Personal and material scope

• Author: Durbáková, Vanda
• Pages: 36-57

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

under the relevant national laws transposing the directives. In other words, protection

against discrimination in the national legal system is not conditional on a person’s

citizenship or nationality and the Anti-discrimination Act has no specific requirements in

this regard. Therefore it can be concluded that persons with irregular status are entitled to

the protection provided under this act.

However, Section 4(1)(a) of the Anti-discrimination Act explicitly stipulates that the

provisions of the act will not apply to differences of treatment resulting from the

requirements for entry and residence for foreigners in Slovakia, including the treatment of

these foreigners provided for under separate provisions,161 except for citizens of EU

Member States, a state which is party to the European Economic Area Agreement, Swiss

citizens and stateless persons and their family members.

According to the Act on the Residence of Foreigners, a foreigner is anybody who is not a

citizen of the Slovak Republic.162

In addition, separate acts set out the requirement to be a citizen of the Slovak Republic

for specific professions or employment.163

Article 35 of the Constitution guarantees the right to choose a profession and appropriate

training freely, the right to conduct entrepreneurial or other gainful activity, as well as the

right to work and to material welfare for those who, through no fault of their own, are

unable to enjoy the right to work. Article 35(4) states that the law may provide a different

regulation of these rights for foreigners.164

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

a) Protection against discrimination

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

for the purpose of protection against discrimination.

The Anti-discrimination Act contains a specific definition of what constitutes discrimination

against legal persons. According to Section 2a(9), discrimination against a legal person is

‘a failure to comply with the principle of equal treatment in relation to this person on

the grounds of discrimination listed in Section 2(1) of the Anti -discrimination Act165

with respect to its members, associates, shareholders, members of its bodies,

161 E.g. Act No. 404/2011 on the Residence of Foreigners and on amending and supplementing certain laws, as

amended (zákon č. 404/2011 Z. z. o pobyte cudzincov a o zmene a doplnení niektorých zákonov v znení

neskorších predpisov); Act No. 480/2002 on Asylum and on amending and supplementing certain laws, as

amended (zákon č. 480/2002 Z. z. o azyle a o zmene a doplnení niektorých zákonov v znení neskorších

predpisov).

162 Act on the Residence of Foreigners, 404/2011, Section 2(2).

163 Senior state officials, prosecutors, constitutional judges, judges, police officers, customs officers, fire and

rescue service members, mountain rescue service members and professional soldiers.

164 For example: Act on the Residence of Foreigners, 404/2011 and Asylum Act 480/2002.

165 Sex, religion or belief, race, affiliation with nationality or an ethnic group, disability, age, sexual orientation,

marital status and family status, colour of skin, language, political or other opinion, national or social origin,

property, lineage/gender or other status, or the reason of reporting criminality or other anti-social activity.

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employees, persons acting on its behalf or persons on behalf of which such a legal

entity is acting.’

Therefore, with regard to protection, the Anti-discrimination Act does not distinguish

between natural and legal persons. The national provisions comply with the directives.

b) Liability for discrimination

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

for the purpose of liability for discrimination.

Section 3(1) of the Slovak Anti-discrimination Act introduced a general provision according

to which the principle of equal treatment is binding on ‘everyone’. This means that in terms

of liability for discrimination, the Anti-discrimination Act does not distinguish between

natural and legal persons. The only explicit exception is housing where the duty to apply

the principle of equal treatment does not apply to natural persons who are not

entrepreneurs.166 There is no case law on the issue.

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

a) Protection against discrimination

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

public bodies for the purpose of protection against discrimination.

With regard to the protection of legal persons, the Anti-discrimination Act does not

distinguish between the private and the public sector, protecting in principle all bodies in

both sectors.

The national provisions comply with the directives, although there is no case law on the

issue, and the issue of protection of public bodies has not yet been subject to public

discussion in Slovakia.

b) Liability for discrimination

In Slovakia, the personal scope of anti-discrimination law covers private and public sector

including public bodies for the purpose of liability for discrimination.

The Anti-discrimination Act does not distinguish between public and private bodies in terms

of liability. This can be inferred from the general rule contained in Section 3(1) of the Anti-

discrimination Act, which stipulates that the principle of equal treatment is binding on

‘everyone’Ľ and also from Sections 5 and 6 of the Anti-discrimination Act, which provide

details on the material scope of the act (fields covered) without specifying what kind of

bodies they cover (e.g. whether public or private). The only explicit exception where the

liability does not apply to a part of the ‘private secto r’ is housingĽ where the duty to apply

the principle of equal treatment does not apply to natural persons who are not

entrepreneurs.167

However, it is questionable whether some statutory duties that are carried out by public

bodies and are generally perceived as services to the public (such as the provision of

information on request by public bodies, or aid provided by the state in case of

emergencies) can be perceived as ‘services’ in the sense of the directives.

166 Anti-discrimination Act, 365/2004, Section 5(2)(d).

167 See Anti-discrimination Act, 365/2004, Section 5(2)(d).