Select Committee on European Scrutiny Seventh Report


COMMISSION PROPOSALS TO COMBAT DISCRIMINATION



(a)
(20771)
13537/99
COM(99) 567

(b)
(20801)
13540/99
COM(99) 565
(c)
(20816)
13536/99
COM (99) 564
(d)
(20831)

COM(99) 566



Draft Council Decision establishing a Community Action Programme to combat discrimination (2001-2006).


Draft Directive establishing a general framework for equal treatment in employment and occupation.


Commission Communication on certain Community measures to combat discrimination.


Draft Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

Legal base: (a), (b),(d): Article 13 EC; consultation; unanimity

(c) —

Document originated: (a) 25 November 1999

(b) —

(c) 25 November 1999

(d) —

Forwarded to the Council: (a) 26 November 1999

(b) —

(c) 26 November 1999

(d) —

Deposited in Parliament: (a) 14 December 1999

(b) 12 January 2000

(c) 6 January 2000

(d) 13 January 2000

Department: (a) - (c) Education and Employment

(d) Home Office

Basis of consideration: (a) EM of 6 January 2000

(b) EM of 6 January 2000

(c) EM of 6 January 2000

(d) EM of 11 January 2000

Previous Committee Report: None
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: Not cleared; further information requested

Background

  4.1  This package of measures proposed by the Commission is based on Article 13 EC, the new non-discrimination clause inserted by the Amsterdam Treaty. The Article states: "Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation."

  4.2  Until now, Community legislation aimed specifically at combating discrimination has targeted sex discrimination only. Under Article 141 EC in particular, a range of measures upholding the principle of equality between men and women has been adopted over the last twenty years or so. Of special relevance to the current proposals are Directive 76/207/EEC (Equal Treatment) and Directive 97/80/EC (Burden of Proof).

The documents

  4.3  The package comprises:

  • an overview in the form of a Communication on Community measures to combat discrimination (document (c));

  • a draft Decision establishing a Community Action Programme (document (a));

  • a draft Directive establishing a framework for equal treatment in employment (document (b)); and

  • a draft Directive implementing the principle of equal treatment irrespective of racial or ethnic origin (document (d)).

  4.4  The proposals in documents (a), (b) and (d) exclude sex discrimination, partly because there is already extensive secondary legislation in this area, and partly because the Commission is currently preparing a new programme on gender equality. However, the Commission is committed to ensuring the inclusion of a "gender perspective" within all the elements of the package.

  4.5  Each of the documents is described below:

— Document (c)

  4.6   The Communication sets out the background to the package, in terms of the international, national and Community context, and outlines the process of consultation which contributed to its development. It notes considerable diversity in the laws of the Member States on the right to equality and the prohibition of discrimination. Although it recognises the relevance of the promised Charter of Fundamental Rights, it does not consider that it would be appropriate to make the Article 13 proposals dependent upon the final adoption of the Charter.

  4.7  The Communication then outlines the elements in the package and provides a general justification for them in relation to subsidiarity and proportionality. It summarises the contents and its general approach as follows:

"The Commission is taking a reasonable, progressive and pragmatic approach. The Action Programme aims to raise awareness about discrimination in general, which affects a significant number of people either directly or indirectly. The two directives lay down a limited number of requirements, while leaving the necessary margin of discretion to the Member States in how they choose to apply them.

"The two proposed Directives are intended to give effect to Article 13 of the Treaty. The first Directive establishes a general framework for equal treatment in the employment field, by prohibiting discrimination on the various grounds set forth in Article 13. The second directive is a response to the many calls to combat racism in fields beyond employment, prohibiting discrimination in other areas which fall within the competence of the Community".

  4.8  The document explains the overlap between the two Directives (both cover discrimination based on racial or ethnic origin in employment) as follows: "the reason for this is that the proposals, while similar in design, are intended to be independent pieces of legislation that could stand alone. If one Directive were adopted by the Council before the other, the remaining proposal would be amended accordingly".

— Document (a)

  4.9  The proposal is for an action programme to run for six years, from 1 January 2001 to 31 December 2006 at a cost of 100 million euros. In addition to the Member States, EFTA/EEA countries, the associated countries of Central and Eastern Europe, Cyprus, Malta and Turkey will be eligible to participate. The programme will address all grounds of discrimination covered by Article 13 except sex discrimination. The Commission's explanatory memorandum states: "There is no hierarchical ranking of priorities between the grounds covered by the proposed action programme: it will address discrimination across the board rather than to provide separately for action on the different grounds, incorporating a gender dimension where appropriate".

  4.10  The action programme has three main objectives:

  • to improve understanding of issues related to discrimination through improved knowledge and measurement and evaluation of policies and practice;

  • to develop the capacity of Member States, regional and local authorities, non-governmental organisations (NGOs), the social partners and other "target actors" to address discrimination; and

  • to promote and disseminate 'values and practices underlying the fight against discrimination'.

  4.11  In order to achieve these aims the proposal provides for transnational actions in three main areas:

  • collection of statistics, studies and development of indicators and benchmarks and evaluation of anti-discrimination legislation;

  • co-operation between "target actors" in particular through support for the exchange of information and good practice at European level and provision of core funding to enable major European-level networks to contribute effectively to policy development in this field; and

  • awareness raising through communications, publications, campaigns and events, targeting opinion formers in particular.

  4.12  An advisory committee composed of Member States' representatives will assist the Commission in running the programme.

  4.13  There is an emphasis in the document on the importance of co-ordination and synergy with other Community programmes.

— Documents (b) and (d)

  4.14  The two draft Directives have some significant features in common. Their definitions of both direct and indirect discrimination are substantially the same. Direct discrimination is taken to occur "where [on any of the various specific grounds] one person is treated less favourably than another is, has been or would be ". Indirect discrimination is taken to occur "when an apparently neutral provision, criterion or practice is liable to adversely affect a person or persons to whom any of the [various specific] grounds... applies, unless that provision is objectively justified by a legitimate aim and the means of achieving it are appropriate and necessary." Both draft Directives include harassment as a prohibited form of discrimination.

  4.15  Both proposals also follow Directive 97/80/EC (Burden of Proof) — which addresses sex equality and is already binding on the UK — in providing for the reversal of the burden of proof where evidence is adduced from which discrimination may be presumed.

— Document (b)

  4.16  The EM helpfully summarises the main features of this draft Directive as follows:

"The framework Directive in the area of employment would prohibit direct and indirect discrimination on the grounds of a person's racial or ethnic origin, religion or belief, disability, age or sexual orientation and harassment based on these grounds. In the area of disability, it would also provide for 'reasonable accommodation' to be made to enable disabled people to participate or advance in employment. It would apply to conditions for access to employment, self-employment and occupation, including selection criteria and recruitment conditions, access to vocational guidance and training, employment and working conditions including dismissals, pay, and membership of, involvement in, and benefits from, organisations of workers or employers, and professional organisations.

"The Directive would provide for certain exceptions, allowing differences of treatment on the above mentioned grounds where this is justified by the need for a genuine occupational qualification. The case of religious organisations is mentioned separately in this context as are certain circumstances in which direct discrimination on grounds of age is justified.

"The Directive would allow for, but not require, positive action to compensate for disadvantages people might experience because of their ethnic origin, religion or belief, disability, age or sexual orientation. It would also allow Member States to introduce or maintain more favourable provisions for the protection of equal treatment than those laid down in the Directive.

"The Directive would reverse the burden of proof in cases of alleged discrimination, other than in criminal procedures, so that following the establishment of a prima facie case to answer, it would be for the respondent to prove that there had been no breach of the principle of equal treatment. The draft Directive also covers victimisation to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint on grounds of equal treatment".

— Document (d)

  4.17  While this Directive is concerned with discrimination on grounds of racial or ethnic origin only, it encompasses ("within the limits of the powers conferred upon the Community") employment and training, social protection and social security, social advantages, education and access to goods and services — thereby covering a much wider field than document (b). Moreover, preamble (10) explicitly extends the Directive to nationals of third countries, although not to differences of treatment based on nationality.

  4.18   Like document (b), this draft Directive permits an exception — in this case, where, by reason of the nature or context in which particular occupational activities are carried out, a racial or ethnic characteristic constitutes "a genuine occupational qualification". Its provisions on positive action, the admissibility of Member States' introducing more favourable provisions than those laid down in the draft Directive, the reversal of the burden of proof and protection against victimisation are all substantially the same as those in document (b).

  4.19  Unlike document (b), however, this document provides for representative enforcement actions whereby "associations, organisations and other legal entities" can pursue such actions on behalf of a complainant. It also requires Member States to establish an independent body or bodies "for the promotion of the principle of equal treatment between persons of different racial or ethnic origin".

The Government's view

  4.20  The Secretary of State for Education and Employment (The Rt. Hon. David Blunkett) has the main responsibility for three of the four documents — (a), (b) and (c); the Home Secretary (The Rt. Hon. Jack Straw) has the main responsibility for the directive on racial discrimination — document (d). Each of the EMs has been submitted by the relevant Department, but there are common elements in them which suggest co-operation.

  4.21  The Government tells us that the Portuguese Presidency will decide on the timetable and handling of negotiations. It is not yet known whether the package will be taken forward as a whole or as individual elements.

  4.22  In relation to documents (a), (b) and (d), the Government is seeking the views of key external partners. It promises a wider consultation process (which will include members of the general public) once more is known about the Presidency plans for progressing the documents.

— Document (c)

  4.23  The Government does not consider that this Communication has any policy implications.

— Document (a)

  4.24  The Minister for Employment, Welfare to Work and Equal Opportunities at the Department for Education and Employment (The Rt. Hon. Tessa Jowell) comments on this proposal for a Community Action Programme as follows:

"The Government welcomes the proposal for an action programme in this area. The opening up of the programme to EFTA and candidate countries is especially welcome as a step towards combating discrimination in Europe more widely.

"The objective of evaluating policies and practice as a means to improving the understanding of issues relating to discrimination and evaluation of anti-discrimination legislation is especially welcome since the lack of comparable data and other information, even across the current fifteen Member States, is a barrier to establishing an effective baseline from which progress can be measured. It will, however, be important to ensure that it builds on existing structures for the collection and dissemination of information, such as the European Monitoring Centre for Racism and Xenophobia in Vienna.

"During negotiations we will seek to ensure that the balance of funding allocated to each strand of the programme represents a good balance in terms of its objectives and that these objectives are clear and fully justified. We will also be particularly keen to ensure that procedures for selection of projects are thorough and transparent. It will also be important to ensure that the follow up and monitoring of projects is undertaken in such a way as to ensure that projects have maximum value".

  4.25  The Minister tells us that the Government believes the proposal is generally consistent with the principle of subsidiarity.

— Document (b)

  4.26  While the Minister expresses a general welcome for the proposals, she has several comments on this draft Directive for equal treatment in employment and occupation. On the impact on UK law, she notes:

"The UK already has anti-discrimination measures covering the grounds of racial or ethnic origin (the Race Relations Act 1976) and of disability (the Disability Discrimination Act 1995). The Race Relations Act, like the Directive, is based substantially on sex discrimination law and thus is likely to require only minor changes (for example, to implement the changes to the burden of proof). There are nonetheless some changes from the sex discrimination model (for example, a variation in the definition of indirect discrimination) which it would also be necessary to reflect.

"The Disability Discrimination Act, however, departs from the sex discrimination model in a number of respects. The most important of these are that:

  • the prohibition against discrimination under section 4 of the Act is both applied differently from sex discrimination law and capable of justification; and

  • the Act does not include a prohibition on indirect discrimination as such, but instead applies the concept of a duty to make reasonable adjustments in favour of disabled people.

"The proposed Directive picks up the latter concept. It allows for genuine occupational qualifications to justify direct discrimination; but this does not appear to be as wide as the general defence of justification under the Act. It also applies direct and indirect discrimination models based on the sex discrimination model to disability. If the Directive were to remain in this form, the Act would require amendment. In several cases the intention of the Directive is not clear, and the Government will be examining these points further as negotiations proceed.

"Finally, the framework Directive provides for anti-discrimination measures on the grounds of religion or belief, age and sexual orientation. New legislation would be required to give effect to these measures (except in Northern Ireland, where discrimination in employment and in the provision of goods, facilities and services is currently unlawful)".

  4.27  The Minister also comments on the proposal in relation to the principles of subsidiarity and proportionality. While she believes the approach in line with these principles, she considers that the detail of the proposal raises some issues. She tells us:

"The Directive's requirement that Member States ensure adequate dissemination of information within the workplace goes further than is necessary; the level and nature of dissemination of information being best decided at national or local level. Similarly, the provisions requiring Member States to promote social dialogue are over prescriptive. The Government will aim in negotiations to ensure that a more satisfactory approach to these issues is adopted".

  4.28  With regard to the implications in the proposal for policy and for business, the Minister comments:

"The Government is open to making necessary and proportionate changes in this area to promote equal opportunities if the case is made. However, the need to avoid unnecessary and burdensome regulation will remain a priority in the Government's considerations. It will also be guided by assessments of the progress which can be achieved through non-legislative means such as codes of practice. The possible requirement for legislative change differs according to the type of discrimination.

  • Race or ethnic origin: the proposal is largely consistent with existing provisions and the minor changes are on the whole not problematic, although we will be examining the detail carefully to make sure that any changes are appropriate.

  • Disability: as explained [above], the approach taken by the Directive differs from domestic law in a number of ways. We also have concerns that in following a sex discrimination model, the Directive creates overlaps and loopholes which would not be helpful to disabled people seeking to establish their rights. For example, UK law would not allow an occupational qualification to be cited as a reason for refusing to employ a disabled person without consideration first of whether reasonable adjustments could be made. This link does not seem to exist in the current proposal. We intend to examine constructively with our partners how the Directive can be improved in this area.

  • Sexual orientation and age: the Government has produced a Code of Practice on discrimination in employment based on age and proposes that a Code of Practice on discrimination on the ground of sexual orientation should be produced, in conjunction with the Equal Opportunities Commission.

  • Religion or belief: there are no generally applicable provisions in GB statutory law on employment. However, as a result of case law, Jews are recognised as a racial group and as such protected under the Race Relations Act. Sikhs also receive protection via special legal provisions, particularly in the Employment Act 1989. The Government is currently conducting research into this complex area.

"The proposal will have implications for business. A full analysis will be carried out in consultation with representative organisations from the business world and this will inform negotiations. This analysis will seek to establish what costs might be imposed on business in order to comply with the terms of regulatory provisions resulting from the Directive. These costs will take into account direct expenditure and also administrative costs. The analysis will also seek to assess any potential benefits (e.g. opening up a wider pool of people from which employers can recruit) and areas where new provision will have a neutral effect either because of domestic provisions already in force (e.g. the Race Relations Act) or because employers are voluntarily taking action (e.g. under voluntary codes of practice on age or sexual orientation)".

— Document (d)

  4.29  The Minister of State at the Home Office (Mrs Barbara Roche) comments on the draft Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. She says:

"The Government believes that the approach adopted in the draft Directive is in line with the principles of subsidiarity and proportionality. The Government will work in negotiations at the Social Questions Working Group to ensure that the most satisfactory outcome is adopted."

  4.30  On the implications of the proposal for UK policy, the Minister tells us:

"This Directive will mean the incorporation of anti-discrimination measures (on grounds of racial or ethnic origin) into domestic law and practices in all Member States in the fields of employment and training, social protection and social security, social advantages, education and access to goods and services. In fact, the presence of a body of domestic law and the current operational basis of the CRE[12] mean that the UK is already complying with much of what is proposed.

"The UK's existing provisions in the area covered by the Directive include the Race Relations Act 1976, and the Race Relations Bill currently before Parliament. Our negotiating strategy will therefore have to take account of an evolving domestic agenda.

"The Government supports the principles enshrined in Article 13 and welcomes the Commission's proposals as a step forward in combating discrimination and exclusion across the EU. The detail of the race Directive will have to be considered carefully especially with a view to how certain proposals (e.g. indirect discrimination) will work in practice in relation to each of the fields covered by the Directive. Indirect discrimination would have to apply to a wider range of public authority duties than is currently envisaged in the Race Relations Bill.

"We welcome the Commission's recognition of the shared responsibility between the Community and Member States in the field of education; but are not convinced that Article 3 as currently drafted gives a clear indication of which aspects of education would be covered by the Directive. The Community has to date only considered it appropriate to be involved to a very limited extent in educational matters, and we are concerned to ensure that action in this area only takes place at the Community level to the extent that it can be better achieved by the Community than by the Member States".

  4.31  The Minister makes the same comments on the impact of the proposal on business as her colleague does on document (b). Like her, she promises that a full analysis will be carried out in consultation with relevant organisations from the business world.

Conclusion

  4.32  This is a significant package of proposals and we are likely to have more points to raise as negotiations continue. At this stage, we have a number of questions for the Ministers about the package as a whole and about the draft Directives in particular.

— The package

(i)    Neither the documents nor the Government's EMs make any significant mention of the qualification in Article 13 of the EC Treaty: "within the limits of the powers conferred by it upon the Community". We note that this qualification is (deliberately) different from that in Article 12 (discrimination on grounds of nationality), which refers to "the scope of application" of the Treaty. Matters not within the competence of the EC can be within the scope of application of the Treaty — to take two disparate examples, the organisation of the Armed Forces for purposes of combat[13] and the transliteration of a person's name from the Greek to the Latin alphabet[14]. If the reference in Article 13 to powers should be read as a reference to competences (as other language versions suggest), the scope of Article 13 is, arguably, considerably narrower than that of Article 12.

     We seek the Ministers' view on this qualification and, against that background, invite them to comment on:

    (a)  document (a), which is not limited at all by subject matter and which in Annex I includes within its areas of action promotion of non-discrimination within and by the police and the removal of discriminatory barriers to participation in decision making and the democratic process. (Although the Decision establishing the action programme is not, in the ordinary sense, a legislative instrument, the Council's competence to adopt it is qualified to the same extent as its competence to adopt the two draft Directives);

    (b)  the application of document (d) to the matters specified in its Article 3(e) to (h) ("social protection and social security; social advantages; education, including grants and scholarships ...; access to and supply of goods and services") — especially given the comment in the EM that the approach in this proposal is in line with the principles of subsidiarity and proportionality.

(ii)  Does the Minister expect the authorisation of positive action to be held to go wider than the corresponding provision of the Equal Treatment Directive — would it go as far as allowing, say, quotas for access to higher education or employment in particular organisations?

(iii)  Both proposals enable, in contrast to the Equal Treatment Directive, hypothetical comparisons to be made. What risks does the Minister see in allowing a claimant to rely not only on actual conduct, but also on imputed conduct about which hard and fast evidence may be lacking?

(iv)  We find it difficult to understand the rationale for the two draft Directives and the relationship between them. Does the fact that document (b) is said to "establish a framework" imply that further Directives related to it will eventually appear? Why, given the breadth of the area, do the two Directives overlap in content? (The explanation in document (c) is inadequate[15]).

(v)  We note that the definition of discrimination in the action programme differs significantly from the approach taken in the two draft Directives (which also differ between themselves and from the definition of indirect discrimination in Directive 97/80 on the burden of proof). We invite the Ministers' views on:

    (a)  the desirability of a single definition of discrimination for all related purposes;

    (b)  which of the four approaches attempted so far best fits with the case law of the ECJ; and

    (c)  the consequences for the Disability Discrimination Act 1995 of the adoption of the concept of indirect discrimination (the 1995 Act prohibits unjustified direct discrimination, while imposing an extensive duty to take steps to enable a disabled person to carry out the duties of his or her employment). Is it the case that, as the EM suggests, the Act would have to be amended if this proposal were adopted, or would it instead have to be radically re-cast?

(vi)  Do the Ministers expect, given the similarity of approach and drafting to the Equal Treatment Directive, that the two proposed Directives would have direct effect?

(vii)  If the ECJ does hold that the two Directives would have direct effect, what are the consequences for the future application of the measures given the elasticity of such phrases as "ethnic origin" and "religious belief"? For example, would the Ministers expect the ECJ to follow the approach of the House of Lords in Mandla v Dowell Lee[16], which held that an ethnic group is one which regards itself, and is regarded, as a distinct community by virtue of certain characteristics? Would the Minister expect a Community notion of religious belief to extend to, for example, the Church of Scientology?

(viii)  Given the Commission's assurance that there is no prioritisation of the grounds for discrimination, we wonder why discrimination on grounds of racial or ethnic origin has been selected for a Directive of its own. Similarly, we are struck by the number of exemptions for age discrimination in document (b), and we note the critical comments of the Secretary-General of Eurolink Age[17] in this regard. We seek the Minister's views about whether there is, in fact, an implicit hierarchy in the proposals.

(ix)  We are disappointed that neither of the draft Directives requires the monitoring of statistics by, for example, employers or public authorities — especially given the focus on measurement and evaluation in the action programme (document (a)). Do the Ministers agree with us that this is a missed opportunity, and, if so, will they press for its inclusion?

— Document (b)

(x)  In what circumstances would sexual orientation, or ethnic origin constitute a genuine occupational qualification?

(xi)  Article 4(2) provides an exemption in favour of religious organisations (and secular organisation having broadly similar functions) where a relevant characteristic related to that religion or belief is a genuine occupational qualification. We ask the Ministers to explain:

    (a)  why this exemption applies to discrimination on racial grounds in this document, but not in document (d);

    (b)  why such an exemption is thought necessary in this document, but has never been considered necessary in the Equal Treatment Directive;

    (c)  what consequences for the interpretation of that Directive, particularly in relation to the exclusion of women from ordination to the priesthood in the Roman Catholic and Orthodox churches, would adoption of Article 4(2) have?

(xii)  We are not clear about to whom this measure would apply. Does the Government accept that paragraph (10) of the preamble to document (d) is declaratory, so that both proposals apply in the case of third country nationals who are victims of discrimination on one of the relevant grounds?

If so, how does the Government reconcile its view that "persons" in these proposals may, and does, include third country nationals with the view, constantly reiterated to us, that the general scope of the Treaty ratione personae has to be understood by reference to the scope of its specific provisions which are confined to EU nationals?

(xiii)  We note that the Government favours Codes of Practice in this area. Does the Minister think these can satisfactorily implement the Directive?

— Document (d)

(xiv)  According to the tenth preamble, the prohibition of discrimination on grounds of racial or ethnic origin does not apply to differences of treatment based on nationality. We invite the Ministers to comment on a case in which access to particular employment in a Member State is restricted to EU citizens (who are predominantly white), but denied to legally resident third country nationals (who are in that State predominantly non-white). Have not the latter, arguably, been indirectly discriminated against on grounds of racial origin, given that the qualifying condition, EU citizenship, is one which a higher proportion of whites than non-whites can satisfy?

  4.33  In general, we welcome the evidence of Departmental co-operation in the EM s on these documents, and the plans for extensive consultation. In due course, we shall wish to know the outcomes of this exercise, and of the impact assessments. At this stage, we will keep all the proposals under scrutiny.


12  Commission for Racial Equality. Back

13  Case C-273/97, Sirdar v The Army Board and the Secretary of State for Defence, judgment of 26.10.1999, nyr, and Case C­285/98, Kreil v Federal Republic of Germany, judgment 11.1.2000, nyr.  Back

14  Case C-168/91, Konstantinidis v Stadt Altensteig, 1993 ECR I - 1191. Back

15  See paragraph 4.8 above. Back

16  [1983] 2A.C.548. Back

17   "[The safeguard clause] provides employers with the opportunity of pursuing a policy of discrimination against workers based on their age, defeating the very purpose of the package of measures in the fight against discrimination." Quoted in Agence Europe No. 7625: 3 & 4 January 2000. Back


 
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