Letter from the Parliamentary Under-Secretary
of State at the Home Office (Mr Mike O'Brien) to the Chairman
of the Committee
DRAFT COUNCIL DIRECTIVE PROHIBITING RACIAL
DISCRIMINATION
Thank you for your letter of 28 June concerning the
above. As I am sure you can appreciate, some of the matters you
raised go wider than Home Office concerns, and I have had to consult
other Departments before replying.
You asked for clarification in four areas which we
touched upon in the oral evidence session on 14 June.
Access to goods and services
You mention that you are not entirely sure how the
Community derives competence to prohibit discrimination in access
to goods and services.
— Article 13 adds
a new legal base to the Treaty, pursuing the aim of non-discrimination.
This permits the Community to take measures to combat discrimination
within its specific fields of competence, as they arise elsewhere
in the Treaty, without prejudice to other specific Treaty provisions
dealing with discrimination. Boundaries within the fields of competence
are set by the subjects in relation to which the Community has
power, bearing in mind the division of competence between the
Community and Member States within those fields. In addition Article
3.2 EC, which was an amendment to the TEC made by the Treaty of
Amsterdam, requires the Community to aim to eliminate inequalities
in all the activities listed in Article 3. Article 13 enables
that aim to be acted upon.
— Community competence in relation to both
the free movement of goods and the freedom to provide services
is extensive and the completion of the internal market requires
more than merely the unfettered exercise of the freedoms by Community
nationals. In particular, the freedom to provide services extends
to both suppliers and recipients of services. An example of this
is Case 186/87 Cowan [1989] ECR 195, in which the Court
held that a British tourist in France had a right not to be discriminated
against when travelling and that a refusal to compensate him under
a state scheme in relation to an assault was a restriction on
his freedom to receive services. The Court has also used the free
movement rules to facilitate consumer access to goods. In Case
C-362/88 GB-Inno [1990] ECR I-667, the Court relied on
Article 30 (as was) to rule against national (Luxembourg) rules
limiting the distribution of marketing material advertising promotional
offers in Belgian supermarkets because of the effect it had on
consumers (in Luxembourg) access to goods.
— Legislation made under Article 94 and
95 EC which achieves total harmonisation necessarily governs internal
commercial relationships.
— It would undermine the aim of non-discrimination
if artificial distinctions were made between circumstances where
access to goods and services was covered by the four freedoms
and circumstances which were purely internal.
So, as a free standing legal base pursuing the aim
of non-discrimination, Article 13 can properly be read as allowing
the Community to act to combat discrimination in relation to access
to goods and services. As a consequence, individuals will be able
to bring claims under the Directive in relation to the provision
(or not) to them of goods and services where previously they may
not have had the ability to make a claim in relation to one of
the four Treaty freedoms.
You raised four specific questions:
(i) You asked whether
the four freedoms enable claims to be brought against individuals
(including companies). The Court has held in Case 36/74 Walrave
and Koch [1974] ECR 1405 and Case C-415/93 Bosman [1995]
ECR I-4921 that Article 39 (as was) has some horizontal application
that it was not certain that this extended to the actions of individuals.
In the recent Case C-281/98 Angonese (judgement 6 June
2000) the Court has confirmed that Article 39 applies to a single
private country. These cases suggest that it cannot be assumed
that these Treaty provisions do not have at least some horizontal
direct effect. However, Article 3 of the Directive makes it clear
that it applies to all persons, including public bodies, the implication
clearly being that implementation of the Directive requires it
to be applied to individuals.
(ii) You ask whether the Directive applies to
wholly internal situations. Community law does not regulate situations
that are purely internal to Member States. However, the Community
is under an obligation to respect fundamental rights by virtue
of Article 6 of the Treaty of European Union. We do not believe
that it would be consistent with this obligation for any Member
State to implement the Directive in a way which prohibits discrimination
on grounds of racial or ethnic origin again third country nationals
but does not prohibit such discrimination against its own nationals.
Furthermore, it could be argued that if the Directive
is not applied to wholly internal situations this would create
a situation which could hinder the exercise of internal market
rights. A business in State A which provides services in State
B and engages a workforce in State B might find that the absence
of non-discrimination provisions in State B impede the ability
of the workforce in State B to do their job, thereby affecting
the business from State A.
(iii) In that the existing provisions of the
Treaty already cover the free movement of persons, services and
capital, the "added value" which stems from Article
13 and from the Directive is that they cover a situation of non-provision
on grounds of race. In other words, refusal to provide employment,
goods or services on grounds of race are not forbidden (in Member
States with no national provisions) before the Directive is implemented.
(iv) The concept of goods is not defined in the
Treaty but the Court has said that it encompasses products that
can be valued in money and are capable of forming the subject
of a commercial transaction. Any good (or indeed service) put
on the market to the public by a private person should be covered,
whether that good is movable or immovable. In addition, the provision
of services by public authorities, rules on free movement of capital
and the freedom of establishment may already have a limited bearing
on the purchase of houses.
Scope
The scope of the Directive is subject to the legal
meaning of its wording. The words I referred to at the start of
Article 3 say that all the provisions under that Article are limited
to the extent that Article 13 of the Treaty is limited. As the
Community has very limited competence in the field of education,
the Directive will have very limited application in this field.
So, for example, any complaints about the content of the curriculum
would fall outside its scope.
I should, however, stress that within the UK, race
discrimination in the field of education is already unlawful under
the Race Relations Act 1976. I should also stress that the Directive
is a minimum standards directive, and that it will be open to
Member states to go further than is required by the Directive
when they are putting in place their own legislation to implement
it. We hope that they will be encouraged to prohibit race discrimination
in the education field even when there is strictly no legal obligation
on them to do so.
So far as policing is concerned, I think that perhaps
my answer was misunderstood. I gave policing as an example of
a field to which the Race Relations Act (as amended by the current
Bill) will apply, by which is outside the scope of the Directive.
The Directive does not cover policing.
Implementation
We intend to issue a consultation document setting
out the options for implementation. Without pre-empting the outcome,
I can say that our preferred option is to implement by way of
further amendments to the Race Relations Act by means of primary
legislation, rather than by using the European Communities Act
to introduce secondary legislation. In this way we would maintain
a single unified body of legislation on racial discrimination.
Generally, the scope of the amendments are unlikely to be limited
to the scope of the Directive as regards subject matter, for example,
if a new definition of indirect discrimination is required it
is likely to apply across the board.
Nationality
The Directive cannot cover discrimination on grounds
of nationality since Article 13 does not provide a legal base
for it to do so. Of course, other Member States could do what
we have done in the UK, and enact legislation to provide wider
protection than is required by the Directive, but we cannot be
sure that they will. In reality, though, research shows that the
type of discrimination you describe is in fact on grounds of racial
or ethnic origin as the discriminator may be unaware of the nationality
of the victim. The Directive provides protection from discrimination
on grounds of race for persons travelling, as well as those who
do not and also third country nationals subject to the limits
set out in Article 3.2.
21 July 2000
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