Application to the meaning of effective, proportionate and dissuasive remedies in the race and framework employment directives
| Author | Christa Tobler |
| Profession | European Network of Legal Experts in the non-discrimination field |
| Pages | 32-35 |
Page 32
Turning now to the requirements with regard to remedies under the Race and the Employment Framework Directives, a first remark concerns the Directives' structure and terminology. First, the Directives' chapters on remedies and enforcement (Arts. 7 subs. of the Race Equality Directive and Arts. 9 subs. of the Employment Equality Directive) do not explicitly state a right to a substantive remedy, even though the Directives' preambles stress the importance of adequate means of legal and judicial protection and despite the fact that the Commission in the Explanatory Memoranda claims that the chapters deal with both of the 'two main conditions for effective legislation against discrimination: the right of victims to an effective personal remedy against the person or body who has perpetrated the discrimination, and the existence of adequate mechanisms in each Member State to ensure adequate levels of enforcement'. In fact, the remedies and enforcement chapters solely deal with enforcement procedures, time limits for bringing actions, the burden of proof, victimisation, dissemination and information as well as social dialogue. Possibly, the lack of an express and general provision on the right to a personal remedy in this part of the Directives can be explained by the experience with the procedural provisions in the Sex Equality Directives (in particular Art. 6 of the Second Sex Equality Directive) which have been interpreted by the Court as 'including' such a right to a personal remedy. In other words, it may be that the Commission considered Art. 7 of the Race Equality Directive and Art. 9 of the Employment Equality Directive to imply a general right to a personal remedy.
However, the two Directives contain a provision on remedies outside the remedies and enforcement chapters. In the chapter on final provisions, Art. 15 of the Race Equality Directive and Art. 17 of the Employment Equality Directive oblige the Member States to lay down rules on effective, proportionate and dissuasive 'sanctions' applicable to infringements of the national provisions adopted pursuant to these Directives. This raises questions with regard to the relationship between remedies and sanctions (see also Hill, p. 4 subs.). What is more, the Commission's proposals for the two Directives88 spoke of 'penalties' and only later was the term changed to that of 'sanctions'. (The latter term is also used in recent sex equality legislation, though the Goods and Services Directive uses the term 'penalties'.) Whilst remedies (understood in a substantive sense) can generally be defined as concerning the form and the extent of the relief and redress granted to victims of discrimination (see Van Gerven 2000:525),89 sanctions in a strict sense concern penalizing measures (and thus the type of measures aimed at by the Commission in its original proposals). Consequently, compensation in the sense of making good damage suffered by the victim is not a sanction in this sense (Van Gerven 2000:503, footnote 11). Only punitive damages would be covered by this term. However, in their final form Arts. 15 and 17 also include a reference to compensation ('sanctions, which may comprise the payment of compensation to the victim'), which indicates that the provisions are not intended to be limited to sanctions in the strict sense of the word but rather concern the broader concept of remedies. Indeed, this is the way that they are generally interpreted in academic writing according to which it is here that the right to a general and personal remedy can be found in the Directives (e.g. Turner, Hill, O'Dempsey 2004, Moon 2004).The confusing use of the term 'sanctions' is due to the Court's case law in the area of sex discrimination, discussed earlier in this report,90 where the Court used the term 'sanctions' when in fact speaking about the right to a personal remedy. Page 33
When it comes to the form and the extent of the remedies ('sanctions') required by the Race and the Employment Framework Directives, a first point to be noted is that Art. 7 of the Race Equality Directive and Art. 9 of the Employment Equality Directive oblige the Member States to make available 'judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures'. In academic writing, it is sometimes said that this gives the Member States a choice between judicial and administrative remedies (e.g. Moon 2004:2, Turner, p. 2), though it has also been suggested that administrative processes having no legal ramifications will be insufficient in view of the requirement of effectiveness (according to O'Dempsey 2004:7, the Irish administrative system is likely to fulfil this criterion).91 In my opinion, the broader background of the Directives shows that there must be in any case a remedy of a judicial nature. Thus, it was mentioned earlier that under general EC law there is a right to a judicial remedy and that such a remedy is also required in the light of Art. 6 ECHR. It is clear that specific EC law cannot derogate from this double requirement. In addition, it is likely that when the Member States negotiated the text of the future Directives, they did not mean to do away with the requirement of a judicial remedy but rather meant to encourage national legislators to consider in addition other types of approaches, such as administrative or conciliation procedures which are more easily accessible (a fact that is confirmed by the national reports). Indeed, it can be argued that the requirement of effectiveness may call for a combination of judicial and other types of remedies (e.g. Waaldijk & Bonini-Baraldi 2004:588). Accordingly, Arts. 7 and 9 need to be interpreted as in any case stating a right to a judicial remedy that may be complemented by other avenues. Obviously, this also reflects on the types of remedies available under Arts. 15 and 17 of the Directives.
As for the meaning of the terms 'effective, proportionate and dissuasive' under the Race and Employment Framework Directives, the only concrete indication that can be found in the Directives is that the remedies 'may comprise the payment of compensation to the victim' - without any further information either on the type of damages (pecuniary, non-pecuniary, punitive) or on their extent.92 Generally, reference can be made to what was said earlier in the context of sex equality and of general EC law, namely that there are no very specific indications as to the meaning of the requirements of effectiveness, proportionality and dissuasiveness, other than the general rule that each case must be judged in the light of its individual circumstances. One specific rule that needs to be remembered is that in the case of discriminatory dismissal the remedies granted must in any case include either reinstatement or compensation. Specific information on appropriate remedies can also be found in the UN Basic Principles and Guidelines that the Member States should use as a benchmark when dealing with remedies. Further, the general EC law principle of equivalence93 must be remembered. In practice, this principle can mean that the remedies to be provided under national law must go beyond the minimum requirements of effectiveness, proportionality and dissuasiveness, namely where national law provides for a stronger remedy for similar actions (e.g. for higher compensation or for more serious penal sanctions). Page 34
Two remarks should be added. The first concerns the importance of criminal sanctions. It has been argued that in the specific context of race discrimination a combination of civil and criminal measures will be necessary to facilitate full implementation of the Directive (e.g. O'Dempsey 2004:4, ERRC, Interights & MPG 2004:28).The reason for this appears to be the fact that the UN Convention on Race Discrimination (CERD) calls for criminal sanctions. In other words, mere civil and administrative measures will not be sufficient, particularly in view of the requirements of effectiveness and dissuasiveness. However, it can certainly be argued more generally that particularly serious forms of discrimination, on whatever grounds, must be punished through criminal measures in order for the remedy to be effective, dissuasive and proportionate (e.g. Waaldijk & Bonini-Baraldi 2004:586, Moon 2004:3). On the other hand, a system focusing (almost) entirely on criminal sanctions is not sufficient in the light of the right to a personal remedy: in legal systems based on the rule of law, criminal sanctions are not personal remedies for the victims of discrimination. Further, the Court's decision in Dekker, according to which the right to a remedy does not depend on fault on the side of the discriminator,94confirms that criminal sanctions (which do depend on fault on the side of the discriminator) alone cannot be sufficient in the light of the requirements of EC law.
A second point to be made concerns the phenomenon of multiple discrimination (see Schiek 2004). In a situation where Community law prohibits several different types of discrimination, some of which may be intrinsically linked, the issue of multiple discrimination is increasingly important in a legal perspective. Multiple discrimination is mentioned in consideration 14 of the preamble to the Race Equality Directive, in the context of race and sex discrimination. Although there is no such reference in the Directive in the specific context of remedies, it seems logical that under the requirement of proportionality the remedies granted in such cases must reflect the multiple and thus aggravated nature of the discrimination. For example, multiple discrimination must carry higher penalties than 'single'' discrimination. It seems that in the national laws of the Member States the problem of multiple discrimination is rarely addressed in an explicit manner, and if so, then not necessarily in the context of sanctions understood as penalizing measures (e.g. Portugal where, according to the Network's country rapporteur, Manuel Malheiros, the law provides 'for higher damages because of the aggravated conduct of the discriminator'). In Germany, draft legislation explicitly mentions multiple discrimination and the reasoning relating to the relevant provision states that damages may be higher if someone is disadvantaged on more than one ground. Page 35
---------------------
[88] Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, COM(99) 566 fin.; Amended proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 31.10.2000 C 311 E/169, COM(2000) 328 fin.; Proposal for a Council Directive establishing a general framework for equal treatment in employment and occupation, COM(99) 565 fin.; Amended proposal for a Council Directive establishing a general framework for equal treatment in employment and occupation, OJ 27.2.2001 C 62 E/152, COM(2000) 652 fin.
[89] In academic writing it is noted that there appear to be differences in understanding the term 'remedies' in common law and in civil law systems, and that even within one particular system there are different interpretations of the term 'remedies' (e.g.Van Gerven 2000:526 subs.; Harlow 2000:72).
[90] See I.1. above.
[91] Unlike in other countries, the decisions issued by the administrative specialised non-discrimination body in Ireland are binding; see Waaldijk & Bonini-Baraldi 2004:586 and 631.
[92] Again, the same reference can be found in recent sex equality legislation. Regarding compensation, see below F.
[93] See I.2.1. above.
[94] See I.1.1. above.; also Waaldijk & Bonini-Baraldi 2004:586.
