Introduction

• Author: Christa Tobler
• Profession: European Network of Legal Experts in the non-discrimination field
• Pages: 5-6

Page 5

In her study on remedies in international human rights law, Shelton (1999:14) observes that the causes of many human rights abuses are linked to long-standing political, economic and social problems, including prejudice, ignorance, disease, poverty, greed and corruption. It is therefore clear that human rights law by itself is not able to prevent or to remedy human rights abuses. In addition to efforts on the legal level, education and other broad social efforts are required. Nevertheless, Shelton states that the law has an important role to play since appropriate remedies can have a dissuasive effect on those who would commit violations, as well as serving to redress the wrong done to victims. Such remedies are, therefore, a significant aspect of ensuring the rule of law.

In practice, a wide range of possible remedies exist, depending, for example, upon the type of law (e.g. civil, criminal, administrative remedies; Malmberg 2004), the punitive or non-punitive character of the remedies (Harding & Swart 1996), their orientation as backward-looking or forward-looking (the latter meaning remedies seeking to adjust future behaviour; Curtin 1985) and the level on which they are intended to operate (individual/micro or group/macro level; McCrudden 2001, Kilpatrick 2000, Malmberg 2004, O'Dempsey 2004). It also needs to be remembered that remedies may be available through various, possibly complementary, enforcement processes (administrative, industrial relations and judicial processes; Malmberg et al. 2003). Depending upon such characteristics, the remedies offered by a particular legal order will reflect different (combinations of) theories of remedies (e.g. remedial, compensatory, punitive and preventive justice; Shelton 1999) and also different concepts of equality (e.g. an individual justice model, a group justice model or a model based on equality as participation; McCrudden 2001). It follows that a comprehensive enforcement approach is very broad indeed. It addresses not only procedural aspects and the substance of remedies (relief and redress for the victims of discrimination) but also broader issues such as victimisation, compliance, mainstreaming and positive action, as well as other innovative measures such as corrective taxation (compare the approaches taken by Cohen 2004, Lappalainen 2004, McCrudden 1993, 1999 and 2001, Moon 2004, Shelton 1999).

Within this broad range of enforcement issues, this report focuses on one specific element, namely the form and extent of remedies for discrimination as required under EC law, and more specifically under the Race¹ and Employment Framework Directives.²Being part of a new generation of EC non-discrimination law, these Directives explicitly state the right of victims of discrimination to an 'effective, proportionate and dissuasive' remedy (in the Directives called 'sanctions').³This report examines what the concept of 'effective, proportionate and dissuasive sanctions' requires EU Member States to do in the implementation of the Race and Employment Framework Directives.⁴ As a background, the report discusses the development and the meaning of the concept of effective, proportionate and dissuasive remedies in EC sex equality law (where it has its historic origin) and in general EC law. It then turns to the requirements regarding remedies under international human rights law. Thereafter, the report discusses the meaning of the concept of effective, proportionate and dissuasive remedies in the specific framework of the Race and Employment Framework Directives. A final part deals with upper limits on compensation. Page 6

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[1] Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 19.7.2000 L 180/22.

[2] Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ 2.12.2000 L 303/16.

[3] Regarding the terminology, see IV.1. further below.

[4] This concerns the substantive side of remedies, rather than procedural issues. Regarding the effectiveness of the national procedures in the context of enforcement, an interesting parallel can be drawn with procedures under EC law; see Case C-263/02 P Commission v Jégo-Quéré & Cie SA, judgment of 1 April 2004, n.y.r.