A New Framework on Equal Treatment of Persons in EC Law?

• Date: 01 June 2002
• Published date: 01 June 2002
• Author: Dagmar Schiek
• DOI: http://doi.org/10.1111/1468-0386.00154

A New Framework on Equal Treatment

of Persons in EC Law?

Directives 2000/43/EC, 2000/78/EC and 2002/???/EC

changing Directive 76/207/EEC in context

Dagmar Schiek*

Abstract: In June and November 2000, the European Parliament and the Council adopted

two Directives referring to `the principle of equal treatment irrespective of' in their title,

one relating to racial and ethnic origin, the other to disability, age, religion and belief or

sexual orientation. A thorough reform of Directive 76/207/EEC on the principle of equal

treatment for women and men in employment matters is pending between the European

Parliament's second reading and adoption while this is written. Community secondary

legislation on equal treatment of persons has thus expanded in scope and number of

reasons which must not serve as starting points for dierentiation. Does this signify

progress in legal protection against personal discrimination? While not providing a ready

answer, this article proposes an analytical framework to answer this question, con-

centrating on conceptions of equality in general and in particular on the problems

multi-dimensional discrimination might pose for the law.

I Introduction

According to Article 13 EC, introduced by the Amsterdam Treaty in 1997, the

Community `may take appropriate action to combat discrimination based on sex,

racial or ethnic origin, religion or belief, disability, age or sexual orientation' through

unanimous decision by the council after consultation of the European Parliament.

Since its adoption the innovatory potential of the provision has been doubted.

1

Four

years later, two directives based on Article 13 have found their way into the Ocial

Journal.

2

The revision of Directive 76/207/EEC on the principle of equal treatment of

European Law Journal, Vol. 8, No. 2, June 2002, pp. 290±314.

#Blackwell Publishers Ltd. 2002, 108 Cowley Road, Oxford OX4 1JK, UK

and 350 Main Street, Malden, MA 02148, USA

* Jean-Monnet-Professor of European Economic Law, Carl-von-Ossietzky-Universita

Èt Oldenburg, Faculty

of Economics and Law.

1

Flynn, The Implications of Article 13 EC TreatyÐAfter Amsterdam, will some forms of Discrimination

be more equal than others? (1999) CMLR, 1127 (`Article 13 will not lend itself to innovative action

directed against discrimination').

2

Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial

or ethnic origin, OJ L 180/22; Directive 2000/78/EC establishing a general framework for equal treatment

in employment and occupation, OJ L 303/16. Both directives were part of a `package of proposals'

introduced by the Commissions communication on certain Community measures to combat discrimina-

tion of November 1999 (COM (1999) 564 ®nal, pp. 7±11).

women and men in employment matters

3

is closely linked to these instruments,

4

although not based on Article 13 but on Article 141 para 3 EC Treaty. The

Commission intends to submit a further directive based on Article 13, extending the

principle of equal treatment of women and men beyond employment law.

5

Does this

intensi®ed legislative attention on equality between persons signify progress in

Community equality law? Posing the question means doubting its answer. The

following article will outline the context of the three directives on racial and ethnic

discrimination, sex discrimination and other discriminations (II), compare their

contents (III) and propose some steps towards evaluation of the legislative package

(IV), concluding with some suggestions as to further development of European

equality law, regarding legislation as well as jurisprudence (V).

The directives which this article analyses will be referred to as Racial Equality

Directive (Directive 2000/43/EC), Framework Directive (Directive 2000/78/EC) and

Gender Equality [Reform] Directive (Directive 76/207/EEC, under the assumption

that the changes will proceed as suggested by the Council Common position cited

above). Reference to Directive 76/207/EEC

6

in its present wording will be made as

Gender Equality Directive. Some references to Directive 97/80/EC,

7

the Burden-of-

Proof-Directive will be necessary. The comparison of the directives and the

consequent assessment of the legislative framework as a whole will concentrate on

the de®nition of discrimination and the conceptions lying behind it. Problems of

enforcing equality are, of course, no less important, but deserve an analysis of their

own.

8

II Context of the legislation

When the Commission proposed the Racial Equality Directive, the new legislation was

placed in the context of rising xenophobia and the potential of this to `undermine the

objective of developing the European Union as an area of freedom and security'

9

as

well as to the universal rights issue of protecting persons against discrimination (recital

June 2002 A New Framework on Equal Treatment of Persons in EC Law?

#Blackwell Publishers Ltd. 2002 291

3

See Commission's proposal of a directive amending directive 76/207/EEC on the implementation of the

principle of equal treatment of women and men as regards access to employment, vocational training and

promotion, and working conditions, COM (2000) 334 ®nal (OJ 2000 C 337/304), amended proposal COM

(2001) 321 ®nal (OJ 2001 C 270(9), Council Common Position of June 2001, SEC 2001/1332/®nal,

European Parliament legislative resolution of October 2001 (A5±0358/2001).

4

See Recital 2a of the Council Common Position.

5

Commission (2000) `Social Policy Agenda' COM (2000) 379 para 4.2.3.2.

6

Council Directive of 9 February 1976 on the implementation of the principle of equal treatment for men

and women as regards access to employment, vocational training and promotion, and working conditions,

OJ L 1976 39/40.

7

Council Directive 97/80/EC of 14 December 1997 on the burden of proof in cases of discrimination based

on sex, OJ L 1998 14/8.

8

See Blom, Fitzpatrick, Gregory, Knegt, O'Hare, The Utilisation of Sex Equality Litigation Procedures in

the Member States of the EC, V/782/96-EN (Report to the Equal Opportunities Unit of the DG V), 1995.

On dierent aspects of enforcement of equality law see Pfarr, Kocher, Kollektivverfahren im Arbeitsrecht:

Arbeitnehmerschutz und Gleichberechtigung durch Verfahren (Nomos, 1998), Centre of Human Rights:

National Human Rights Institutions. A Handbook on the Establishment and Strengthening of National

Institutions for the Promotion and Protection of Human Rights (Geneva, 1995), Council of Europe,

Directorate of Human Rights: Non-judicial Means for the Protection of Human Rights at National level

(Strassbourg, 1998), Ra

Èdler, Verfahrensmodelle zum Schutz vor Rassendiskriminierung (Springer, 1999);

MacEwen, Anti-Discrimination Law Enforcement: A Comparative Perspective (Ashgate, 1997).

9

See Recital 9 of the Directive 2000/43/EC.