De Europese Unie strijd op mondiaal niveau tegen discriminatie. Maar hoe staat het met de antidiscriminatie wetgeving binnen de EU? In 2000 is Europese antidiscriminatie wetgeving aangenomen, mede vormgegeven door GroenLinks-europarlementariër Kathalijne Buitenweg. Uiterlijk juni 2003 moeten die besluiten in de wetboeken van de lidstaten terug te vinden zijn.
De Deense voorzitter van de Europese Unie organiseert vandaag, donderdag 14 november, een conferentie om de lidstaten aan te sporen de Europese antidiscriminatie wetgeving, die in 2000 reeds is aangenomen, om te zetten naar nationale wetgeving. De wetten beschermen mensen tegen discriminatie op grond van ras en verbiedt discriminatie op grond van handicap, leeftijd, seksuele oriëntatie en geloof. Sommige EU-landen hebben de wetten al geïmplementeerd, anderen lopen duidelijk achter.
Buitenweg was destijds als rapporteur namens het Europees Parlement op dit onderwerp nauw betrokken bij de totstandkoming van de wetgeving, hier haar bijdrage op de conferentie The Implementation of the Anti-discrimination Directives into National Law in Kopenhagen (Engelstalig).
Mr. Chairman, Minister, Commissioner, Ladies and Gentlemen,
It's a great pleasure for me to attend this conference. Not only because it is interesting to exchange ideas with experts on how to combat discrimination. But also because it is so clear that we are entering a new phase. No talk about the precise wording of texts, but on how to ímplement what we have agreed. That feels positive.
The honour to represent the European Parliament here falls on me, because I was the rapporteur for the Directive on implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. The race directive, for short.
One of my colleagues from the Civil Liberties Committee, Mrs Swiebel, prepared the Parliament's opinion on the second Directive establishing a general framework for equal treatment in employment and occupation. This is also not a very suitable working title and therefore more commonly referred to as the Framework Directive.
I will not discuss with you either of the directives in detail, but would like to focus on some specific elements of the Race Directive, and then shop or hop to the Framework Directive, when relevant.
You are the experts on the implementation of the Directives. So I will touch on this only lightly. To complement your experience, I want to share with you what happened before. Why, what was adopted.
I will deal with the political context in which the directives were adopted the debate in Parliament what's good about the directives and what could have been better Finally, I will conclude with some words on implementation.
First then, the political context in which this directive was adopted. For this, I have to take you 2 ½ years back in time. In Austria the ÖVP and Jörg Haiders FPÖ had formed a new government. The other member states of the European Union decided for sanctions against it. It was Portugal that held the Presidency of the European Union, and it wanted to portrait itself, more generally, as the advocate of human rights. Therefore the time was right for a quick Council decision on directive against discrimination. Austria wouldn't oppose it. And who would in these turbulent times?
The race directive seemed less controversial and complex then the framework directive, which also covers discrimination on the basis of handicap and age. So I pleaded to de-connect the two, and go rapidly forward with the first one, in the hope that the second one would benefit from the level of protection then already established by the first directive. This strategy worked out well.
About the debate in Parliament. The Treaty only gives Parliament the right to be consulted on this issue. However, we are not easily de-motivated by this. The directives were discussed in inspiring, and sometimes even emotional, debates.
Especially the issue of the burden of proof was hot. The final decision means that the person who feels discriminated has to make its claim probable. Then it is up to the defendant to dispute this. In the end, this principle of a shared burden of proof was accepted by a narrow majority of the Parliament. Especially the Christen-democrats were strongly against. They remained concerned that it would put the door wide open for false accusations. I would like to put two arguments against this. Firstly, the victim has to make a substantial claim and present facts to support it. Subsequently, it is (in most cases then up to) the employer to prove that he or she did not discriminate. When you think of it, this makes perfect sense. Because the employer is often the only one who possesses of the evidence such as personnel files and administrative archives. Second argument is that victims in general are very reluctant to lodge a complaint anyway, which is exactly why the burden of proof provision in the directives is so important.
What is good about the Directives. Generally speaking, the good news it that the two directives are there and that victims of discrimination can count on the same minimum level of protection throughout the whole European Union. The directives, if properly implemented, will make a positive difference to the daily lives of people of different ethnic origins, homosexuals and lesbians, disabled, elderly and religious people in the present and future member states. So often we hear that the Union is out of touch with the population. And it's true that the Union is better in organising competition, than in organising solidarity. Well, here we show a more beautiful side of European co-operation, and it's relevance.
There is quite a long list more specific good news. Both directives cover direct discrimination as well as indirect discrimination. They include harassment, which means that the creation of a hostile working environment as a result of continuous insulting remarks and offensive jokes is also defined as discrimination. The directives protect victims and witnesses against reprisals (such as dismissal or denial of promotion) by employers. This takes away a very important obstacle for making a complaint. They bring about the shift of the burden of proof that I discussed earlier. They apply to EU citizens as well as to third country nationals and they contain a good standstill clause that stipulates that the implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive.
The Council is not often seen as being sensitive to the opinion of the Parliament, when we don't have a legislative role. However, this time the Portuguese Presidency, who was eager to finish the directive within its term of office, surprised us by their co-operativeness, and took over a number of Parliament's amendments that have substantially improved the Commission's proposal. The scope of the Race Directive now explicitly includes health care and housing, that of the Framework directive explicitly includes practical work experience (stagiaires).
Also, at the instigation of Parliament, the Council included the ínstruction to discriminate in the definition of discrimination. This means that if the general manager of a big company instructs his Human Resources people not to hire any homosexuals or black people, also he personally breaches the law.
So far the good news.
Well, from a Green Member you no doubt also expect some more critical and sour comments. I am ready to give you them as well.
Firstly, I regret that the independent bodies that the Commission had originally proposed have come out of the Council negotiations as bodies for the promotion of equal treatment. And they may be part of other (government) organisations.
As regards the tasks of these bodies: I would have judge it wise, if they had been given the competence not just to support complainants in their legal proceedings, but also to deal with complaints themselves. The example of the Dutch Equal Treatment Committee has shown that, given the reluctance of victims of discrimination to make a complaint, this can be a more accessible alternative for a judicial procedure.
Secondly, the directives make it possible for organisations to act on behalf of a complainant. It does not, however, introduce a collective right of action which would have make it possible to an organisation to lodge a complaint of alleged discrimination independently of the special circumstances of the individual case. This provides for the possibility of combating structural forms of discrimination, for example where an airline structurally rejects applicants who are over 35 years of age or where a night-club structurally denies entry to black people.
Article 13 of the EC Treaty, which is the legal base for both directives, includes gender as a ground for discrimination. Gender is, however, not one of the grounds in the Framework Directive that gives wider protection than the 1976 directive on the equal treatment of women and men.
The unjustified difference in protection was unacceptable to the Parliament and we therefore asked for additional legislation to correct this omission. I am glad to tell you that last September (2002) the Council and the Parliament adopted a directive which does exactly this. It includes direct and indirect discrimination as well as sexual harassment and the instruction to discriminate. The scope of the directive is similar to that of the Framework Directive: employment, occupation, vocational training and working conditions.
Talking about scope brings me to another important point. As it is, the scope of the Race Directive includes employment, education and access to social security and other goods and service, whereas the Framework Directive is limited to employment and education.
This suggests a hierarchy of sorts of discrimination that is undesirable. However, the diversity of discriminatory grounds and the corresponding need for specific exceptions justifies the initial decision to deal with them in two separate instruments, with two different scopes of application. For that reason, the Parliament has not rejected this approach. It has, however insisted on the adoption of additional legislation that extends the scope of the Framework Decision to at least that of the Race Directive within three years after adoption of the Framework Decision.
So far, we have not seen any proposals. But then again, it is not yet November 2003.
A final point of mild criticism, or rather for contemplation. Nationality is not one of the grounds for discrimination in article 13 of the EC treaty and therefore it cannot be included in the anti-discrimination directives. It cannot be denied, however, that discrimination on grounds of nationality is not a rare phenomenon. (It is already a ground for discrimination in the national legislation of several member states, including the Netherlands, the UK and Belgium.)
It is to be expected that third country nationals who are victims of discrimination on the basis of their nationality, will try and get protection through a complaint about indirect discrimination on the basis of race. It remains to be seen how the courts will judge such claims.
Interestingly, article 12 of the EC Treaty, does prohibit discrimination on the basis of nationality. At the time when we were debating the directives, there was difference of opinion between experts on whether this could also apply to third country nationals. I would be interested to know the opinion of participants on this issue.
Nobody, however, disputes the potential of a proposed EU instrument to substantially improve the equal treatment of third country nationals. I am talking about the Directive concerning the status of third-country nationals who are long-term residents. It is to be hoped that Member States will agree on a generous text that grants not just socio-economic but also political rights to third-country nationals.
To round off, a few words on implementation. We have a set of good legislation, but as long as it is not implemented in national law or not put into practice, it remains a dead letter. This is first and foremost a Member States responsibility, to be monitored by the European Commission. Which, in its turn, has to report to the European Parliament within two years after the date of implementation of the directives. I am not an expert on the implementation. As I see it, that is your field of work. Generally, I know that the picture is a mixed one, with considerable progress in some member states, and a lack of enthusiasm in others. I hope to learn more about this from you.
I count on Member States to do their best, especially in the aftermath of 11 September when tolerance is often mistaken for defenceless. Terrorism aims to destroy the rule of law, the respect for individuals and democracy. When we want to fight terrorism, we should not sacrifice these values ourselves. I know that in the Netherlands the amount of complaints of racism has risen, and that the total amount is quite high. However, this might also be the case because the registration is very advanced, and that people feel that a complaint is worthwhile.
We have to learn from each other's good practises. But the fight against discrimination is luckily not only dealt with by soft law. These European directives are binding, and we have to ensure together that the paper they are written on, comes to life. I believe that this conference, and your daily work, will make an effective contribution to that. For my part I can promise, that, when the two years for implementation have passed, we will make a thorough evaluation, and ensure that Member States do their job.
Thank you very much.