Legislative and policy context

• Author: Tina Weber - Catherine Cerf
• Pages: 21-27

21

At EU level

EU-level legislation

EU primary and secondary legislation provides

protection from discrimination in employment based on

sex, racial and ethnic origin, religion or belief, disability,

age and sexual orientation.

Article 2 of the Treaty on European Union (TEU)

establishes the non-discrimination principle as one of

the fundamental values of the Union. The Treaty on the

Functioning of the European Union (TFEU) provides the

European Union with a mandate to combat

discrimination based on sex, racial and ethnic origin,

religion or belief, disability, age and sexual orientation

(Article 19 of the TFEU). Article 10 of the TFEU specifies

that in defining and implementing its policies and

activities, ‘the Union shall aim to combat discrimination

based on sex, racial or ethnic origin, religion or belief,

disability, age or sexual orientation’.

The principle of equal treatment is also proclaimed in

the Charter of Fundamental Rights of the European

Union. Article 21 of the Charter prohibits discrimination

on a broader (non-exhaustive) list of grounds –

including sex, race, colour, ethnic or social origin,

genetic features, language, religion or belief, political

(or any other) opinion, membership of a national

minority, property, birth, disability, age or sexual

orientation. However, the Charter is only applicable

where a matter falls within the scope of EU law, which

means that it is only binding for Member States when

implementing EU law.

In secondary legislation, prior to 1997, EU non-

discrimination law was largely confined to the sphere of

employment and to addressing unequal treatment

based on sex. Following the inclusion of Article 13 in the

Treaty of Amsterdam in 1997 (becoming Article 19 of the

TFEU), the EU adopted the so-called Employment

Framework Directive (2000/78/EC), which establishes a

general framework to ensure equal treatment in the

workplace on grounds of religion or belief, disability,

age or sexual orientation. The Racial Equality Directive

2000/43/EC (adopted prior to Directive 2000/78/EC)

provides for equal treatment based on racial or ethnic

origin both within and outside the employment area

(it also covers education, social protection including

social security and healthcare, social advantages and

the access to and supply of goods and services).

Moreover, the Directive requires all Member States to

designate an equality body to promote equal treatment,

with a mandate to provide concrete assistance to

victims of discrimination, conduct independent surveys

concerning discrimination and publish reports with

recommendations on racial discrimination.

In both directives, discrimination is understood as a

concept encompassing direct and indirect

discrimination, harassment and instruction to

discriminate. A specific role is accorded to social

partners in the application of the principle of

non-discrimination in two identical provisions: Article 11

of Directive 2000/43/EC and Article 3 of Directive

2000/78/EC. These require Member States to ‘take

adequate measures to promote dialogue between the

social partners, with a view to fostering equal

treatment’. Member States are called upon to

encourage social partners to conclude collective

agreements laying down non-discrimination rules,

affording at least the minimum protection enshrined in

the two EU non-discrimination directives. Therefore,

social partners are responsible for fostering dialogue on

equal treatment by – for instance – monitoring

workplace practices, drawing up collective agreements

and codes of conduct, and researching or exchanging

experiences and good practices.

EU anti-discrimination policies

The EU has also developed a wide range of policies to

promote equality. The European Year of Equal

Opportunities for All in 2007 represented one of the

biggest campaigns to date in the fight against

discrimination. Political leaders made a commitment to

equal opportunities in their countries. A few years

earlier, the Commission launched the campaign

‘For diversity, against discrimination’ to raise awareness

about existing non-discrimination legislation and to

promote the benefits of diversity. More recently,

EU strategies have put the accent on specific protected

grounds under EU law. EU action has focused on

combating discrimination against people with

disabilities and the Roma Community, in particular, by

launching the European Disability Strategy 2010–2020

and the EU Framework for National Roma Integration

Strategies up to 2020, respectively. In 2015, a list of

actions to advance LGBTI equality was published, and

annual reports have reported on progress towards these

actions since then. Furthermore, specific activities have

been implemented to combat racism, xenophobia,

anti-semitism and Islamophobia, and to tackle online

hate speech, among other things. The principle of equal

opportunities has also been recognised in other recent

initiatives: for example, the 2016 Communication on

‘New Skills Agenda for Europe – Working together to

strengthen human capital, employability and

competitiveness’ recognised that ‘inclusive labour

markets should draw on the skills and talents of all’.

2Legislative and policy context