Sensitive or controversial issues

• Author: Karin de Vries
• Pages: 86-86

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11 SENSITIVE OR CONTROVERSIAL ISSUES

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.