3 Prohibition of discrimination on
grounds of religion or belief, disability, age or sexual orientation
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11531/08
COM(08) 426
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| Draft Council Directive on implementing the principle of equal treatment between people irrespective of religion or belief, disability, age or sexual orientation
Commission staff working document: impact assessment
Summary of impact assessment
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| Legal base | Article 13(1) EC; consultation; unanimity
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| Department | Government Equalities Office
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| Basis of consideration | Minister's letters of 25 February and 24 March 2009
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| Previous Committee Report | HC 16-xxvii (2007-08), chapter 8 (16 July 2008)
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Previous scrutiny of the document
3.1 When we considered this draft Directive last July,[8]
we noted that Article 13(1) of the EC Treaty authorises the Council
to take appropriate action, within the limits of the powers conferred
by the Treaty on the Community, to combat discrimination based
on sex, racial or ethnic origin, religion or belief, disability,
age or sexual orientation.
3.2 The Council has already adopted three Directives
which prohibit discrimination on any of these grounds in employment,
occupation or training.[9]
Discrimination on grounds of sex and racial or ethnic origin is
also prohibited in health care, social care, social security and
goods and services available to the public.
3.3 The purpose of the draft Directive is to
further the implementation of Article 13 of the EC Treaty by prohibiting
discrimination on grounds of religion or belief, disability, age
or sexual orientation in health care, social care, social security,
education and the supply of goods and services which are available
to the public.
3.4 The draft Directive prohibits direct and
indirect discrimination. It requires harassment and the denial
of reasonable accommodation to a disabled person to be treated
as discrimination. The draft Directive's definitions of direct
and indirect discrimination and of harassment are identical to
the definitions in the existing Directives implementing Article
13 of the EC Treaty.
3.5 Article 2(6) of the draft Directive gives
Member States discretion to provide that differences of treatment
on grounds of age are not to constitute discrimination if:
"they are justified by a legitimate aim, and
if the means of achieving that aim are appropriate and necessary.
In particular, this Directive shall not preclude the fixing of
a specific age for access to social benefits, education and certain
goods and services".
3.6 Moreover, Article 2(7) gives Member States
discretion to permit proportionate differences of treatment in
financial services (such as insurance) where the use of age or
disability is a key factor in the assessment of risk using relevant
and accurate actuarial or statistical data.
3.7 Article 3 contains exemptions from the scope
of the draft Directive, such as Member States' domestic law on
marital or family status and reproductive rights and Member States'
responsibilities for the organisation of their educational systems
and the contents of the school curriculum.
3.8 Article 4 concerns the equal treatment of
people with disabilities. It requires providers to make appropriate
modifications or adjustments so as to enable people with disabilities
to have non-discriminatory access to housing, transport and other
services, goods, social security, social and health care and education.
It also provides, however, that such modifications and adjustments
should not impose a disproportionate burden.
3.9 The remaining Articles of the draft Directive
are the same as the corresponding Articles in the Article 13 Directives
which have already been adopted.
3.10 Last July, the then Parliamentary Under-Secretary
of State for Women and Equality at the Government Equalities Office
(Barbara Follett) told us that the draft Directive contained much
that the Government could agree with and which was broadly compatible
with UK policy and legislation. But the Government wished to consider
further whether all the provisions of the draft Directive —
for example, in their application to education and healthcare
— were within the Community's competence. There were also
some matters on which the Government would seek clarification.
3.11 We asked the Minister to send us:
- progress reports on the negotiations;
- the Government's Impact Assessment of the proposal;
- a note on the conclusions of the Government's
further consideration of the Community's competence to legislate
on some of the matters covered by the draft Directive; and
- information on the clarification the Government
would be seeking of the meaning and effect of some of the provisions.
Meanwhile, we kept the draft Directive under scrutiny.
The Minister's letters of 25 February and 24 March
2009
3.12 In her letters of 25 February and 24 March,
the Solicitor General (Vera Baird) tells us that the negotiations
have proceeded very slowly. Since November, there have been no
meetings of the Council Working Group to consider the draft Directive.
The Czech Presidency is expected to hold a meeting of the Working
Group towards the end of April. It might then hold two or three
further meetings before the end of June; they would be concerned
only with the proposals about discrimination on grounds of disability.
3.13 The Civil Liberties, Justice and Home Affairs
Committee of the European Parliament has proposed 27 amendments
to the draft Directive. The Government has reservations about
many of them. The European Parliament is expected to vote on the
amendments on 2 April.
3.14 Last autumn, the French Presidency proposed
amendments which were intended to clarify the goods and services
to which the proposed Directive would apply and to clarify, for
example, the factors which would determine whether a difference
in the treatment of a person on grounds of age or disability would
be proportionate and permissible. The Minister tells us that the
Government's aim is to ensure that excessive restrictions are
not imposed on the ability of the providers of financial services
to take into account the full range of factors required for a
proper evaluation of the risk associated with a particular financial
product.
3.15 While the Government regards the French
Presidency's amendments as a step in the right direction, it has
reservations about some of them because, for example, they would
widen the scope of the Directive to include provisions on multiple
discrimination (which the Government believes is a matter best
dealt with in national legislation) or they do not add to the
clarity of the document.
3.16 The Minister says that the UK Government
and some other Member States question the Community's competence
to legislate in the way proposed on:
- housing;
- education; and
- health services and social care (in the Government's
view, health services do not come within the definition of "services"
for the purposes of Article 50 of the EC Treaty which defines
services for the purposes of the Treaty and, therefore, for the
purposes of the draft Directive).
The Government has pressed the Commission to explain
why it believes that these matters are within the Community's
competence but has not yet received a satisfactory reply.
3.17 The Minister tells us that because so much
uncertainty remains about the Community's competence and, therefore,
about the matters that could legitimately be included in the Directive,
it is not yet possible to provide a credible assessment of the
Directive's costs and benefits. When there is less uncertainty,
the Government will send us both a provisional Regulatory Impact
Assessment and an Equality Impact Assessment.
3.18 The Government will shortly begin public
consultations on the draft Directive, allowing 12 weeks for comment.
3.19 Finally, the Minister promises to send us
further progress reports.
Conclusion
3.20 We are grateful to the Minister for her
letters. We welcome the Government's efforts to establish the
Community's competence to legislate on housing, education and
health services in the way proposed in the draft Directive. This
is crucial because Article 5 of the EC Treaty states that:
"The Community shall act within the limits
of the powers conferred upon it by this Treaty and the objectives
assigned therein".
3.21 We understand why the Minister considers
that the Regulatory Impact Assessment should not be prepared until
there is less uncertainty about the scope of the Directive.
3.22 We ask the Minister not only for progress
reports on the negotiations but also for copies of the Government's
consultation paper and a summary of the responses to it, together
with an explanation of the Government's views in the light of
the responses. Meanwhile, we shall continue to keep the draft
Directive under scrutiny.
8 See headnote. Back
9
Directive 2000/43/EC: OJ No. L 180, 19.7.00, p.22;
Directive 2000/78/EC: OJ No. L 303,
2.12.00, p.16; and
Directive 2004/113/EC: OJ No. L 373,
21.12.04, p. 37. Back
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