Case studies of national legislation and jurisprudence on effective, proportionate and dissuasive remedies in discrimination law

AuthorChrista Tobler
ProfessionEuropean Network of Legal Experts in the non-discrimination field
Pages26-29

Page 26

In the following sections, selected examples of national legislation78 on remedies under the Race and the Employment Framework Directives will be described because of certain specific features of their approach to remedies. As a whole, no single enforcement system appears to fulfil all requirements mentioned in the introduction to this study in relation to a truly encompassing enforcement system. Essentially, they are all based on an individualistic and remedial - rather than preventive - approach. What is more, Waaldijk & Bonini-Baraldi (2004:588) in their report on sexual orientation discrimination in the 'EU of 15' conclude that in hardly any of the Member States can the total repertoire of sanctions be considered effective, proportionate and dissuasive. Based on the Network's national reports,79 it seems possible that the same is also true with regard to the Member States that joined the European Union in 2004. Nevertheless, certain particularly interesting elements can be found in the laws of Austria, Cyprus, France, Ireland, Italy and Portugal.These elements are discussed below.

1. Ireland: non-pecuniary remedies

Irish law provides for a broad range of remedies, including compensation awards, re-instatement and re- engagement, as well as orders requiring employers to take specific courses of action. Certain discriminatory actions can amount to a criminal offence. For present purposes, the non-pecuniary remedies in the form of orders requiring employers to take certain courses of action are of particular interest. The Network's Irish country rapporteur, Shivaun Quinlivan, observes that the non-financial remedies made possible by Irish law have huge potential.80 According to information provided by the rapporteur (both in the country report and separately, following specific questions), there is case law concerning the following orders in particular:

* The creation of an equal opportunities policy;

* Re-training of staff with particular emphasis on disability issues;

* Reviewing recruitment procedures;

* Reviewing sexual harassment procedures;

* Formal training of interview boards;

* Review of customer service practices;

* Equality training for staff;

* Inviting the complainants and their companions for a complimentary meal or drink;

* The drafting of formal written policies on the refusal of services that comply with the law.

2. Cyprus: powers of the specialised anti-discrimination body

The Cypriot enforcement system includes civil elements (reinstatement or damages), criminal elements (in relation to race discrimination) and administrative elements (via the Commissioner of Administration). Two aspects in Page 27 particular appear to be noteworthy in the approach adopted by Cyprus. The first of these concerns the powers of the Commissioner of Administration, which is the specialised anti-discrimination body under Cypriot law for race discrimination and certain other forms of discrimination. In the Network's Cyprus country report, the powers of the Commissioner in relation to certain forms of discrimination are described as going beyond those prescribed by the Race and the Employment Framework Directives.The Commissioner's powers includes in particular:

* The power to receive and investigate complaints of discrimination, and the power to issue reports of findings as well as orders (through publication in the Official Gazette) for the resolution of the situation which produced the discrimination.The Commissioner's Reports can be used for the purposes of obtaining damages in court;

* The power to issue binding recommendations to the person against whom a complaint has been lodged, and to supervise compliance with orders issued against persons found guilty of discrimination (subject to annulment by the Supreme Court of Cyprus);

* The power to investigate issues in his/her own right or following applications by NGOs, chambers, organisations, committees, associations, clubs, foundations, trade unions, funds and councils acting for the benefit of professions or other types of labour, employers, employees or any other organised group, local authorities, public law persons, the Council of Ministers, the Parliament etc. In such cases, the Commissioner is empowered to issue recommendations to the person or group found guilty of discriminatory behaviour as to alternative treatment or conduct and the abolition or substitution of the offending provision, term, criterion or practice;

* The power to issue Codes of Good Practice regarding the activities of any persons in both the private and public sector, obliging them to take practical measures for the purpose of promoting equality of opportunity irrespective of community, racial, national or ethnic origin, religion, language and colour;

* The power to investigate complaints against the civil service and its officials, which expressly covers investigation into complaints that acts or omissions violate human rights and to make suggestions or recommendations to the competent authority for reparation of the injury or injustice, including time limits within which such reparation must take place. The Commissioner can report failures to give effect to a suggestion or recommendation for reparation to the House of Representatives and the Council of Ministers."81

The second noteworthy aspect of the system of remedies adopted by Cyprus is that this system, unlike that of most other countries, puts particular emphasis on a non-individualistic approach by not only aiming to stop and to some extent remedy discrimination in the individual case but also by changing the law and/or administrative practice, if necessary. Thus, the findings and reports of the Commissioner must be communicated to the Attorney General of the Republic of Cyprus, who will advise on the adoption or otherwise of appropriate legislative or administrative measures, taking into account the Republic's international law obligations, and will prepare legislation for the abolition or substitution of the relevant legislative provision. With this approach, the Cypriot system aims to address, at least to some extent, the problem of discrimination on a more general (macro) level.82 Page 28

3. Portugal: administrative remedies

The Portuguese approach to remedies appears noteworthy in view of the interesting list of ancillary administrative remedies that are indicated in the country report. Overall, the Portuguese system contains the usual elements of individual redress in the form of civil sanctions (reinstatement, damages), criminal sanctions for some types of discrimination (race, colour, ethnic and national origin as well as religion), and administrative sanctions. Besides fines, administrative sanctions include in particular the following measures, which are available for all types of discrimination:

* Publication of the decision;

* Censure of the perpetrators of the discriminatory practices;

* Confiscation of property;

* Prohibition of the exercise of a profession or activity which involves a public capacity or which depends on authorisation or official approval by the public authorities;

* Removal of the right to participate in trade fairs;

* Removal of the right to participate in public markets;

* Prohibition of access to establishments;

* Suspension of licences and other authorisations;

* Removal of the right to the benefits granted by public bodies or services.

4. Portugal, Austria, Italy and France: withdrawal of state benefits (including benefits obtained in the framework of public procurement procedures)

Of the list just mentioned in relation to Portugal, the last element (removal of the right to benefits granted by public bodies or services) deserves particular emphasis. A similar element can be found in Austrian law, namely the withdrawal of federal benefits. However, the Network's Austrian country rapporteur, Dieter Schindlauer, points out that this does not extend to the exclusion from public procurement which (in his opinion) would enhance the effectiveness of this particular remedy. In contrast, Portuguese, Italian and French law explicitly address the issue of public procurement in the context of remedies for discrimination. According to the Italian country report, if a discriminatory act or behaviour 'is performed by enterprises to which public bodies have awarded tenders, or supply contracts or public financial assistance, such benefits can be withdrawn. In certain particular cases these enterprises may be excluded for up to two years from tenders and/or financial assistance.' Similarly, the Network's French country report mentions accessory sanctions provided by the Penal Code that include, among others, exclusion from public procurement contracts.

Although the use of government contracts to put social policies into effect has a long history (see McCrudden 2004,83 with further references), the role of public procurement as an instrument to fight discrimination is still often underestimated. It follows from the fact that the EU Member States are bound by their own national discrimination law, by the law of the EU and by international human rights law, that they are under an obligation to Page 29 respect and enforce that law on all levels of their actions, including public procurement.84 As the Portuguese, Italian and French examples show, public procurement can be used not only as a forward-looking remedy but also as a backward-looking remedy for discrimination. Both aspects are important in the context of the requirements of effectiveness, proportionality and dissuasiveness for a national system of remedies. In the framework of EC law, the Court of Justice's case law has made clear that even when they were not mentioned in the European Community's public procurement legislation,85 the use of non-economic criteria in public procurement procedures was acceptable within the limits of general EC law, that is, within the particular limits of the equality principle (case law beginning with Beentjes).86 In the new public procurement legislation that was recently adopted, non- economic criteria relating to the performance of the contract are explicitly mentioned.87 Within this legislative framework and in relation to non-discrimination, public procurement procedures can be used very generally as a means to ensure compliance with the State's non-discrimination law. More specifically, public procurement procedures can also be used in view of positive action measures. In both cases, public procurement is essentially used as a forward-looking remedy for discrimination. Backward-looking remedies are the logical continuation of such an approach in the event of an infringement of national non-discrimination law. First, the withdrawal of benefits obtained through public procurement procedures is a necessary consequence of discrimination. Second, the exclusion of the enterprises concerned for a certain period of time from future tenders and/or financial assistance appears to be an adequate way of providing for a proportionate and dissuasive sanction against discrimination (see also ERRC, Interights & MPG 2004:28).

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[78] In the case of most Member States, there is no case law yet, Ireland being a particularly important exception (see in particular http://www.odei.ie; also Turner, pp. 9 subs.).

[79] The European Network of Legal Experts in the Non-discrimination Field provides the European Commission with independent information and advice on the implementation and application of the Race and Employment Framework Directives.The Network is managed by a consortium consisting of human european consultancy (Utrecht, the Netherlands) and the Migration Policy Group (Brussels, Belgium).The Network provides the European Commission with information on various levels, including in particular a 'Comprehensive Report', which contains one national report on the implementation of Directives 2000/43/EC and 2000/78/EC in each one of the 25 EU Member States, as well as thematic reports - such as this present report on remedies and sanctions.

[80] The country rapporteur adds that in practice it may be difficult to use such remedies to full effect due to a lack of human and financial resources. Further, it is difficult to monitor how the remedies are put into practice and enforced.

[81] The country report points to certain limits to the above system: first, the above powers relate only to racial discrimination and to certain other forms of discrimination but not to discrimination at large. Second, the fines that the Commissioner can impose are very small and therefore hardly dissuasive (in fact, on the level of individual redress the Commissioner is not very powerful).Thirdly, thus far the Commissioner has not yet made use of all her powers (e.g. concerning Codes of Good Practices).

[82] Other examples for a non-individual approach of specialised bodies are provided by the UK Commission for Racial Equality and by the Dutch Equal Treatment Commission, both of which enjoy powers going beyond the examination of individual cases.

[83] The article provides an introductory and worldwide survey of social procurement practices. It describes the history and current use of government contracting and in doing so considers examples of the use of procurement to promote equality on the basis of ethnicity and gender drawn from Malaysia, South Africa, Canada and European countries.The article proposes the umbrella term 'sustainable procurement' for both social and environmental purchasing.

[84] In the framework of EC law, this duty is based on Art. 10 EC which, among other things, encompasses a positive obligation on the part of the Member States 'to ensure that everyone complies, within their jurisdiction, both with Community law and with national measures implementing Community law' (Swart 1996:5).

[85] For a useful overview of the Directives presently in force, see http://europa.eu.int/comm/internal_market/publicprocurement/legislation_en.htm#current.

[86] Case 31/87 Gebroeders Beentjes BV v The Netherlands[1988] ECR 4635; see further Case C-225/98 Commission v France [2000] ECR I-7445, Case C- 513/99 Concordia Bus Finland Oy Ab, formerly Stagecoach Finland Oy Ab v Helsingin kaupunki, HKL-Bussiliikenne [2002] ECR I-7213 and Case C- 448/01 EVN AG & Wienstrom GmbH v Austria, judgment of 4 December 2003, n.y.r. See also the Interpretative communication of the Commission on the Community law applicable to public procurement and the possibilities for integrating social considerations into public procurement, COM(2001) 566 fin.; further Tobler 2000 as well as the chapter on public procurement in Tobler 2005, both with further references.

[87] Art. 38 of Directive 2004/17/EC coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, OJ 30.4.2004 L 134/1, and Art. 26 of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, OJ 30.4.2004 L 134/114 provide as follows:'Contracting entities may lay down special conditions relating to the performance of a contract, provided that these are compatible with Community law and are indicated in the notice used as a means of calling for competition or in the specifications.The conditions governing the performance of a contract may, in particular, concern social and environmental considerations.'

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