Anti Race Discrimination Measures in Europe: An Attack on Two Fronts

• Date: 01 July 2005
• Author: Erica Howard
• DOI: http://doi.org/10.1111/j.1468-0386.2005.00271.x
• Published date: 01 July 2005

468 © Blackwell Publishing Ltd. 2005

Anti Race Discrimination Measures in

Europe: An Attack on Two Fronts

Erica Howard*

Abstract: In recent years, two measures against racial discrimination have been taken in

Europe: the European Union adopted a Council Directive implementing the Principle of

Equal Treatment between Persons irrespective of Racial or Ethnic Origin in June 2000;

and, in December 2002, the European Commission against Racism and Intolerance, a

body of the Council of Europe, adopted General Policy Recommendation no 7 on National

Legislation to Combat Racism and Racial Discrimination. This article reviews these two

instruments, which show many similarities, but also some differences. The differences are

mainly their force, their personal and material scope, and their grounds for discrimina-

tion. The relationship between the two, and how they inf‌luence and strengthen one another

to increase the pressure for adequate and effective legislation within the Member States

of the European Union, is discussed and analysed.

I Introduction

This article compares two recent European measures against racial discrimination: the

Directive implementing the Principle of Equal Treatment between Persons irrespective

of Racial or Ethnic Origin, adopted by the European Union in June 2000,1and the

General Policy Recommendation on National Legislation to combat Racism and

Racial Discrimination, adopted in 2002 by the European Commission against Racism

and Intolerance (ECRI),2a body of the Council of Europe. The reasons for compar-

ing these two instruments are, f‌irst, that both are aimed at all 25 EU Member States,

because all are members of the Council of Europe as well. Second, national and Euro-

pean courts could be using each one of them as a guideline for the interpretation of

the other. According to its Preamble, the Recommendation has taken account of,

among other instruments, the Race Directive. And the latter, in Recital 2 of the

Preamble, states that the EU Member States should respect fundamental rights as

European Law Journal, Vol.11, No. 4, July 2005, pp. 468–486.

© Blackwell Publishing Ltd. 2005, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

* PhD student, Queen Mary, University of London.

1Council Directive 2000/43/EC of 29 June 2000 implementing the Principle of Equal Treatment between

Persons irrespective of Racial or Ethnic Origin [2000] OJ L 180/22 (hereafter: the (Race) Directive).

2Recommendation CRI (2003) 8, ECRI, Council of Europe, 2003, Strasbourg, available at

http://www.coe.int/ecri (hereafter: the Recommendation).

July 2005 Anti Race Discrimination Measures in Europe

© Blackwell Publishing Ltd. 2005 469

guaranteed by the European Convention for the Protection of Human Rights and Fun-

damental Freedoms, and as they result from the constitutional traditions common to

the Member States.

Both measures, coming from two very different European Institutions, appear to be

a sign that the f‌ight against racial discrimination is seen as important within Europe.

Fighting this f‌ight with measures on two fronts—the European Union and the Council

of Europe—rather than one, will, as we will argue, strengthen both individual mea-

sures. The duty imposed on EU Member States to enact legislation against racial and

ethnic discrimination under the Directive is supported and strengthened by the Rec-

ommendation, while the Directive and the way it is implemented in the EU Member

States, can assist ECRI in its work.

The two measures overlap to quite an extent, which means that pressure is put on

the EU Member States by two major European Institutions to enact legislation against

racial discrimination containing certain minimum requirements. As we shall see, for the

Race Directive, this pressure is of a legislative nature and backed-up by sanctions: the

Member States can be taken to the European Court of Justice for not (fully) imple-

menting the Directive. The pressure from the Council of Europe and its Commission

against Racism and Intolerance is not backed up by legal sanctions. It is more politi-

cal in nature, and ECRI can exert it via its country reports, in which it often criticises

governments for not taking (suff‌icient) action.

II Background

ECRI adopted the Recommendation in December 2002. ECRI is a monitoring body

established by the Council of Europe in 1993 to ‘combat racism, xenophobia, anti-

semitism and intolerance at the level of greater Europe and from the perspective of the

protection of human rights’.3ECRI’s action covers ‘all necessary measures to combat

violence, discrimination and prejudice faced by persons or groups of persons, notably

on grounds of race, colour, language, religion, nationality and national or ethnic

origin’.4The Council of Europe, an international organisation with its seat in Stras-

bourg, was established in 1949 in order to promote greater unity between its members

and has, at present, 46 Member States. Any European state can become a member, pro-

vided it accepts the principle of the rule of law and guarantees human rights and fun-

damental freedoms to everyone under its jurisdiction. The Council of Europe does not

have any legislative powers.

In 1950, the Council agreed the European Convention for the Protection of Human

Rights and Fundamental Freedoms (ECHR). This Convention established a European

Court of Human Rights, which ensures that contracting states observe their obliga-

tions under the Convention. Article 14 ECHR contains a prohibition of discrimina-

tion on a number of grounds, one of which is race:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without

discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,

national or social origin, association with a national minority, property, birth or other status.

The problem with Article 14 ECHR is that it does not give an independent right to

non-discrimination. Discrimination can only be challenged if it falls within the ambit

3See Article 1 of the Statute of ECRI, available at .

4Recommendation, at 4.