Sensitive or controversial issues

• Author: Hiltunen, Rainer
• Pages: 62-62

62

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national level

- The general justification of direct discrimination on grounds of ethnic origin (on

situations governed by the Racial Equality Directive) does not derive from the

directive and may be too widely formulated. The relevant provision in this regard is

Section 11(1) of the Non-Discrimination Act, which provides a general justification

definition that applies in situations governed by the Racial Equality Directive and

therefore allows direct discrimination on grounds of ethnicity:

‘Differential treatment is only allowed if the treatment is based on legislation,

the treatment has an acceptable aim and the means used are in due

proportion for achieving this aim.’145

11.2 Other issues of concern

- Compensation for discrimination can only be requested in a district court, where the

claimant’s risk of having to pay the legal costs of the defendant greatly affects the

real possibilities of seeking remedies against discrimination. In its report on the

Non-Discrimination Act, the Constitutional Law Committee of the Parliament

proposed that the National Non-Discrimination and Equality Tribunal should be able

to award compensation.146 The Employment and Equality Committee of the

Parliament, however, did not amend the Government proposal in this regard.

- The Non-Discrimination Ombudsman and the National Non-Discrimination and

Equality Tribunal do not have a role in interpreting the Non-Discrimination Act in

regard to employment. The Constitutional Law Committee of the Parliament

considered this to be problematic, considering how central the area of employment

is in safeguarding equal treatment.147 The Constitutional Law Committee considered

it important that the Employment and Equality Committee study the possibilities for

safeguarding expertise and unity in this respect. The European Commission has had

a dialogue with Finland on whether the legislative framework fulfils the

requirements of the directives in this respect.

- Associations or organisations working for the benefit of victims do not have any

major role to play in judicial or administrative processes. They do not ha ve any

general locus standi to take a case to court to pursue a matter in their own name,

even with the consent of the complainant. Furthermore, associations cannot

become third parties to such proceedings or act as an amicus curiae. This state of

affairs arises from national legislation on rules of procedure.

145 See section 2.2 of this report for the direct discrimination justification.

146 Constitutional Law Committee (2014), Report 31/2014, p. 10,

https://www.eduskunta.fi/FI/vaski/Lausunto/Documents/pevl_31+2014.pdf.

147 Constitutional Law Committee (2014), Report 31/2014, p. 10.