Positive action (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

• Author: Ouhnaoui, Hania; Bribosia, Emmanuelle; Navasartian, Areg; Rorive, Isabelle
• Pages: 86-88

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5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

a) Scope for positive action measures

In Belgium, positive action is permitted under certain conditions in national law in respect

of racial or ethnic origin, religion or belief, disability, age or sexual orientation.

- Federal level

The General Anti-Discrimination Federal Act and the Racial Equality Federal Act provide

that differences in treatment based on a protected ground do not amount to discrimination

when a measure of positive action is concerned (Article 10(1) of both acts). Such a measure

has to respect four conditions, which are based on the case law of the Constitutional

Court319 (Article 10(2) of both acts). First, any positive action should be a response to

situations of manifest inequality, i.e. it must be based on a demonstration that a clear

imbalance between the groups will remain in the absence of such action. Secondly, the

removal of this inequality should be identified as a public goal. In this respect, the federal

Government must authorise the adoption of positive action measures through a royal

decree (Article 10(3) of both acts).320 In 2018, the federal Government eventually took the

initiative to adopt a Royal Decree setting out the conditions for positive action as recognised

in the three anti-discrimination laws of 10 May 2007. This ancillary Royal Decree was

adopted on 11 February 2019.321 It came into force on 11 March 2019. It is only applicable

to positive action relating to employment in the private sector. Its main purpose is

therefore to provide private employers with a secure legal framework within which positive

action may be undertaken. A positive action plan may be adopted either through a

collective agreement or through an employer’s ‘deed of accession’, conditional on

complying with a format annexed to the Royal Decree.322 Thirdly, the ‘corrective measures’

must be of a temporary nature. As a response to a situation of proven manifest imbalance,

these measures must be abandoned as soon as their objective – to remedy this imbalance

– is reached. Fourthly, these corrective measures should not disproportionately restrict the

rights of others.

- Regions and communities

Since the conditions defined by the Constitutional Court for the admissibility of positive

action are derived from Articles 10 and 11 of the Constitution, rather than from rules

specific to the federal level, the regions and communities must also comply with them.

Similar to the federal acts, the conditions under which positive action is admitted are

319 Constitutional Court (Cour d'Arbitrage), 27 January 1994, Case no. 9/94, recital B.6.2. The Council of State

has aligned itself with this understanding of the constitutional limits imposed on positive action: see Opinion

no. 28.197/1 on the Bill subsequently became the Act of 7 May 1999 on equal treatment between men and

women in conditions of occupation, access to employment and promotion, access to a self-employed

profession, and social security.

320 In addition, where positive action measures are adopted in the field of work and employment, the social

partners are consulted, via the competent bodies established respectively in the private and the public

sectors (Article 10(4)).

321 Royal Decree of 11 February 2019 setting on the conditions of positive actions (Arrêté royal du 11 février

2019 f‌ixant les conditions de l’action positive), OJ (Moniteur belge), 1 March 2019, p. 21169.

322 Article 5 of the royal decree reiterates that positive action should only be adopted in case of a manifest

inequality (to be documented by any means by the company or the sector), should describe clearly the

objectives, steps and expected outcome, may be pursued for a maximum of three years, should be

submitted to a proportionality test and approved by the competent Minister (i.e. the Collective Relations

Directorate of the Department of Employment). Employers may also devise positive action plans under

forms other than a collective agreement or ‘deed of accession’; in that case they should communicate such

plans for information to the Minister for Employment. The Royal Decree fails to provide a definition of the

term ‘employers’, thereby causing uncertainty as to its scope, at least for autonomous public economic

bodies covered by the Act of 21 March 1991. It seems that they can use that latter route to implement a

positive action plan. Implementation of the Royal Decree. will be assessed every two years by the Collective

Relations Directorate jointly with the National Labour Council.