Conclusion

• Author: Christa Tobler
• Profession: European Network of Legal Experts in the non-discrimination field
• Pages: 42

Page 42

In the European Union, the rule of law is a fundamental principle (Art. 6 EU). One significant aspect of this rule is to provide victims of discrimination with appropriate remedies. This report has emphasised that under the remit of EC law there is a general right to a personal remedy for victims of discrimination. Whilst there is a broad range of remedies that may be useful and appropriate in the overall context of the Race and Employment Framework Directives, it is important to note that under both EC law and the European Convention on Human Rights there must in any case be a right to a remedy of a judicial nature.

The Directives state that the remedy must be effective, proportionate and dissuasive. In this report, it has been contended that, in the absence of case law from the Court of Justice concerning the meaning of these terms under the Race and Employment Framework Directives, regard must be had to the Court's case law from other areas of EC law, in particular from the area of sex discrimination, where there is also a requirement for an effective, proportionate and dissuasive remedy. Under this case law, the general starting point is that the choice of remedy must be based on the specific circumstances of each individual case. However, for certain cases there are specific Community law requirements.Thus, in the case of discriminatory dismissal the remedy (or remedies) granted must in any case include either reinstatement or compensation. Where compensation is chosen as a remedy it must fully make good the damage. Upper limits are not acceptable, except for situations where the damage was caused not only through discrimination. The report has emphasised that, in a broader perspective, the United Nations (Draft) Basic Principles and Guidelines on the Right to a Remedy and Reparations provide useful concrete guidelines concerning the meaning of the concept of effective, proportionate and dissuasive remedies.

Finally, it has been noted that the national laws of some EU Member States implementing the Race and Employment Framework Directives contain some interesting elements, relating in particular to innovative non- pecuniary remedies, the powers of the specialised administrative non-discrimination body, the range of ancillary administrative remedies, the use of punitive damages and the withdrawal of and exclusion from state benefits, in particular in the context of public procurement. However, in the case of most Member States greater efforts are needed in order to meet fully the requirements under EC law to impose a personal remedy of a judicial nature, and a remedy that is truly effective, proportionate and dissuasive.