EQUALITY LAW IN AN ENLARGED EUROPEAN UNION Part 3 ppsx

article 13 ec, evolution and current contexts 53 other grounds set out in Article 13. This implies properaccess totheCourts and equality of arms before the Courts. 77 Some states have Commissions which help with the preparation and funding of discrimination cases; others will have to consider what assistance is necessary to make sure that such individual rights are real. Criminal sanctions Some discriminatory acts are so grave that the state must invoke the criminal process against the perpetrators. There are three main reasons for this. Firstly, often the victim will be too alienated or feel too weak or fright- ened to seek anindividual remedy.In those circumstances the state cannot stand by and permit the wrongful act to occur and perhaps to re-occur. Secondly, the state exercising the democratic will of the people, and the courts as guardians of human rights, must mark disapproval of grave acts of discrimination, especially thoseinvolving violence or grave oppression. Thirdly, and more particularly, public order can be quickly undermined by racist or other discriminatory attacks, or by vigilante action or retaliation provoked by acts of discrimination. Only through an effective criminal process will that be prevented. Accordingly, an effective code ofcriminal laws, anadequately resourced and motivated system of criminal investigation and a suitable judicial process giving proportionate sentences are all essential. Information and training The scope and principle of equal treatment and the need for objective justification for differential treatment is not naturally part of thepublicdiscourse. Experienceshowsthat merely giving rights to individual remedies and creating mechanisms for state enforce- ment will not be enough. The principle of equal treatment needs to be fully understood and accepted as desirable for society, ensuring that deci- sions are taken on an objective basis thereby promoting stability and social coherence. The more effective the system of public information is the less need there will be for either of the previous two remedies. There are two general levels for such public information: information to the adult public and education to those of school age as a core curricu- lum issue. Additionally, more detailed training and information will be necessary for judges, the police and other social actors. I want to empha- sise particularly the need for education and training of the police and the judiciary. Neither group can be assumed to understand what Article 77 See Airey v. Ireland (1979–1980) 2 EHRR 305. 54 equality law in an enlarged european union 13 means. Experience in my country teaches me that ensuring that such education is effective is a long and slow process. 78 Idonot suggest that the education should be delivered at Community level, but that the need for it is recognised and encouraged through Community action. Mainstreaming All social actors have a responsibility to ensure that their policies are formulated with a due regard to the importance of all equality issues. Unless this responsibility is taken very seriously the effectiveness of any legislation under Article 13 will be much reduced. The importance of mainstreaming was most notably recognised at an international level in relation to the position of women at the Fourth United Nations World Conference on Women. 79 Mainstreaming has already been taken up by the Community in its Fourth Medium-term Community Action Programme on Equal Opportunities for Men and Women (1996 to 2000). 80 It has also been recognised thatits implications gofurther than just gender issues:for instance, the European Parliament called for a similar policy in relation to disability matters in accordance with UN Standard Rules on Equalisation of Opportunities for Persons with Disabilities. 81 The Amsterdam Treaty included the following declaration: ‘In drawing upmeasures under Article 100a the institutions of the Community shall take account of the needs of persons with a disability.’ 82 So, in my opinion, an assessment of the impact on all equality issues is anecessary precondition for the proper formulation of all laws, rules, and policies, by all social actors. Mainstreaming should not just be limited to governmental organisations, though of course they must take a lead in this. Monitoring Without continual monitoring of the situation of those classes of persons who are in the scope of the anti-discrimination 78 It was only very recently that the Judicial Studies Board, which is responsible for the train- ing of judges in England and Wales, created an Equal Treatment Advisory Committee. There has been some excellent work done by Her Majesty’s Inspectorate of Constabulary (for instance the Thematic Inspection on Police, Community and Race Relations 1996/7 entitled ‘Winning the Race – Policing Plural Communities’) and the Home Office. How- ever, thisworkhasnot been universally welcomed. I expect that this is a problem that will be common to many Member States. 79 See ‘Platform for Action and the Beijing Declaration – the Report of the Fourth World Conference on Women, Beijing China 4–15 September 1995’ (United Nations Department of Public Information, 1996) in particular para. 204. 80 Council Decision 95/593/EC, [1995] OJ L335, 30/12/1995, pp. 37–43. 81 Resolution on the rights of disabled people OJ C020, 20/01/1997, p. 389. 82 Declaration 22, OJ C340, 10/11/1997, p. 135. article 13 ec, evolution and current contexts 55 provisions, the four previously mentioned conditions will be only partly and incompletely achieved. It is essential that the effect of laws and poli- cies are monitored. It is essential that workplace practices and commercial polices are monitored. There is increasing experience of the importance of monitoring. In Northern Ireland it has proved an invaluable tool in securing tolerance of religious and political diversity in the workplace. 83 The argument for wider monitoring is perhaps most fully made out in the recitals to the Council Regulation establishing a European Monitoring Centre on Racism and Xenophobia. 84 Whatever legislation is proposed under Article 13 it must be set in a framework which will meet these five conditions. The protected grounds Iwish to add only a few further remarks about discrimination in relation to the grounds which Article 13 protects. Sex Akey question for this conference will be what areas of sex discrim- ination outside employment require protection. The Equal Treatment Directive has already been interpreted to provide protection to transsex- uals in P v. S and Cornwall County Council. 85 However, discrimination against transsexuals goes much further than just employment. Here the case law of the Human Rights Court has not yet been helpful, 86 although there was a strong dissenting opinion that holds out hope for the future. 87 Distinctions between post- and pre-operative transsexuals have no place in any modern legislation on sex discrimination. Racial orethnic origin HereIcan do no better than to refer to the Starting Line proposals on which I have already commented. The need for such action is now very widely appreciated. Obviously the task is to consider the way in which these proposals meet the needs of the Community. 88 A 83 In Northern Ireland the Fair Employment (Northern Ireland) Acts 1976 and 1989 which prohibit religious and political discrimination in the employment field impose detailed and effective monitoring requirements on firms. For a useful guide to these Acts see the Fair Employment Handbook,C.McCrudden (ed.) (Industrial Relations Services, 1995). 84 No. 1035/97 of 2 June 1997, OJ L151, 10/06/1997, pp. 1–7. 85 Case C-13/94 [1996] ECR I-2143. 86 See the recent judgment of the Human Rights Court in Sheffield and Horsham v. UK. 87 See in particular the dissenting judgment of Judge van Dijk at para. 3. 88 See Prof. C. Gearty ‘The Internal and External “Other” in the Union Legal Order: Racism, Religious Intolerance and Xenophobia in Europe’ in ch. 10 of P. Alston (ed.) The European Union and Human Rights (Oxford University Press, 1999). 56 equality law in an enlarged european union particular aspect for considerationwill be the position of third country nationals. 89 Religion or belief The Court of Justice has already decided in principle that examinations for the Community’s civil service which were held on Saturday were discriminatory against Jews. 90 This should provide a starting point for a wider consideration of religious discrimination both at work and in education. It should be noted also that the connection between religion and belief echoes Article 9 ECHR. It is right that the Starting Line proposals should also consider them together because there is a very close relationship between racial and religious discrimination. The ECHR jurisprudence has conspicuously avoided giving a definitive ruling on what constitutes a religion 91 and it is probably as well not to seek a definitive answer. A particularly difficult question is the extent to which protection in respect of religion and belief should be given. Should an employer be prevented from implementing any rule at all that has a discriminatory effect, such as working on Friday, 92 Saturday or Sunday? Or is it sufficient to require that such a rule is objectively justified? In the Netherlands, discrimination of this kind in the workplace has been taken very seriously 93 and this experience may be of particular relevance. Iwould like to add a few comments in respect of discrimination on grounds of belief, because this could also include political opinion. The jurisprudence of the ECHR already provides strong protection in this field under Article 10. 94 It is surely important that the Community do not take toorestricted a view as to what discrimination on the grounds of belief is within any legislation under Article 13. Disability The disabled sometimes feel that they are an invisible part of the Community. It is now well recognised that this is quite incompatible 89 See also the Starting Line ‘Draft Directive on Third Country Nationals’ in ‘Proposals for Legislative Measures to Combat Racism and to Promote Equal Rights in the European Union’, p. 37. 90 Case 130/75 Prais v. EC Council [1976] ECR 1589. 91 See X and the Church of Scientology v. Sweden No. 7805/77 or Chappell v. UK No.12587/86. 92 The Human Rights Commission rejected a complaint by a Moslem teacher that he had been denied his rights under Art. 9 ECHR when his employer would not let him attend prayersonFridays:X v. UK 8160/78, Dec 12.3.81 DR 22, p. 27. 93 See the Dutch High Court decision of 30 March 1984, Nederlands Jurisprudentie 1985 no 350; and see Dr. B. C. Labuschaigne ‘Religious Freedom and Newly Established Religions in Dutch Law’ Netherlands International Law Review XLIV: 2 (1997). 94 See, e.g., Vogt v. Germany [1996] 21 EHRR 205. article 13 ec, evolution and current contexts 57 with a comprehensive approach to social cohesion. Nevertheless legislat- ing for the disabled raises difficult questions about who is in scope. Is mental disability to be treated in the same way as physical disability? Are those with hay fever to receive the same protection as those with diabetes? Arethose with myopia in need of the same protection as those with schizophrenia? What is the right approach to disability through addic- tion to alcohol, tobacco or other drugs? These are difficult questions that have been approached in some countries in their municipal legislation. Perhaps a key question is whether to propose a unified approach to the meaning of disability. 95 Age There is much work to be done in respect of age discrimination. In the employment field a recent survey 96 of eleven European countries identified five sets of discriminatorymeasures which particularly affect older persons: loss of employment, discrimination in recruitment, exclu- sion from special unemployment measures, exclusion from training and discrimination at retirement. The US has had long experience of age dis- crimination legislation which will provide auseful source for comparison. In the UK, the Government has just proposed a voluntary Code of Prac- tice in relation to age discrimination, while accepting that legislation may be necessary in the future. I personally doubt whether such an approach is likely to be effective. Sexual orientation The need for action in relation to sexual orienta- tion has already been mentioned. 97 The case law of the Human Rights Court shows that discrimination against homosexuals can be contrary to the Convention 98 but it does not treat discrimination, by the more favourable treatment of married persons or heterosexual couples than homosexual couples, as a breach of Article 14. 99 There is an expectation that this may change, with the abolition of the European Commission on Human Rights. 100 It is essential that the Community addresses the rights 95 The World Health Organisation has an International Classification of Diseases to which reference might be made. 96 ‘Age discrimination against older workers in the European Community’ (Eurolink Age, 1993). 97 See Case C 249/96 Grant supra. 98 See, e.g., Dudgeon v. UK [1981] 4 EHRR 149; see also the report of the Commission in Sutherland v. UK Application No. 25186/94. 99 S v. UK No. 11716/85 47 DR 274, and B v. UK No. 16106/90 64 DR 278. 100 See the powerful arguments advanced in ‘A case for Equality’ by Peter Duffy QC in the Stonewall Lecture reported at [1998] 2 EHRR 134. 58 equality law in an enlarged european union of homosexual couples from a human rights perspective in a way similar to that taken by the Court of Justice in respect of transsexuals in P v. S and Cornwall County Council. 101 Conclusions Article 13hasreal potential to meet the expectations to which I have referred. As the Community moves into the next millennium, it will be of the greatest importance, in creating a Union truly founded on human rights. It brings the principle of non-discrimination closer than ever before to those who are in need of protection from discrimination. Although the Article is one which empowers further action by the Com- munity, its adoption, is of itself, a significant political fact. It has created an expectation that action will be taken. Despite the need for unanimity it will surely be impossible for no action to be taken under this provision. The challengeistotakeeffective action. I look forward to working towards the achievement of this goal. The ‘sleeping giant’ awakes There followed five further short lectures which discussed some of the possibilities for action, 102 followed by the usual workshops. Other partic- ipants at the Conference discussed whether different kinds of Community initiatives might be appropriate such as awareness training activities and exchanges of experience. All considered the extent to which radical action rather than incremental steps were appropriate. In a memorable phrase, in one of the workshops, former judge of the Court of Justice, Manfred Zuleeg, described Article 13 as a ‘sleeping giant’ and stated that it was the task of the Conference and by implication the Commission, to wake it up and demonstrate its strength. It was a challenge which was welcomed by all who attended and one which the Commission has continued to address with energy and commitment. 101 Case C-13/94 [1996] ECR I-2143. 102 The other speakers and their topics were A. Heymann-Doat, ‘Motives of Discrimination, Discriminatory practices and means to combat them’, B. Niven, ‘Combating discrimina- tion – What types of Community Action?’, W. Okresek, ‘Article 13 and the legal environ- ment – an instrument for the fight against discrimination’, G. Shaw, ‘Balancing legislative standards and voluntary action: experience from the business sector’ and M. Zuleeg, ‘The content of Article 13 of the Treaty establishing the European Community as a amended by the Treaty of Amsterdam’. article 13 ec, evolution and current contexts 59 Thus there was loud applausewhen,at the conclusion of theconference, Commissioner Padraig O’Flynn announced that the Commission would indeed immediately bring forward two draft directives: the first would be wide ranging in scope and based on race; the other would provide a framework for equality in relation to all the other grounds contained in Article 13, save sex, but would be limited to the employment context. 103 These were the first steps of the giant, but more were to come. Specific aspects of the giant’s waking life are discussed in other chapters of this book, yet one or two are worth mentioning here. Firstly, the Conference contributed significantly to a developing polit- ical impetus for immediate action and within record time the directives became law as Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or eth- nic origin (‘the Race Directive’) and Directive 2000/78/EC of 27 November 2000 establishing ageneral framework for equaltreatment in employment and occupation (‘the Employment Framework Directive’). This impetus has continued but not in an entirely uniform way. Most states have taken some steps to implement these Directives but enforcement proceedings in the Court of Justice have had to been taken by the Commission under Article 226 EC against Austria, Germany, Luxembourg and Finland, 104 and it is understood that the implementation by other countries has been criticised by the Commission. Secondly, this legislative programme has been the precursor to other important acts of the organs of the Community, ranging from action by the Commission to Council Resolutions. The first and most important was a decision to have a Community Action Programme in relation to combating discrimination. 105 This Programme has been hugely influen- tial in the dissemination, across old and new Member States, of the ideas contained within Article 13 and developed in the Vienna Conference. A first review of the Programme took place in the Green Paper published in 2004. 106 This led to some changes in the way in which the Commission has worked. The Programme is now coming to an end and is being evalu- ated 107 and a further Green Paper is expected tobepublishedtopropose 103 See the Report of the Conference, pp. 60–3. 104 See http://ec.europa.eu/employment social/fundamental rights/legis/lginfringe en.htm. 105 Council Decision of 27 November 2000 establishing a Community action programme to combat discrimination (2001 to 2006) (2000/750/EC). 106 See http://ec.europa.eu/employment social/fundamental rights/pdf/ pubst/grpap04 en. pdf. 107 See http://ec.europa.eu/employment social/fundamental rights/ policy/aneval/eval en. htm. 60 equality law in an enlarged european union the next steps in the autumn of 2006. There is no doubt that there is more to be done and already there have been calls for more and deeper legislation in relation to the protected grounds. 108 One important sign of that is the decision that 2007 be designated European Year of Equal Opportunities for All. In the field of sex discrimination, the Union has utilised Articles 13 and 141 EC, to amend the Equal Treatment Directive 109 to bring sex discrimi- nation broadly into line with the provisions of the Employment Equality Directive. 110 Further provision has been made to outlaw discrimination on grounds of sex outside the employment field. 111 Various Council resolutions have been passed by reference to Article 13; for instance, the Council, relying on Article 13, passed a Resolution of 15 July 2003 on promoting the employment and social integration of people with disabilities. 112 This called on Member States, among other things, to promote greater co-operation with all bodies concerned with people with disabilities; to promote the full integration and participation of people with disabilities in all aspects of society; to continue efforts to remove bar- riers to the integration and participation of people with disabilities in the labour market; to pursue efforts to make lifelong learning more accessible to people with disabilities; to remove barriers impeding the participation of people with disabilities in social life and, in particular, in working life, and prevent the setting up of new barriers through the promotion of design for all; and to mainstream disability issues when drafting future national action plans relating to social exclusion and poverty. Article 13hasalso not stood still. Thus in the Treaty of Nice a second paragraph was added to permit decision-making under Article 13 by qualified majority voting pursuant to Article 251, in relation to certain kinds of incentive measures to support action taken by Member States in 108 See, for instance, the suggestion for a Directive in relation to age discrimination in relation to goods facilities and services, put forward by Age Concern and other age related organisations across Europe: www.ace.org.uk/AgeConcern/Documents/Age Directive one Goods Facilities and services final1.pdf. 109 Council Directive 76/207/EEC. 110 See Directive 2002/73/EC of the European Parliament and of the Council of 23September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. 111 See Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services. 112 See Council Resolution of 15 July 2003 on promoting the employment and social inte- gration of people with disabilities (2003/C 175/01). article 13 ec, evolution and current contexts 61 order to contribute to the achievement of the objectives in the main text of Article 13. The possibility of such decisions being taken on a less than unanimous basis underlines the importance of the objectives of Article 13 as a key element of the social policy of the Union. Finally, it should also be noted that the draft constitution of the Euro- pean Union intended to transpose Article 13 to Article III-124, which was set out in Title II of Part III of the proposed Constitution under the general heading ‘Non-discrimination and Citizenship’, 113 and the Charter of Fundamental Rights of the European Union 2000 114 contains extensive reference to equality rights in Chapter III.Atthetime of the Vienna Con- ference neither the proposal for a Constitution 115 nor a Charter 116 had been formulated within the Union. Outside the Union there have been developments inrelation to equality and non-discrimination. The most important development has been the agreement by the Council of Europe on a text for a twelfth Protocol to the ECHR. The text was intended to supplement Article 14 ECHR by removing its limitations as merely an accessory right. There has been a realisation that a free-standing right, somewhat akin to Article 26 of the ICCPR, was needed in the European context. 117 The essence 118 of Protocol 12 is in Article 1: 1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, reli- gion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 113 See http://eur-lex.europa.eu/LexUriServ/site/en/oj/2004/c-310/c-31020041216enoo55 G85.pdf. 114 [2000] OJ C 364/1. 115 The proposal for constitution followed the Declaration on the Future of the Union made by the Council in 2000 in Nice. 116 The proposal for a Charter came from the Cologne European Council of the 3–4 June 1999. 117 The explanatory memorandum to the Protocol is at www.humanrights.coe.int/Prot12/ Protocol%2012%20and% 20Exp%20Rep.htm#EXPLANATORY%20REPORT. 118 It should be noted that the Recitals to the Protocol add that ‘Having regard to the funda- mental principle according to which all persons are equal before the law and are entitled to the equal protection of the law; Being resolved to take further steps to promote the equality of all persons through the collective enforcement of a general prohibition of discrimination by means of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”); Reaffirming that the principle of non-discrimination does not pre- vent States Parties from taking measures in order to promote full and effective equality, provided that there is an objective and reasonable justification for those measures.’ 62 equality law in an enlarged european union 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1. As yet the utility of Protocol 12 has not really been tested. It only came into force on 1 April 2005 when it was ratified by a tenth state. As of July 2006 there were fourteen ratifications but of these only the Netherlands of the main Member States of the European Union had ratified it. There is as yet no jurisprudence of the European Court of Human Rights on its application. Commentary The conference was an undoubted success in providing an important opportunity for contributions from many different experts. Yet it is now appropriate to consider some of the aspectsof the development of equality and non-discrimination law which it anticipated well and to consider some of the problems which the conference either underestimated or did not foresee. 119 The five conditions Broadly the five conditions that I posited for effective legislation against discrimination have been met in the two Directives which followed the Vienna conference. Yet there are some important lacunae which should be noted. Firstly, while both Directives require effective sanctions neither expressly states that criminal sanctions may be necessary. However, in the period in between, in which I have discussed these issues with judges and jurists from every Member State and candidate country, I have not heard that a lack of criminal sanctions has been a problem. The neces- sary criminal laws seem to be there; the issue is the willingness to invoke criminal law when it is necessary to secure compliance with the principle of equal treatment. In part this may reflect the lack of efficient enforcement mechanisms in the hands of equality bodies. While the Race Directive required such a body to be set up in each Member State, the Employment Equality Direc- tive did not. This was a real missed opportunity which was fortunately avoided in the re-enactment of the Equal Treatment Directive. It must be acknowledged that the Commission has worked hard in relation to information andtraining through the Action Programme. This 119 For these the author must take at least a fair share of blame! [...]... policy-making and in carrying out all its activities 78 equality law in an enlarged european union International and regional human rights law dealing with equality and non-discrimination These differing approaches are useful in understanding the different ways in which human rights law addresses the issue of discrimination and equality Sources of international provisions on equality and non-discrimination... organisations, such as the United Nations and the ILO Community law on equality, in particular sex equality, is probably the most advanced of any jurisdiction in the world .37 The Union played a constructive role in the 1995 Beijing conference on women and continues to be an active 33 34 35 36 37 For a greater discussion see D C Horng, ‘The Human Rights Clause in the European Union s External Trade and... 2002), pp 39 – 43, at p 39 84 equality law in an enlarged european union supporter of the action programme adopted in the conference .38 The Union has begun making an impact on issues concerning equality other than in relation to gender, for instance by actively participating in the drafting of what became the Convention on the Rights of Persons with Disabilities .39 The enlargement of the Union and the... differing conceptions of equality that we shall subsequently identify as operating in European equality and human rights law We then trace how these differing approaches are seen in the differing areas of EU law in which equality features Part II sets out the international, regional and domestic human rights law on equality and non-discrimination, which has played and will continue to play an important... basis in relation to discrimination 3 Human rights and European equality law christopher m c crudden and haris kountouros ∗ Introduction This chapter provides an analysis of the evolving human rights and equality contexts within which the European Union (EU) equality and nondiscrimination Directives were developed and continue to operate.1 Part I sets out a theoretical framework for considering the... principles as laid down in the Universal Declaration of Human Rights, and therefore including the principle of equality and non-discrimination, underpin the internal and external policies of the parties and constitute an essential element of the agreement .33 Second, the Commission funds a broad range of human rights activities in third countries through its European Initiative for Democracy and Human... the European Social Charter (1961) and the revised 1996 Charter, the 1995 Framework Convention for the Protection of National Minorities and the 1992 European Charter 7 See, as an example, C McCrudden, ‘National Remedies for Racial Discrimination in European and International Law , in S Fredman (ed.), Discrimination and Human Rights (Oxford University Press, 2001) human rights and european equality law. .. Portugal, Romania, Slovenia and Sweden Austria, Czech Republic, Denmark, Germany, Greece, Hungary, Latvia, Luxembourg, Poland, Slovakia, Spain, and the UK Estonia, Lithuania, Slovenia M Bell, ‘Combating Discrimination through Collective Complaints under the European Social Charter’, (2006) European Anti-Discrimination Law Review Issue 3, p 13 human rights and european equality law 81 other actors, to initiate... 2004); and C McCrudden, ‘Theorising European Equality Law , in C Costello and E Barry (eds.), Equality in Diversity (Irish Centre for European Law, 20 03) Other parts of the chapter also draw on the latter source, in particular We will use the term ‘category’, ‘approach’ and ‘meaning’ interchangeably in this chapter No significance should be attached to this The first three approaches have echoes in the... year .34 The partners eligible for financing are regional and international organisations, NGOs, national, regional and local authorities and official agencies, Community-based organisations and public or private-sector institutes and operators The EIDHR focuses on four thematic priorities, including the combating of racism and xenophobia and discrimination against minorities and indigenous peoples ,35 and . theEuropean Parliament, and theCouncil of theEuropean Union, Judgment 9 October 2001, at [70]. 68 equality law in an enlarged european union At present there is no single explicit set of principles. v. Ireland (1979–1980) 2 EHRR 30 5. 54 equality law in an enlarged european union 13 means. Experience in my country teaches me that ensuring that such education is effective is a long and slow. arguments advanced in ‘A case for Equality by Peter Duffy QC in the Stonewall Lecture reported at [1998] 2 EHRR 134 . 58 equality law in an enlarged european union of homosexual couples from a human rights