Sensitive or controversial issues

AuthorOuhnaoui, Hania; Bribosia, Emmanuelle; Navasartian, Areg; Rorive, Isabelle
Pages123-128
123
11 SENSITIVE OR CONTROVERSIAL ISSUES
11.1 Potential breaches of the directives at the national level
- The definition of direct discrimination by the Flemish Decree of 10 July 2008 (Article
16(1)) and by the Decree of the German Community of 19 March 2012 (Article 5(4)),
as it is currently worded, could be formally read as allowing for derogations to direct
discrimination, which is prohibited under the provisions of the directives (see section
2.2.a, above).
- In 2009, the Constitutional Court stated that Article 4(10) of both the General Anti -
Discrimination Federal Act and the Racial Equality Federal Act, which defines the
notion of harassment, does not specify that this behaviour could be punished if it has
the consequence of creating an intimidating, hostile, degrading, humiliating or
offensive environment, without any intention of the offender to create such an
environment.448 On this basis, it seems that the Court re quires an intention to be
proven more generally, i.e. in civil m atters as well. This interpretation may raise an
issue of lack of compliance with EU and national law since both define harassment as
an unwanted conduct related to a protected criterion. If a behaviour which has the
effect of creating a bad environment amounts to a prohibited harassment, no specific
intention is required under EU and national law. Consequently, the interpretation of
the Constitutional Court should be strictly applied to criminal matters and not to
civil matters to be in compliance with EU law and national law.
- In addition, in its first 2017 report, the Expert Commission for the Assessment of the
2007 Anti-Discrimination Federal Acts stresses that the definition of harassment in
the Act of 4 August 1996 on the welfare of workers is not in line with EU law, as it
requires ‘several acts’ (i.e. a pattern of repetitive behaviour) whereas the equality
directives do not require such a condition. The expert commission recommends the
amendment of the Act of 4 August 1996 so as to bring it in line with EU law449 (see
section 2.4, above).
- In order to fully implement the directives, it is necessary to include, in the material
scope of the regional decrees, ‘membership of, and involvement in, an organisation
of workers or employers or any organisation whose members carry on a particular
profession’ that is financed by the relevant community or region. Only the French
Community (French Community ET Decree of 12 December 2008, Article 4(5)), the
Cocof (Cocof ET Decree of 9 July 2010, Article 5(9)) and the Brussels Capital Region
(Brussels ET Ordinance, Article 4(5)) have done it. Regarding the Walloon Region and
the Flemish-speaking Community, one could consider that this is implicitly included
in the phrase, ‘the access, participation or whatever exercise of an economic, social,
cultural or political activity open to the public’ which is used in both ET decrees. The
statutory ET law of the Brussels Capital Region and of the German-speaking
Community should be completed in this respect (see section 3.2.5, above).
- In Belgium, there is a potential breach of the framework directive with respect to the
compulsory retirement age in the public sector (retirement is automatic and
compulsory at the age of 65 years, with a few exceptions). In addition, the reduced
notice period provisions to end the contractual relationship in the private sector might
possibly be out of line with the CJEU case law (see section 4.7.4.d and 4.7.4.f, above).
- In its 2009 rulings concerning several actions in annulments against the Federal Anti-
Discrimination Acts, the Constitutional Cour t stressed that the facts leading to the
reversal of the burden of proof cannot be of general character but must be attributed
specifically to the author of the distinction. Consequently, the Court stated that it is
not enough to establish through statistics that a neutral criterion disadvantages
persons characterised by a protected ground of discrimination. According to the
448 Constitutional Court (Cour constitutionnelle), Decision of 12 February 2009, no. 17/2009, para. B.53.4;
Decision of 11 March 2009, no. 39/2009, para. B.25.4; Decision of 2 April 2009, no. 40/2009, para. B.33.4.
449 Commission d’évaluation de la législation fédérale relative à la lutte contre les discriminations (2017),
Premier rapport d’évaluation 2017, p. 9 and para. 86, www.Unia.be/en.

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