House of Commons - European Scrutiny

Select Committee on European Scrutiny Nineteenth Report

ANNEX

ARTICLE 13 DIRECTIVES

REPLY TO QUESTIONS OF THE HOUSE OF COMMONS,
EUROPEAN SCRUTINY COMMITTEE

Question 1: is the scope of Article 13 narrower than that of Article 12? [item (i)]

1. We agree that the scope of Article 13 is different, and in some respects narrower, than that of Article 12. We also agree that the reference to "powers" should be read as referring to the competence of the Community, and that Article 13 is accordingly limited to areas where the Community already has competence. Nevertheless, Article 13 provides a new legal basis upon which to act, and although it can only be exercised within fields of Community competence, we consider that it enables the Community to act in new ways within those fields to combat discrimination.

Question 2: scope of draft Decision establishing Community Action Programme to combat discrimination [item (i)(a)]

2. We agree with the Committee that the Decision establishing the action programme, being based on Article 13, can only cover areas of action which are within the scope of Article 13. To this extent, we do not consider that it is essential for that limitation to be repeated in the Decision itself; but the Committee is right to point out that the areas covered by the action programme must be within the scope of Article 13.

3. The Committee has focused on two areas in Annex I: the promotion of non-discrimination within and by public administrations (e.g. the police), and the removal of discriminatory barriers to participation in decision-making and the democratic process. To the extent that public administrations act as employers and as service providers, action here would fall within the scope of Article 13. But the Committee is right to point out that the scope is not well defined. Similarly, it is not clear how the Community could purport to act in relation to the democratic process except in the context of European institutions. There are other entries in the Annex which are similarly ill defined, and we intend to pursue this with the Commission.

Question 3: Race Directive [item (i)(b)]

4. The Committee has also invited comments on the scope of the Race Directive, in particular Article 3(e) - (h) of that Directive. Taking these in turn:

social security:

(b) The Community's competence in relation to the free movement of workers extends to its ability to legislate in respect of social advantages (see, for example, Regulation 1612/68/EEC, Article 7(2)). We consider that its competence under Article 13 similarly extends this far.

(c) As set out in our EM, we have concerns about the scope of the provision relating to education. We welcome the proposal's recognition that Community competence in this field is limited, but we consider that the proposal as drafted does not make clear the extent of that limitation.

(d) The Community has extensive competence in relation to goods and services. (See, in particular, Chapter III of Title III EC). The Race Directive does not make clear which types of services it intends to cover; but it is our view that, given the limitations in Article 13, it could extend to all types of services covered by other provisions of the Treaty.

Question 4: positive discrimination [item (ii)]

5. We would not expect the authorisation of positive action in the two directives to go wider than the corresponding provision in the Equal Treatment Directive (ETD). The reasons for this view appear below.

6. Article 2(4) ETD allows measures to promote equal opportunity for men and women, in particular by removing inequalities which affect women's opportunities. The European Court of Justice (ECJ) have considered that provision in a number of judgments. See, in particular, case C-450/93 Kalanke [1995] ECR I-3051 in which the ECJ said (at paragraphs 18 and 19)—

"It thus permits national measures relating to access to employment, including promotion, which give a specific advantage to women with a view to improving their ability to compete in the labour market and to pursue a career on an equal footing with men."

7. This is reflected in Article 141.4 of the EC Treaty, inserted by the Treaty of Amsterdam, which provides—

providing for specific advantages

(Our emphasis)

It will be noted that, in contrast, Article 5 of the Race Directive and Article 6 of the Employment Directive are framed in terms of permitting Member States to maintain or adopt measures intended to prevent or compensate for disadvantages; unlike Article 141.4, they do not mention the provision of specific advantages.

8. We would therefore be surprised if the ECJ were to hold that Article 5 of the Race Directive permitted things such as inflexible quotas for access to higher education or employment in particular organisations. We think the ECJ would be likely to adopt a broadly similar approach to that followed in Kalanke, and case C-409/95 Marschall [1997] All ER (EC) 865.

9. In Kalanke, the ECJ held that national rules which guaranteed women absolute and unconditional priority for appointment or promotion overstepped the limits of the exception in Article 2(4) of the Equal Treatment Directive. But in Marschall, the ECJ upheld a German rule which gave women priority for promotion over equally qualified men where there were fewer women than men in the relevant field, because it contained a saving clause ensuring objective assessment of individual circumstances.

Question 5: hypothetical comparisons [item (iii)]

10. The drafting of the Directives appears to recognise that it will sometimes be difficult to make a comparison with the treatment others have received in the same, or not materially different, circumstances.

11. This difficulty is also reflected in the wording of the UK's existing discrimination legislation: see section 1(1)(a) of the Sex Discrimination Act 1975 (SDA), section 1(1)(a) of the Race Relations Act 1976, and section 5(1)(a) of the Disability Discrimination Act 1995 (DDA). So, for example, section 5(1)(a) DDA provides that an employer is regarded as discriminating against a disabled person if—

would treat

or would not

(unless the employer can show that the treatment is justified).

12. The problem of making an appropriate comparison is particularly acute in relation to discrimination on the grounds of disability. The focus under the DDA is therefore on the reason for discrimination. This was emphasised in a recent judgment of the Court of Appeal in Clark v Novacold Ltd [1999] ICR 951. The employee in that case had suffered an accident at work which resulted in a disability for the purposes of the DDA and the likelihood that he would be unable to resume work for about a year. He was dismissed, and on his complaint to an employment tribunal alleging unlawful discrimination contrary to section 5(1) of the Act, the tribunal found that the comparator for the purposes of section 5(1)(a) was someone absent from work for the same length of time as the applicant but for a reason other than disablement. However, on appeal, the Court of Appeal held that, for the purposes of section 5(1) of the DDA:

— in deciding whether that reason does not or would not apply to others, it is not appropriate to make a comparison of the cases in the same way as under the SDA and RRA. It is simply a case of identifying others to whom the reason for the treatment does not or would not apply. The test of less favourable treatment is based on the reason for the treatment of the disabled person and not on the fact of his disability. It does not turn on a like-for-like comparison of the treatment of the disabled person and of others in similar circumstances.

13. We expect that a broadly similar approach would be followed under the Race and Employment Directives, at least where appropriate comparisons cannot be made. However this will, of course, ultimately be for the ECJ to determine.

14. It may also be helpful to give a (hypothetical) example to show how this might work in the context of discrimination on the grounds of religious belief. In a case where Muslim employees were dismissed for refusing to work on a Muslim holy day, it would be unrealistic to compare the treatment they received with that suffered by a non-Muslim employee who (for instance) had an aversion to working on that particular day because it was his/her birthday, or with a Christian who refused to work on Good Friday. Instead, the appropriate test is to look at whether the employees would have been dismissed if they had not been Muslim and therefore had not taken the day off. To do so, it should not be necessary to impute conduct on the part of the employers.

15. We would therefore not expect that this aspect of the Directives would cause the UK any particular difficulty, given that it reflects existing provisions of UK discrimination legislation.

Question 6: relationship between the two draft Directives [item (iv)]

16. The reason why the Commission has chosen this approach probably lies in practicality. Anti-discrimination law is a complex area; bringing forward equally detailed proposals on all of the grounds covered in Article 13 at one time would have been impossible to manage in terms of negotiations. Discrimination on grounds of race and ethnicity is a pressing political priority at European level, particularly at a time when the enlargement of the Union is being considered to include countries where such discrimination is such a prominent issue. This view was emphasised in the conclusions to the European Council held at Tampere. The Commission has made it clear that, depending on which Directive is adopted first, the other proposal will be amended to avoid overlap. Whilst the Commission has not given any undertaking to bring forward more proposals similar to the Race Directive for the other grounds covered in the "framework" Directive, this would seem to us to be a logical approach for them to take in the future. Although called a "framework" Directive, the proposal in the area of employment and training is much more detailed than is generally the case in framework directives.

17. The European Commission would seem to share this view: Odile Quintin (Acting Deputy Director General of DG EMPL) recently said in giving evidence to the Lords Select Committee (sub-committee F) that the Employment Directive and the Race Directive should not be seen as a framework directive and its daughter.

Question 7: single definition of discrimination [item (v)(a)]

18. In our view a single definition of indirect discrimination would be much clearer. Clear and straightforward law encourages observance. EU citizens, having got used to one definition, would be faced with a new one should the Article 13 proposals be adopted as they stand. This is not a recipe for effective promotion of equality. It will bring confusion and complicate ECJ case law.

Question 8: the four approaches [item (v)(b)]

19. In our view the definition in the Burden of Proof Directive fits better with ECJ case law on sex discrimination, which seems the most appropriate starting point for the definition in these proposals. The definitions in the Commission's drafts, although based on the O'Flynn case (which concerned free movement of workers), do not in fact follow it completely and seem to us rather vague.

Question 9: consequences for the Disability Discrimination Act [item (v)(c)]

20. The most significant area in which the proposed Employment Directive departs from the approach followed in the Disability Discrimination Act is in indirect discrimination. The proposed Directive would outlaw indirect, as well as direct discrimination on grounds of disability. In the DDA the concept of indirect discrimination as such does not apply to disability, but the Act does impose a duty to make a reasonable adjustment in a particular case (e.g. where an employer's practices place a particular disabled person at a substantial disadvantage, changes might need to be made for that person, but not generally). The Directive also refers to "reasonable accommodation" but this is entirely separate from the provisions prohibiting direct or indirect discrimination. Under the Directive indirect discrimination would occur where an apparently neutral arrangement was likely adversely to affect someone on the grounds of their disability. But almost any practice would adversely affect (and therefore indirectly discriminate against) some disabled person somewhere and this would place employers in a difficult situation: they might still be held liable for discriminating against a disabled person (whether directly or indirectly) even where a failure to provide a reasonable accommodation could be justified. Clearly substantial amendments would be needed to the DDA if the Directive were to be adopted in its present form.

Question 10: would the two Directives have direct effect? [item (vi)]

21. We agree that the main provisions of the two Directives as currently drafted would be sufficiently clear and precise so as to satisfy the conditions for direct effect laid down by the ECJ. This would apply only after the end of the period prescribed for transposition (see the penultimate Article of each Directive) and, of course, would only be significant so far as either Directive was not properly implemented by the UK.

Question 11: meaning of "ethnic origin" and "religious belief" [item (vii)]

22. The terms "ethnic origin" and "religious belief" appear in Article 13 of the EC Treaty. It follows that the ECJ would be likely, in due course, to pronounce on the meaning of these terms for the purposes of Community law. We are not in a position to speculate on whether the ECJ would be attracted by the approach of the House of Lords in Mandla v Dowell Lee. The ECJ will wish to do justice in the cases in which these issues arise for decision; and so the particular facts of the cases could be important in influencing how the ECJ will construe these provisions.

23. Moreover the ECJ would also be likely to take into account the approach taken by other Member States in this respect - both in their current law and in the measures implementing the Directives. This could well be an important consideration when the ECJ come to consider issues such as whether the definition of religious belief would extend, for the purposes of Article 13, to the beliefs of followers of organisations such as the Church of Scientology.

Question 12: Do the proposals have an implicit hierarchy? [item (viii)]

24. The Commission have stated that, in their view, there is no hierarchy between the different forms of discrimination covered by Article 13. However, while some of the grounds (e.g. sex) have a longer legislative history, others are starting from a lower base (e.g. age). The current package of proposals does give particular emphasis to race in that it includes a Directive dealing specifically with discrimination on grounds of racial or ethnic origin, currently a pressing political priority at European level. The difference in emphasis on the different grounds in Article 13 in this first package of proposals reflects this difference in existing legislation at European and Member State level, and also current political priorities rather than an actual hierarchy between the grounds.

Question 13: monitoring [item (ix)]

25. The Government believes that monitoring can, in some circumstances, be an effective tool in promoting best practice in the area of equal opportunities. Both the Commission for Racial Equality and the Equal Opportunities Commission already promote voluntary monitoring in their codes of practice for employers. However it is important in this area to take into consideration any potential burdens on employers. Moreover monitoring can also be problematic as a mechanism when applied to some of the grounds covered by Article 13. For example, measuring the number of disabled people employed in a particular company raises issues such as medical confidentiality or fear of admitting to illness. There is also a risk that monitoring can produce risks which are relatively meaningless or even deceptive, for example, by lumping together all disabled people or all people from ethnic minorities, and thus failing to recognise discrimination between different groups of disabled people or between minority groups.

26. In view of this, we believe that voluntary and best-practice methods are most appropriate in the areas of monitoring. Legal requirements should only be used where prevailing practices are shown to be inadequate. There is a large measure of agreement on the specific requirements which would provide valuable information and this is certainly something best decided at national rather than European level.

27. There may, however, be a role for collating information and developing and sharing best practice at European level: in the race field, for example, the European Monitoring Centre against Racism and Xenophobia has started to perform this function. The Centre has recently proposed the setting up of 'National Focal Points' to collect information in each Member State. The Action programme proposed as part of the Article 13 package will also help to improve the data available on discrimination in the Community and consider ways in which it may be taken forward.

Question 14: genuine occupational qualification - disability [item (x)]

28. The term "genuine occupational qualification" (GOQ) is not defined in either draft Directive and its application is not clear. During negotiations we will be seeking to clarify how this provision would relate to all of the grounds covered in the proposals and also how it would apply in combination with other provisions in the current texts.

29. The need to clarify this is particularly evident in the case of disability discrimination in the Employment Directive. In the current draft direct discrimination can be justified only on grounds of GOQ, but the way in which GOQ would link with the concept of 'reasonable accommodation' is not clear. Which would come first? In our view it should be necessary first to consider whether reasonable accommodation could be made. As it stands there is no requirement to consider reasonable accommodation before deciding whether to rule out a disabled candidate on the grounds of GOQ. It is also, perhaps, inappropriate to apply this concept at all in the context of disability: being "not-disabled" is not a qualification - in the same way that being a woman is a qualification for modelling female clothing.

Question 15: genuine occupational qualification - religion or belief [item (xi)(a)]

30. Article 4(2) relates to criteria based on "a relevant characteristic related to ¼ religion or belief". We interpret this as referring to distinctions on religious grounds and not to difference of treatment on racial grounds.

Question 16: [item (xi)(b)]

31. The specific exemption in favour of religious organisations in the Employment Directive was presumably included in order to give explicit recognition to problems that might arise in a very sensitive area. Nonetheless, we think that the circumstances mentioned in Article 4.2 would be covered by the general exemption on grounds of GOQ in Article 4.1.

Question 17 [item (xi)(c)]

32. In our view the situation with regard to the ordination of women would be unchanged by the Employment Directive.

Question 18: recital (10) to the Race Directive [item (xii)]

33. It is not clear whether Article 13 gives a power to adopt measures relating to third-country nationals. In any event, such measures need not necessarily do so. To that extent, recital (10) is more than declaratory. Moreover, we consider it desirable that the personal scope of the measures should be made clearer in the body of the Directive. It is true that the view of the Government has always been that, except where indicated expressly or by necessary implication, provisions in the Treaty or in Community legislation are to be interpreted as applying to EU nationals, rather than nationals of third countries. In the present instance, it is arguable that measures to combat discrimination on the grounds mentioned in Article 13 would be ineffective, even as regards Community nationals, if their benefit were not also extended to third-country nationals. As already mentioned, however, such arguments are to be assessed, case-by-case, in respect of each individual measure.

Question 19: Codes of Practice [item (xiii)]

34. Although both proposed Directives refer to "judicial and/or administrative procedures for the enforcement of obligations under this Directive", codes of practice would not be sufficient by themselves to implement either Directive in the UK context. Our legislative and judicial system would require the introduction of new legislation providing for judicially enforceable remedies along the lines of those provided for under the Sex Discrimination Act and the Race Relations Act - in order to ensure that we complied, not just with the terms of these Directives, but also with the general principle that remedies for the enforcement of rights under Community law should be equivalent to, and as effective as, remedies for the enforcement of rights under national law. But codes of practice could still be used to supplement such legislation.

Question 20: discrimination on grounds of nationality [item (xiv)]

35. We accept that differences in treatment based on nationality can amount to indirect discrimination on grounds of racial or ethnic origin. However, according to the final sentence of recital (10) to the Race Directive, the prohibition of discrimination (whether direct or indirect) on grounds of racial or ethnic origin is not intended to apply to differences of treatment based on nationality. It would therefore appear that the Directive intends to exclude from its scope indirect discrimination against any racial or ethnic group which is a "side effect" of a difference of treatment on grounds of nationality.



© Parliamentary copyright 2000	Prepared 16 June 2000