of  those  students:  32.9 % 
(219 720)  received  support  for  special  educational  needs  associated  with  disability  or 
serious  disorder;  58.4 %  (390 478)  received  support  for  other  specific  needs  (students 
with developmental language or learning disorders,79 with severe lack of knowledge of the 
language  of  instruction  or  in  a  situation  of  socio-educational  disadvantage  —  Roma 
represent a significant proportion of those with socio-educational disadvantages); 3.7 % 
(24  458)  received  support  for  late  integration  into  the  Spanish  educational  system  (in 
almost  all  cases,  these  were  immigrants  who  were  incorporated  into  classes  after  the 
school year had already started); and the remaining 5.1 % (34 113) received support for 
high intellectual capacity.80 

No specific legislation has been adopted on the access of Roma children to the education 
system.  Nonetheless,  the  Government  (specifically,  the  Ministry  of  Social  Rights)  has 
adopted  a  technical  paper  of  recommendations  for  action  in  the  health  crisis  caused  by 
COVID-19,  to  be  used  by  the  social  services  in  segregated  settlements  and  high-risk 
neighbourhoods. The competent authorities (autonomous communities and city councils) 
have been asked in this paper to strengthen the role of social and education services, both 
in the schools themselves and in other support facilities, in order to minimise the impact 
of the pandemic and the digital divide on children and adolescents.  

3.2.8  Access to and supply of goods and services that are available to the public 

(Article 3(1)(h) Directive 2000/43) 

In Spain, national legislation prohibits discrimination in access to and supply of goods and 
services, as formulated in the Racial Equality Directive.  

Article 29(1) of Law 62/2003 recognises the principle of non-discrimination on the ground 
of racial or ethnic origin in access to and supply of goods and services that are available to 
the public, in line with Directive 2000/43. However, this law does not provide any measures 
to make the principle of equal treatment ‘real and effective’, because it does not establish 
sanctions. 

79   Students who need extra language tuition are taught in normal classrooms throughout the school year. 
There are two types of support teachers in education centres: specialists in therapeutic pedagogy and 
specialists in hearing and language. The latter deal with students who have language difficulties. Teaching 
can be individualised or in a group, with individualised tuition provided in the normal classroom during 
classes. This service has been greatly reduced as a consequence of the decrease in the number of support 
teachers assigned by the educational authorities to each centre. Group care is usually provided to small 
groups of three or four students, and can take place in the normal classroom, but it is more common for 
such groups to meet in special small classrooms for part of each school day. For the rest of the time, the 
students attend classes with the rest of the students. Depending on the centre, the groups are made up of 
students of different ages who have similar needs, or of students of the same age with somewhat different 
needs. 
In special situations, when there are a significant number of students who have no (or very little) knowledge 
of Spanish, intensive language training groups are organised, but these students are incorporated as soon 
as possible into the corresponding normal classes. 

80   Source: Ministerio de Educación (2019), Estadística de las enseñanzas no universitarias. Alumnado con 

necesidad específica de apoyo educativo. Curso 2017-2018, 
https://www.educacionyfp.gob.es/dam/jcr:59c7fa10-d640-4437-bacb-91a32793ba9f/notaresumen.pdf. 

46 

 
 
 
 
 
 
 
 
 
 
RLD 1/2013 establishes that the goods or services available to the public, public or private, 
must avoid discrimination, direct or indirect, on the ground of disability (Articles 5 and 29) 
and establishes a system of sanctions that mean that the prohibition can be said to be real 
and effective (Articles 80-88). A failure to adapt goods or a service to meet the needs of a 
person  with  a  disability  is  a  form  of  discrimination  (RLD  1/2013,  Article  29(1)).  Article 
29(3)  establishes  that  differences  of  treatment  in  access  to  goods  and  services  ‘will  be 
admissible  when  justified  by  a  legitimate  purpose  and  the  means  to  achieve  it  are 
adequate, proportionate and necessary.’ 

For  its  part,  Article  511  of  the  Criminal  Code  (Organic  Law  10/1995)  establishes  jail 
sentences, fines and disqualification from holding public office ‘to individuals in charge of 
a public service who refuse a person a benefit (una prestación) to which he is entitled due 
to his … religion or belief … belonging to an ethnic group or race … sexual preference … or 
handicap.’ Public benefits (prestaciones públicas) can take the  form of financial benefits 
(such as pensions or unemployment benefits) or the provision of different services such as 
education, health care or various social services. When these benefits are in the form of 
services, they can be implemented directly by public administrations or, in some cases, by 
private companies. It can be considered that this provision introduces measures that make 
the prohibition of discrimination in access to  public services ‘real and effective’. But this 
provision does not cover private services open to the public. Although Article 29(1) of Law 
62/2003 recognises the principle  of non-discrimination on the ground of  racial or ethnic 
origin also in the private services open to the public, neither Law 62/2003 nor the Criminal 
Code  have  established  measures  to  make  the  principle  of  equal  treatment  'real  and 
effective' in private sector services open to the public (except in the field of disability where 
sanctions  have  been  established).  That  can  be  considered  a  potential  breach  of  the 
Directive 2000/73. 

In  the  access  to  goods,  although  the  law  establishes  the  general  principle  of  non-
discrimination in access to and supply of goods, it could be considered that there has been 
a violation of the directive, because the prohibition is not ‘real and effective’, given that it 
does not provide for any sanctions (except in relation to disability). 

An interesting ruling was made in relation to access to services which are available to the 
public. Air Nostrum, a subsidiary airline of Iberia Líneas Aéreas de España, refused to allow 
three  deaf  people  on  board,  on  the  grounds  that  they  were  unaccompanied.  It  claimed 
that, according to its flight operation manual, the safety of these persons could be at risk 
in an emergency. A court of first instance ruled in Iberia’s favour, but the Madrid Provincial 
Court, in judgment 211/2009 of 6 May 2009, ruled in favour of the three deaf people, who 
were represented by the National Confederation of the Deaf and the Spanish Committee 
of Disabled Persons Representatives.  The  Madrid Provincial Court deemed this a  case of 
‘indirect  discrimination’  and  noted  that  Law  51/2003  of  2 December  2003  on  Equal 
Opportunities, Non-discrimination and Universal Accessibility for Persons with Disabilities 
prevails  over  Iberia’s  flight  operation  manual,  and  that  not  allowing  these  three  deaf 
persons on board may be regarded as ‘indirect discrimination’ pursuant to Article 6(2) of 
that law, which transposes Article 2(2)(b) of Directive 2000/78/EC. Although the directive 
only addresses employment discrimination, Law 51/2003 (now in RLD 1/2013) also covers 
discrimination regarding access to goods and services. The provincial court ordered Iberia 
to take steps to ensure that ‘the infringement of rights of disabled persons ceases and that 
deaf persons are not discriminated against in its flights’. This was the first court ruling to 
apply the concept of ‘indirect discrimination’ in access to goods and services in Spain. The 
judgment included the EU directives’ definition of indirect discrimination and noted that the 
internal company regulation that the company wanted to apply to prevent access to the 
flight to the three deaf people was ‘an apparently neutral provision ... but could cause a 
particular disadvantage to these persons because of their disability’. 

47 

 
 
 
 
 
 
 
 
a)  Distinction between goods and services available publicly or privately 

In Spain, national law does not distinguish between goods and services that are available 
to  the  public  (e.g.  in  shops,  restaurants  and  banks)  and  those  that  are  only  available 
privately (e.g. those restricted to members of a private association). 

3.2.9  Housing (Article 3(1)(h) Directive 2000/43) 

In Spain, national legislation prohibits discrimination in the area of housing, as formulated 
in the Racial Equality Directive. 

Law  62/2003  recognises  the  principle  of  non-discrimination  on  the  grounds  of  racial  or 
ethnic origin in housing (Article 29(1)), in line with Directive 2000/43. However, this law 
does  not  provide  any  measures  to  make  the  principle  of  equal  treatment  ‘real  and 
effective’.  However,  judges  must  consider  whether  Article  512  of  the  Criminal  Code 
(Organic  Law  10/1995)  could  be  applied  and  must  decide  whether  ‘housing’  should  be 
included  under  the  concept  of  ‘a  benefit’  (una  prestación)  as  mentioned  in  the  Criminal 
Code. 

The General Law on the Rights of Persons with Disabilities and their Social Inclusion (RLD 
1/2013)  establishes  that  housing  must  avoid  discrimination,  direct  or  indirect,  on  the 
ground of disability (Articles 48-52) and establishes a system of sanctions that mean that 
the prohibition can be said to be real and effective (Articles 80-88). 

Furthermore,  Article  32  of  RLD  1/2013  establishes  a  housing  stock  for  people  with 
disabilities  and  establishes  that  at  least  4 %  of  homes  built  in  public  programmes 
(viviendas protegidas) will be built with a design suitable for people with disabilities. 

Although  the  law  establishes  the  general  principle  of  non-discrimination,  it  could  be 
considered  that  there  has  been  a  violation  of  the  directive,  given  that  the  law  does  not 
provide  for  any  sanctions  (except  in  relation  to  disability)  and  is  therefore  not  ‘real  and 
effective.’ 

Article 13 of Organic Law 4/2000, which establishes the rights and freedoms of foreigners 
in  Spain,  establishes  ‘housing  rights’  for  immigrants  in  Spain:  ‘Resident  foreigners  have 
the right to access public aid systems in the matter of housing ... In any case, long-term 
resident aliens are entitled to such aid under the same conditions as Spanish nationals.’ In 
other words, all legal immigrants can access social housing and long-term legal immigrants 
can access public housing aid under the same conditions as the Spanish. 

Legal migrants are treated in the same way as Spaniards and nationals of other Member 
States under anti-discrimination legislation, and they benefit from anti-discrimination law 
enforcement and implementation in the field of housing on an equal basis with nationals. 
However,  the  practical  application  of  the  relevant  legal  provisions  could  be  improved. 
Immigrants of certain national origins and the Roma tend to congregate in certain districts, 
which  leads  to  a  significant  concentration  of  the  population.  This  situation  becomes  a 
problem  when  it  is  compounded  by  poor  living  conditions,  sometimes  involving  illegal 
construction or the growth of slum districts. Undocumented migrants do not have the same 
access to social housing as legal migrants. 

a) 

Trends and patterns regarding housing segregation for Roma 

In Spain, there are no patterns of housing segregation and discrimination against the Roma 
(although  the  reality  is  that  many  Roma  live  in  very  concentrated  conditions  in  certain 
urban and rural areas). Policies that aim to facilitate the accommodation of the Roma are 
general  policies,  and  integration  is  now  favoured,  especially  in  mixed  working-class 
neighbourhoods.  At  the  end  of  the  Franco  dictatorship,  most  Spanish  Roma  lived  in 

48 

 
 
 
 
 
 
 
 
 
 
 
 
 
substandard housing, much of it illegal and self-constructed (chabolas) in the slum suburbs 
of cities or towns (Cortés 1995). In the democratic period, numerous actions of relocation 
(national, regional and local) have radically changed this residential situation, and most of 
the Roma now live in homes in working-class neighbourhoods of cities and towns, some in 
areas with high concentrations of Roma and others in more diverse neighbourhoods (Rio 
2014). However, due to the economic crisis of 2008 and the social policies that have been 
implemented,  many  Roma  (like  other  parts  of  the  population  that  have  suffered  the 
consequences of the crisis more seriously), face eviction and have had to leave their homes 
because  they  cannot  pay  their  mortgages.  As  a  result,  there  has  been  an  increase  in 
substandard  housing  among  the  Roma,  not  because  they  are  Roma,  but  because,  as 
summarised by the Fundación Secretariado Gitano (FSG 2013), ‘the crisis affects earlier, 
harder, during more time and with more harmful and lasting effects the people and groups 
that were already in situations of vulnerability, poverty or social exclusion, as is the case 
with  more  than  two  thirds  of  the  Roma  community’.  Despite  the  social  gravity  of  these 
evictions, for the population in general and for the Roma in particular, there is no violation 
of the right to respect for private and family life nor a problem of discrimination. 

Many  Spanish  local  authorities  have  carried  out  generally  successful  relocation 
programmes for Roma in towns (moving from the marginal and segregated dwellings that 
previously occupied new areas to better housing conditions that are more integrated and 
socially  diverse).  In  some  cases,  these  relocation  programmes  have  encountered 
opposition from other residents, but in general the administrations succeed in carrying out 
such rehousing. 

49 

 
 
 
 
4 

EXCEPTIONS 

4.1  Genuine and determining occupational requirements (Article 4) 

In  Spain,  national  legislation  provides  for  an  exception  for  genuine  and  determining 
occupational requirements. 

Law 62/2003 (Article 34(2)) reproduces the occupational requirement exception of Article 
4(1) of the directive, which provides that: ‘Differences based on a characteristic related to 
any  of  the  causes  referred  to  in  the  previous  paragraph  [all  the  grounds  of  Directives 
2000/43 and 2000/78] do not amount to discrimination when, owing to the nature of the 
specific  professional  activity  concerned  or  the  context  in  which  it  is  carried  out,  such  a 
characteristic constitutes an essential and determinant professional requirement, provided 
that the objective is legitimate and the requirement is proportionate’. 

Prior to the transposition of the directives into domestic Spanish law, Article 17(2) of the 
Workers’  Statute  stated  that  ‘exclusions,  reservations  and  preferences  in  respect  of 
unrestricted employment may be established by law’. 

4.2  Employers with an ethos based on religion or belief (Article 4(2) Directive 

2000/78) 

In  Spain,  national  law  provides  for  an  exception  for  employers  with  an  ethos  based  on 
religion or belief. 

Article 34 of Law 62/2003 provides for non-discrimination in employment on the ground of 
religion or belief and amends other laws, such as the Workers’ Statute, in this respect, but 
makes no reference to organisations with an ethos based on religion or belief.  

For organisations with a specific ethos, Article 6 of the Organic Law on Religious Freedom 
states: ‘Registered churches, faiths and religious communities shall be fully independent 
and may lay down their own organisational rules, internal and staff byelaws. Such rules, 
as well as those governing the institutions that they create to accomplish their purposes, 
may  include  clauses  safeguarding  their  religious  identity  and  own  personality  as  well  as 
due respect for their beliefs, without prejudice to the rights and freedoms recognised by 
the Constitution and in particular those of freedom, equality and non-discrimination’. The 
third additional provision of  Organic Law 2/2006 on Education  regulates the  situation of 
teachers of religion at private (religious) centres. In the opinion of the author of this report, 
taking into consideration CJEU C-414/16 and C-68/17, these provisions are in keeping with 
Article 4(2) of Directive 2000/78.  

As Puente (2004) points out, the scope of these clauses is the regulation of employment 
relationships in institutions with a specific  ethos. In practice, the exemptions operate at 
three stages of the employment relationship: first, access to employment; secondly, during 
the  performance  of  an  activity  within  the  organisation;  and  thirdly,  dismissal  from  that 
activity. At the first stage, before the signature of the labour contract, the general rule is 
that religious reasons cannot be claimed for preventing anyone from exercising their right 
to work. Moreover, according to Article 16(2) of the Constitution, nobody may be compelled 
to make statements regarding his/her religion, belief or ideology, which means that there 
is  a  prohibition  against  asking  about  the  ideology  or  beliefs  of  the  worker.  However,  in 
these organisations, questions about religion and belief, and the requirement that workers 
accommodate  their  private  lives  to  the  ethos  of  the  enterprise,  seem  genuine  and 
legitimate if the activity to be performed is linked to the ideological orientation pursued by 
the  organisation.  This  relates  to  the  situation  of  religious  education  teachers  in  state 
schools. At the second stage, during the employment relationship, the employees have to 
show respect for the ideology of the enterprise. This respect for the ideology also includes 
out-of-work activities, if they affect this ethos. At the third stage, although the general rule 

50 

 
 
 
 
 
 
 
 
 
 
 
says that a discriminatory dismissal is void, in those organisations with a specific ethos it 
will not be discriminatory if there has been behaviour hostile to that ethos.  

− 

Conflicts between rights of organisations with an ethos based on religion or belief and 
other rights to non-discrimination 

In Spain, there are specific provisions and case law in this area relating to conflicts between 
the rights of organisations with an ethos based on religion or belief and other rights to non-
discrimination in the context of employment.  

According to general constitutional doctrine, since the principle of good faith should govern 
employment relationships (Article 5(a) of the Workers’ Statue, RLD 2/2015), employees in 
ideological or ethos-based organisations can be asked to conform to a minimal extent with 
the organisation’s ethos.81  

Both doctrine and the courts have made it explicit that, even within ideological institutions, 
one  has  to  distinguish  between  ideological  and  neutral  employment  positions.  Only  the 
former  are  about  transmitting  the  ideology  of  the  institution  and  thus  those  in  which 
ideological affinity can be expected.82 This brings up interesting issues given Catholicism’s 
longstanding rejection of homosexuality, for example. In this respect, especially in relation 
to private religious schools, the Constitutional Court has considered that, once again, the 
most relevant factor to be taken into consideration is what the job itself consists of. If the 
job  is  strictly  linked  to  spreading  the  school’s  ethos,  constraints  will  be  more  justifiable 
than if the job consists of developing purely technical expertise or is restricted to the pure 
transmission  of  knowledge.83  According  to  some  academic  doctrine,  this  would  allow 
employers in this kind of institution to inquire about the worker’s sexual orientation if the 
occupational activity is linked to spreading the school’s ethos (Vicente 1998). On the other 
hand,  some  scholars  have  pointed  out  that  it  is  a  worker’s  conduct  and  not  his  sexual 
preferences per se that could be seen as violating the institution’s ethos, so that it is only 
when the conduct is notorious and has the capacity to discredit the institution’s ethos that 
measures can be taken (Fernández 1985).84  

4.3  Armed  forces  and  other  specific  occupations  (Article  3(4)  and  Recitals  18 

and 19 Directive 2000/78) 

In Spain, national legislation does not provide for an explicit exception for the armed forces 
in this regard. However, both Law 8/2006 (for army troops and sailors in the navy) and 
Law 39/2007 and Royal Decree 35/2010 (for career military) make numerous references 
to age limits. 

For army troops and sailors in the navy (militares de tropa y marineria), Law 8/2006 on 
Troops and Sailors85 establishes that, in order to participate in the selection processes for 
the training courses that require to be followed  to join the ranks of the army and navy, 
applicants must be at least 18 years old but no older than 29 (Article 3(1)(e)). This upper 
age  limit  of  29  was  challenged  before  the  Supreme  Court.  However,  in  its  judgment 
3842/2012  of  30  May  2012,86  the  Supreme  Court  considered  that  the  maximum  age 

81   Constitutional Court Decision 47/1985, 27 March 1985, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/427. 

82   Constitutional Court Decision 106/1996, 12 June 1996, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/3158. 

83   Constitutional Court Decision 5/1981, 13 February 1981, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/5. 

84   A general analysis of jurisprudence in Spain can be seen in Salas (2014). 
85   Law 8/2006 of 24 April 2006 on Troops and Sailors (Ley 8/2006, de 24 de abril, de Tropa y Marinería) (BOE, 

25 April 2006), https://www.boe.es/buscar/pdf/2006/BOE-A-2006-7319-consolidado.pdf. 
86   Sentencia Tribunal Supremo, Sala Contencioso (Judgment of the Supreme Court, Contentious-

Administrative Chamber) 3842/2012, 30 May 2012,  
http://www.poderjudicial.es/search/index.jsp. 

51 

 
 
 
 
 
 
 
 
 
 
 
limitation  established  by  law  did  not  generate  discrimination  because  the  difference  in 
treatment was justified and covered the proportionality criterion. 

The situation is different regarding the rules governing access to career military personnel 
(militares de  carrera).  The law  regulating access to  a professional  military  career in the 
armed forces (Law 39/2007 of 19 November 2007 on Military Careers)87 states in Article 
56,  on  ‘General  requirements  for  admission  to  educational  training  centres’  that:  ‘Entry 
into  military  training  centres  shall  be  by  public  competition,  [guaranteeing]  the 
constitutional  principles  of  equality,  merit  and  ability  ...  Applicants  must  (among  other 
conditions)  ...  be  18  or  older,  and  not  have  passed  the  age  limits  provided  for  in  the 
regulations’. Therefore, the law does not establish any upper age limit, although it foresees 
that such age limits will be established by regulations.  

Article  16  of  the  Regulation  on  Entry  into  the  Armed  Forces,  approved  by  Royal  Decree 
35/201088 (partially modified by Royal Decree 378/2014 of 30 May 2014 and also in 2020 
by  Royal  Decree  556/2020  of  9  June  2020),  sets  ‘Age  specific  requirements’,  both  for 
troops and sailors (following the provisions of Law 8/2006) and for career military (which 
were not established in Law 39/2007). The age limits are different for the various corps 
and ranks in the army  (ranging between 21 and 40).  At no point does the  royal decree 
offer any justification for the upper age limits.  

Three parts of Article 16 of the royal decree were repealed by the Supreme Court Judgment 
of  9  May  2014.89  In  this  judgment,  the  Supreme  Court  considered  that,  for  the  career 
military of the Intendancy, the Military Legal Corps and Military Intervention, the age limits 
established  in  Royal  Decree  35/2010  were  not  adequately  justified  and  had  only  been 
established by the royal decree and not in a law. Therefore, the Supreme Court declared 
‘the nullity of the maximum age limit to participate in the selection processes for admission 
to military training centres in order to be incorporated, by direct entry, at the official scales’ 
of the these three bodies of the Armed Forces. 

Therefore, at present, there is an age limit of 29 for troops and sailors entering the army 
and  navy  (established  in  Law  8/2006),  with  a  different  age  limit  for  career  military 
(established in RD 35/2010). However, there is no legal limit in force for entering a military 
career in three bodies: the Intendancy, the Military Legal Corps and Military Intervention 
(Supreme Court Judgment of 9 May 2014). 

In Spain, national legislation does not provide for an explicit exception for the armed forces 
in relation to disability discrimination.  

On a separate issue, both Law 8/2006 (for army troops and navy sailors) and Law 39/2007 
(the  Military  Career  Law)  make  numerous  references  to  the  psychophysical  skills  that 
armed  forces  personnel  must  have.  Law  39/2007,  for  example,  addresses  changes  in 
professional  destination,  retiring  from  military  service  and  resolving  one’s  commitment 
with the armed  forces.  Under this  law, proceedings can be begun for  military personnel 
with  insufficient  psychophysical  skills.  The  law  ensures  that  if,  via  these  proceedings, 

87   Law 39/2007 of 19 November 2007, the Military Career Law (Ley 39/2007, de 19 de noviembre, de la 

carrera militar) (BOE, 20 November 2007), 
https://www.boe.es/buscar/pdf/2007/BOE-A-2007-19880-consolidado.pdf. 

88   Royal Decree 35/2010 of 15 January 2010, approving the Regulation of entry and promotion and the 

organisation of training in the Armed Forces (Real Decreto 35/2010, de 15 de enero, por el que se aprueba 
el Reglamento de ingreso y promoción y de ordenación de la enseñanza de formación en las Fuerzas 
Armadas) (BOE, 16 January 2010),  
https://www.boe.es/buscar/pdf/2010/BOE-A-2010-653-consolidado.pdf. 

89   Sentencia de 9 de mayo de 2014, de la Sala Tercera del Tribunal Supremo, por la que se anula el artículo 
16 del Reglamento de ingreso y promoción y de ordenación de la enseñanza de formación en la Fuerzas 
Armadas, aprobado por Real Decreto 35/2010 (Judgment of 9 May 2014 of the Third Chamber of the 
Supreme Court, which annuls Article 16 of the Regulation of entry and promotion and the organisation of 
training in the Armed Forces, as approved by Royal Decree 35/2010) (BOE, 15 July 2014), 
https://www.boe.es/boe/dias/2014/07/15/pdfs/BOE-A-2014-7473.pdf. 

52 

 
 
 
 
 
 
 
 
 
 
incapacity is established that entails a limitation  on travelling to certain destinations (or 
taking up postings),  equal treatment will be guaranteed in any destination  to which the 
respondent may have access. If permanent disability is declared, the affected person will 
not  continue  in  his/her  destination.  Law  8/2016  also  sets  out  that  the  long-term 
commitment agreed between military personnel with more than five years of service and 
the Armed Forces shall end in the event of a lack of psychophysical skills of the former.  

4.4  Nationality discrimination (Article 3(2)) 

a)  Discrimination on the ground of nationality 

In  Spain,  national  law  includes  exceptions  relating  to  difference  of  treatment  based  on 
nationality.  

The seventh additional provision of Law 62/2003, entitled ‘Non-applicability to immigration 
law’,  states  that  the  articles  transposing  the  directives  do  not  affect  the  regulations 
provided ‘in respect of the entry, stay, work and establishment of aliens in Spain in Organic 
Law  4/2000’.  In  Spain,  nationality  (as  in  citizenship)  is  not  explicitly  mentioned  as  a 
protected ground in Law 62/2003. Nonetheless, in relation to foreigners, Law 4/2000 on 
the rights and freedoms of foreigners in Spain and their social integration does establish a 
prohibition of discrimination on grounds of nationality against foreigners. 

b) 

Relationship between nationality and ‘racial or ethnic origin’ 

The  Organic  Law  on  the  Rights  and  Freedoms  of  Foreigners  in  Spain  and  their  Social 
Integration (OL 4/2000) (Article 23(2)) treats ‘nationality’ and ‘racial or ethnic origin’ as 
equivalent when prohibiting discriminatory acts ‘against a foreign citizen merely because 
of his condition as such or because he belongs to a particular race, religion, ethnic group 
or nationality.’ 

In  2009,  the  UN  Human  Rights  Committee  (UNHRC)  published  its  views,  in  which  it 
considered  that  there  had  been  a  violation  of  the  International  Covenant  on  Civil  and 
Political Rights by Spain in the case of Rosalind Williams.90 Mrs Williams, an Afro-American 
originally from the United States, acquired Spanish nationality in 1969. On 1992, a National 
Police officer asked to see her national identity card. The complainant asked the officer to 
explain the reasons for the identity check; the officer replied that he was obliged to check 
the identity of people ‘like her’, since many of them were illegal immigrants. The Spanish 
Constitutional Court, in a decision of 29 January 2001,91 justified the police action because 
it  ‘applied  the  racial  criterion  merely  as  indicating  a  greater  likelihood  that  the  person 
concerned  was  not  Spanish’,  and  because  ‘what  might  have  been  discriminatory  would 
have  been  the  use  of  a  criterion  [in  this  case  a  racial  one]  with  no  relation  to  the 
identification of persons for whom the law stipulates this administrative measure, in this 
case foreign citizens’. Mrs Williams submitted a complaint to the UNHRC.  The committee 
recalled  its  jurisprudence  that  not  every  differentiation  of  treatment  will  constitute 
discrimination,  if  the  criteria  for  such  differentiation  are  reasonable  and  objective  and  if 
the aim is to achieve a purpose which is legitimate under the Covenant, but in this case 
‘the  criteria  of  reasonableness  and  objectivity  were  not  met’.  Accordingly,  the  UNHRC 
declared that Article 2 of the Convention had been violated. 

The  UNHRC’s  views  are  very  significant  because  they  call  into  question  the  doctrine 
established by the Spanish Constitutional Court in 2001, legitimising the use of the racial 
criterion  as  a  valid  indicator  of  nationality  and  as  reason  to  assume  that  a  foreigner’s 
presence  in  Spain  is  more  likely  to  be  irregular.  This  decision  from  the  Spanish 

90   UNHRC Communication No. 1493/2009, Mrs Rosalind Williams Lecraf v. Spain, 27 July 2009, 
https://www.opensocietyfoundations.org/sites/default/files/decision-en_20090812.pdf. 

91   Constitutional Court Decision 13/2001, 29 January 2001, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/4309. 

53 

 
 
 
 
 
 
 
 
 
 
 
 
Constitutional Court had also been strongly criticised by human rights organisations and 
prominent jurists in Spain. 

4.5  Health and safety (Article 7(2) Directive 2000/78) 

In Spain, there are exceptions in relation to disability and health and safety, as provided 
for under Article 7(2) of the Employment Equality Directive. 

Law  31/1995  on  the  Prevention  of  Occupational  Risks  provides  regulations  for  the 
protection  of  workers  such  as  disabled  workers,  who  are  at  particular  risk  from  certain 
hazards. Article 25 of the law states: ‘Employers shall specially guarantee the protection 
of  workers  who,  owing  to  their  personal  characteristics  or  known  biological  condition, 
including those with a recognised physical, mental or sensorial disability (i.e. people who 
have been officially recognised as disabled, with 33 % disability or more), are especially at 
risk  from  the  hazards  involved  in  their  work.  To  this  end,  employers  must  take  these 
aspects into account in hazard assessments and, pursuant thereto, shall take the necessary 
preventive  and  protective  measures’.  The  law  further  states:  ‘Workers  shall  not  be 
employed in posts in which, in view of their personal characteristics  or known biological 
condition,  or  duly  recognised  physical,  mental  or  sensorial  disability,  they  may  put 
themselves,  other  workers  or  other  persons  connected  to  the  company  in  a  dangerous 
situation, or, generally, where they are patently in a temporary condition unsuited to the 
psychophysical requirements of their respective posts of employment’. 

Article 25  of Law 31/1995 on the  Prevention  of Occupational Risks was the basis  of the 
question presented by Social Court No. 3 of Barcelona before the CJEU about whether the 
concept of ‘workers particularly susceptible to certain risks’ as contained in that article was 
equivalent  to  the  concept  of  ‘disability’  within  the  meaning  of  Directive  2000/78.  In  its 
judgment  on  Case  C-397/18,92  the  CJEU  ruled  that  ‘Council  Directive  2000/78/EC  of  27 
November 2000 establishing a general framework for equal treatment in employment and 
occupation must be interpreted as meaning that the state of health of a worker categorised 
as being particularly susceptible to occupational risks, within the meaning of national law, 
which prevents that worker from carrying out certain jobs on the ground that such jobs 
would entail a risk to his or her own health or to other persons, only falls within the concept 
of ‘disability’, within the meaning of that directive, where that state leads to a limitation of 
capacity arising from, inter alia, long-term physical, mental or psychological impairments 
which, in interaction with various barriers, may hinder the full and effective participation 
of the person concerned in their professional life on an equal basis with other workers. It 
is for the national court to determine whether those conditions are satisfied in the main 
proceedings.’ 

4.6  Exceptions related to discrimination on the ground of age (Article 6 Directive 

2000/78) 

4.6.1  Direct discrimination 

a) 

Exceptions to the prohibition of direct discrimination on grounds of age 

In  Spain,  national  law  provides  for  specific  exceptions  for  direct  discrimination  on  the 
ground  of  age.  Spanish  legislation  does  not  permit  general  direct  discrimination  on  the 
ground of age, but the legislation permits differences of treatment based on age for some 
activities  within  the  material  scope  of  Directive  2000/78.  These  exceptions  must  be 
‘objectively and reasonably justified by a legitimate aim’. To this effect, each difference of 
treatment on the ground of age must be expressly stated in a law and must be justified by 
‘a legitimate aim’.  

92   Judgment of 11 September 2019, D.W. v. Nobel Plastiques Ibérica SA, 11 September 2019, C-397/18, 

http://curia.europa.eu/juris/document/document.jsf?text=&docid=217624&pageIndex=0&doclang=EN&mo
de=lst&dir=&occ=first&part=1&cid=501000. 

54 

 
 
 
 
 
 
 
 
 
 
 
 
b) 

Justification of direct discrimination on the ground of age 

In Spain, national law provides for justifications for direct discrimination on the ground of 
age.  

The  Spanish  courts  have  had  to  rule  on  several  occasions  regarding  the  adequate 
justification or  otherwise  of certain exceptions in equal treatment on the ground of age, 
especially in cases related to public employment. The results are disparate, as the courts 
accept the exceptions in some cases and not in others, and this results in similar situations 
having different age requirements. In addition to the different situations within the armed 
forces  (see  Paragraph  4.3),  there  are  different  situations  within  the  police  forces.  For 
example,  the  National  Police  do  not  have  an  actual  upper  age  limit,  while  the  regional 
police in the Basque Country has an incorporation age limit of 35 years (Ballester, 2010; 
Solà, 2016). 

Above  all,  three  judgments  of  the  Constitutional  Court  should  be  highlighted.  Judgment 
75/198393 is relevant despite being an old sentence, because it is cited in all subsequent 
judgments  and  sets  out  guidelines  for  the  possible  justification  of  direct  discrimination 
based  on  age.  Moreover,  there  was  a  highly  relevant  dissenting  vote  in  the  case.  The 
question  before  the  Court  concerned  a  legal  regulation  governing  a  special  local  regime 
that the municipalities of Barcelona and Madrid had at that time, and that required officials 
seeking  promotion  as  local  controllers  (interventores)  to  be  under  60  years  old.  In  this 
highly contested judgment, the majority of the judges considered that, as long as age was 
itself  a  differentiating  element,  ‘a  legislative  decision  that,  taking  into  account  that 
differentiating element and the characteristics of the post in question, objectively sets age 
limits will be legitimate. This assumes, for those who have passed it, the impossibility of 
accessing these positions.’ With this argument, the majority of the court considered that 
the  rule  was  constitutional  and  non-discriminatory  because  the  post  of  controller  in 
municipalities  of  the  complexity  of  Barcelona  and  Madrid  required  a  minimum  period  of 
permanence in office to ‘impose oneself on the important tasks that the law forces them 
to  develop.’  On  the  other  hand,  the  (progressive)  minority  of  the  Constitutional  Court’s 
judges, in their dissenting vote, showed that the regulations establishing a maximum age 
of 60 years in order to apply to be a municipal controller seemed unconstitutional to them, 
because such a rule ‘is not adequate (for the various reasons indicated) nor proportional 
for the purpose it pursues’, and neither did it respond to a ‘justified exceptionality’. 

In its Decision 37/2004,94 the Constitutional Court declared the last subsection of Article 
135(b) of Royal Legislative Decree 781/1986, which approved the consolidated text on the 
local regime, to be unconstitutional. This precept established that one of the requirements 
to compete for positions in the local public service was ‘not to exceed the age of less than 
ten years for forced retirement due to age, determined by the basic legislation on public 
service matters’ (that is, not being over 55 years old). The Court unanimously considered 
that the legislation establishing that age limit was discriminatory and unconstitutional. The 
Court considered that it was unreasonable to claim that the employment relationship had 
a  certain  minimum  duration;  and  furthermore,  among  other  reasons,  it  highlighted  that 
the Government should have offered arguments to justify a different legal treatment by 
age,  in  so  far  as  the  only  criteria  established  by  the  Constitution  for  joining  the  public 
service were based on the principles of ‘merit and ability’. 

The case of the maximum age at which a person may open a pharmacy as a sole activity 
has produced several judgments from the Constitutional Court on the provisions of different 

93   Constitutional Court Decision 75/1983, 3 August 1983, 

https://hj.tribunalconstitucional.es/docs/BOE/BOE-T-1983-22275.pdf. 

94   Constitutional Court Decision 37/2004, 11 March 2004,  

https://hj.tribunalconstitucional.es/docs/BOE/BOE-T-2004-6131.pdf. 

55 

 
 
 
 
 
 
 
 
 
Spanish  autonomous  communities.  The  most  recent  two  of  these  are  78/201295  and 
41/2015.96  In  Decision  78/2012,  the  Court  ruled  that  it  was  unconstitutional  to  give 
preference to applicants under the age of 65 for opening a new pharmacy, as established 
by  Basque  Law  11/1994  on  Pharmaceutical  Management  in  the  Basque  Autonomous 
Community. Decision 41/2015 concerned a similar situation in the Balearic Islands. In both 
decisions  (and  in  previous  ones),  the  Court  ruled,  first,  that  it  was  not  constitutionally 
permissible to justify the prohibition contained in the provision concerned by the fact that 
turning  65  produces  a  decreased  capacity  to  perform  pharmaceutical  care;  secondly,  it 
could  not  be  determined  that  the  measure  met  planning  and  service  organisation 
requirements;  and,  thirdly,  it  could  not  be  ascertained  that  refusal  of  a  license  to 
pharmacists over 65 years of age constituted a positive action measure aimed at balancing 
the unfavourable position of people starting out in the profession. 

For its part, the Supreme Court (in its Decision of 21 March 2011)97 declared Article 7(b) 
of the rules for the selection process and training of the National Police (approved by Royal 
Decree 614/1995) to be null. This article provided for a lower limit (18 years) and an upper 
limit (30 years) to be applied to National Police selection tests. The court considered that 
the age limit of 30 years is not justified because, together with other requirements (such 
as physical and psychological tests), it is possible to obtain the result that was sought with 
that age limit. Currently, one of the requirements for being admitted to the National Police 
selective tests is to be over 18 years old and not exceed the maximum retirement age – 
which means that there is no maximum age for joining the National Police). 

In 2015, the High Court of Justice of the Autonomous Community of the Basque Country 
made a request to the CJEU for a preliminary ruling (C 258/15). The request was made in 
proceedings  between  Mr  Salaberria  and  the  Basque  Police  and  Emergency  Services 
Academy  on  the  latter’s  decision  to  issue  a  notice  of  competition  containing  the 
requirement that candidates for police officer posts should be under 35 years old. Unlike 
case  C-416/13  (Vital  Pérez),  in  this  case  the  CJEU  judgment  of  15  November  2016 98 
considered that legislation which provides that candidates for posts of police officers must 
be under 35 years of age, ‘may, subject to the qualification that the referring court should 
satisfy  itself  that  the  information  to  be  obtained  from  the  observations  and  documents 
submitted  to  the  Court  by  the  Academy  ...  is  accurate,  be  regarded,  first,  as  being 
appropriate to the objective of ensuring the operational capacity and proper functioning of 
the police service concerned and, second, as not going beyond what is necessary for the 
attainment  of  that  objective’  (Paragraph  48).  Furthermore,  ‘Since  the  difference  of 
treatment based on age stemming from that legislation does not constitute discrimination 
under Article 4(1) of Directive 2000/78, there is no need to examine whether it might be 
justified in the light of Article 6(1)(c) of that directive’ (Paragraph 49). 

In the field of social security and employment, there are issues that need to be examined 
from  the  perspective  of  possible  discrimination  on  the  ground  of  age.  For  some  social 
benefits, age is integral to the benefit itself. For others, age is a factor limiting protection 
and,  as  such,  benefits  cannot  be  granted  fully  to  all  citizens.  This  second  situation  may 
give rise to discrimination. In any event, enough justification is required. The justification 
cited by the law is normally the difficulty experienced by older workers in re-entering the 
labour market99 (Blázquez, 2005).  

95   Constitutional Court Decision 78/2012, 16 April 2012, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/22845. 

96   Constitutional Court Decision 41/2015, 2 March 2015, 

https://hj.tribunalconstitucional.es/docs/BOE/BOE-A-2015-3819.pdf. 

97   Supreme Court Decision 2185/2011, 21 March 2011, 

http://www.boe.es/boe/dias/2011/06/06/pdfs/BOE-A-2011-9788.pdf. 

98   Judgment of 16 November 2016, Salaberría Sorondo v. Academia Vasca de Policía y Emergencias, 

C-258/15, http://curia.europa.eu/juris/liste.jsf?language=es&td=ALL&num=C-258/15. 

99  For example, Royal Decree-Law 5/2013 of 15 March 2013 on measures to favour the continuity of working 

life and promote active aging, 
https://www.boe.es/buscar/pdf/2013/BOE-A-2013-2874-consolidado.pdf. 

56 

 
 
 
 
 
 
 
c) 

Permitted differences of treatment based on age 

In  Spain,  national  law  permits  differences  of  treatment  based  on  age  for  any  activities 
within the material scope of Directive 2000/78. 

These exceptions must be ‘objectively and reasonably justified by a legitimate aim’.  

Some  of  the  differences  of  treatment  based  on  age  are  linked  to  the  protection  against 
child labour: children under 18 cannot work at night or work overtime, and they are subject 
to special regulations regarding weekly rest periods (Workers’ Statute, Articles 6 and 37).  

Other differences are linked to measures to promote employment: job-training contracts 
can be agreed with workers aged between 16 and 25 years (Workers’ Statute, Article 11).  

Spain has adopted the National Youth Guarantee Plan, according to which young people 
must receive a job or training offer within four months of becoming unemployed or leaving 
formal education. Young people have to be 16 to 30 years old to be included in this plan 
under  Law  18/2014  of  15  October  2014,  approving  urgent  measures  for  growth, 
competitiveness  and  efficiency.  This  law  establishes  certain  measures  that  facilitate 
registration  in  the  plan  and  access  to  training  programmes  for  young  people  who  are 
disabled or at risk of social exclusion.  

Other  age  differences  arise  regarding  access  to  some  benefits,  such  as  unemployment 
benefit  (to  which  workers  over  the  age  of  55,  among  others,  have  access  in  some 
circumstances) (General Social Security Act, Article 274). 

d) 

Fixing of ages for admission to occupational pension schemes 

In Spain, national law allows  occupational pension schemes to fix ages for admission to 
the scheme or entitlement to benefits, taking up the possibility provided for by Article 6(2) 
of Directive 2000/78).  

Private  occupational  pensions  are  covered  by  Royal  Legislative  Decree  1/2002  of 
29 November  2002,  which  approves  the  revised  text  of  the  Law  on  the  Regulation  of 
Pension Plans and Funds. Regarding the  retirement  of  workers, the law establishes that 
financial retirement benefits are acquired when the worker retires in the public system; if 
this cannot be established, it is understood to have occurred at 65 years of age. However, 
the receipt of the corresponding benefit can be anticipated from the age of 60. 

Royal Legislative Decree 1/2002 has been further developed by Royal Decree 304/2004 of 
20 February 2004, which approves the Regulation on Pension Schemes and Funds. Neither 
of  the  two  pieces  of  legislation  (Royal  Legislative  Decree  1/2002  and  the  Regulation) 
establishes specific ages for joining the scheme (or pension plan). As we noted previously 
(see  3.2.2),  both  of  them  recognise  the  principle  of  discrimination  in  each  pension  plan 
that is implemented. In this sense, Royal Legislative Decree 1/2002 sets out that a scheme 
or occupational pension plan will be non-discriminatory when all the staff employed by the 
employer/promoter  are  allowed  to  join  the  pension  plan.  In  any  case,  Royal  Legislative 
Decree 1/2002 (Art. 5) states that, when it comes to  joining the pension plan, the plan 
may specify that the worker must have a seniority in the company of less than two years 
to access it. In summary, any plan may set out that all workers are able to join the plan 
without  any  seniority  at  the  company;  it  may  also  take  some  kind  of  seniority  into 
consideration, but never more than two years from being hired by the employer. This legal 
provision  is  fully  applicable.  In  addition,  the  Constitutional  Court  resolved  (in  Judgment 
104/2004  of  28  June  2004)  that  the  enforcement  of  this  law  by  the  company  cannot 

57 

 
 
 
 
 
 
 
 
 
 
 
 
distinguish between workers with indefinite contracts, those with permanent contracts and 
those with fixed-term-contracts.100 

4.6.2  Special conditions for younger and older workers  

In Spain, there are special conditions set by law for older or younger workers in order to 
promote their vocational integration.  

There  are  many  employment  policies  and  programmes,  detailed  in  the  national 
employment plans and on occasion funded by the European Social Fund, with participant 
age limits, normally designed to favour young people under 25 and older workers. For both 
groups, there are measures to support training and employment in the form of partially 
subsidised  contracts.  In  the  case  of  young  people,  the  employment  measures  are  work 
experience contracts, job-training contracts and subsidised contracts of indefinite duration 
(Royal Decree-Law 6/2016).101  

Following  its  reform  in  2020,  Law  2/2006  on  Education  basically  encourages  education 
administrations  to  organise  professional  training  courses  aimed  at  students  with  special 
educational needs aged up to 21. The administrations may also organise vocational training 
programmes for people over 17 who left the education system without any qualifications, 
in order to enable them to obtain a formal qualification. 

In the case of older workers, there are subsidised contracts of indefinite duration for people 
aged  45  to  55  in  some  cases,  and  for  those  aged  over  52  in  others.  There  is  also  a 
jobseeker’s allowance programme for older workers who are at a particular disadvantage 
in the labour market (Royal Decree-Law 8/2015).102 

The unemployment benefit system also makes age distinctions. For example, those aged 
over  52  who  have  used  up  their  contributory  unemployment  benefit  are  entitled  to  an 
unemployment  allowance  until  they  reach  retirement  age,  and  those  aged  over  45  with 
family  responsibilities  (caring  responsibilities)  who  have  used  up  their  contributory 
unemployment  benefit  are  entitled  to  a  variable  allowance  depending  on  certain 
circumstances. ‘Active job-seeking income’ is granted to those aged over 45 who satisfy 
certain conditions (Royal Decree-Law 8/2015). 

4.6.3  Minimum and maximum age requirements 

In Spain, there are exceptions permitting minimum and/or maximum age requirements in 
relation to access to employment and training. 

The Workers’ Statute (Article 6) sets the minimum age for access to employment at 16. 
This is also the minimum age for access to vocational training. 

There is no general rule establishing a maximum working age, since the provision of the 
Workers’ Statute in 1980, setting a maximum age of 69, was declared unconstitutional by 
the  Constitutional  Court  in  1981.103  There  is  also  no  maximum  age  for  taking  part  in 
vocational training. 

100  See Constitutional Court website: http://hj.tribunalconstitucional.es/es-ES/Resolucion/Show/5109. 
101  Royal Decree-Law 6/2016 of 23 December 2016 on urgent measures to boost the National Youth Guarantee 
System (Real Decreto-ley 6/2016, de 23 de diciembre, de medidas urgentes para el impulso del Sistema 
Nacional de Garantía Juvenil), 
https://www.boe.es/boe/dias/2016/12/24/pdfs/BOE-A-2016-12266.pdf. 

102  RLD 8/2015 of 30 October 2015, approving the revised text of the General Social Security Act (Real Decreto 

Legislativo 8/2015, de 30 de octubre, Ley General de la Seguridad Social), 
https://www.boe.es/buscar/pdf/2015/BOE-A-2015-11724-consolidado.pdf. 

103  Constitutional Court Decision 22/1981, 2 July 1981, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/22. 

58 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Workers’ Statute (RLD 2/2015, Articles 49-56), which regulates dismissal proceedings, 
applies equally to all workers without distinction of age. 

Retirement  at  65  is  compulsory  in  the  civil  service,  but  civil  servants  can  request  an 
extension to 70 years (RLD 5/2015 of 30 October 2015, on the Civil Service Basic Statute, 
Article 67104 and Law 55/2003 (Article 26) for the personnel of the health services of the 
public system).105 Some public professions, such as judges, prosecutors, bailiffs, notaries 
or university professors, have special regulations, with compulsory retirement at 70 (For 
example, Organic Law 6/1985 on the Judiciary of July 1 1985, Article 492). 

4.6.4  Retirement  

a) 

State pension age 

In Spain, there is a state pension age, at which individuals may begin to collect their state 
pensions.  

Workers may begin to receive a public contributory pension at the age of 67, provided that 
the  other  requirements  set  out  by  the  law  are  met.  Article  205  of  the  General  Social 
Security Act (RLD 8/2015) establishes that employed workers who have reached the age 
of 67, or those who are 65 but have contributed for 38 years and 6 months, are entitled 
to a retirement pension. A minimum 15-year contribution period is also required, of which 
the last two years must fall within the 15 years immediately prior to the pension request. 
However, Article 205 of the General Social Security Act will be implemented gradually (the 
full implementation of this article will be from 2027): there is ‘a transitional period’ from a 
pensionable age of 65, which applied until 2013, to the age of 67 (or those who are 65 but 
have contributed for 38 years and 6 months),  which will apply from 2027. In  2020, the 
pensionable age was 65 (if the worker had contributed for at least 37 years) or 65 years 
and 10 months (if the worker had contributed for less than that period) (General Social 
Security  Act,  Seventh  Transitional  Provision).  For  non-contributory  pensions,  the 
retirement age is 65, and other requirements require to be fulfilled (General Social Security 
Act, Article 369). 

The use of age criteria or actuarial standards is not provided for by the law. The so-called 
‘sustainability  factor’  has  been  adopted  under  the  Social  Security  Law  to  calculate 
retirement pensions, although this instrument has been suspended until 2023. However, 
the  General  Social  Security  Act  provides  for  the  regulation  of  this  factor.  It  is  aimed  at 
linking the amount of the retirement pension to the evolution of life expectancy among the 
retirement-age population. The underlying idea is to adjust the amounts received by people 
who  retire  in  similar  conditions  but  at  different  times.  The  sustainability  factor  will  be 
applied  only  once  when  the  initial  pension  amount  is  determined  by  the  Social  Security 
Institute, taking as a reference the age of 67 years and the mortality rate of the retirement-
age  population  within  the  Social  Security  system.  The  interannual  variation  of  life 
expectancy needed to calculate the sustainability factor will be reviewed every five years 
(Article 211 of the General Social Security Act). 

The pensionable age (65 in 2020 if the worker had contributed for at least 37 years, or 65 
years  and  10  months  if  the  worker  had  contributed  for  less  than  that  period),  may  be 
lowered by the Government for those groups or professional activities where the work is 
of an exceptionally strenuous, toxic, dangerous or unhealthy nature, and where there are 

104  RLD 5/2015 of 30 October 2015, approving the revised text of the Basic Statute of Public Employees (Real 

Decreto Legislativo 5/2015, de 30 de octubre, por el que se aprueba el texto refundido de la Ley del 
Estatuto Básico del Empleado Público) (BOE 31 October 2015), 
http://www.boe.es/boe/dias/2015/10/31/pdfs/BOE-A-2015-11719.pdf. 

105  Law 55/2003 of 16 December 2003, of the Framework Statute of statutory staff of health services (Ley 
55/2003, de 16 de diciembre, del Estatuto Marco del personal estatutario de los servicios de salud) 
https://www.boe.es/buscar/pdf/2003/BOE-A-2003-23101-consolidado.pdf. 

59 

 
 
 
 
 
 
 
 
 
 
 
 
high  levels  of  disease  or  mortality,  or  in  the  case  of  ‘disabled  persons  with  a  degree  of 
disability equal to or greater than 65 per cent’ (General Social Security Act, Article 206). 
Furthermore,  early  retirement  may  be  taken  from  the  age  of  61,  provided  that  certain 
requirements specified in the General Social Security Act (Article 207) are met. 

If an individual wishes to work beyond the state pension age, retirement can be deferred. 
In  this  case,  the  economic  value  of  the  worker’s  pension  may  be  increased  up  to  a 
maximum of 4 % (General Social Security Act, Article 210). 

It  is  also  possible  to  begin  collecting  one’s  pension  voluntarily  before  retirement  age. 
People must be at least two years short of retirement age and meet certain requirements 
established by the General Social Security Act (Article 208). Early  retirement leads to a 
reduction in the economic value of the pension. 

An  individual  can  collect  a  pension  and  still  work.  It  is  possible  for  someone  to  have  a 
retirement  pension  and  to  keep  working  part-time  or  on  a  self-employed  basis  if  their 
income is below the official minimum wage (14 payments of EUR 900 in 2019)106 (General 
Social Security Act, Articles 213, 214 and 215). 

The conditions are the same for women and men. 

b)  Occupational pension schemes 

In  Spain,  there  is  a  standard  age  when  people  can  begin  to  receive  payments  from 
occupational pension schemes and other employer-funded pension arrangements. In 2020 
this was 65 (if the worker had contributed for at least 37 years) or 65 years and 10 months 
(if the worker had contributed for less than 37 years) (General Social Security Act, Seventh 
Transitional Provision). 

If an individual wishes to work longer, payments from such occupational pension schemes 
can be deferred. 

An individual can collect a pension and still work. 

The conditions are the same for women and men. 

c) 

State-imposed mandatory retirement ages 

In Spain, there are state-imposed mandatory retirement ages for the public sector, but not 
for the private sector.  

The retirement age is voluntary in the private sector. The rule requiring people to retire no 
later  than  69  was  declared  unconstitutional  on  the  ground  of  age.107  Civil  servants  can 
retire at 65, but they can request an extension to 70108 (RLD 5/2015 of 30 October 2015, 
on the Civil Service Basic Statute, Article 67(3)). This rule also applies to the personnel of 
the  health  services  of  the  public  system  (Law  55/2003,  Article  26(2)).  Some  public 
professions, such as judges, prosecutors, notaries, bailiffs or university professors, have 
special  regulations,  with  compulsory  retirement  at  70.  Some  public  civil  servants  are 
included  in  the  General  System  of  Social  Security.  For  them,  the  retirement  age  is  the 
same as the age of access to the social security retirement pension (RLD 5/2015, Article 
67(4)). 

106  Royal Decree 1077/2017 of 29 December 2017, setting the minimum wage for 2018 (Real Decreto 

1077/2017, de 29 de diciembre, por el que se fija el salario mínimo interprofesional para 2018) (BOE, 30 
December 2017), https://www.boe.es/buscar/pdf/2017/BOE-A-2017-15848-consolidado.pdf. 

107  Constitutional Court Decision 22/1981, 2 July 1981, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/22. 

108  See STS 4064/2019 of 16 December 2019, http://www.poderjudicial.es/search/indexAN.jsp. 

60 

 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
The mandatory retirement age and the possibility of extending working life to 70 years of 
staff working in public administrations and public health services has given rise to disputes 
in  court.  The  aforementioned  state  regulations  (RDL  5/2015,  Article  67(3)  and  Law 
55/2003, Article 26(2)) can be developed in their areas of competence by the autonomous 
communities to regulate the regime of staff working in public administrations or in public 
health  services.  Many  of  the  cases  that  go  to  court  have  to  do  with  the  latter.  A  good 
summary  of  the  consolidated  doctrine  of  the  Supreme  Court  is  established  in  judgment 
2708/2018.109 The content of this sentence can be synthesised in four aspects in relation 
to  the  right  to  request  the  extension  of  active  life  up  to  70  years  of  age  among  health 
services personnel: 

1. 

The general rule is the absence of a perfect subjective right to remain active beyond 
the  compulsory  retirement  age.  This  was  stated  by  the  Constitutional  Court  in  its 
Court Order 85/2013.110 

3. 

2.  On  this  basis,  the  Supreme  Court  considers  that  Article  26(2)  of  Law  55/2003 
regulates the possibility of requesting the extension of the retirement age, which has 
been called a ‘weakened right’ (derecho debilitado), which is conditioned to what the 
Administration decides in the exercise of its power of self-organisation and attending 
to its needs. 
This capacity for self-organisation of health administrations must be reflected in the 
‘human  resources  management  plans’  (hereinafter,  HRMP)  which  are  the  'basic 
instrument  for  their  global  planning'  (according  to  Article  13(1)  of  Law  55/2003). 
They must specify the  human resources needs of the health  service in a reasoned 
manner.  Based  on  these  HRMP,  administrations  can  deny  the  request  to  extend 
working life up to 70 years or limit it to a shorter period.  
However, if the HRMP does not exist or has been declared null, the worker has the 
right to extend his active life until he/she is 70 years old, because the administration's 
argument to deny that worker's right can only be justified based on the HRMP. The 
reasons  for  denying  the  request  to  extend  the  working  life  must  be  based  on  the 
reasons provided by the HRMP; therefore, the refusal cannot be based on the mere 
administrative  will,  but  on  the  HRMP,  which  is  the  instrument  to  which  the  law 
entrusts such concretion of that right (even if it is a weakened right) of the worker. 

4. 

In summary, the right to prolong active life (established in Article 26(2) of Law 55/2003) 
is  not  a  perfect  right  that  can  be  understood  as  a  right  acquired  by  the  worker,  but  a 
'weakened right' but worthy unless there is a provision to the contrary in the HRMP. Without 
that HRMP, the right becomes a right that must be recognised. 

For  these  reasons,  some  judgments  of  higher  justice  courts  have  ruled  in  favour  of  the 
administrations  when  they  have  denied  a  request  to  extend  the  active  life  of  a  worker 
based on the provisions of the HRMP. For example, judgment 2544/2018 of the Superior 
Court  of  Justice  of  the  Basque  Country111  in  the  case  of  a  worker  of  the  Basque  Health 
Service – Osakidetza – who requested to continue working but did not comply with some 
conditions formally established in the HRMP of Osakidetza. In other cases, the courts have 
found in favour of the workers because there is no HRMP or because the HRMP has been 
declared  null.  This  is  the  case  of  the  Supreme  Court  Decision  2328/2019112  which 
concerned a worker of the health service of the Autonomous Community of Aragon, whose 
HRMP has been declared null by the courts. Directive 2000/78 is not cited in any of these 
judgments nor are specific references made to age discrimination. The conditions are the 
same for women and men. 

109  Supreme Court Decision 2708/2018, 17 July 2018, 

http://www.poderjudicial.es/search/AN/openDocument/7f60c64dbfa6aac2/20180720. 

110  Constitution Court Order 85/2013, 23 May 2013, 

https://hj.tribunalconstitucional.es/docs/BOE/BOE-A-2013-5449.pdf. 
111  Superior Court of Justice of the Basque Country, STSJ PV 3544/2018, 

http://www.poderjudicial.es/search/AN/openDocument/37fba3aabb8c5b85/20190220. 

112  Supreme Court Decision 2328/2019, 4 June 2019, 

http://www.poderjudicial.es/search/AN/openDocument/eb0feb1d6155e241/20190715. 

61 

 
 
 
 
 
 
 
 
 
 
 
d) 

Retirement ages imposed by employers 

In Spain, national law does not permit employers to set retirement ages (or ages at which 
the termination of an employment contract is possible) by contract, collective bargaining 
or unilaterally.  

After  various  regulatory  changes  on  this  question,  the  10th  additional  provision  of  the 
Workers’ Statute (RLD 2/2015) states that ‘clauses in collective agreements providing for 
the  termination  of  the  employment  contract  when  the  worker  reaches  the  normal 
retirement age specified in the rules of social security are deemed null and void, whatever 
the extent and scope of these terms’. 

e) 

Employment rights applicable to all workers irrespective of age 

The law on protection against dismissal and other laws protecting employment rights apply 
to  all  workers,  irrespective  of  age,  even  if  they  remain  in  employment  after  attaining 
pensionable age or any another age (RLD 2/2015, Workers’ Statute). 

f) 

Compliance of national law with CJEU case law 

In Spain, national legislation is in line with the CJEU case law on age regarding mandatory 
retirement. 

The CJEU judgment in Palacios de la Villa v. Cortefiel,113 for example, explicitly accepted 
that  Spanish  legislation  in  this  field  is  in  compliance  with  Directive  2000/78/EC  (López 
2013). 

4.6.5  Redundancy 

a) 

Age and seniority taken into account for redundancy selection 

In Spain, national law does not generally permit age to be taken into account in selecting 
workers for redundancy (RLD 2/2015, Workers’ Statute, Article 4(2)). However, in the case 
of collective dismissals, the Workers’ Statute allows for differences between collectives, if 
this  is  agreed  between  the  social  partners.  Article  51(5)  establishes  that  ‘Through  a 
collective  agreement  or  agreement  reached  during  the  consultation  period  (which  are 
mandatory and prior to collective dismissal), permanence priorities may be established in 
favour of groups, such as workers with family responsibilities, older than a certain age or 
people  with  disabilities’.114  These  exceptions  are  reasonable  and  are  justified  by  the 
objective characteristics of these groups. 

In  Spain,  national  law  permits  seniority  to  be  considered  in  selecting  workers  for 
redundancy. Collective bargaining agreements may include clauses (agreed between the 
social  partners)  that  recognise  seniority  for  different  issues  within  the  company:  salary 
bonus for seniority or in promotions or dismissals, for example.115 Although not expressly 
included in Article 51(5) of the Workers’ Statute, seniority can be taken into consideration 
because the list is not exhaustive. 

113  Judgment of 16 October 2007, Palacios de la Villa v. Cortefiel Servicios, C-411/05, 

http://curia.europa.eu/juris/liste.jsf?language=en&num=C-411/05. 

114  These legal provisions do not guarantee that these groups are protected from dismissal, since they need to 

be included in the agreements between the social partners.  

115  See, for example, the collective agreement of Liberty Seguros, Compañía de Seguros y Reaseguros, SA, 

published in the BOE on 23 January 2019, 
https://www.boe.es/boe/dias/2019/01/23/pdfs/BOE-A-2019-777.pdf. 

62 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
b) 

Age taken into account for redundancy compensation 

In Spain, national law provides compensation for redundancy (Workers’ Statute, Articles 
49-56).  Theoretically,  such  compensation  payments  are  not  affected  by  the  age  of  the 
worker, but in practice they are, because their level is linked to the length of time that the 
worker  has  worked  for  the  company.  For  example,  in  case  of  dismissal  for  objective 
reasons,  the  worker  is  entitled  to  a  ‘compensation  of  twenty  days  per  year  of  service' 
(Workers’ Statute, Article 53(1)), or in case of unfair dismissal, the worker is entitled to a 
'compensation  equivalent  to  thirty-three  days  of  salary  per  year  of  service’  (Workers’ 
Statute,  Article  56(1)).  Years  of  service  must  be  understood,  following  the  consolidated 
doctrine of the Social Chamber of the Supreme Court,116 to mean ‘the entire duration of 
the contractual employment relationship’ even in different types of labour contracts. 

The current regulations on this matter are in line with Directive 2000/78. Actual practice 
in companies may also  be said generally to conform to the directive,  but in some cases 
indirect discrimination on the ground of age does occur, and should, where appropriate, 
be dealt with by the courts. 

4.7  Public  security,  public  order,  criminal  offences,  protection  of  health, 
protection  of  the  rights  and  freedoms  of  others  (Article  2(5)  Directive 
2000/78) 

In Spain, national law does not include exceptions that seek to rely on Article 2(5) of the 
Employment Equality Directive. 

4.8  Any other exceptions 

In Spain, there are no other exceptions to the prohibition of discrimination (on any ground) 
provided in national law. 

116  Supreme Court, Social Chamber, Sentence No. 494/2018, 10 May 2018, 

https://www.iberley.es/jurisprudencia/sentencia-social-n-494-2018-ts-sala-social-sec-1-rec-2005-2016-10-
05-2018-47818776. 

63 

 
 
 
 
 
 
 
 
 
 
 
5 

POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78) 

a) 

Scope for positive action measures 

In Spain, positive action is permitted in national law in respect of racial or ethnic origin, 
religion or belief, disability, age or sexual orientation.  

The principle of ‘positive action’ is rooted in the Spanish Constitution: Article 14 formally 
recognises equality before the law without discrimination on any of the grounds listed in 
the  Constitution,  while  Article  9(2)  requires  the  public  authorities  to  promote  ‘the 
conditions to ensure that the freedom and equality of individuals and of the groups that 
they form are real and effective’. The positive action required by Article 9(2) should not be 
regarded only as a ‘legitimate exception’, but as a guarantee that the principle of equality 
is to be made effective. In this respect, the Constitutional Court has repeatedly held that 
affirmative  action  is  not  to  be  seen  as  discriminatory.  Rather,  the  court  has  interpreted 
that  actions  by  public  authorities  to  remedy  the  employment  disadvantage  of  certain 
socially  marginalised  groups  are  required  by  a  properly  understood  commitment  to 
equality. 

Positive  action  has  been  present  in  labour,  educational  and  other  provisions  since  the 
passing of the Spanish Constitution in 1978 (Cachón, 2004). 

In  relation  to  employment,  the  Workers’  Statute  (Article  17(2))  stipulates  that  the 
Parliament may specify ‘exclusions, reservations and preference’ in employment for certain 
groups  who  are  at  a  disadvantage  in  the  labour  market.  Article  17(3)  states  that  the 
Government ‘may specify measures of reservation, duration or preference in employment’.  

In  the  educational  field,  the  Organic  Law  on  Education  of  2006  stipulates:  ‘In  order  to 
render  effective  the  principle  of  equality  in  the  exercise  of  the  right  to  education,  the 
authorities  shall  develop  compensatory  actions  aimed  at  persons,  groups  and  territorial 
regions  with  unfavourable  situations,  and  provide  the  necessary  economic  resources’ 
(Article 80).  

In Law 62/2003, which transposes the directives, Articles 30, 35 and 42 regulate positive 
action. Article 35 deals with discrimination in employment and in relation to occupation, 
and provides that, ‘with a view to ensuring full equality on the grounds of racial or ethnic 
origin, religion or belief, disability, age or sexual orientation, the principle of equality shall 
not prevent maintaining or adopting specific measures in favour of certain groups in order 
to prevent or compensate for disadvantages that they may encounter’. Article 42 provides 
that ‘collective agreements may include measures intended to fight against every form of 
employment  discrimination,  to  encourage  equality  of  opportunity  and  to  prevent 
harassment on the grounds of racial or ethnic origin, religion or belief, disability, age or 
sexual orientation’. 

Article  30  of  the  same  law,  referring  to  the  various  spheres  of  employment  included  in 
Directive 2000/43 on the grounds of racial or ethnic origin, states: ‘In order to guarantee 
full equality irrespective of racial or ethnic origin, the principle of equal treatment shall not 
prevent  the  maintenance  or  adoption  of  special  measures  benefiting  certain  groups, 
designed  to  prevent  or  to  offset  any  disadvantages  that  they  suffer  as  a  result  of  their 
racial or ethnic origin’. 

In  the  field  of  disability,  there  has  been  a  wide  range  of  positive  measures  since  the 
implementation,  in  1982,  of  Law  13/1982  on  the  Social  Integration  of  Persons  with 
Disabilities (now replaced by Law RLD 1/2013). The General Law on the Rights of Persons 
with  Disabilities  and  their  Social  Inclusion  (RLD  1/2013)  includes  such  positive  action 
measures  in  Articles  67  and  68.  The  aim  of  positive  action  is  to  grant  the  necessary 

64 

 
 
 
 
 
 
 
 
 
 
 
assistance and protection to people with disabilities who are more vulnerable,117 to provide 
a quota system and other actions in favour of promoting the integration of disabled people 
into  employment,  and  to  promote  equality  in  order  to  allow  the  complete  personal 
fulfilment  of  disabled  people  and  their  total  social  integration  (Article  42  of  Law  RLD 
1/2013). The Constitutional Court has recognised the legality of establishing a quota for 
disabled persons when selecting employees.118 

The General Law on the Rights of Persons with Disabilities and their Social Inclusion (RLD 
1/2013) provides a series of positive measures to combat the discrimination suffered by 
disabled persons. The law defines positive action measures as: ‘those specific measures 
oriented to prevent or compensate for disadvantages caused by disability and to accelerate 
or achieve de facto equality of persons with disabilities and their full participation in the 
areas of political, economic, social, educational, and cultural work, in response to different 
types and degrees of disability’ (Article 2(g)). Article 67 establishes that:  

‘1) The public authorities shall take positive action measures to benefit persons with 
disabilities where there is likely to be a greater degree  of discrimination, including 
multiple discrimination, or a lesser degree of equal opportunity discrimination, such 
as for women, for children who require more support for the exercise of autonomy 
or  decision  making  and  who  suffer  more  acute  social  exclusion,  and  for  disabled 
persons who usually live in rural areas.  
2) Also, as part of the official policy of family protection, public authorities shall take 
positive  action  measures  with  respect  to  families  when  one  of  their  members  is  a 
person with disabilities.’  

Article 68 of RLD 1/2013 specifies the content of measures for positive action on the ground 
of  disability;  these  measures  may  consist  of  additional  support  (economic  support, 
technical support, personal assistance, specialised services, special support and services 
for communication) or rules, criteria or more favourable practices. 

b)  Quotas in employment for people with disabilities 

In Spain, national law provides quotas for the employment of persons with disabilities.  

The General Law on the Rights of Persons with Disabilities and their Social Inclusion (RLD 
1/2013) lays out different systems for workplace integration for persons with disabilities. 
One of them is integration into the ordinary work system by a quota system: at least 2 % 
of  the  workforces  of  public  and  private  companies  with  50  or  more  employees  must  be 
persons  with  disabilities  (who  have  been  officially  recognised  as  having  at  least  a  33 % 
impairment) (Article 42). For the public administration, RLD 5/2015 of 30 October 2015 
establishes that  ‘In offers  of public  employment a quota will be applied of not less than 
7 %  of  vacancies  to  be  filled  by  persons  with  a  disability  ...  by  which  2 %  of  the  staff 
employed  by  the  state  administration  will  be  reached  progressively,  provided  that  they 
pass selection’ (Article 59). 

Companies have the possibility of avoiding the requirement to reserve quotas for workers 
with disabilities (by performing various actions specifically provided for in Law RLD 1/2013, 
Article  42,  and  Royal  Decree  364/2005  of  8 April  2005,  which  regulates  the  alternative 
exceptional compliance of the reserve quota in favour of workers with disabilities - these 
measures do not include paying a fee per unfilled quota place) but, if they violate the legal 

117  Persons with disabilities who are more vulnerable are defined in RLD 1/2013 (Article 67(1)): ‘persons with 

disabilities susceptible to being subjected to a greater degree of discrimination, including multiple 
discrimination, or to a lesser degree of equal opportunities, such as women [and] children, who need more 
support for the exercise of their autonomy or for free decision-making and those who suffer from a greater 
social exclusion, as well as people with disabilities who habitually live in a rural environment.’ 

118  Constitutional Court Decision 269/1994, 3 October 1994, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/2786. 

65 

 
 
 
 
 
 
 
 
 
 
 
obligation, they can be sanctioned by the Labour Inspectorate with fines of up to EUR 6 250 
in total (RLD 5/2000 on Offences and Penalties in Social Matters, Articles 15 and 40). The 
annual report of the Inspectorate of Labour and Social Security does not provide inspection 
results in this area. There is no publicly available information regarding the enforcement 
of the quota in practice. 

66 

 
 
 
 
 
6 

REMEDIES AND ENFORCEMENT  

6.1  Judicial  and/or  administrative  procedures  (Article  7  Directive  2000/43, 

Article 9 Directive 2000/78) 

a) 

Available procedures for enforcing the principle of equal treatment 

In  Spain,  the  following  procedures  exist  for  enforcing  the  principle  of  equal  treatment: 
judicial, administrative and alternative dispute resolution such as mediation.  

Judicial procedure 

The Spanish Constitution provides that all fundamental rights are protected by the ordinary 
courts  of law (Article 53). This protection will  be made  effective, in the first place, by a 
special preferential and summary procedure that is regulated by the main procedural laws 
for  all  types  of  jurisdiction:  civil  (Law  1/2000  of  7  January  2000  on  Civil  Procedure), 119 
criminal (Criminal Procedure Law of 14 September 1882, modified by Law 8/2002 of 24 
October 2002), labour (Law 36/2011 of 10 October 2011 regulating Social Jurisdiction) or 
administrative  (Law  29/1998  of  13  July  1998  regulating  the  administrative  courts). 120 
Moreover,  appeals  for  protection  in  respect  of  such  rights  may  be  lodged  at  the 
Constitutional Court once ordinary proceedings have been exhausted (Organic Law 2/1979 
of 3 October 1979 on the Constitutional Court, modified by Organic Law 6/2007 of 24 May 
2007). The Organic Law on the Rights and Freedoms of Foreigners in Spain and their Social 
Integration  (OL  4/2000)  stipulates  that  foreigners  are  entitled  to  legal  aid  on  the  same 
conditions as Spaniards.  

Conflicts  regarding  either  private  sector  employment  or  the  hired  personnel  of  public 
entities (who are subject to labour law)  are resolved by the social jurisdictional branch, 
composed of the specialised single-instance social and labour courts (juzgados de lo social 
de única instancia), the first instance and appeal chambers specialising in social and labour 
law (las salas de lo social de los Tribunales de primera y segunda instancia), the regional 
high courts (Tribunales Superiores de Justicia), the National Court (la Audiencia Nacional) 
and the social and labour chamber  of the Supreme Court (Sala de lo  social del  Tribunal 
Supremo).  

When  the  conflicts  are  due  to  an  action  by  the  administration  that  is  subject  to 
administrative  and  not  labour  law,  the  jurisdictional  branch  that  is  competent  is  the 
administrative  jurisdiction  (jurisdicción  contencioso-administrativa),  which  requires  the 
prior exhaustion of whatever administrative procedures there may be, and which is formed 
by  the  first-instance  and  appellate  administrative  courts  (juzgados  y  tribunales 
contenciosos administrativos, en primera y segunda instancia), and by the administrative 
chamber  of  the  Supreme  Court  (sala  de  lo  contencioso-administrativo  del  Tribunal 
Supremo).  

The Supreme Court (Tribunal Supremo), the highest instance within the ordinary judiciary, 
is  responsible  for  judging  appeals  in  order  to  reconcile  contradictory  decisions  by  lower 
courts.  Its  decisions  are  binding  and  thus  constitute  a  source  of  law;  therefore,  its 
judgments should be followed by the lower courts. 

All the cited judicial procedures are binding but are subject to possible appeals to higher 
courts. 

119  Law 1/2000 of 7 January 2000 on Civil Procedure (Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil) 

(BOE, 8 January 2000), http://www.boe.es/boe/dias/2000/01/08/pdfs/A00575-00728.pdf. 

120  Law 29/1998 of 13 July 1998 regulating the administrative courts (Ley 29/1998, de 13 de julio, reguladora 

de la Jurisdicción Contencioso administrativa) (BOE, 14 July 1998), 
http://www.boe.es/boe/dias/1998/07/14/pdfs/A23516-23551.pdf. 

67 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Administrative procedure 

There  are  administrative  procedures  for  civil  and  social  matters  that  can  be  used  by  all 
victims of discrimination, irrespective of the ground concerned. Victims of discrimination 
may also appeal to the ombudsmen, at both national and regional level, when the issue 
concerns acts by public bodies. 

In matters of employment and social security, victims of discrimination may appeal to the 
Employment  Inspectorate  (Law  42/1997  of  14  November  1997  on  the  Inspectorate  of 
Labour  and  Social  Security)  and  in  matters  of  education  to  the  Education  Inspectorate 
(Organic Law 2/2006 of 3 May 2006 on Education). This applies to both employment and 
education with regard to both the private and public sectors. 

The administrative procedures are binding but can be appealed to the courts. 

Conciliation procedure 

There are also conciliation procedures for civil and social matters. 

As regards employment, Articles 63 to 68 of Law 36/2011 of 10 October 2011 regulating 
Social  Jurisdiction  provide  a  compulsory  conciliation  procedure,  which  is  to  be  followed 
before any judicial appeal is lodged.  

The General Law on the Rights of Persons with Disabilities and their Social Inclusion (RLD 
1/2013) establishes a voluntary system of arbitration to solve conflicts that may arise in 
matters of equal opportunities and discrimination (Article 74).  

Conciliation procedures are not binding. 

b) 

Barriers and other deterrents faced by litigants seeking redress 

There are costs and other barriers that may act as deterrents to litigants seeking redress.  

In  Spain,  it  is  mandatory  in  a  lawsuit  (although  not  in  conciliation  procedure)  to  use  a 
lawyer (who defends the individual claimant or defendant) and a solicitor (who represents 
them and is responsible for all formal issues in court), which significantly complicates the 
process.  Indeed,  court  proceedings  are  often  long  and  complex.  If  the  litigants  win  the 
action, the judge, following the guidelines established in Article 394 of Law 1/2000 on Civil 
Procedure, may require the respondent to pay their lawyer’s costs.  

If the litigants cannot afford a lawyer, they may request a duty lawyer free of charge, as 
the Spanish Constitution (Article 119) guarantees legal aid for those who ‘have insufficient 
means to litigate.’ Legal aid is governed by Law 1/1996 of 10 January 1996 on Free Legal 
Aid. However, Royal Decree-Law 3/2013 of 22 February 2013, amending the fees regime 
for  the  administration  of  justice  and  the  legal  aid  system,  amended  Law  1/1996  and 
tightened  the  income  and  wealth  conditions  for  entitlement  to  free  legal  assistance.  In 
addition, this law raised fees significantly for appeals before the courts, which could pose 
difficulties in securing adequate access to justice, especially in the case of resources for 
the higher courts. 

The costs of legal aid are assumed mainly by the regional Governments (not by the national 
Government). 

In Spanish law, the time period for pursuing proceedings is equivalent to the time limit for 
submitting  legal  actions  in  the  different  jurisdictions.  Therefore,  personal  actions  in  civil 
proceedings must be started within 15 years, unless there is a provision regarding a special 
time limit (Article 1964, Civil Code). No personal action may be started in civil proceedings 

68 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
once  the  aforementioned  time  limit  has  expired.  In  proceedings  relating  to  employment 
and  occupations,  time  limits  for  legal  actions  expire  within  20  days,  one  year  or  three 
years,  depending  on  the  type  of  action  being  taken  (Articles  59  and  60  of  the  Worker’s 
Statute).  In  administrative  court  proceedings,  the  appeal  in  front  of  the  court  must  be 
lodged within two months in all cases, except in cases of implicit (agency) action (silencio 
administrativo) (i.e. when the public administration fails to take action) where the term is 
of six months, or in cases of irregular material intervention by the administration (vía de 
hecho), where the term expires within 10 or 20 days if there has not been a request from 
the administration. The day on which these terms start depends on the action in question 
(see Article 46  of Law  29/1998 Regulating the Administrative Courts). In administrative 
matters, the terms and conditions are provided by specific laws. 

c) 

Number of discrimination cases brought to justice 

In Spain, statistics are available on the number of cases related to discrimination that are 
brought to justice. 

Following  the  recommendation  made  by  the  European  Commission  against  Racism  and 
Intolerance (ECRI) in 2011 on the collection and publication of data on discrimination in 
Spain,  the  Spanish  Government  approved  its  ‘Comprehensive  strategy  against  racism, 
discrimination, xenophobia and related intolerance’ (November 2011), and the Ministry of 
the  Interior  approved  a  ‘Protocol  of  action  for  the  Security  Forces  for  hate  crimes  and 
convicts that violate the legal norms of discrimination’ (2014). The Ministry of the Interior 
publishes data on hate crimes and discrimination (the source of the data does not allow 
differentiation between hate crimes and discriminatory acts); these data cover complaints 
reported to the police and indicate whether they have been resolved by the police (when 
the  police  have  been  able  to  identify  those  responsible,  that  does  not  necessarily  mean 
that  the  individuals  were  prosecuted  and  convicted  of  a  hate  crime).  In  2016,  1 272 
complaints  were  made  to  the  police,  with  1 419  complaints  in  2017,  1 476  in  2018  and 
1 598 in 2019, of which 988 were resolved. The grounds for the complaints were as follows: 

Reason 
for 
making a 
complaint 

Religion 
Disability 
Sexual 
orientatio
n 
Racism/X
enophobia 
Others 
Total 

Complaints 

Complaints resolved by 
police 

2016 
47 
262 
230 

2017 
103 
23 
271 

2018 
69 
25 
256 

2019 
66 
26 
278 

2016 
33 
200 
166 

2017 
62 
19 
204 

2018 
30 
20 
182 

2019 
39 
20 
199 

416 

524 

531 

534 

254 

323 

334 

407 

317 
1 272 

498 
1 419 

714 
694 
1 476  1 598 

164 
817 

251 
859 

319 
885 

318 
988 

Source:  Author’s  elaboration  from  statistical  yearbooks  of  the  Ministry  of  the  Interior 
(2016, 2017, 2018 and 2019).121  

In June 2010, the Council for the Elimination of Racial or Ethnic Discrimination launched 
the  Network  of  Centres  of  Assistance  for  Victims  of  Racial  or  Ethnic  Discrimination, 
involving seven NGOs. The network assisted with 631 cases in 2016; 646 cases in 2017; 
and 729 cases in 2018 (see section 7, below). Between 1 January and 12 October 2019 

121  See http://www.interior.gob.es/documents/642012/3479677/informe+evolucion+2019/631ce020-f9d0-

4feb-901c-c3ee0a777896. The author expects that a number of statistics for 2020 will be published in the 
second half of 2021. 

69 

 
 
 
 
 
 
 
 
 
 
 
 
 
(latest published data), the Assistance and Guidance Service for Victims of Racial or Ethnic 
Discrimination registered a total of 588 cases, of which 378 are individual cases and 210 
are collective. 

d) 

Registration of national court decisions on discrimination 

In Spain, discrimination cases are not registered as such by national courts. Consequently, 
data are not available (apart from the data held by the Ministry of the Interior and by the 
Council: see previous paragraphs) 

6.2  Legal standing and associations (Article 7(2) Directive 2000/43, Article 9(2) 

Directive 2000/78) 

a) 

Engaging in proceedings on behalf of victims of discrimination (representing them) 

In  Spain,  associations,  organisations  and  trade  unions  are  entitled  to  act  on  behalf  of 
victims of discrimination. 

On  racial  or  ethnic  origin,  Law  62/2003  (Article  31)  provides  that  ‘legal  entities  legally 
authorised to defend legitimate collective rights and interests may engage on behalf of the 
claimant, with his or her approval, in any judicial proceedings in order to make effective 
the  principle  of  equal  treatment  based  on  racial  or  ethnic  origin’.  This  article  means, 
therefore,  the  legitimation  of  legal  entities  to  engage  in  civil  proceedings  and  in 
administrative  court  proceedings,  but  not  in  labour  proceedings  or  in  pre-judicial 
administrative  matters.  This  legitimation  may  be  interpreted  as  widening  the  provisions 
regulating  the  procedural  defence  in  Law  1/2000  of  7  January  2000  on  Civil  Procedure 
(Articles 11 and 11bis) and in Law 29/1998 of 13 June 1998 Regulating the Administrative 
Courts (Articles 18 and 19). The legitimation (in Law 62/2003) only applies, however, in 
cases  of  discrimination  on  the  grounds  of  racial  or  ethnic  origin  and  only  in  fields  other 
than employment.  

On Disability, the General Law on the Rights of Persons with Disabilities and their Social 
Inclusion (RLD 1/2013), which applies to access to and the supply of goods and services 
(telecommunications and the information society, urbanised public  spaces, infrastructure 
and  construction,  transport,  goods  and  services  to  the  public,  relations  with  public 
administrations,  the  administration  of  justice,  cultural  heritage)  and  to  employment, 
provides, in Article 76, that legal entities that are legally authorised to defend legitimate 
collective rights and interests may engage on behalf of and in the interests of the person 
who authorises them to do  so in proceedings in order to make  effective the principle  of 
equal treatment, defending the individual rights of those persons to whom the effects of 
this  engagement  will  apply.  This  engagement  does  not  affect  the  individual  standing  of 
victims of discrimination and may be interpreted with respect to its inclusion in pre-judicial 
administrative proceedings. 

Articles 22 and 64 of RLD 1/2013 provide that the law’s provisions regarding the safeguard 
and effectiveness of the measures contained within it have a supplementary character in 
respect of the provisions that are contained in other specific laws regarding equal treatment 
in the field of employment and occupation. 

In the field of employment, the provisions of the Law on Social Jurisdiction remain in force 
for the defence of victims of discrimination on all the grounds contained in the directives. 
Article  20  of  Law  36/2011  of  10  October  2011,  the  Law  on  Social  Jurisdiction,  in  its 
regulation  of  representation  and  procedural  defence,  stipulates  that  trade  unions  may 
appear in court on behalf of and in the interests of member workers who authorise them 
to  do  so  in  order  to  defend  their  individual  rights.  However,  this  only  applies  to  trade 
unions. Workers who are not members of any trade union may be parties to proceedings 
by themselves or may confer their representation to the solicitor’s agent, to a social worker 

70 

 
 
 
 
 
 
 
 
 
 
 
member of a professional organisation or to any person who is fully able to exercise his/her 
civil rights – or, if they wish, to a solicitor. The assistance of a lawyer is not mandatory 
during the pre-judicial proceedings (Article 21(1)).  

Legal entities may also act on behalf of victims of discrimination in criminal proceedings. 
The  Criminal  Code  of  1995  (modified  by  Organic  Law  1/2015),  under  Articles  314,  510, 
511 and 512, provides that crimes of discrimination are punishable by imprisonment and 
fines  (Articles  314  and  510)  or  by  special  disqualification  from  the  exercise  of  public 
service, a profession etc. (Articles 511 and 512). Article 510 also punishes hate crimes. 

Claims  in  respect  of  discrimination  are  normally  processed  on  behalf  of  and  with  the 
authorisation  of  the  victim  by  an  organisation,  such  as  NGOs  working  with  Roma  or 
immigrants,  in  cases  of  discrimination  on  the  grounds  of  racial  or  ethnic  origin,  or  by 
organisations working with other groups that may have been discriminated against on the 
grounds of disability, sexual orientation, age or religion or belief. 

Under national law, the terms and conditions that are required in order for associations to 
engage in proceedings on behalf of claimants are regular ones. That means that there are 
no  special  terms  and  conditions  that  must  be  met  for  associations  to  engage  in  these 
proceedings.  

In order to acquire legal status, trade unions must, according to Article 4 of Organic Law 
11/1985 of 2 August 1985 on Trade Union Freedom, be registered with the corresponding 
public office. According to Article 35 of the Civil Code, public legal entities of public interest 
and  private  legal  entities  do  not  need  to  be  registered  to  be  considered  as  constituted 
legally or in a valid way. With regard to private legal entities, Chapter II of Organic Law 
1/2002  of  22  March  2002,  which  regulates  the  rights  of  associations,  contains  the 
conditions that such associations must meet in order to be legally constituted. Associations 
that have been legally constituted have legal status and have the right to register, but they 
are not obligated to register in the register of associations.  

Law 62/2003 and RLD 1/2013 only provide that legal entities must be legally authorised 
to  defend  legitimate  collective  rights  and  interests  in  order  to  be  able  to  engage  in 
proceedings  on  behalf  of  the  claimant(s)  with  his/her/their  approval.  The  proof  of  the 
authorisation is in their valid constitution according to OL 1/2002. The legitimate interest 
relates to the victim on whose behalf the association may engage in any judicial procedure 
(see section d, below, regarding  class actions to understand the difference between the 
legitimisation of associations under Law 62/2003 and Law RLD 1/2013 in order to act on 
behalf  of  victims  of  discrimination  and  the  provisions  relating  to  consumers  and  users 
associations under Article 11 of the Law on Civil Procedure). 

According  to  the  jurisprudence  of  the  Constitutional  Court  and  the  Supreme  Court,  a 
legitimate  interest  may  be  held  by  those  who  find  themselves  in  an  individualised  legal 
situation that is different from the legal situation of other citizens with respect to the same 
matter. ‘Legitimate interest’ means the capacity of being a party in the proceedings, and 
it focuses on the existence of a qualified and specific interest that relates to obtaining an 
advantage  or  avoiding  or  eliminating  potential  harm  if  the  lawsuit  filed  by  the  party  is 
upheld by a judgment.122 Therefore, the upholding of the lawsuit must have legal utility for 
the claimant.123 The legitimate interest may be individual or collective, direct or indirect, 
present or future (if the harm to be avoided or eliminated, and against which the lawsuit 
has been filed, is imminent), but it must be concrete and true (real). This means that the 
legitimate interest of a party in the proceedings presupposes that the judgment has had 

122  Supreme Court Decision 2733/2003, 4 March 2003. 
123  Constitutional Court Decisions 60/1982 of 11 October 1982 and 7/2001 of 7 January 2001, among others, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/102; 
http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/4303. 

71 

 
 
 
 
 
 
 
 
 
 
or may have a direct or indirect impact on their legal situation. This impact must be real 
and not just hypothetical.124 

Law 62/2003 and Law RLD 1/2013 say only that the entities would need the authorisation 
of the victims to act on their behalf, but they do not specify the form of the authorisation. 

The same happens in Article 20 of Law 36/2011 on Social Jurisdiction. It appears that the 
general regulations for all jurisdictions regarding the authorisation of the solicitor’s agent 
and the solicitor to engage in proceedings on  behalf of the victim  of  discrimination may 
apply  to  the  authorisation  of  the  entities  acting  to  this  end,  given  that  such  an  entity 
engages in proceedings through a solicitor member  of the association, who will act only 
with the approval of the claimant (see Articles 24 and 25 of Law 1/2000 on Civil Procedure). 
However, Article 20(2) of the Law on Social Jurisdiction provides that, in the lawsuit, the 
trade  union  must  prove  the  membership  of  the  worker  and  must  prove  that  it  has 
communicated  to  the  member  worker  its  intention  to  open  the  proceedings.  The 
authorisation  of  the  worker  member  will  then  be  presumed,  except  when  there  is  a 
statement by the worker denying it.  

In cases where obtaining formal authorisation is problematic because the victim lacks the 
capacity to sue – for example, in the case of minors or persons under guardianship - the 
general regulations settled in Articles 7 and 8 of Law 1/2000 on Civil Procedure may apply 
in  all  jurisdictions  (Article  16(4)  of  the  Law  on  Social  Jurisdiction,  Article  18(1)  of  Law 
29/1998 Regulating the Administrative Courts). Article 7 of Law 1/2000 on Civil Procedure 
provides that natural persons who lack capacity to sue must appear at the trial by means 
of  a  representative  or  with  the  assistance,  authorisation  or  defence  required  by  law.  If 
nobody  represents  or  assists  the  natural  person  in  appearing  at  the  trial,  the  court,  by 
judicial order, will designate a defence lawyer to assume representation and defence until 
there  is  another  person  who  can  assume  representation  or  assistance  (Article  8  of  Law 
1/2000  on  Civil  Procedure).  The  authorisation  to  engage  in  proceedings  on  behalf  of  a 
victim who lacks capacity to sue will be given by his/her representative or by the person 
who must assist, authorise or defend him/her in compliance with the law. Only individuals 
holding a law degree can defend a person in court. 

Some  civil  society  organisations  are  active  in  this  field,  are  visible  and  stimulate  public 
discourse on equality, but the number of litigations on discrimination cases is small. 

b) 

Engaging  in  proceedings  in  support  of  victims  of  discrimination  (joining  existing 
proceedings) 

In Spain, associations, organisations and trade unions are not entitled to act in support of 
victims  of  discrimination.  Article  31  of  Law  62/2003  includes  the  words  ‘on  behalf’  (‘on 
behalf of the claimant, with his or her approval’), but not ‘or in support’, as stated in Article 
7(2) of Directive 2000/43. Neither may associations intervene in support of the claimant 
in civil cases (Law 1/2000, Articles 11 and 11bis). 

c) 

Actio popularis 

In  Spain,  national  law  allows  associations,  organisations  and  trade  unions  to  act  in  the 
public interest on their own behalf, without a specific victim to support or represent (actio 
popularis).  

Under Spanish law, actio popularis is a constitutional right – not a fundamental right - that 
must be developed by a law that may limit it. Under Spanish law, actio popularis is only 
possible in criminal proceedings. Nevertheless, there are already many voices in this area 
who defend the thesis of the exercise of actio popularis in administrative court proceedings, 

124  Supreme Court Decision 873/2003, 11 February 2003. 

72 

 
 
 
 
 
 
 
 
 
 
 
 
 
and also constitutional jurisprudence, in which this possibility has been recognised. At the 
moment, outside the criminal law, actio popularis in administrative court matters has only 
been recognised in the case of the Zoning Act of 20 June 2008. However, for the purpose 
of this report, we shall concentrate only on actio popularis in criminal law. 

Actio  popularis  in  criminal  proceedings  is  provided  for  under  Article  101  of  the  Law 
regulating Criminal Procedure. Actio popularis may only be exercised against public crimes 
and,  under  Spanish  law,  most  crimes,  including  discrimination  crimes,  are  public.  The 
Constitutional Court has stated125 that not only private but also public legal entities may 
be considered as citizens in order to interpret the possibility of exercising actio popularis. 
Legal entities may therefore exercise actio popularis in cases in which discrimination or a 
hate crime (see above) has been committed.  

d) 

Class action 

In Spain, national law does not allow associations, organisations and trade unions to act 
in the interest of more than one individual victim (class action) for claims arising from the 
same event.  

It is not possible for associations to act through a class action in the interest of more than 
one individual victim of discrimination for claims arising from the same event. Apart from 
under the provision in Article 11 of Law 1/2000 on Civil Procedure, which allows consumers’ 
and  users’  associations  to  take  action  in  the  form  of  a  quasi-class  action  to  protect  the 
rights and interests of consumers and users who are members of these associations, as 
well  as  to  protect  the  general  interests  of  consumers  and  users,  class  actions  or  other 
forms  of  lawsuit  similar  to  them  are  not  allowed  in  civil  proceedings  under  Spanish  law 
(Carrasco and González 2001). 

Although the texts of Article 76 of RLD 1/2013 and Article 31 of Law 62/2003 deal with the 
defence  of legitimate collective rights and interests, and Article 17 of the Law on Social 
Jurisdiction  mentions  the  possibility  of  trade  unions  and  employers  being  authorised  to 
defend their own financial and social interests, this should not be misinterpreted as allowing 
for the possibility of class actions in civil proceedings as, in all these cases, the wording is 
very different from the provisions of Article 11 of the Law on Civil Procedure. 

6.3  Burden of proof (Article 8 Directive 2000/43, Article 10 Directive 2000/78) 

In Spain, national law requires a shift of the burden of proof from the complainant to the 
respondent.  

The basic law of reference in this field is the Law on Civil Procedure (Law 1/2000). This law 
regulates the burden of proof in court and provides, as a general rule, that the burden of 
proof is for the claimant (Article 217(2)) but sets the shift in the burden of proof in certain 
cases (Articles 217(3), 217(4) and 217(5)). The law also establishes that ‘the court shall 
consider  the  availability  and  ease  of  proof  corresponding  to  each  of  the  parties  to  the 
dispute’ (Article 217(6)). The reversal of the burden of proof under Law 1/2000 has been 
qualified by the court, which has stated that this fails to be a real reversal of the burden 
of proof, as both parties have obligations. That is, once the claimant proves ‘the existence 
of discrimination-founded indications’ (i.e. the probability), it is for the defendant to prove 
‘the justification of the measures adopted and their proportionality’.126 

In the field of anti-discrimination law, the most important provisions are contained in law 
62/2003 and RLD 1/2013: 

125  Constitutional Court Decision 175/2001, 26 July 2001, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/4471. 

126  See, for example, the judgment of the Superior Court of Justice of Galicia of 23 November 2012. 

73 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
− 

− 

− 

− 

General burden of proof on ground of discrimination by racial or ethnic origin: Law 
62/2003, which transposes EU Directives 2000/43 and 2000/78 in Spain: ‘In those 
civil and administrative proceedings in which from the facts alleged by the claimant 
one  may  conclude  the  existence  of  well-founded  evidence  of  discrimination  on  the 
ground of racial or ethnic origin, it shall be for the respondent to give an objective 
and  reasonable  and  sufficiently  proven  justification  of  the  measures  adopted  and 
their proportionality’ (Article 32). 
Burden of proof in the field of employment on ground of discrimination by racial or 
ethnic  origin,  religion  or  belief,  disability,  age  or  sexual  orientation:  Law  62/2003 
provides that: ‘In those civil and administrative proceedings in which from the facts 
alleged by the claimant one may conclude the existence of well-founded evidence of 
discrimination on the grounds of racial or ethnic origin, religion or belief, disability, 
age or sexual orientation (in the employment field), it shall be for the respondent to 
give an objective and reasonable and sufficiently proven justification of the measures 
adopted and their proportionality’ (Article 36). 
General burden of proof on ground of discrimination by disability: the General Law 
on  the  Rights  of  Persons  with  Disabilities  and  their  Social  Inclusion  (RLD  1/2013) 
establishes  a  shift  in  the  burden  of  proof  when  there  is  evidence  of  discrimination 
based  on  disability:  ‘In  those  proceedings  in  which  from  the  facts  alleged  by  the 
claimant one may conclude the existence of well-founded evidence of discrimination 
on the ground of disability, it shall be for the respondent to give an objective and 
reasonable  and  sufficiently  proven  justification  of  the  conduct  and  the  measures 
adopted and their proportionality’ (Article 77). 
National  law  does  not  provide  clearly  for  a  shift  in  the  burden  of  proof  for  claims 
relating to reasonable accommodation. However, Article 77 of Law RLD 1/2013 could 
allow a judge to shift the burden of proof if a person with disabilities is  demanding 
the right to reasonable accommodation. 

Article 40 of Law 62/2003 amended the existing labour standard procedure at the time, 
and the current law on social litigation procedure (Law 36/2011) also established a shift in 
the burden of proof. Article 96 of Law 36/2011 states that: ‘In those proceedings in which 
allegations  exist,  on  the  part  of  the  claimant,  of  indications  which  are  founded  in 
discrimination for reason of sex, racial or ethnic origin, religion or belief, disability, age or 
sexual  orientation,  it  shall  rest  with  the  respondent  to  provide  sufficient  proof  of  the 
objective  and  reasonable  justification  of  the  measures  taken  and  of  their  proportional 
nature’.  This  article  is  applied  increasingly  widely  in  employment  cases.  For  example,  it 
began being applied in cases of sexual harassment and bullying when bullying was related 
to gender; but it now also applies in cases of bullying in general. 

There is an important difference in the rules on the burden of proof on different grounds. 
In the case of discrimination on the grounds of sex, in order for a shift in the burden of 
proof to be produced, the standard requires only that the claimant’s claims are based on 
discriminatory  actions  (or  omissions/the  failure  to  act,  that  can  be  considered 
discriminatory ‘actions’) based on sex: ‘In proceedings in which the plaintiff’s claims are 
based on discriminatory actions based on sex, it is for the defendant to prove the absence 
of discrimination in the measures adopted and their proportionality’ (Article 13 of Organic 
Law  3/2007  and  Article  217(5)  of  Law  1/2000).  However,  for  all  other  grounds,  anti-
discrimination laws require that one may conclude from the facts alleged by the claimant 
that well-founded evidence of discrimination exists. That is, in cases of discrimination on 
grounds other than sex, there is a requirement for the claimant to present facts, whereas 
in the case of discrimination on the ground of sex, it appears from the literality of the law 
that the courts should always apply a shift in the burden of proof.  

The  Constitutional  Court  has  established  case  law  on  the  burden  of  proof,  which  should 
avoid this potential difference between discrimination based on sex and other grounds of 

74 

 
 
 
 
 
discrimination. The most recent judgment on this matter by the  Court (STC 31/2014)127 
recalled its consistent doctrine in relation to a case of sex discrimination (after the coming 
into force of  OL 3/2007). The  Court noted that, in  order for a reversal of the burden  of 
proof  to  occur,  it  ‘is  not  enough  simply  for  the  actor  to  qualify  the  measure  as  a 
discriminatory measure’; it is also necessary ‘to establish the existence of evidence that 
generates reasonable suspicion, an  appearance  or a presumption in favour of its  claim’. 
Only  then,  when  the  latter  happens,  the  defendant  assumes  ‘the  burden  of  proving  the 
existence of sufficient real and serious reasons to qualify the decision as reasonable’ (STC 
98/2003).128 

We  should  briefly  recall  what  the  Constitutional  Court  stated  in  STC  144/2006129  (and 
repeated in STC 31/2014): ‘Any facts that are clearly indicative of the likelihood of injury 
of  a  substantive  right,  and  those  that  have  sufficient  entity  to  reasonably  open  the 
hypothesis of an infringement of a fundamental right, will have probative aptitude ... But 
they  must  unavoidably  exceed  the  minimum  threshold  of  that  necessary  connection, 
because the claim cannot be based on purely rhetorical arguments or lack of accreditation 
of core elements for the connection itself with the claim’. 

Therefore, a literal interpretation of the rules in Spain gives a greater facility for a shift in 
the burden of proof in sex discrimination cases (Article 13 of Law 3/2007 and Article 217(5) 
of  Law  1/2000).  However,  the  Constitutional  Court  (and  the  Supreme  Court)  have 
established a common doctrine as to the rules that should govern the shift in the burden 
of  proof  in  cases  of  discrimination  on  any  grounds,  and  if  there  has  been  a  violation  of 
fundamental rights. 

6.4  Victimisation (Article 9 Directive 2000/43, Article 11 Directive 2000/78) 

In Spain, there are legal measures of protection against victimisation, but only in the field 
of employment. 

Before  the  transposition  was  carried  out,  the  Workers’  Statute  (Article  55(5))  declared 
those dismissals that were related to any of the grounds of discrimination that are covered 
by  the  Constitution  or  by  the  legal  system,  or  which  entailed  the  violation  of  workers’ 
fundamental rights and freedoms, to be invalid.  

Law 62/2003 (Article 37) introduced changes to the Workers’ Statute and to Law 5/2000 
on  Offences  and  Penalties  in  Social  Matters.  The  new  version  of  Article  17(1)  of  the 
Workers’ Statute stipulates the nullity of administrative regulatory provisions, clauses in 
collective agreements or contracts, agreements or unilateral decisions of an employer that 
has discriminated on all the grounds of the directives. Furthermore, a new paragraph has 
been added to Article 17(1), which states that ‘the decisions of an employer that amount 
to adverse treatment of workers as a reaction to a complaint within the enterprise or to 
any legal proceedings aimed at enforcing compliance with the principle of equal treatment 
and non-discrimination shall likewise be void of effect.’ 

Similarly, Law 62/2003 (Article 41) introduced modifications to Law 5/2000 on Offences 
and  Penalties  in  Social  Matters.  Article  8  of  Law  5/2000  contains  a  list  of  very  serious 
infractions in the area of employment. With the revision introduced by Law 62/2003, Article 
8(12)  now  covers  –  in  addition  to  discriminatory  decisions  –  decisions  that  ‘amount  to 
adverse treatment of workers as a reaction to a complaint within the enterprise or to any 

127  Constitutional Court Decision 31/2014, 24 February 2014, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/23819. 

128  Constitutional Court Decision 98/2003, 2 June 2003, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/4873. 

129  Constitutional Court Decision 144/2006, 8 May 2006, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/5746. 

75 

 
 
 
 
 
 
 
 
 
 
 
legal proceedings aimed at enforcing compliance with the principle of equal treatment and 
non-discrimination.’ 

There  are  no  legal  provisions  concerning  the  victimisation  of  persons  other  than  the 
claimant, as might be the case for witnesses, but judges should also apply victim protection 
to them.  

There is a full reversal of the burden of proof when victimisation is directed towards a trade 
union  representative  if  the  worker  claims  ‘anti-union  conduct’  by  the  employer  (STC 
2/2009).130 

6.5  Sanctions and remedies (Article 15 Directive 2000/43, Article 17 Directive 

2000/78) 

a) 

Applicable sanctions in cases of discrimination – in law and in practice 

Sanctions have been established in Spain only in the field of employment for all the grounds 
(RLD  5/2000)  and  for  the  ground  of  disability  in  all  fields  (RLD  1/2013),  but  not  in  the 
other fields covered by Directive 2000/43 on grounds of racial or ethnic origin, except in 
the Criminal Code (Organic Law 10/1995, Article 512, that judges must consider whether 
can be applied in some cases of discrimination).131 

Spanish legislation complies only partially with the obligation to establish sanctions against 
discriminatory  acts,  because  it  only  establishes  sanctions  for  all  grounds  in  the  area  of 
employment. Compensation has been established for victims in the field of disability, but 
this is not the case for the other fields. 

Field of employment in all grounds 

The  Law  on  Offences  and  Penalties  in  Social  Matters  (RLD  5/2000  of  4  August  2000) 
establishes financial sanctions for offences in employment and social matters by natural or 
legal  persons  or  by  private  and  public  sector  employers  (when  these  infractions  affect 
employees  in  the  service  of  the  various  tiers  of  public  administration),  for  employment 
relations  (Articles  5-10)  and  for  employment  (Articles  14-17),  and  it  also  establishes 
responsibilities and further sanctions (Articles 39-41). In view of the duty regarding those 
whose rights are infringed or affected, the RLD sets out three types of seriousness of an 
offence:  ‘minor’,  ‘serious’  or  ‘very  serious’.  The  penalties  for  these  three  types  of 
seriousness of an offence can be imposed to three different degrees: minimum, average 
and  maximum.  The  amounts  of  the  sanctions  range  from  a  minimum  of  EUR 60  to  a 
maximum of EUR 187 515. The level of the fine is set in consideration of factors such as 
negligence and the intention of the offender, fraud or collusion, failure to abide by previous 
warnings and requests by the inspectorate, business turnover, the number of workers or 
other persons concerned, harm caused, and quantity defrauded. Additionally, some very 
serious sanctions are made public. 

RLD  5/2000  includes  discrimination  under  all  grounds  of  the  directives  in  employment 
relations  among  the  ‘very  serious’  infringements:  ‘unilateral  decisions  of  the  employer 
leading to unfavourable direct or indirect discrimination on the ground of age or disability, 
or  unfavourable  or  adverse  treatment  relating  to  remuneration,  working  time,  training, 
promotion, and other working conditions, on the grounds of sex, origin, including racial or 

130  Constitutional Court Decision 2/2009, 12 January 2009, 

http://hj.tribunalconstitucional.es/HJ/docs/BOE/BOE-A-2009-2491.pdf.  
The shift in the burden of proof is not applied in all types of victimisation cases. 

131  Law 62/2003, which transposed the directives, modified Law 5/2000 and the disability law in force at the 
time (Law 13/1982; replaced by RLD 1/2013) to better comply with the directives, mostly by making it 
more evident that discrimination on the grounds specified by the directives, including harassment and 
victimisation, is a very serious infraction.  

76 

 
 
 
 
 
 
 
 
 
 
 
 
 
ethnic  origin,  marital  status,  social  condition,  religion  or  belief,  political  ideas,  sexual 
orientation, membership or non-membership of a trade union, adherence to trade union 
agreements, family ties with other employees, or language of the Spanish State, as well 
as decisions of the employer leading to unfavourable treatment of the workers as a reaction 
to  a  complaint  within  the  enterprise  or  to  any  legal  proceeding  aimed  at  enforcing 
compliance with the principle of equal treatment and non-discrimination’ (Article 8(12)). 

RLD 5/2000 includes discrimination in employment among the ‘very serious’ infringements: 
‘to establish employment conditions, be it through advertisements, broadcasting or in any 
other way, that amount to unfavourable or adverse discrimination in access to employment 
on the grounds of sex, origin, including racial or ethnic origin, age, marital status, disability, 
religion  or  belief,  political  ideas,  sexual  orientation,  trade  union  membership,  social 
condition or language of the Spanish State’ (Article 16(2)). 

RLD 5/2000 also includes sanctions for harassment as a very serious infringement in the 
context  of  employment  relations:  ‘harassment  on  the  grounds  of  racial  or  ethnic  origin, 
religion or belief, disability, age or sexual orientation when it takes place within the scope 
of management authority, whoever the agent may be, provided that, when the employer 
is  aware  of  it,  the  latter  does  not  undertake  the  necessary  measures  to  prevent  such 
infractions.’ (Article 8(13bis)). 

The  sanctions  for  all  these  ‘very  serious’  discrimination  infringements  are  fines  ranging 
from EUR 6 251 to EUR 187 515, as qualified in the minimum, average or maximum grade. 

In the field of employment, the Law on Social Jurisdiction (Law 36/2011) sets out a special 
procedure for violations of the fundamental rights and civil liberties that are enshrined in 
the Constitution (Title II, Chapter XI). This procedure covers the acts of discrimination or 
harassment that are specified in the directives. If the court judgment rules in favour of the 
claimant in respect of an act of discrimination or discriminatory harassment, the court will 
declare that act void, will require the previous state of affairs to be restored and will provide 
for  ‘reparation  of  the  consequences  of  the  act,  including  any  appropriate  compensation’ 
(Article 183). That is, the law requires compensation (reparation and monetary damages) 
for victims of discriminatory acts, the amount of which is to be set by the court. If the court 
finds a breach of the reasonable accommodation duty, the court will require the employer 
to comply with reasonable accommodation and will impose a penalty within the limits set 
by law.  

Moreover, the Criminal Code is applicable. Article 314 provides for ‘imprisonment from six 
months to two years or a fine of 12 to 24 months’ (with a daily fee that can range from 
EUR 2 to EUR 400) for those ‘that do not restore a situation of equality in accordance with 
the law when required to do so or following an administrative penalty, making good any 
corresponding  financial  loss’  when  employers  have  been  convicted  for  ‘serious 
discrimination  in  a  public  or  private  workplace,  against  a  person  for  reason  of  their 
ideology, religion, belief, ethnicity, race or nationality, gender, sexual orientation, family 
situation,  illness  or  disability,  maintenance  of  legal  or  workers’  union  representation, 
relationship with other company workers, or for use of any official languages of the state 
of Spain’. 

Disability 

In  addition  to  the  sanctions  established  on  the  ground  of  disability  in  the  field  of 
employment by RLD 5/2000, Articles 83-88 of the General Law on the Rights of Persons 
with Disabilities and their Social Inclusion (RLD  1/2013) establish a system  of sanctions 
for discrimination on the ground of disability in other fields. RLD 1/2013 establishes that 
‘the  right  to  equal  opportunities  of  persons  with  disabilities  is  violated  ...  when,  due  to 
disability,  there  are  direct  or  indirect  discrimination,  discrimination  by  association, 
harassment,  non-compliance  with  the  requirements  of  accessibility  and  of  making 

77 

 
 
 
 
 
 
 
 
 
reasonable adjustments, as well as non-compliance with positive action measures legally 
established’ (Article 63). Consequently, the law defines any infringements of the rights of 
persons  with  disabilities  as  'administrative  offences'.  These  offences  may  be  ‘minor’, 
‘serious’ or ‘very serious’. The penalties for these three types of offence can be imposed to 
three  different  degrees:  minimum,  average  and  maximum.  Offences  are  punished  with 
fines  ranging  from  a  minimum  of  EUR 301  to  a  maximum  of  EUR 1 million.  The  criteria 
taken into account when setting the level of fine are the offender’s intention, negligence, 
fraud, non-compliance with prior warnings, business turnover and the number of people 
affected.  

RLD 1/2013 states, in general terms, that ‘discriminatory acts or omissions that directly or 
indirectly  involve  less  favourable  treatment  of  the  person  with  a  disability  in  relation  to 
another person who is in a similar  or  comparable situation’ are serious  offences (Article 
81(3)(a)), and that ‘all conduct of harassment related to the disability’ is a very serious 
offence (Article 81(4)(a)). 

Failure to comply with quotas or alternative measures for promoting the employment of 
persons  with  disabilities  is  sanctioned  with  a  fine  of  EUR 626  to  EUR  6 250.  For  any 
employer that fails to observe the quota of places for disabled workers, the fine increases 
in line with the number of workers for whom the quota is not met; it can be increased by 
up to 50 % in cases where five or more disabled workers are affected (RLD 5/2000, Articles 
15 and 40). Unlike other labour sanctions, the sanction for breach of the quota for persons 
with disabilities is not graded, although it can be aggravated by repeated non-compliance. 

Since  2015,  penalties  included  in  the  Criminal  Code  for  various  offences  are  now  more 
serious when they are committed against persons with disabilities: illegal detention (Article 
166 of the Criminal Code), prostitution (Article 188), child pornography (Article 189) and 
abandonment of a child (Article 619). 

Criminal Code 

Criminal  Code  (Organic  Law  10/1995,  23  November  1995)  specifies,  as  a  general 
aggravating  circumstance,  the  commission  of  any  offence  ‘motivated  by  racism,  anti-
Semitism or any other kind of discrimination relating to the victim’s ideology, religion or 
belief,  the  ethnic  group,  race  or  nation  to  which  he  belongs,  his  gender  or  sexual 
orientation, or any illness or disability from which he suffers’ (Article 22). 

The  Criminal  Code  expressly  punishes  offences  against  fundamental  rights  and  civil 
liberties. To accommodate (and transpose) Council Framework Decision 2008/913/JHA of 
28 November 2008 on combating certain forms and expressions of racism and xenophobia 
by  means  of  criminal  law,  OL  1/2015132  has  amended  the  Criminal  Code,  in  particular 
Articles  510,  511  and  512,  which  provide  for  imprisonment  for  racist  crimes  and 
xenophobia.  In  line  with  the  Council  framework  decision,  Law  10/1995  on  the  Criminal 
Code (reformed by OL 1/2015) defines two different groups of conduct: 

− 

Actions  of  incitement  to  hatred  or  violence  against  certain  groups  or  individuals 
because  of  their  membership  of  a  group  on  racist,  anti-Semitic  or  other  grounds 
related to ideology, religion or belief, family status, membership of an ethnic group, 
race  or  nation,  national  origin,  sex,  sexual  orientation  or  gender  identity,  gender, 
illness or disability; this also includes the development or production of writings that 
incite  racism  or  discrimination;  and  acts  of  denial  or  glorification  of  crimes  of 
genocide. 

132  Organic Law 1/2015 of 30 March 2015 amending Organic Law 10/1995 of 23 November on the Criminal 
Code (Ley Orgánica 1/2015, de 30 de marzo, por la que se modifica la Ley Orgánica 10/1995, de 23 de 
noviembre, del Código Penal) (BOE, 31 March 2015), http://www.boe.es/buscar/pdf/2015/BOE-A-2015-
3439-consolidado.pdf. 

78 

 
 
 
 
 
 
 
 
 
 
 
− 

Acts of humiliation or contempt against such groups or individuals and glorification 
or  justification  of  crimes  committed  against  them  or  their  members  with  a 
discriminatory motivation. 

Article 510 of the Criminal Code provides for prison sentences of one to four years and a 
fine (the fine is calculated as a number  of days, which can  range from 6 to 12 months, 
with a daily fee ranging from EUR 2 to EUR 400) for any person who publicly encourages, 
promotes  or  incites,  directly  or  indirectly,  hatred,  hostility,  discrimination  or  violence 
against a group or part of it or against a person because of their membership in it on racist, 
anti-Semitic or other grounds relating to ideology, religion  or belief,  family situation, its 
members  forming  part  of  an  ethnic  group  or  race,  their  national  origin,  sex,  sexual 
orientation,  gender  identity,  illness  or  disability,  or  for  any  person  ‘disseminating 
defamatory  information’  about  groups  with  these  same  characteristics.  A  person  who 
injures the dignity of people through actions involving the humiliation of, contempt for or 
the discrediting of any such groups will be punished with imprisonment from six months to 
two years and a fine of 6 to 12 months. Article 511 provides prison sentences of six months 
to two years, a daily fine of 12 to 24 months (with a daily fee that can range from EUR 2 
to EUR 400) and disqualification from public office or employment for a period of one to 
three years for ‘any individual responsible for a public service who denies the provision of 
a  service  to  a  person  entitled  thereto  on  the  grounds  of  his  ideology,  religion  or  belief, 
national  origin,  gender,  sexual  orientation  or  family  situation  or  any  illness  or  disability 
from which he suffers’, or where these acts are committed on the same grounds against 
an association or the members thereof.  

If any of these acts are committed by a public servant, they will be disqualified from public 
office or employment for a period of two to four years. Article 512 stipulates disqualification 
from the exercise of a profession, trade, industry or business, for a period of one to four 
years, for ‘those who, in the exercise of their professional or business activity, deny the 
provision of a service to a person entitled thereto on the grounds of his ideology, religion 
or belief, his forming part of an ethnic group, race or nation, his gender, sexual orientation 
or family situation or any illness or disability from which he suffers’. 

b) 

Compensation – maximum and average amounts 

Legislation  establishes  a  maximum  amount  for  the  fines  (EUR 187 515  in  the  field  of 
employment and EUR 1 million in the field of disability) but does not establish any ceiling 
for  compensation.  RLD  1/2013  expressly  states  that  ‘compensation  or  reparation  which 
may give rise to the corresponding claim shall not be limited by a ceiling set a priori’ (Article 
75(2)). 

There is no information available regarding the average amount of compensation awarded 
to victims of discrimination. 

c) 

Assessment of the sanctions 

National law does not comply with the directives because sanctions have been established 
in the field of employment for all the grounds and for the ground of disability in all fields 
but have not been established in the other fields covered by Directive 2000/43. 

There is no information concerning the extent to which the available sanctions have been 
shown to be effective, proportionate and dissuasive, as is required by the directives. In the 
author’s  opinion,  the  penalties  provided  by  law  are  proportionate,  but  they  are  neither 
effective, nor dissuasive. They are proportionate because the laws establish a ranking of 
offences  (minor,  serious  and  very  serious)  and  penalties  (minimum,  medium  and  high 
grade), but they are not effective or dissuasive, because many cases of discrimination and 
violation of the law still occur, although not all of them reach the courts. 

79 

 
 
 
 
 
 
 
 
 
 
 
7 

a) 

BODIES FOR THE PROMOTION OF EQUAL TREATMENT (Article 13 Directive 
2000/43) 

Body  designated  for  the  promotion  of  equal  treatment  irrespective  of  racial/ethnic 
origin according to Article 13 of the Racial Equality Directive 

The Spanish body designated for the promotion of equal treatment irrespective of racial or 
ethnic origin is the Council for the Elimination of Racial or Ethnic Discrimination (Consejo 
para la eliminacion de la discriminación racial o étnica) (‘the council’). 

Law 62/2003 of 30 December 2003 on Fiscal, Administrative and Social Measures133 (Article 
33) (as amended by Article 18 of Law 15/2014 of 16 September 2014)134 established the 
council.  Royal  Decree  1262/2007  of  21  September  2007135  (modified  by  Royal  Decree 
1044/2009 of 29 June 2009)136 regulates its composition, competencies and regulations.  

The council is the only body that corresponds to the requirements of Article 13 of Directive 
2000/43 (as is explicitly recognised in Law 15/2014). Although it was formally created by 
Law 62/2003, which came into force on 1 January 2004, it was set up on 28 October 2009 
and became operational on that date. 

In 2018, the Spanish Parliament discussed the Comprehensive Bill for Equal Treatment and 
Non-discrimination. The bill set up mechanisms for the creation of an ‘Authority for Equal 
Treatment  and  Non-discrimination’  (Autoridad  para  la  igualdad  de  trato  y  no 
discriminación) (‘the Authority’). The Authority would fulfil the requirements of the equality 
body provided for in the directives. It would be an independent body and the law set the 
legal basis for the effective performance of its duties. This included the functions required 
by  the  directives,  as  well  as  others,  such  as  mediation,  investigation  of  cases  of 
discrimination on the Authority’s own initiative, and intervention in litigation, training and 
so on. It was intended for the Authority to have jurisdiction on gender, race and ethnicity, 
religion and belief, disability, sexual orientation and age. In 2019, the bill was withdrawn 
due  to  the  dissolution  of  Parliament.  In  January  2020,  a  new  coalition  Government  was 
formed,  comprising  the  Socialist  Party  and  the  Unidas  Podemos  (a  coalition  of  leftist 
political parties). One of the laws in the new Government programme is the Comprehensive 
Bill  for  Equal  Treatment  and  Non-discrimination,  which  is  expected  to  provide  for  the 
creation of the ‘Authority for Equal Treatment and Non-discrimination’. 

In addition to the council (and the Institute for Women and Equal Opportunities, which is 
recognised as the equality body for matters of gender discrimination), there are three other 
bodies worth noting: 

1) 

Regarding Roma people, Royal Decree 891/2005137 set up the National Roma Council 
(Consejo Estatal del Pueblo Gitano) ‘as a collegiate participatory and advisory body 
on general and specific public policy affecting the integral development of the Roma 
population in Spain’ (Article 1). Its overriding purpose is ‘to promote participation 

133  Law 62/2003 of 30 December 2003 on Fiscal, Administrative and Social Measures (Ley 62/2003, de 30 de 

diciembre, de medidas fiscales, administrativas y de orden social) (BOE, 31 December 2003), 
http://www.boe.es/boe/dias/1978/12/29/pdfs/A29313-29424.pdf. 

134  Law 15/2014 on the rationalisation of the public sector and other measures of administrative reform. 
135  Royal Decree 1262/2007 of 21 September 2007, which regulates the composition, competencies and 

regulations of the Council for the Elimination of Racial or Ethnic Discrimination (Real Decreto 1262/2007, de 
21 de septiembre, por el que se regula la composición, competencias y régimen de funcionamiento del 
Consejo para la Promoción de la Igualdad de Trato y no Discriminación de las Personas por el Origen Racial 
o Étnico) (BOE, 3 October 2007), http://www.boe.es/boe/dias/2007/10/03/pdfs/A40190-40195.pdf. 

136  Royal Decree 1044/2009 of 29 June 2009 (Real Decreto 1044/2009, de 29 de junio, por el que se modifica 

el Real Decreto 1262/2007, de 21 de septiembre) (BOE, 23 July 2009), 
http://www.boe.es/boe/dias/2009/07/23/pdfs/BOE-A-2009-12210.pdf. 

137  Royal Decree 891/2005 of 27 July 2005 setting up the National Roma Council (Real Decreto 891/2005, de 
22 de julio, por el que se crea y regula el Consejo Estatal del Pueblo Gitano) (BOE, 26 August 2005),  
http://www.boe.es/boe/dias/2005/08/26/pdfs/A29622-29625.pdf. 

80 

 
 
 
 
 
 
 
 
 
 
 
and cooperation by Roma associations in the development of general policy and the 
promotion of equal opportunities and treatment for the Roma population’ (Article 2). 
Its functions therefore include ‘drawing up opinions and reports on draft legislation 
and  other  initiatives  related  to  the  council’s  purposes  ...  and  that  affect  the  Roma 
population, and, in particular, the development of regulations on equal opportunities 
and equal treatment’ (Article 3).  Of the 40 members forming this  council, half are 
from  central  Government  and  the  other  half  are  representatives  of  Roma 
associations.  The  council  was  set  up  and  has  been  running  since  2006.  It  has  no 
specific budget, as it is an official advisory body. The measures it recommends are 
to be implemented by other bodies. 

2) 

3) 

The Forum for the Social Integration of Immigrants (Foro para la Integración Social 
de  los  Inmigrantes),  created  by  Law  4/2000,138  is  a  collegiate  consultative, 
informative  and  advisory  body  concerned  with  the  integration  of  immigrants.  It 
consists of 10 representatives of the public administration, 10 representatives from 
immigrants’  associations  and  10  representatives  of  social  support  organisations, 
including trade unions and employers’ organisations with an interest and involvement 
in the field of immigration.139 

After a new Government was sworn in at the beginning of 2020, the Council for the 
Participation  of  Lesbian,  Gay,  Trans,  Bisexual  and  Intersex  (LGTBI)  Persons  was 
created (see Order IGD/577/2020 of 24 June 2020). The purpose of this Council is 
to institutionalise collaboration and  strengthen permanent dialogue between  public 
administrations  and  civil  society  in  matters  related  to  equal  treatment  and  non-
discrimination on grounds of sexual orientation, gender identity or expression, and 
to ensure the participation of LGTBI people and their families in all areas of society. 
The Council for the Participation of LGTBI Persons is made up of 2 representatives of 
the  Ministry  of  Equality,  10  representatives  of  the  General  State  Administration,  2 
representatives  of  the  autonomous  communities,  1  representative  of  local 
organisations,  1  representative  of  Spanish  University  Diversity  Services,  2 
representatives of business organisations, 2 representatives of LGTBI working groups 
or trade union sections, and 12 representatives of LGTBI foundations, organisations, 
associations, federations and confederations. 

b) 

Political, economic and social context of the designated body 

The Spanish Government extended the 2019 budget to 2020 and, in 2020, the Government 
approved Law 11/2020 of 30 December on the General State Budget Law for 2021. This 
law created a special programme (No. 232D) on equal treatment and diversity, financing 
it  with  EUR 1 800 020.  Of  this,  EUR 500 000  was  granted  to  the  State  Council  for  the 
Elimination of Racial Discrimination, and another EUR 500 000 to the LGTBI Council. The 
specific budget of the National Disability Council has not been published, but the General 
State Budget Law for 2021 has endowed not-for-profit entities with EUR 5 225 000. 

The General State Budget allocated EUR 211 430 to the Gypsy Secretariat Foundation for 
the  economic  and  financial  support  of  its  central  structure  in  2021.  The  following  table, 
which featured in the 2019 country report, details the cuts to the council’s budget between 
2014 (EUR 723 000) and 2019 (EUR 483 510). Note, however, that these cutbacks cannot 

138  Organic Law 4/2000 of 11 January 2000 on the Rights and Freedoms of Foreigners in Spain and their Social 
Integration (Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España 
y su integración social) (BOE, 12 January 2000),  
http://www.boe.es/buscar/pdf/2000/BOE-A-2000-544-consolidado.pdf. 

139  Royal Decree 3/2006 of 16 January 2006 on the make-up, competences and procedural rules of the Forum 
for the Social Integration of Immigrants (Real Decreto 3/2006, de 16 de enero, por el que se regula la 
composición, competencias y régimen de funcionamiento del Foro para la integración social de los 
inmigrantes) (BOE, 17 January 2006), http://www.boe.es/buscar/pdf/2006/BOE-A-2006-625-
consolidado.pdf. 

81 

 
 
 
 
 
 
 
 
 
be considered disproportionate given the overall restrictions on the budget of the public 
administration over these years. 

The budget of the National Roma Council for 2014-2019 (in current euros; at the time of 
writing this report, the updated data for 2020 has not yet been made public): 

Items 

Assistance service for victims 
Studies and Reports 
Personnel 
Training, meetings and conferences 
Total 

2014 

2017 

2018 

2019 

550 000  500 000  482 369  482 369 
100 000 
-- 
1 141 
18 000 
-- 
55 000 
723 000  518 000  483 510  483 510 

-- 
18 000 
-- 

-- 
1 141 
-- 

In July 2020, the Spanish Government approved an agreement for the distribution of credit 
for comprehensive social intervention projects for the care, prevention of marginalisation 
and integration of the Roma people, with an endowment of EUR 412 500. The purpose of 
this budget is to meet the needs of the most disadvantaged Roma people and to promote 
the  development  of  the  Roma  population  within  the  framework  of  the  commitments 
assumed  by  the  Government  in  the  National  Strategy  for  the  Inclusion  of  the  Roma 
population in Spain 2012-2020. 

Furthermore, the Platform for Social Action, an NGO, received EUR 652 086 in economic 
support from the General State Budget for 2021 to finance its central structure and that of 
its  associates:  the  Movement  for  Peace,  Disarmament  and  Freedom,  the  Romani  Union, 
the  Juan  Ciudad  Foundation,  the  Spanish  Federation  of  Rural  Women  (FEMUR),  the 
Association of  Teachers with Gypsies, Gypsy Presence and the Roma  Institute for Social 
and Cultural Affairs. In 1989, a specific budget item was created within the General State 
Budget to finance this programme. Since then, this financial support has been distributed 
through  collaboration  agreements  with  the  autonomous  communities,  which  provide  co-
funding. 

It cannot be said that there is any real popular, political, or even academic debate in Spain 
on equality and diversity, or on the role of the council in the fight against discrimination 
based  on  racial  or  ethnic  origin.  It  has  only  been  through  the  discussion  of  the 
Comprehensive Bill for Equal Treatment and Non-discrimination in the Parliament in 2018 
that the role of the council and the need to create an  authority for equal treatment and 
non-discrimination have become part of the political debate. 

c) 

Institutional architecture  

In Spain, the designated body does not form part of a body with multiple mandates. The 
Spanish council has the sole mandate of combating discrimination on grounds of racial or 
ethnic origin. 

d) 

Status of the designated body – general independence 

i) 

Status of the body 

• 

As  regards  its  legal  status  and  personality,  the  council  has  the  following 
characteristics: 

− 
− 

it is a collegiate Spanish governmental body; 
the  council  is  attached  to  the  Ministry  of  Equality,  but  is  not  part  of  the 
ministry’s hierarchal structure; 

82 

 
 
 
 
 
 
 
 
 
 
 
− 

its make-up is of a fundamentally governmental nature, as the law states that 
the  council  is  to  be  formed  by  all  ministries  with  responsibilities  in  the  areas 
referred  to  by  Article  3(1)  of  Directive  2000/43,  with  the  participation  of 
autonomous  regions,  local  authorities,  employers’  organisations  and  trade 
unions, and other organisations representing interests related to people’s racial 
or  ethnic  origins.  Royal  Decree  1262/2007  (modified  by  Royal  Decree 
1044/2009) specifies its composition.  

• 

Currently, the council consists of a chair and 28 members. The only person who is 
appointed specifically to the council as such is the chair, who, as specified in Royal 
Decree 1044/2009 (Article 4), is appointed by the Ministry of Equality ‘from among 
persons of widely recognised prestige in the field of promoting equal treatment and 
combating discrimination on the grounds of racial or ethnic origin. He/she shall be 
appointed for a term of three years.’ 

Of the 28 seats on the  council, 14 are members of the public administration and 14 are 
social partners and stakeholders. They are distributed as follows: 

a) 

Seven  members  representing  central  Government,  all  with  the  rank  of  director-
general, from the following ministries:  
1)  Directorate General for Equality of Treatment and Diversity (which is to hold 

the council’s second vice-chair);  

2)  Ministry of Justice;  
3)  Ministry of the Interior;  
4)  Ministry of Education; 
5)  Ministry of Labour, Migration and Social Security; 
6)  Ministry of Health, Consumption and Social Welfare; and  
7)  Ministry of Development (Secretary of Housing). 
Seven members from other tiers of government: four from the autonomous regions 
and three from local authorities; 
Four  members  from  among  the  social  partners:  two  representing  employers’ 
organisations and two representing trade unions; 
Ten members representing organisations and associations whose activities are linked 
to the promotion of equal treatment and non-discrimination on grounds of racial or 
ethnic origin. 

b) 

c) 

d) 

These  last  two  groups  of  members  (social  partners  and  stakeholders)  elect  the  person 
holding the council’s first vice-chair. 

The council chair and members’ posts are unpaid positions: they receive no remuneration 
or compensation for the meetings that they take part in. Only travel expenses are paid. 

Royal Decree 1267/2007 (Article 9) specifies the reasons for cessation of membership of 
the  council.  This  article  does  not  affect  the  chair.  It  is  necessary  to  distinguish  three 
positions: (1) the chair, (2) representatives of the administration and (3) representatives 
of organisations. 

1.  Chair:  He/she  is  the  only  person  appointed  as  such  to  the  council  by  the  Ministry  of 
Equality. The royal decree does not establish any causes for the  removal of the chair of 
the  council.  Therefore,  the  chair  may  be  freely  removed  by  the  minister  who  appointed 
them  with  no  requirement  for  any  motivation.  That  is,  the  Government  can  dismiss  the 
chair of the council if he/she is not in line with its policies, in particular if he/she specifically 
expresses dissent over the Government’s actions. 

2. Representatives of the administration can be members of the council, depending on the 
positions  they  hold  in  the  public  administration  with  the  rank  of  director-general.  The 
directors-general are appointed by royal decree by the Council of Ministers on the proposal 

83 

 
 
 
 
 
 
 
 
 
 
of  the  minister  of  the  department.  They  can  be  freely  removed  by  the  same  procedure 
(Article 18 of Law 6/1997 of 14 April 1997, on the Organisation and Functioning of Central 
Government). This law does not establish any causes for the removal of a director-general: 
they may be freely removed by the Government with no requirement for any motivation. 
That is, the Government can dismiss members of the council who are general directors if 
they are not in line with its policies. 

3.  Representatives  of  organisations  can  only  be  dismissed  for  the  reasons  expressly 
provided  for  in  Article  9  of  Royal  Decree  1267/2007.  They  cannot  be  dismissed  on  the 
ground of dissent over the Government’s actions. 

The council cannot be said to have a board or commission, as it is a body in which decisions 
are taken by a plenary session with the participation of all its members. The council has a 
non-executive standing committee, which deals with formalities and prepares the council’s 
plenary sessions. It is made up of the chair, the two vice-chairs and a member from each 
of the four groups of members.  

With  this  set-up,  the  council  cannot  be  said  to  be  in  line  with  the  ECRI  general 
recommendation  2,  on  specialised  bodies  to  combat  racism,  xenophobia,  anti-Semitism 
and  intolerance  at  national  level  of  13  June  1997,  and  the  European  Commission 
Recommendation on Standards for Equality Bodies of 22 June 2018.  

• 

• 

• 

Funding: the resources for the functioning of the council come exclusively from the 
general budget of the Spanish public administration.  
Its  power  to  recruit  and  manage  staff:  the  council  has  no  capacity  to  recruit  and 
manage  personnel.  The  council  has  a  secretary’s  post  for  a  civil  servant,  at  the 
Directorate General for Equality of Treatment and Diversity (Ministry of the Equality). 
In addition, when necessary, other civil servants belonging to this directorate provide 
part-time  services  to  the  council  (secretariat,  coordination  of  working  groups, 
management outsourcing, technical assistance, preparation of minutes, etc). 
Accountability: the council is accountable before the Ministry of the Equality. 

ii) 

Independence of the body 

The set-up provided by Law 62/2003 (Article 33) was very similar to that of some existing 
governmental consultative bodies. However, Law 15/2014 (Article 18) recognises that the 
council  exercises  its  functions  ‘with  independence’.  Therefore,  it  may  be  said  that  the 
council can be regarded as independent de jure, because it is established as such by a Law 
(Law 15/2014 amending Law 62/2003). 

The council cannot be regarded as independent de facto, among other reasons because of 
the presence of Government representatives among its members: half of its members are 
formally  representatives  of  the  public  administration;  the  seven  representing  central 
Government are of the  rank  of director-general (appointed by the  Council of Ministers); 
these Government representatives are full members of the council with full speaking and 
voting rights in all areas. 

In  addition,  the  council  cannot  be  seen  as  an  independent  body  in  structural  terms,  for 
various reasons: it cannot choose its own staff (because the council secretariat is a part of 
the public administration itself, being a department of the Ministry of Equality), and it has 
no infrastructure of its own. It cannot be said that the council conforms to the provisions 
established  in  the  UN  Paris  principles  (Principles  relating  to  the  Status  of  National 
Institutions,  adopted  by  General  Assembly  Resolution  48/134  of  20  December  1993), 
especially due to two requirements in the ‘Composition and guarantees of independence 
and pluralism’: its composition and its lack of infrastructure. Furthermore, the council also 
does not conform to the European Commission Recommendation on Standards for Equality 
Bodies of 22 June 2018. 

84 

 
 
 
 
 
 
 
  
 
 
e)  Grounds covered by the designated body 

The  council  has  competence  only  in  relation  to  the  ground  of  racial  or  ethnic  origin.  In 
practice this means that the equality body deals with discrimination against migrants. The 
council, however, does not treat migrants as a priority issue. 

The  areas  covered  by  the  council  are:  education,  health,  benefits  and  social  services, 
housing,  the  offer  of  and  access  to  any  goods  and  services—including  access  to 
employment,  self-employment  and  professional  practice—affiliation  to  union  or  business 
organisations,  working  conditions,  and  the  promotion  of  professional  and  vocational 
training (Law 62/2003, Article 33). 

f) 

Competences of the designated body – and their independent exercise 

i) 

Independent assistance to victims 

In  Spain,  the  designated  body  formally  has  the  competence  to  provide  independent 
assistance  to  victims  on  ground  of  racial  or  ethnic  origin  (Law  62/2003,  Article  33,  as 
modified by Law 15/2014, Article 18). 

To fulfil this competence, the council has the Network of Centres of Assistance for Victims 
of Racial or Ethnic Discrimination, under the coordination of Fundación Secretariado Gitano 
(FSG) and involving seven NGOs (FSG, ACCEM, Cruz Roja Española, Fundación CEPAIM, 
Movimiento  contra  la  Intolerancia,  Movimiento  por  la  Paz,  el  Desarme  y  la  Libertad  and 
Red Acoge). These NGOs work independently but follow a formal protocol established by 
the council, handling cases for possible victims of discrimination on request or dealing with 
situations that have been identified by the NGOs themselves. The next step is assessment 
of whether there are any ‘clear indications’ of direct or indirect discrimination (when it has 
been found that a person or people have been effectively treated ‘differently and worse’ 
because  of  their  racial  or  ethnic  origin).  If  there  are  any  such  indications,  the 
recommendations  may 
include  (1) negotiation,  (2) mediation,  (3) legal  support, 
(4) psychological support, or (5) complaint. The performance of the NGOs is not  subject 
to scrutiny by the council in relation to matters of substance. The NGOs draw funding from 
the council for these interventions. 

The network works on a two-year contract with the Spanish public administration (most 
recently October 2017-October 2019) and received funding of EUR 482 369 for this period. 
The network’s financial resources and staffing levels appear to be adequate. As of 2020, 
however, no information has been published on the planned agreement or contract for the 
2020-2022 period. 

The council has a free helpline for victims (900 203 041), and a website is also available: 
www.asistenciavictimasdiscriminacion.org. 

De jure, the council has the competence to provide independent assistance to victims, but 
it  is  difficult  to  assess  to  what  extent  the  council  is  actually  exercising  this  function 
independently, given the factors mentioned in previous paragraphs (half of its members 
are Government representatives, and the staff of the council themselves form part of the 
public administration). The possibility of providing independent legal assistance to victims 
has been addressed via the Network of Centres of Assistance for Victims of Racial or Ethnic 
Discrimination.140  

It  is  difficult  to  assess  the  effectiveness  of  the  council  in  relation  to  the  ‘independent 
assistance  to  victims.’  The  network  provides  an  important  service  of  advising  and 

140   This possibility was suggested by Cachón (2009) as a way for the council to provide assistance to victims, 
as long as the service is suitably managed. If this assistance is provided by these organisations in a way 
that is not dependent on the public administration, then it can be described as independent. 

85 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
accompanying victims. The 2018 (January-October) report shows that 280 of a total of 689 
cases141 (41 %) had a ‘favourable resolution’ (although it is not known what the resolution 
consists of), and 14 cases (2 %) were settled through a ‘resolution’ or a ‘judicial ruling’. 
The latest report was published in 2019, with results from 1 January to 12 October 2019 
only. During this period, a total of 588 cases of discrimination were recorded, of which 278 
(47 %) were settled. A total of 111 cases (40 %) were settled with positive results.  

One indicator that the council is not in fact providing effective assistance to victims is the 
fact that the vast majority of registered cases do not reach the network at the initiative of 
the victims but are picked up by experts from the organisations that make up the network. 
This allows us to make a positive judgment of these organisations (which seek to identify 
cases of discrimination), while highlighting the ineffectiveness of the council itself. 

ii) 

Independent surveys and reports 

In Spain, the designated body has the competence to conduct independent surveys and 
publish independent reports (Law 62/2003, Article 33 as modified by Law 15/2014, Article 
18). 

The most recently published  study by the Council for the  Elimination  of Racial  or Ethnic 
Discrimination is a report entitled Potential victims’ perception of discrimination based on 
racial or ethnic origin-2020.142 

As stated in the report itself, its main objective is to gain insight into how the perception 
of possible victims of discrimination due to racial or ethnic origin has evolved over time in 
Spain.  This  is  a  continuation  of  the  studies  conducted  in  2010,  2011  and  2013.  The 
uniqueness and added value of the study lies in the fact that ethnic and racial discrimination 
is addressed based on potential victims’ subjective perception. This study aspires to be a 
unique  tool  to  be  used  throughout  Spain  to  measure  how  discrimination,  a  particularly 
complex phenomenon, is perceived. 

Amongst other conclusions of interest, it may be highlighted that the Roma and Maghreb 
populations  believe  that  they  are  seen  in  the  worst  light.  The  perceived  image  of  the 
Maghreb group has worsened in comparison with the 2013 report; people who were born 
in  Spain  and/or  have  Spanish  nationality  perceive  higher  levels  of  racism,  and  this 
perceived level decreases as the number of years spent in the country increases; physical 
features  and skin colour are the main motives for discriminatory behaviour, followed by 
cultural elements and religious beliefs and practices at a considerable distance, but gaining 
relative  importance;  this  means  that  the  main  grounds  for  racial  discrimination  are  the 
victim’s  skin  colour  and  physical  features.  Less  numerous  are  allegations  of  racially 
motivated discrimination on the basis of the victim’s culture or religious beliefs. The study 
shows that many people suffer from multiple discrimination and, in some cases, what has 
been  called  intersectional  discrimination:  when  specific  stereotypes  about  certain  ethnic 
groups  are  compounded  by  personal  characteristics  such  as  one’s  gender,  level  of 
education  and  income.  Examples  include  discourse  that  sexualises  women  from  certain 
groups, or the difficulties certain subgroups have in finding employment because they are 
seen as unfit for certain jobs. 

Finally,  the  report  concludes  that  the  work  carried  out  by  organisations  and  public 
institutions  fighting  discrimination  is  still  not  very  well  known.  Important  work  is  being 
carried  out  at  national  level  and  by  NGOs  and  associations  to  disseminate  and  support 
human  rights  and  support  the  complaints  process.  However,  the  report  states  that  we 

141  Of these cases, 561 are new cases from January-October 2018, and 128 are pending cases from the 

previous year. 

142  See https://igualdadynodiscriminacion.igualdad.gob.es/destacados/pdf/05-

PERCEPCION_DISCRIMINACION_RACIAL_RESUMEN-EN.pdf. 

86 

 
 
 
 
 
 
 
 
 
 
 
should question the effectiveness of these initiatives judging by the fact that, in 2013, only 
2 out of 10 people had heard of any of these institutions. 

It is difficult to assess to what extent the council is exercising this function independently. 
The  council  can  produce  analyses  and  reports  with  contributions  from  the  various 
organisations involved. They may be proposed by NGOs or experts independently, but they 
must be formally approved by the council (and half of whose members are Government 
representatives). 

iii)  Recommendations 

In Spain, the designated body has competence to issue recommendations on discrimination 
issues (Law 62/2003, Article 33 as modified by Law 15/2014, Article 18). In addition, Royal 
Decree  1262/2007  assigns  other  competences  that  can  also  be  interpreted  as  the 
possibility of making recommendations: 

a) 

b) 

analyse the regulations in relation to equality of treatment and non-discrimination on 
ground  of  racial  or  ethnic  origin,  proposing  initiatives  for  their  adoption  or 
modification; 
present  initiatives  and  formulate  recommendations  in  relation  to  plans  or 
programmes  to  promote  equality  of  treatment  and  non-discrimination  by  racial  or 
ethnic origin. 

In 2019 (and in 2015) the council approved a recommendation on the eve of an election 
campaign.  The  council  approved  the  recommendation  ‘Avoid  the  use  of  discriminatory, 
racist  or  xenophobic  discourse  in  electoral  campaigns’  (Evitar  el  uso  de  discursos 
discriminatorios, racistas o xenófobos en las campañas electorales). This recommendation 
has not had a major impact. 

iv)  Other competences 

In  its  definition  of  the  council’s  functions,  Royal  Decree  1262/2007  assigns  other 
competences that are not included in the directive. It provides that the council may: 

a) 

b) 

c) 

d) 

advise and  report on indirect  anti-discrimination practices in its  various spheres  of 
action; 
promote informative, awareness-raising  and training activities and  any others that 
may be required to promote equal treatment and non-discrimination;  
establish 
international, national, regional or local bodies or institutions; and 
establish  cooperation  and  partnership  mechanisms  with  other  bodies,  entities  and 
high-level institutions working to defend fundamental rights. 

information  exchange  and  cooperation  relationships  with  similar 

All these functions could be of great interest to the council and could significantly enrich 
its sphere of action.  

Although the launch of the Network of Centres of Assistance for Victims of Racial or Ethnic 
Discrimination in 2010 and the formal recognition of its independence by Law 15/2014 may 
have improved the public’s understanding of its roles as well as boosting its effectiveness, 
it appears that the council remains unknown by the general public. According to a report 
of 2017 of the FRA,143 Spain’s anti-discrimination body is the least well known in the entire 
EU; as such, its potential for anti-discrimination action is limited. One of the reasons is that 
the council was without a chair from September 2015 until October 2018 and did not hold 
any meetings in 2016, 2017, and almost all of 2018. Following the appointment of its new 
president in 2018, the council has increased its visibility. 

143  FRA (2017), Second European Union Minorities and Discrimination Survey, Main results. 

87 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
g) 

Legal standing of the designated body 

In Spain, the designated body does not have legal standing to:  

• 
• 
• 
• 

bring discrimination complaints on behalf of identified victims to court; 
bring discrimination complaints on behalf of non-identified victims to court; 
bring discrimination complaints ex officio to court; 
intervene in legal cases concerning discrimination, for example as an amicus curiae. 

h)  Quasi-judicial competences 

In Spain, the body is not a quasi-judicial institution. 

i) 

Registration by the body of complaints and decisions 

In Spain, the body does not itself handle complaints or make decisions (by ground, field, 
type  of  discrimination,  etc).  However,  the  body  does  register  the  number  of  complaints 
relating to racial or ethnic origin that have been addressed by the  network of assistance 
centres, which was created by the council in 2010. These data concern ‘inquiries received’ 
by the network, both formal and informal (phone calls, emails with questions, items in the 
newspapers,  etc).  The  data  record  complaints  filed  as  a  ‘racist  incident’  as  defined  in 
Recommendation 11  of the ECRI (Paragraph 14): ‘any incident which is perceived to be 
racist by the victim or any other person’. 

The data on complaints addressed by the network are available to the public because they 
are published in the network’s annual reports. Cases may be individual (incidents in which 
a  person  has  felt  discriminated  against)  or  collective  (incidents  in  which  a  group  or 
collective has felt discriminated against). The disaggregation of the data from January 2016 
to October 2019 can be seen in the following table. 

2016 
(January-
December) 

2017 
(January-
December) 

2018 
(January-
December) 

2019 
(Oct.  2018-Oct. 
2019)  

Total 
Individual 
Collective 

631 
381 
250 

646 
370 
276 

729 
416 
313 

756 
479 
277 

Source: Annual reports of the Network of Assistance Centres of the Spanish Council.144 

The ethnic group most affected by the complaints addressed by the network in 2018 is the 
Spanish Roma, followed by immigrants from the Maghreb. There were higher numbers of 
discriminatory acts in the fields of employment and access to goods and services among 
individuals,  with  discriminatory  acts  via  the  internet  and  other  media  highest  among 
collective complaints (see following table). 

Complaints addressed by the network in 2019 (October 2018-October 2019) by ethnic or 
racial origin of the victim and by field of discrimination. The final figures for 2019 and 2020 
are not yet known. 

Individual 
Total 
479 
Ethnic or racial origin of the victim 
193 
  Spanish Roma 

Collective 
277 

167 

144  The data from October-December 2018 are included in the total data for 2018 and 2019 (because the 2019 
report aggregates the data for October 2018-October 2019). The final figures for 2019 and 2020 are not yet 
known. 

88 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  Maghreb 
  Sub-Saharan Africa 
  Latin America 
  Others 
Field of discrimination 
  Access to goods/services 
  Education 
  Employment 
  Media & internet 
  Housing 
  Health 
  Others 

71 
44 
122 
49 

119 
48 
79 
4 
53 
59 
117 

35 
30 
23 
22 

49 
21 
26 
107 
28 
7 
39 

Source: Report of the Network of Assistance Centres of the Spanish Council (October 2018- 
October 2019). 

j) 

Roma and Travellers 

The  council  may  conduct  formal  general  investigations  into  discrimination  against  the 
Roma, but this is not necessarily a priority issue. Among the members of the council, there 
are  two  Spanish  Roma  organisations:  the  Fundación  Secretariado  Gitano  and  the  Unión 
Romaní, which are very active associations in this field. It is noteworthy that the Fundación 
Secretariado Gitano coordinates the council’s Network of Centres of Assistance for Victims 
of Racial or Ethnic Discrimination. 

89 

 
 
 
 
 
8 

IMPLEMENTATION ISSUES  

8.1  Dissemination  of  information,  dialogue  with  NGOs  and  between  social 

partners 

a)  Dissemination of information about legal protection against discrimination (Article 10 

Directive 2000/43 and Article 12 Directive 2000/78)  

Spain has undertaken some campaigns to disseminate anti-discrimination rules. It cannot 
be  said  that  there  have  been  major  campaigns  to  spread  awareness  of  the  anti-
discrimination rules that have had significant effects. However, there has been a marked 
improvement  in  anti-discrimination  awareness,  especially  in  areas  such  as  gender, 
disability and sexual orientation. 

b)  Measures to encourage dialogue with NGOs with a view to promoting the principle of 

equal treatment (Article 12 Directive 2000/43 and Article 14 Directive 2000/78)  

− 

− 

− 

In  the  field  of  disability,  the  National  Disability  Council  (Consejo  Nacional  sobre  la 
Discapacidad)  was  established  by  the  General  Law  on  the  Rights  of  Persons  with 
Disabilities  and  their  Social  Inclusion  (RLD  1/2013).  The  council  has  15  members 
representing various bodies within national Government, 15 members representing 
associations of persons with disabilities of various kinds and four expert advisors. Its 
functions include the issuing of reports, of a mandatory, non-binding nature, on draft 
regulations  affecting  equal  opportunities,  non-discrimination  and  universal 
accessibility.  It  is  therefore  a  body  with  powers  in  the  field  of  equal  treatment  in 
employment  and  occupations  in  line  with  Directive  2000/78,  implementing  the 
provisions of the directive’s Articles 13 and 14.  Despite this council’s major role in 
relation to disability in Spain, it does not meet the criterion of being an ‘independent 
mechanism’ as provided by Article 33 of the UN Convention on the Rights of Persons 
with Disabilities. 

The  Forum  for  the  Social  Integration  of  Immigrants,  created  by  Law  4/2000,  is  a 
collegiate,  consultative,  informative  and  advisory  body  in  the  field  of  immigrant 
integration.  It  consists  of  10  representatives  of  the  public  administration,  10 
representatives of immigrants’ associations and 10 representatives of social support 
organisations, including trade unions and employers’ organisations with an interest 
and involvement in the field of immigration.145 

The  Advisory  Commission  on  Religious  Freedom,  created  by  the  Organic  Law  on 
Religious Freedom (OL 7/1980), aims to review, report on and present proposals with 
respect to issues relating to the enforcement of the law, religious discrimination being 
one  of  these  issues.  Representatives  of  churches,  denominations  and  religious 
communities or federations, appointed by the Ministry of Justice, participate in this 
body.  

c)  Measures to promote dialogue between social partners to give effect to the principle 
of  equal  treatment  within  workplace  practices,  codes  of  practice  and  workforce 
monitoring (Article 11 Directive 2000/43 and Article 13 Directive 2000/78) 

Collective  agreements  between  representatives  of  employers’  organisations  and  trade 
unions are used to implement the principles of the directives.  

On  30  January  2003,  representatives  of  the  Spanish  Confederation  of  Employers’ 
Organisations (CEOE), the Spanish Confederation of Small and Medium-Sized Companies 

145  This body is regulated by Royal Decree 3/2006 of 16 January 2006 on the make-up, competences and 

procedural rules of the Forum for the Social Integration of Immigrants. 

90 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
(CEPYME)  and  the  trade  unions,  Comisiones  Obreras  (CCOO)  and  the  Unión  General  de 
Trabajadores (UGT), signed the Multi-industry Agreement for Collective Bargaining 2003 
(ANC 2003). This agreement set out the criteria to serve as guidelines at the various levels 
of collective bargaining in Spain in 2003, and it was renewed for subsequent years until 
the  agreement  for  2018-2020.  Chapter  V  (entitled  ‘Criteria  relating  to  employment, 
internal flexibility, professional qualification and equal treatment in employment’) contains 
sections  on  ‘Equal  treatment  in  employment’,  as  ‘The  situation  in  employment  and 
unemployment is uneven. Certain groups of workers have greater difficulty in finding work, 
either  because  of  socio-cultural  factors  or  prejudices  or  because  of  labour  market 
conditions.’ 

Collective bargaining should help to remedy any inequality through the application of the 
principle of equal treatment as expressly provided for in employment law, and through the 
promotion  of  specific  actions  aimed  at  eliminating  direct  or  indirect  discrimination.  The 
general clauses on equal treatment in collective agreements are appropriate instruments 
for helping to combat possible discrimination. 

General measures may be taken for some groups: in the case of women, through access 
to  employment,  vocational  diversification  and  promotion;  in  the  case  of  young  people, 
through  the  promotion  of  stable  employment  for  the  young;  in  the  case  of  immigrants, 
through the application of the same conditions that apply to other workers; and in the case 
of disabled workers, by promoting their integration into employment. 

Although it would be necessary to analyse  collective negotiations in various sectors and 
companies to see how the ANC is being implemented, the inclusion in the ANC of the anti-
discrimination clause in line with Article 11(2) of Directive 2000/43 must be described as 
positive. 

For  the  period  2018-2020,  the  social  partners  have  signed  the  Fourth  Agreement  for 
Employment and Collective Bargaining.146 The agreement includes among the objectives 
of  collective  agreements  ‘compliance  with  the  principle  of  equal  treatment  and  non-
discrimination in employment and working conditions, as well as the promotion of equal 
opportunities  between  women  and  men’.  Although  the  only  explicit  reference  relates  to 
discrimination  on  the  ground  of  sex,  the  clause  can  be  applied  to  other  grounds  of 
discrimination. 

d) 

Addressing the situation of Roma and Travellers  

The National Roma Council has been appointed at a national level specifically to address 
Roma issues (see section 7 of this report). 

The  Roma  Development  Plan,  which  was  adopted  each  year  from  1989  to  2013,  was  a 
programme of action for social development and for the improvement of the quality of life 
of Roma in Spain. The ‘National Roma Integration Strategy in Spain 2012-2020’ derives 
from COM(2011)173. The strategy relates to four key areas for social inclusion: education, 
employment, housing and health. In each of these, targets have been set. In addition, the 
strategy provides complementary lines of action in social action, participation, improving 
knowledge  about  the  group,  women’s  equality,  non-discrimination,  promotion  of  culture 
and special attention to Roma who have come from other countries. Since the adoption of 
the  ‘National  Roma  Integration  Strategy  in  Spain  2012-2020’,  the  Government  has 
approved two operative plans: for 2014-2016, and for 2018-2020.147 This operational plan 

146  Resolution of 17 July 2018 on the Directorate General of Employment, for the recording and publishing of 
the IVth Agreement for Employment and Collective Negotiation (Resolución de 17 de julio de 2018, de la 
Dirección General de Trabajo, por la que se registra y publica el IV Acuerdo para el Empleo y la Negociación 
Colectiva (BOE, 20 June 2015), https://www.boe.es/eli/es/res/2018/07/17/(1). 

147  Ministry of Health, Social Services and Equality, ‘National Strategy for the Social Inclusion of the Roma 

Population 2012-2020 Operational Plan 2018-2020’ (Ministerio de Sanidad, Servicios Sociales e Igualdad, 

91 

 
 
 
 
 
 
 
 
 
 
 
 
 
also had four key areas of action: education, employment and economic activity, housing, 
and health. 

There is neither an official report on the situation of Roma in Spain in recent years, nor 
has there been an evaluation of policies to improve their living and working conditions or 
to combat discrimination affecting them in different areas of social life (work, home, etc). 
However,  two  very  important  aspects  can  be  noted.  First,  there  has  been  increasing 
poverty  and  unemployment  among  the  Roma  during  the  great  recession,  due  to  the 
implementation  of  austerity  policies  in  the  European  Union  and  Spain  (FSG,  2013), 
although  the  situation  has  improved  since  2013.  A  good  indicator  is  the  significant 
reduction in the general unemployment rate. Secondly, a significant number of Roma from 
Romania  have  arrived  in  Spain.148  This  group  of  recent  Roma  immigrants  has  settled  in 
Spain  under  the  intra-EU  human  mobility  framework.  Even  if  they  are  included  in  the 
measures  of  the  triannual  Roma  operative  plan,  in  general,  this  recent  group  of  Roma 
immigrants face worse living and working conditions than Spanish Roma. Although there 
have  not  been  any  significant  social  tensions  associated  with  the  Roma  of  Romania  in 
Spain,  as  has  been  the  case  in  other  EU  countries,  there  have  been  some  cases  of 
discriminatory acts. 

8.2  Measures to ensure compliance with the principle of equal treatment (Article 

14 Directive 2000/43, Article 16 Directive 2000/78) 

a) 

Compliance of national legislation (Articles 14(a) and 16(a)) 

In Spain, there has been no explicit transposition of Article 14(a) of Directive 2000/43 and 
Article 16(a) of Directive 2000/78, because Law 62/2003, which transposed the directives 
into Spanish legislation in 2003, did not  explicitly include the transposition of these two 
articles. However, Article 14 of the Spanish Constitution and its sustained interpretation 
by the Constitutional Court are enough to guarantee the legal protection required by the 
two directives.  

Article 14 of the Spanish Constitution declares the general principle of equality and non-
discrimination:  ‘Spaniards  are  equal  before  the  law  and  may  not  in  any  way  be 
discriminated  against  on  the  grounds  of  birth,  race,  sex,  religion,  opinion  or  any  other 
condition or personal or social circumstance’. The doctrine of the Constitutional Court on 
equal  treatment  and  non-discrimination  has  been  forcefully  reiterated  (STC  41/2006; 
144/2006;  31/2014).  In  addition,  the  Constitutional  Court  has  reiterated  that  ordinary 
courts must take EU law into account when applying Spanish rules (STC 64/1991; 58/2004; 
329/2005). Therefore, the courts must guarantee legal protection to persons demanding 
the implementation of the principle of non-discrimination by not applying any national legal 
provisions or regulations contrary to this principle. In the field of employment, the Workers’ 
Statute establishes the principle of equal treatment and non-discrimination in relation to 
all  grounds  of  Directive  2000/78  (as  well  as  on  the  grounds  of  racial  or  ethnic  origin). 
Article 4(2)(c) of the Workers’ Statute provides that workers have the right:  

‘Not  to  be  directly  or  indirectly  discriminated  against  for  employment,  or  once 
employed,  for  reasons  of  sex,  marital  status,  age  ...  racial  or  ethnic  origin,  social 
status,  religion  or  belief,  political  ideas,  sexual  orientation,  affiliation  or  not  to  a 
union, as well as by reason of language, within the Spanish State. Nor can they be 
discriminated against because of disability, provided they are in a position to perform 
the job or employment in question.’  

‘Estrategia Nacional para la Inclusión Social de la Población Gitana 2012-2020 Plan Operativo 2018-2020’), 
https://www.mscbs.gob.es/ssi/familiasInfancia/PoblacionGitana/docs/PlanOperativo2018_20PG.pdf. 
148  As at 31 December 2020, 1 079 726 Romanian citizens resided in Spain; a significant proportion of them 
are Roma, but it is impossible to specify the number because there is no official record that reflects the 
population’s ethnicity; only nationality is registered. 

92 

 
 
 
 
 
 
 
 
 
 
There are no laws,  regulations or rules  still in force that are  contrary to the principle of 
equality on the grounds specified in the directives.  

b) 

Compliance of other rules/clauses (Articles 14(b) and 16(b)) 

Article 14 of the Spanish Constitution and its sustained interpretation by the Constitutional 
Court  are  enough  to  ensure  that  contracts,  collective  agreements,  internal  rules  of 
businesses  and  the  rules  governing  independent  occupations,  professions,  workers’ 
associations or employers’ associations that are contrary to the principle of equal treatment 
may be declared null and void. 

Article 17(1) of the Workers’ Statute declares the regulation precepts, clauses of collective 
agreements,  individual  pacts,  and  unilateral  decisions  of  discriminatory  employers  to  be 
‘null and void’. This article can be considered to comply with the requirements of Article 
14(b) of Directive 2000/43 and Article 16(b) of Directive 2000/78 in relation to contractual 
clauses in employment. 

93 

 
 
 
 
 
 
9 

COORDINATION AT NATIONAL LEVEL 

Although  the  transposition  of  European  directives  is  the  responsibility  of  the  Ministry  of 
Justice under the coordination of the Ministry of Foreign Affairs, the department that drew 
up  the  texts  transposing  Directives  2000/43  and  2000/78  in  2003  was  the  Ministry  of 
Labour and Social Affairs (Directorate General for Labour).  

Since  2020,  the  department  responsible  for  implementing  anti-discrimination  policies 
under Directive 2000/43 has been the Ministry of Equality. Amongst other functions, this 
ministry  is  responsible  for  proposing  and  implementing  Government  policies  aimed  at 
eliminating  all  forms  of  discrimination  based  on  sex,  racial  or  ethnic  origin,  religion  or 
ideology, sexual orientation, gender identity, age, disability, or any other personal or social 
condition or circumstance. This ministry is structured around two state secretariats, one of 
which  is  the  Secretariat  for  Equality  and  against  Gender  Violence.  This  secretariat  is 
responsible for the ‘proposal of policy measures’ aimed at guaranteeing equal treatment 
and non-discrimination of persons regardless of their sex, racial or ethnic origin, religion 
or ideology, sexual orientation, gender identity, age, disability, or any other personal or 
social  condition  or  circumstance.  Two  general  directorates  depend  on  the  Secretariat  of 
State  for  Equality  and  against  Gender  Violence:  the  Directorate-General  for  Equal 
Treatment and Ethnic and Racial Diversity, and the Directorate-General for Sexual Diversity 
and  LGTBI  Rights  (see  Royal  Decree  455/2020  of  10  March  2020,  by  which  the  basic 
organic structure of the Ministry of Equality is set out. It should be noted that the Council 
for the Elimination of Racial or Ethnic Discrimination is attached to the Directorate-General 
for Equal Treatment and Ethnic and Racial Diversity. 

To conclude, this department has a general duty to monitor the implementation of Directive 
2000/43 (independently of the duties of other ministerial departments in their respective 
fields). The Directorate-General of Equal Treatment and Ethnic and Racial Diversity is also 
responsible for developing regulations applicable to the Council for the Elimination of Racial 
or Ethnic Discrimination.  

With  respect  to  the  area  covered  by  Directive  2000/78,  which  ‘lays  down  a  general 
framework for combating discrimination on the grounds of religion or belief, disability, age 
or  sexual  orientation  as  regards  employment  and  occupation’,  the  ministry  in  charge  of 
implementing  anti-discrimination  policies  is  the  Ministry  of  Labour  and  Social  Economy. 
This is established by Royal Decree 499/2020 of 28 April 2020, which sets out the basic 
organic structure of the Ministry of Labour and Social Economy. According to this law, the 
Ministry  of  Labour  and  Social  Economy  is  the  department  responsible  for  proposing  and 
executing the  Government’s  employment policy. Several  state secretariats  report to the 
ministry,  one  of  which  is  the  State  Secretariat  of  Labour  and  Social  Economy,  and  the 
Directorate-General  of  Labour  reports  to  this  secretariat.  Amongst  other  functions,  this 
Directorate has the technical and legal support necessary to ‘draft, approve, transpose and 
implement’ directives and other Community or international legal instruments in the areas 
of competence of the Directorate-General of Labour. Thus, the Ministry is responsible for 
anti-discrimination policies in the workplace on the grounds of religion or beliefs, disability, 
age or sexual orientation covered by Directive 2000/78. 

Finally, and aside from employment, the ministry responsible for implementing policies to 
support  persons  with  disabilities  is  the  Ministry  of  Social  Affairs  and  the  2030  Agenda. 
Royal  Decree  452/2020  of  10  March  2020,  which  sets  out  the  ministry’s  basic  organic 
structure, states that it is responsible for proposing and implementing government policies 
in social rights and social welfare, family, diversity, child protection, social cohesion, care 
for dependent or disabled persons, adolescents and youth, and animal protection. In this 
regard, the Directorate-General for Disability Support Policies is included in the Ministry’s 
organisational structure. 

94 

 
 
 
 
 
 
 
 
The anti-discrimination policies covered by this report are under the implementation of the 
aforementioned ministries. However, we should note that there are other departments with 
responsibilities in matters of racial or ethnic discrimination, both in ministries and in other 
tiers of government, such as the autonomous communities and town councils. 

However, Spain is a decentralised state, and its regions (autonomous communities), can 
pass laws on the subject of non-discrimination on the grounds of sexual orientation. The 
autonomous  communities that have adopted laws on this  subject are the  Community  of 
Madrid, the Valencian Community, Andalusia, Aragon and Cantabria. Catalonia has adopted 
a general law on equal treatment and non-discrimination. 

Anti-racism and anti-discrimination National Action Plan 

On  4  November  2011,  the  Spanish  Government  approved  the  ‘Comprehensive  strategy 
against racism, discrimination, xenophobia and related intolerance’ (still in force in 2020). 
In addition to drawing together various actions already included under Government plans, 
the strategy contains some compromises sought by ECRI (but not others). The strategy 
includes four blocks of activities: analysis, information systems and criminal legal action 
on  racism,  racial  discrimination,  xenophobia  and  related  intolerance;  promotion  of 
institutional coordination and cooperation with civil society; prevention and protection for 
the  victims  of  racism,  racial  discrimination,  xenophobia  and  related  intolerance;  and 
specific areas (including education, employment, health, housing, media, internet, sports, 
and awareness) (see Cachón, 2012). In 2015, the Government published its Report on the 
evaluation  and  monitoring  of  the  comprehensive  strategy  against  racism,  racial 
discrimination, xenophobia and related intolerance. There are no more recent evaluation 
reports of the plan. 

95 

 
 
 
 
 
10  CURRENT BEST PRACTICES 

1.   Regarding  the  use  of  artificial  intelligence  (AI)149  to  improve  the  effective 
implementation  of  the  national  legislation  transposing  the  directives,  the  following 
four actions taken by Spain in relation to artificial intelligence during 2020 should be 
noted: 

a)   The  National  Artificial  Intelligence  Strategy  promoted  by  the  Spanish 
Government in 2020.150 For the purpose of this  report on Spain, it should be 
noted that the Strategy provides for appropriate measures to develop AI based 
on ethical principles, including inclusion and non-discrimination. 

Of  particular  interest  is  the  creation  of  the  Spanish  Artificial  Intelligence 
Advisory  Council  in  2020.151  This  Council  is  made  up  of  Spanish  and 
international experts of worldwide prestige and representatives from the fields 
of  science,  economics  and  the  social  sciences.  Its  scope  of  analysis  and 
consultation  ranges  from  developing  and  monitoring  the  National  Artificial 
Intelligence  Strategy  to  analysing  the  implications  of  climate  change  in  the 
workplace,  fundamental  rights,  the  fight  against  discrimination,  and  equal 
access in the use of technologies. 

b) 

In 2020, a Charter of Digital Rights was drawn up by the Spanish Government 
and was submitted to public consultation. The final text of the Charter will be 
drafted subsequently.152 The first version of the Charter recognises the right to 
equality,  non-discrimination  and  non-exclusion  in  digital  environments.  In 
particular,  certain  rights  are  established  with  regard  to  artificial  intelligence. 
Thus, the Charter states that: 

‘In the development and life cycle of Artificial Intelligence systems:  

a) 

The right to algorithmic non-discrimination must be guaranteed, whatever the 
origin, cause or nature of the bias in relation to decisions and processes based 
on algorithms’. 

b)  Mention  should  also  be  made  of  the  Artificial  Intelligence  Strategy  promoted 
and adopted by the regional Government of Catalonia in 2020, with the aim of 
deploying  a  specific  action  programme  to  strengthen  artificial  intelligence 
system in Catalonia. In terms of non-discrimination, the Strategy indicates that 
universal access to AI systems must be guaranteed through inclusive designs 
and equal work. It adds that, whenever possible, identifiable and discriminatory 
bias should be eliminated at the information-gathering phase.153 

2.   Public support plans for Roma (racial or ethnic origin in all fields) 

149  ‘Artificial intelligence’ refers to systems that display intelligent behaviour by analysing their environment and 
taking action – with some degree of autonomy – to achieve specific goals (see Commission Communication 
on artificial intelligence for Europe (COM(2018)237), at https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=COM%3A2018%3A237%3AFIN). For a more detailed definition of AI, see EU High-
Level Expert Group on Artificial Intelligence (AI HLEG), ‘A Definition of AI. Main Capabilities and Disciplines’, 
available at: https://ec.europa.eu/newsroom/dae/document.cfm?doc_id=56341. See also White Paper on 
Artificial Intelligence - A European approach to excellence and trust, Brussels, 19.2.2020 COM(2020) 65 
final. 

150  See https://www.lamoncloa.gob.es/presidente/actividades/Documents/2020/021220-ENIA.pdf. 
151  Order ETD/670/2020 of 8 July 2020, creating and regulating the Artificial Intelligence Advisory Council. 
152  See 

https://portal.mineco.gob.es/RecursosArticulo/mineco/ministerio/participacion_publica/audiencia/ficheros/S
EDIACartaDerechosDigitales.pdf. 

153  Rivas Vallejo, P. (2021), ‘Discriminación algorítmica: detección, prevención y tutela’ (Algorithmic 

Discrimination: Detection, prevention and protection) (provisional version), paper presented at the 31st 
Catalan Social Law Conference (XXXI Jornades Catalanes de Dret Social), ‘Treball, discriminación i COVID’ 
(Work, Discrimination and COVID) Barcelona, April 2021, http://www.iuslabor.org/wp-
content/plugins/download-monitor/download.php?id=415. 

96 

 
 
 
 
 
 
 
 
 
 
 
The  National  Roma  Council  is  a  participatory  and  advisory  body  on  general  and  specific 
public  policy  affecting  the  integral  development  of  the  Roma  population  in  Spain.  Its 
overriding purpose is to promote participation and cooperation by Roma associations in the 
development of general policy and the promotion of equal opportunities and treatment for 
the  Roma  population.  Of  the  40  members  forming  the  council,  half  are  from  central 
Government and the other half are representatives of Roma associations. The council has 
been running since 2006, and has reported on various Government projects, such as the 
‘Roma Operative Plan 2018-2020’. 

The Roma operative plan for 2018-2020 (and other plans since 2013) have put in place a 
programme of action for social development and for the improvement of the quality of life 
of Spanish Roma. The objectives are: to improve the quality of life of the Roma population 
and  implement  the  principle  of  equal  opportunities  in  their  access  to  systems  of  social 
protection;  to  encourage  Roma  participation  in  public  and  community  life;  to  promote 
better  coexistence  among  different  social  and  cultural  groups;  to  strengthen  Roma 
associations;  and  to  combat  discrimination  and  racism  towards  the  Roma  (see  sections 
7(a) and 8.1 of this report).  

3.   Sign languages and speech aid systems  

Law  27/2007  Recognising  Sign  Languages  and  Speech  Aid  Systems  recognises  Spanish 
Sign Language as the language of those deaf persons in Spain who freely decide to use it, 
along  with  the  learning,  knowledge  and  use  thereof.  It  also  provides  and  guarantees 
support  for  communication  by  deaf,  hearing-impaired  and  deaf-blind  persons.  This  law, 
apparently the first of its kind in Europe, responds to a long-standing demand from Spanish 
associations  representing  deaf,  hearing-impaired  and  deaf-blind  persons.  Its  aim  is  to 
facilitate  access  to  information  and  communication  by  deaf  persons,  considering  their 
heterogeneity and their specific needs (see section 5(a) above). 

4.   National Disability Council (for disability in all fields) 

The National Disability Council was established by the General Law on the Rights of Persons 
with  Disabilities  and  their  Social  Inclusion  (RLD  1/2013).  The  council  has  15  members 
representing  various  bodies  within  national  Government,  15  members  representing 
associations  of  persons  with  disabilities  of  various  kinds  and  four  expert  advisors.  Its 
functions  include  the  issuing  of  reports,  of  a  mandatory,  non-binding  nature,  on  draft 
regulations  affecting  equal  opportunities,  non-discrimination  and  universal  accessibility. 
The council has played an important role in the formulation of the Spanish legislation on 
disability (see section 7(a) above). 

5.   The Comprehensive Law on the rights of gay and lesbian persons (in some regions) 

(sexual orientation) 

Five  regions  in  Spain  have  very  similar  integral  laws  on  the  rights  of  gay  and  lesbian 
persons: Andalusia, the Balearic Islands, Catalonia, the Valencian Community and Navarre. 
For example, Catalan Law 11/2014 for Guaranteeing the Rights of Lesbian, Gay, Bisexual, 
Transgender and Intersex People and Eradicating Homophobia, Biphobia and Transphobia 
establishes the conditions under which their rights are real and effective; it facilitates their 
participation in ‘all areas of social life’ (the law establishes specific intervention measures 
in  relation  to  education,154  culture,  free  time  and  sport,  media,  health,  social  activities, 
public  order,  deprivation  of  liberty,  participation  and  solidarity,  and  the  labour  market); 
and it contributes to overcoming stereotypes that negatively affect the social perception of 

154  For example, in the field of education, it has been ruled that, in relation to the content of school materials, 
school sports activities, children and young people’s free time, training resources and training for mothers 
and fathers, emotional and sexual diversity should be taken into account, any type of discrimination should 
be avoided, and measures should be made available for preventing and addressing bullying that LGBTI 
people may be subjected to in the school environment. 

97 

 
 
 
 
 
 
 
 
 
 
 
these  persons.  The  law  was  designed  as  a  comprehensive  law,  inspired  by  Directive 
2000/78,  but  it  has  now  gone  further.  The  law  has  been  prepared  with  significant 
collaboration  and  consensus  between  associations  in  this  field,  and  it  has  contributed 
considerably  to  raising  the  level  of  awareness  of  rights  within  the  LGBTI  community  in 
Spain. 

98 

 
 
11  SENSITIVE OR CONTROVERSIAL ISSUES 

11.1 Potential breaches of the directives at the national level  

The  most  important  points  where  national  law  is  in  breach  of  the  directives  are  the 
following: 

− 

− 

− 

− 

− 

The  provision  prohibiting  direct  discrimination  does  not  provide  for  past  and 
hypothetical  discrimination.  This  is  a  potential  breach  of  Article  2(2)(a)  of  both 
directives. 
The  words  ‘hostile’  and  ‘degrading’  are  not  included  in  the  Spanish  definitions  of 
harassment. Judicial intervention can correct this legislative shortcoming, but this is 
a potential breach of Article 2(2)(c) of both directives. 
Sanctions and compensations have been established only in the field of employment 
(for all grounds) and for the ground of disability (in all fields). National law does not 
provide for any sanctions or compensations for discrimination on the ground of racial 
or ethnic origin in the areas of education, social protection, social advantages, access 
to goods and services, and housing. But in these areas judicial interpretation may be 
applicable regarding Criminal law. This judicial interpretation of the Criminal law is 
not  applicable  for  access  to  goods  and  access  to  private  services.  This  absence  of 
sanctions in some areas is a potential breach of Article 15 of Directive 2000/43/EC. 
The principle of protection against victimisation is transposed, but only in the field of 
employment. This is a potential breach of Article 9 of Directive 2000/43/EC. 
Law RLD 1/2013 (Article 4(2)) provides that ‘Persons who have been recognised as 
having a degree of disability equal to or greater than 33 %  shall be  considered as 
persons with disabilities.’ This state of affairs must be recognised by an official body, 
and it could be argued that this point is in breach of Directive 2000/78, which makes 
no such provisions. This restricted definition of ‘persons with disabilities’ applies to 
all  common  legislation,  and  applied  for  the  purposes  of  recognising  the  right  to 
reasonable  accommodation.  This  is  a  potential  breach  of  Article  5  of  Directive 
2000/78/EC. 

11.2 Other issues of concern  

− 

− 

− 

− 

− 

The  directives  were  transposed  into  national  law  with  no  dialogue  either  with  the 
social partners or with the NGOs. This led to a formal transposition with shortcomings 
and difficulties of application in some cases, due to a lack of sanctions (except in the 
field of employment and on the ground of disability, in which there are sanctions). 
This legislation based on the directives is not well known or understood by the main 
players  in  the  legal  system.  This  is  one  of  the  main  reasons  why  there  have  been 
hardly  any  proceedings  in  Spain  in  which  these  provisions  have  been  applied.  The 
author of this report has previously described the process as a ‘hidden transposition’ 
(Cachón, 2004). 
The effectiveness of the Council for the Elimination of Racial or Ethnic Discrimination 
is questionable, because it is made up primarily of Government representatives. This 
could jeopardise the independence of the council (although this is formally recognised 
by the law). The council lacks a strategy. 
The  most  recently  published  study  by  the  Council  for  the  Elimination  of  Racial  or 
Ethnic  Discrimination 
is  a  report  entitled  Potential  victims’  perception  of 
discrimination based on racial or ethnic origin-2020, which concludes that the work 
carried out by organisations and public institutions fighting discrimination is still not 
very well known. 
Given the dispersion of the norms on (shifting) the burden of proof, the differences 
in  their  definitions  and  the  jurisprudence  of  the  Constitutional  Court,  it  would  be 
appropriate to merge the definitions into a single legal text. 
In  the  last  few  years,  notable  progress  has  been  made  with  significant  legal 
innovations  in  the  fields  of  disability  (RLD  1/2013  to  incorporate  the  International 

99 

 
 
 
 
 
 
 
Convention  on  the  Rights  of  Persons  with  Disabilities)  and  sexual  orientation  (the 
incorporation of homosexual, lesbian and bisexual people within the general laws of 
non-discrimination  and  the  law  of  homosexual  marriage  have  made  these  persons 
enjoy  better  rights  of  equality;  in  addition,  some  regions  have  approved  specific 
standards of support for the population LGBTI). However, this legal progress has not 
been  accompanied  by  actual  changes  in  general  behaviour  in  society  or  in 
discriminatory practices.. A recent book that  summarises  several investigations  on 
discrimination in Spain shows the persistence of discrimination but, according to the 
authors, ‘Spanish society is less reluctant to live with “different” and shows a more 
open attitude towards diversity’ than other European countries. (Cea y Valles, 2018). 
The situation of teachers of religion in state schools. This issue is difficult to resolve 
because the international agreement between the Holy See and Spain signed in 1976, 
just before approval of the present Spanish Constitution, is still in force. 

− 

100 

 
 
 
 
 
12  LATEST DEVELOPMENTS IN 2020 

12.1 Legislative amendments 

As  seen  in  Chapter  3,  specifically  in  Section  3.2.7  on  Education,  the  basic  legislation  in 
Spain,  comprising  Organic  Law  2/2006  on  Education  (OLE),  was  replaced  in  2020  by 
Organic Law 3/2020 of 29 December 2020. The new law adopted in 2020, amending the 
Organic Law on Education, introduces important references to the principle of equality and 
non-discrimination. 

With regard to the principles on which the Spanish education system is based, there is, for 
example, a new principle set out in Article 1a bis), according to which the education system 
must be based on quality education for all students without discrimination on grounds of 
birth, sex, racial, ethnic or geographical origin, disability, age, illness, religion or beliefs, 
sexual  orientation  or  sexual  identity,  or  any  other  personal  or  social  condition  or 
circumstances.  

12.2 Case law 

Relevant discrimination ground(s): Religion or belief 
Name of the court: Constitutional Court 
Date of decision: 29 June 2020 
Reference number: Judgment 74/2020 
Link: http://hj.tribunalconstitucional.es/docs/BOE/BOE-A-2020-8955.pdf 
Brief summary: This judgment aimed to determine whether denying the request of an 
Evangelical minister to have his retirement pension reviewed violated his right to equality 
and non-discrimination (SC Article 14) and to religious freedom (SC Article 16).  

According  to  the  minister,  who  appealed  to  the  Constitutional  Court,  Social  Security 
regulations  covering  ministers  of  the  Evangelical  Church  had  not  been  adopted  by  the 
Spanish State until very late. These regulations were approved in 2015. The fact that they 
had not existed before 2015 meant that certain years in which he had served as a minister 
before 1999 had not been counted by the National Social Security Institute (INSS) when 
he wished to modify his retirement pension, which he was receiving for other services. The 
claimant  based  his  appeal  on  the  European  Court  of  Human  Rights  Judgment  of  3  April 
2012, in the case of Manzanas Martín v. Spain. This judgment resolved that a minister of 
the Evangelical Church  had been discriminated against because the  contribution periods 
when he had served as a minister had not been included in social security calculations, due 
to the unjustified delay of the Spanish State in adopting regulations that included the work 
carried out by ministers of worship in the General Social Security Regime. 

The INSS and other parties opposing the appeal argued that the reasons for not granting 
the  minister  a  revision  of  his  pension  had  nothing  to  do  with  whether  he  had  been 
registered as a minister of worship in the social security system. Rather, the Evangelical 
minister ‘had not provided proof that he had been working exclusively as a paid minister 
during  the  necessary  contribution  period’.  That  is,  he  had  not  completed  the  minimum 
period of pensionable service (i.e. 15 years) in order for his pension to be reviewed. 

In light of these arguments, the Constitutional Court began by indicating that the ECtHR 
judgment in 2012 was not the same as the case brought before it now. In that case, the 
claimant had been a minister of the Evangelical Church and had been paid by the church 
for a certain number of years before 1991. However, he had been unable to pay any social 
security contributions for his work as a minister because the law had not provided for it at 
that time, unlike for Catholic priests, who were integrated in the social security regime and 
have been able to contribute for their services since 1977. In contrast, the Constitutional 
Court considered that it was not proven that the claimant in the case brought before them 
now had carried out stable, remunerated pastoral activity for this contribution period to be 

101 

 
 
 
 
 
 
 
 
 
 
officially  recognised.  For  the  Constitutional  Court,  this  was  a  requirement  that  applied 
equally to all ministers of faith when calculating the retirement pension, regardless of their 
religion.  

Consequently, unequal treatment between the claimant and ministers of other confessions 
had not existed in recognising the claimant’s right to a pension. In fact, the Constitutional 
Court considered that waiving the requirement to prove that the claimant had worked as 
a minister for some years might introduce a differentiating element in relation to ministers 
of other  confessions, which lacked a  rational foundation. The CC recalled that the  social 
security principle of contribution (that is, that everyone receives a pension based on what 
they  have  contributed  to  a  social  security  scheme)  justified  that  regulatory  bases  (or 
mathematical amounts) be calculated according to the amount that had actually been paid. 

Relevant discrimination ground(s): Age 
Name of the court: Labour Court number 33 of Madrid 
Date of decision: 18 November 2020 
Reference number: Judgment 323/2020, Proc. 876/2020 
Link: 
https://diariolaley.laleynext.es/content/Documento.aspx?params=H4sIAAAAAAAEAMtMS
bH1CjUwMDCzMDE3tDBUK0stKs7Mz7Mty0xPzStJBfEz0ypd8pNDKgtSbdMSc4pT1RKTivNzS
ktSQ4sybUOKSlMBH4V_1UUAAAA=WKE 
Brief summary: The facts considered proven by the court were essentially the following: 
six  employees  were  dismissed  by  Huawei  in  July  2020.  The  reason  put  forward  by  the 
company  for  their  dismissal  was  mainly  organisational:  the  need  to  restructure  the 
department where the six employees provided their services, motivated by a decrease in 
sales. Nonetheless, the judge did not consider that the evidence provided  satisfied these 
objective circumstances. 

Five of the six employees were aged between 51 and 58 years old at the time of dismissal, 
and  only  one  of  them  was  under  50  (49½  years  old).  The  employees  provided  various 
types of evidence to the court to support the argument that they had been discriminated 
against on grounds of age. 

First,  they  cited  a  speech  delivered  by  the  President  of  Huawei  in  2019  on  leadership 
management,  addressed  to  all  employees.  In  this  speech,  the  President  proposed 
establishing  an  annual  10 %  elimination  rate  for  middle  and  senior  management,  and 
stated that employees should continue working until they were aged between 50 and 60. 
In  his  speech,  the  President  drew  several  conclusions  about  leadership  in  the  company, 
including  a  proposal  to  systematically  study  and  design  a  mechanism  for  laying  off 
managers. He also noted that ‘during a war we should focus on two things: dismissing the 
unskilled  and  recruiting  the  best  minds.  We  should  adjust  the  workforce  structure  and 
accelerate the pace of replacing the old with the new’. 

Secondly,  the  dismissed  employees  provided  statistical  evidence  of  the  company’s  staff 
and dismissal records. In 2018, 23.07 % of employees over 50 years of age were laid off 
compared with only 6.5 % of employees in the 30 to 50 age group. In 2019, 13.7 % of 
employees in the over-50 age group were laid off compared with only 4.9 % in the 30 to 
50 age group.  

Given this evidence, the Court considered that sufficient proof had been provided by the 
claimants to reasonably suspect that the grounds for dismissal had been their age. It was 
considered  to  have  been  clearly  demonstrated  that  the  dismissals  carried  out  by  the 
employer affected the group of workers in the 50+ age group (five of the claimants were 
included in this group) in a significantly higher proportion than for younger workers. 

However, the judge had to assess the age (considered as  a personal sign of identity) at 
which individuals need to be protected against discrimination. In this respect, the judge 

102 

 
 
 
 
 
 
 
 
 
recalled  that,  in  matters  of  employment,  neither  Spanish  law  nor  Directive  2000/78 
established the age at which dismissal could be viewed as discriminatory. To establish this 
age, the judge considered that the speech delivered by Huawei’s President proposed that 
staff continue working  until they were 50 to 60 years  old. Also taken into consideration 
was the fact that being over 50 was considered legally relevant in obtaining social security 
benefits, given the greater difficulty in finding employment after that age. Finally, the fact 
that  all  the  claimants  were  over  50  (except  one,  who  was  49½  years  old)  was  also 
considered by the court. 

Based on these facts, the court resolved that, in this specific case, it was appropriate to 
establish the age at which individuals need protection against unfair dismissal at 50 years, 
meaning that any dismissal by Huawei Technologies España SL affecting people over this 
age could be considered discriminatory. Accordingly, the dismissal of the five workers who 
had  reached  the  age  of  50  was  declared  null  and  without  just  cause,  since  age 
discrimination had existed. Likewise, the dismissal of the only claimant who was not yet 
50 years old was not considered discriminatory.  

Finally, in relation to the claim for EUR 50 000 in compensation for moral damages, the 
court  considered  that  the  speech  made  by  the  President  of  Huawei  provided  a  vision  of 
labour relations that identified with times of war, in which military-inspired behaviour was 
required in the pursuit of excellence and leadership, and in the removal or elimination of 
the mediocre. According to the judge, ‘Such a stark business philosophy and culture, aimed 
at maximising economic benefits and the employer’s social power is not in keeping with 
many of the values of the Old Europe, where people’s dignity forms the cornerstone of our 
legal system, Article 2  of the  Treaty  on European Union and Article 10.1  of the Spanish 
Constitution’. The judge found that dismissing workers based on the principle that the ‘old’ 
is  no  longer  valid  and  must  necessarily  be  replaced  by  the  ‘new’  constituted  prejudice, 
since  the  rationale  underlying  this  assertion  had  not  been  demonstrated.  Moreover, 
dismissing employees for reaching a certain age placed them in a situation in which they 
were subjected to feelings of suffering, pain, uncertainty, anguish and anxiety. 

On the basis of these arguments, the claimants who were over 50 years old were awarded 
the amount of EUR 20 000 each in compensation for non-pecuniary damages. 

103 

 
 
 
 
 
 
 
 
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Ballester, M.A. (2010): ‘Evolución del principio antidiscriminatorio comunitario: un análisis 
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Cabeza, J. (2013): ‘La discriminación por discapacidad: el caso Chacón Navas’, Revista del 

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Camas Roda, F. (2009): La edad en relación al empleo, la Seguridad Social y la inmigración, 

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Cachón, L. (2003): ‘Discriminación en el trabajo de las personas inmigradas y lucha contra 
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antidiscriminatoria en España, Barcelona, Icaria, 2003: 39-101. 

Cachón, L. (2004): ‘España y la Directiva 2000/43: de la “ocasión perdida” a una legislación 
general sobre igualdad de trato’, Tiempo de Paz, nº 73, verano 2004, pp. 13-22 (nº 
monográfico sobre La promoción de la no discriminación por origen racial o étnico). 
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Documentación Social, nº 154: 105-118. 

Cachón, L. (2012): ‘Racismo y lucha contra el racismo: notas sobre la ‘Estrategia integral’ 

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Carrasco A. and González, Mª C. (2001): ‘¿Acciones de clase en el proceso civil?’, Aranzadi 

Civil-Mercantil, nº. 3/2001, Editorial Aranzadi, Pamplona. 

Cayo, L. and Lidón, L. (eds.) (2015): Derechos humanos y discapacidad. Informe España 

2014, Madrid, CERMI and Ediciones Cinca. 

Cea, M.A, and Valles, M. (2018): Evolución de la discriminación en España, Instituto de la 

Mujer, Madrid. 

Cebolla, H. (2015): ‘Las trayectorias educativas de los hijos de los inmigrantes en España’, 

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ANNEX 1: MAIN TRANSPOSITION AND ANTI-DISCRIMINATION LEGISLATION 

Country:  
Date:   

Spain 
31 December 2020 

Title of the law: Constitución Española (Spanish Constitution) 
Abbreviation: SC 
Date of adoption: 27.12.1978 
Entry into force: 30.12.1978 
Latest relevant amendments: No amendments 
Web link: https://www.boe.es/eli/es/c/1978/12/27/(1)/con 
Grounds covered: Race, sex, religion, opinion and “other personal or social  condition or 
circumstance” 
Constitution 
Material scope: All 
Principal content: Principle of equality and non-discrimination, and positive action 

Title  of  the  law:  Ley  62/2003,  de  30  de  diciembre,  de  medidas  fiscales, 
administrativas y de orden social (Law 62/2003, of 30 December 2003, on Fiscal, 
Administrative and Social Measures) 
Abbreviation: LFASM 
Date of adoption: 30.12.2003 
Entry into force: 01.01.2004 
Latest relevant amendments: No amendments 
Web link: https://www.boe.es/boe/dias/2003/12/31/pdfs/A46874-46992.pdf 
Grounds  covered:  Racial  or  ethnic  origin,  religion  or  belief,  disability,  age,  sexual 
orientation 
Administrative law 
Material scope: All 
Principal content: Directives 2000/43 and 2000/78 are transposed in Title II, Chapter III, 
Articles 27-43. Creates a specialised body dealing with racial or ethnic discrimination 
Title of the law: Real Decreto Legislativo 2/2015, de 23 de octubre, Estatuto de 
los Trabajadores (RLD 2/2015, of 23 October, of Workers’ Statute) 
Abbreviation: LWE 
Date of adoption: 23.10.2015 
Entry into force: 25.10.2015 
Latest relevant amendments: No amendments 
Web link: https://www.boe.es/buscar/pdf/2015/BOE-A-2015-11430-consolidado.pdf 
Grounds covered: Gender, racial or ethnic origin, religion or belief, disability, age, sexual 
orientation 
Administrative law 
Material scope: Employment and occupation 
Principal content: All rights and duties relating to labour, employment and occupation 
Title  of  the  law:  Ley  36/2011,  de  10  de  octubre,  reguladora  de  la  jurisdicción 
social (Law 36/2011, of 10 October, on Social Jurisdiction) 
Abbreviation: LSJ 
Date of adoption: 10.10.2011 
Latest relevant amendments: No amendments 
Entry into force: 21.12.2011 
Web link: http://www.boe.es/buscar/pdf/2011/BOE-A-2011-15936-consolidado.pdf 
Grounds covered: Gender, racial or ethnic origin, religion or belief, disability, age, sexual 
orientation 
Administrative law 
Material scope: Employment and occupation 
Principal content: Infractions and sanctions on the social order labour, employment and 
occupation 

106 

 
 
 
 
 
 
 
 
Title of the law: Ley Orgánica 7/1980, 5 julio, de Libertad Religiosa (Organic Law 
7/1980, 5 July, on Religious Freedom) 
Abbreviation: OLRF 
Date of adoption: 05.07.1980 
Latest relevant amendments: No amendments 
Entry into force: 13.08.1980 
Web link: http://www.boe.es/buscar/pdf/1980/BOE-A-1980-15955-consolidado.pdf 
Grounds covered: Religion 
Administrative law 
Material scope: Religious freedom 
Principal content: Religious freedom 
Title  of  the  law:  RLD  1/2013,  29  Noviembre,  Ley  General  de  derechos  de  las 
personas con discapacidad y de su inclusión social (RLD 1/2013, 29 November, 
General Law on the Rights of Persons with Disabilities and their Social Inclusion) 
Abbreviation: GLRPDSI 
Date of adoption: 29.11.2013 
Latest relevant amendments: No amendments 
Entry into force: 04.12.2013 
Web link: http://www.boe.es/boe/dias/2013/12/03/pdfs/BOE-A-2013-12632.pdf 
Grounds covered: Disability 
Administrative law 
Material scope: Equal opportunities, non-discrimination, and universal access for persons 
with disability in all fields 
Principal  content:  Equal  opportunities  for  persons  with  disabilities;  Improvement  of 
working and living conditions; Infractions and sanctions in the field of equal opportunities 
for persons with disabilities 
Title of the law: Ley Orgánica 4/2000, 11 enero, sobre derechos y libertades de 
los  extranjeros  en  España  y  su  integración  social  (Organic  Law  4/2000,  11 
January,  on  the  Rights  and  Liberties  of  Aliens  in  Spain  and  their  Social 
Integration) 
Abbreviation: OLRLA 
Date of adoption: 11.01.2000 
Latest relevant amendments: No amendments 
Entry into force: 01.02.2000 
Web link: http://www.boe.es/buscar/pdf/2000/BOE-A-2000-544-consolidado.pdf 
Grounds covered: Nationality 
Administrative law 
Material scope: Administrative situation of aliens 
Principal content: Direct and indirect discrimination; the entire 
administrative situation of aliens 
Title of the law: Ley Orgánica 10/1995, 23 noviembre, del Código Penal (Organic 
Law 10/1995, 23 November, Criminal Code) 
Abbreviation: OLCC 
Date of adoption: 23.11.1995 
Latest relevant amendments: 30.10.2015 
Entry into force: 24.05.1996 
Web link: http://www.boe.es/buscar/pdf/1995/BOE-A-1995-25444-consolidado.pdf 
Grounds covered: Gender, racial or ethnic origin, religion or belief, disability, age, sexual 
orientation 
Criminal law 
Material scope: All criminal matters 
Principal content: Crimes against the rights of workers; all aspects of discrimination 

107 

 
 
 
 
 
 
 
 
ANNEX 2: INTERNATIONAL INSTRUMENTS 

Country:  
Date:   

Spain 
31 December 2020 

Instrument  Date of 

signature  

Date of 
ratificatio
n  

Derogations
/ 
reservations 
relevant to 
equality and 
non-
discriminatio
n 

24.11.1977  04.10.1979  Reservation 
with regards 
to Arts. 5 and 
6 relating to 
disciplinary 
regime of the 
armed forces 

Right of 
individua
l petition 
accepted
? 

Can this 
instrument 
be directly 
relied upon 
in domestic 
courts by 
individuals? 

Yes 

Yes 

European 
Convention 
on Human 
Rights 
(ECHR) 

Protocol 12, 
ECHR 
Revised 
European 
Social 
Charter 

International 
Covenant on 
Civil and 
Political 
Rights 
Framework 
Convention 
for the 
Protection of 
National 
Minorities 
International 
Covenant on 
Economic, 
Social and 
Cultural 
Rights 
Convention 
on the 
Elimination 
of All Forms 
of Racial 
Discriminatio
n 
ILO 
Convention 
No. 111 on 
Discriminatio
n 

04.10.2005  13.02.2008  None 

-- 

23.10.2000  Not ratified 

-- 

28.09.1976  27.04.1977  None 

System 
Co. 
Complaint
s 
Non 
signed  
Yes 

-- 

-- 

Yes 

01.02.1995  01.09.1995  None 

Yes 

Yes 

28.09.1976  27.04.1977  None 

No 

Yes 

13.09.1968  13.09.1968  None 

Yes 

Yes 

06.11.1967  06.11.1967  None 

No 

Yes 

108 

 
 
 
 
 
 
 
Instrument  Date of 

signature  

Date of 
ratificatio
n  

Derogations
/ 
reservations 
relevant to 
equality and 
non-
discriminatio
n 

Right of 
individua
l petition 
accepted
? 

Can this 
instrument 
be directly 
relied upon 
in domestic 
courts by 
individuals? 

26.01.1990 

06.12.1990  None 

Yes 

Yes 

30.03.2007 

03.12.2007  None 

Yes 

Yes 

Convention 
on the Rights 
of the Child 
Convention 
on the Rights 
of Persons 
with 
Disabilities  

109 

 
 
 
 
 
 
 
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