Personal and material scope

• Author: Lorenzo Cachón
• Pages: 31-45

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3 PERSONAL AND MATERIAL SCOPE

3.1 Personal scope

3.1.1 EU a nd non -EU nat ionals (Recit al 13 and Article 3(2), Directive 2000/43

and Recital 12 and Article 3(2), Directive 2000/78)

In Spain, there are no residence or citizenship/nationality requirements for protection

under the relevant national laws transposing the directives. The personal scope of

protection against discrimination is general for all residents.

The seventh additional provision of Law 62/2003, entitled ‘Non-applicability to immigration

law’, states that the articles transposing the directives do not affect the regulations

provided ‘in respect of the ent ry, stay, work and establishment of aliens in Spain under

Organic Law 4/2000’. The justification for this provision is based on Article 3(2) of

Directives 2000/43 and 2000/78. However, it should n ot be forgotten that Law 4/2000

regulates t he issue s of ‘work and establishment’, which are liable t o b e affect ed by the

directives and are not covered by the exclusion outlined in Article 3(2) of the directives.

That also applies to undocumented or irregular workers, becaus e Article 3 of Law 4/2000

establishes that all foreigners (regular or undocumented) in Spain are covered by Article

14 of the Spanish Constitution, which establishes the principle of equality and non-

discrimination (and other fundamental rights).

3.1.2 Natural and legal persons (Recital 16, Directive 2000/43 )

a) Protection against discrimination

In Spain, the personal scope of anti-discrimination law covers all natural and legal persons

for the purpose of protection against discrimination.

The prohibition of discrimination in the Constitution (Article 14), in Law 62/2003 (Article

27(1)) and in the Workers’ Statute applies to both natural and legal persons. Article 27(2)

of Law 62/2003 provides that measures for the application of the principle of equal

treatment under it apply to every person (both natural and legal), in both the public and

private sectors.

b) Liability for discrimination

In Spain, the personal scope of anti-discrimina tion law covers natural and legal persons

for the purpose of liability for discrimination.

The situation in respect of liability is the same as that for protection (Law 62/2003, Article

27(2)), in that liability for discrimination is personal and affects individuals or organisations

who have committed acts of discrimination. As Rubio-Marín (2004) indicates, for the

private sector, the prohibition on discrimination and the violation of worke rs’ fundamental

rights is mainly addressed to the employer, but this can also be made applicable to

managers, and presumably to co-workers or the relevant labour union.

3.1.3 Private and public sector including public bodies (Article 3(1))

a) Protection against discrimination

In Spain, the personal scope of national law covers the private sector and the public sector

including public bodies for the purpose of protection against discrimination.