Sensitive or controversial issues

AuthorKarin de Vries
11.1 Potential breaches of the directives at the national leve l
- The accumulative conditions in the ‘harassment’ definition may be considered to fall
short of the directives’ ‘non-regression’ clause (see Section 2.4 of the r eport).
- Arguably, the Dutch Government interprets the prohibition of an ‘instruction to make
a distinction’ unduly narrowly, including in relation to the ‘scope of liability’ for this
type of discrimination (see Section 2.5 of the report).
- Both Article 2(5) and Article 7(2) of the Employment Framework Directive talk about
national legislation or measur es taken by t he Member States’ gove rnments in order
to protect health and safety. Article 3(1)(a) of the DDA provides for a justification on
this ground, but it is disputable whether this provision is in line with the requirements
of the directive (see Section 4.6 of the report).
11.2 Other issues of concern
- The main, more general issue of concern relates to the increasing t ensions in Dutch
society between various minority and majority groups which seem to exacerbate
exclusion and discrimination, in particular in relation to race/ethnic origin and
migration background. There ar e at p resent two political parties represented in the
Dutch Parliament with openly xenophobic agendas Togeth er they hold 22 out of 150
seats in the Lower House and 15 out of 75 seats in the Senate.
- The principal issue of concern with regard to the implementation and practical
application of th e anti-discrimination directives at national level is the gap between
the law in the books and realities on the ground. Overall Dutch legislation to combat
discrimination is u p to European and international standards, but the prevalence of
discrimination is still of grave concern.
- The partially reversed burden of proof is not applicable in case of victimisation claims,
which falls short of EU requirements (see Section 6.4 of the report).
- The requirement that sanctions need to be ‘effective’, ‘dissuasive’ and ‘proportionate’
seems not to be met by the Dutch legislation (see Section 6.5 of the report).
- At some points the equal treatment law has been worded in such a way that a rather
wide interpretation of the provision is possible, leaving, for exampl e, more room for
justifications than would seem appropriate, c onsidering the general rule of the CJEU
that exceptions to the non-discrimination principle should be interpreted restrictively.
For example, Art icle 7 ADA concerning exemptions to the prohibition of age
discrimination allows for specific measures for ‘designated age categories’, whereas
the Directive expressly mentions the examples of young people, older workers and
persons with caring responsibilities. However, the Dutch NIHR and the courts do seem
to follow the CJEU in this regard, so in practice this is not really problematic.

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