COM(2021)0139
EUR-Lex

EUR-Lex
SWD(2021)0063

COM(2014)0002

The Commission presents a report on the joint report on the application of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘Racial Equality Directive’).

The report recalls that protection from discrimination is one of the areas in which EU law closely affects the everyday life of people in the EU. The comprehensive framework provided by the Directive in question and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (‘Employment Equality Directive’), examined at the same time, has shaped the landscape of European anti-discrimination law for over a decade now.

Some Member States had hardly any legislation in this field before the transposition of the two Directives, and the Directives introduced novel elements like protection from age discrimination into the legislation of all Member States.

Joint Report : given that both of the anti-discrimination Directives have to be reported on regularly, the present document is a joint report because the regulatory approach and content of most of the provisions are identical. In addition, most Member States have transposed the two Directives in a single national act .

Today, all 28 Member States have transposed the Directives and gained experience in their application. The Court of Justice of the European Union (CJEU) has also developed the interpretation of the Directives through its case-law.

This report provides an opportunity to:

examine the application of the Directives, take stock of the interpretation given by the CJEU and national courts, identify challenges ahead.

Application of the Directives : both Directives have been transposed into national law, but the review of national experiences reveals that there are still challenges to their implementation and application. These relate in particular to the following issues:

Indirect discrimination : this concept is complex and many Member States had initial difficulties in transposing it correctly. It is now enshrined in law, but its application in practice remains a challenge due to its lack of clarity or lack of understanding in national courts; Burden of proof : this means that where a person claiming to be a victim of discrimination can establish facts from which it may be presumed that discrimination has occurred, it is for the respondent to prove that there has been no discrimination. Some Member States report that the correct application of the reversed burden of proof remains a challenge and is not sufficiently well known by national courts; Discrimination by association, assumption and perception : as suggested by existing national case-law, the Commission considers that the Directives also prohibit a situation where a person is directly discriminated against on the basis of a wrong perception or assumption of protected characteristics, for example, if a candidate for a job is not selected because the employer wrongly believes he/she is of a specific ethnic origin or homosexual; Protection for everyone in the EU : the two Directives make it clear that the prohibition of discrimination also applies to nationals of third countries, but does not cover differences of treatment based on nationality, and is without prejudice to provisions governing entry and residence. This is an important element of the Directives, underlining the fact that the prohibition of discrimination protects everyone in the European Union and not only EU citizens. Some problems, however, do not derive directly from legislation, but from how the relevant legislation is applied on the ground.

The report also deals with aspects specific to the racial equality directive 2000/43/EC such as:

the prohibition of discrimination on the basis of racial or ethnic origin; material scope of the Directive; role of equality bodies; protection for the Roma under the Directive

and examines the difficulties relating to these specific aspects in terms of their implementation and their interpretation.

Main findings : all the Member States have taken the necessary measures to transpose the two Directives into their respective domestic legal orders and to set up the procedures and bodies that are indispensable for the implementation of these Directives.

According to the joint report, the main challenge now is to increase awareness of the already existing protection and to ensure better practical implementation and application of the Directives . The Commission will, together with the Member States and their equality bodies, make a concerted effort to realise the full potential of the Directives in terms of protection of the fundamental right to equal treatment in the EU. However, legislation alone is not enough to ensure full equality, so it needs to be combined with appropriate policy action. Funding for awareness-raising and training activities is already available under the European Union Programme for Employment and Social Solidarity (Progress), but this work needs to be further strengthened by the Commission in cooperation with Member States to ensure tangible improvements in the awareness of rights throughout the EU. Strengthening the role of the national equality bodies as watchdogs for equality can make a crucial contribution to more effective implementation and application of the Directives.

EUR-Lex
COM(2014)0002

EUR-Lex
SWD(2014)0005

This report focuses on Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, which was adopted under the new Article 13 of the Treaty establishing the European Community. Rather than give a detailed account of the transposition of the provisions of Directive 2000/43/EC in the Member States, this report flags up certain aspects that are particularly problematic or important and to identify good practice. It concentrates on the impact of the Directive, transposition-related problems, dissemination of information, the enforcement of rights, the role of equality bodies, the social partners and NGOs, positive action and recommendations.

The impact of the Directive: the report points to the ways in which this directive was an innovative one, since it extended the scope of protection against discrimination well beyond the traditional area of employment into fields such as social advantages, health care, education and, crucially, access to goods and services which are available to the public, including housing. It obliged the Member States to create a body for the promotion of equal treatment (if they did not already have one). All Member States, even those with long-standing race discrimination legislation, had to make some changes to national law to comply with the Directive (for example, the UK amended its definitions of indirect discrimination and harassment). The problems identified include fundamental issues such as definitions of direct and indirect discrimination and harassment in national law, which in some cases differ considerably from those given in the Directive. It appears that some Member States allow exceptions to the principle of non-discrimination which are wider-ranging than those permitted under the Directive. There is a series of problems related to the enforcement of rights of victims of discrimination, such as incorrect transposition of the rules on the burden of proof, the right of associations to help victims of discrimination, and sanctions and remedies. The Commission is examining the national legislative measures notified by the Member States, in order to assess their conformity with the Directive and to ensure that victims of discrimination can exercise the rights given to them.

Key Issues

-Right of redress: it is clear from the information provided that many victims of discrimination do not proceed to court with their complaints because of the cost and for fear of victimisation, and are more likely to turn to an NGO or an equality body, from which they can usually obtain information and advice free of charge. In most Member States, associations are able to help victims or represent them in court, but some countries have laid down strict rules governing the activities of associations in this area. It appears from the statistics provided by the Member States and equality bodies that most complaints of discrimination before national courts and/or equality bodies involve employment, followed by the provision of goods and services and housing. In the majority of the EU 10, statistics showed the Roma as the group most represented in complaints. The number of cases taken up by the Roma indicates that the Directive is being successfully used to challenge discrimination against that group.

-Equality bodies: the equality bodies give legal advice to individual victims of discrimination, but they only support a small number of cases before the courts. Supporting only strategic litigation is a clear aim of a number of equality bodies. In some Member States, the emphasis is on promotion of equal opportunities and prevention of discrimination, rather than legal support for individual complainants. The capacity of an equality body is directly linked to the way it is funded. Another issue is specific to Member States which have federal and regional governmental structures. If the equality body only exists at one of these levels, it may be powerless to act on matters falling within the other spheres of competence.

Dissemination of information: there is insufficient information about the way in which this obligation has been fulfilled. However, a number of interesting initiatives were undertaken, and these are detailed in the report.

The role of the social partners & NGOs: the obligation requiring Member States to promote dialogue between the two sides of industry to foster equal treatment, including through collective agreements, codes of conduct and the exchange of good practice, is met in different ways. The ETUC notes a trend among governments to favour dialogue on discrimination issues with NGOs rather than the social partners, although from the information received from the Member States the picture is somewhat mixed.

Gender mainstreaming and multiple discrimination: the Commission is aware of the problem of multiple discrimination and has launched a study on the subject as part of its work programme for 2006, which will look at what is being done in the Member States in this area and make recommendations.

Positive action: the Commission refers to Article 5 of the Directive and stresses the difference between positive action measures, which are allowed, and so-called "positive discrimination" measures, which are not compatible with the Directive. On the one hand, positive action measures aim to ensure full equality in practice by preventing or compensating for disadvantages linked to having a certain racial or ethnic origin. These measures may include, for example, providing specific training to people belonging to groups that do not usually have access to such training, or taking particular steps to ensure that certain racial or ethnic groups are fully informed about job advertisements. On the other hand, "positive discrimination" measures give an automatic and absolute preference (for example in access to employment) to members of a particular group over others. Attitudes towards positive action vary hugely across the Member States, and the report gives instances of different practices.

Conclusion: Directive 2000/43/EC is a major step forward in the fight against racial discrimination across the EU. Although all the Member States already had some sort of legal requirement in respect of equality and non–discrimination, for most of them the transposition of Directive 2000/43/EC required fairly extensive changes to existing legislation, or whole new Acts. This may explain the lateness with which many of the Member States transposed the Directive, but most of them have now done so.

The new legal framework has been in force for just over three years, which is not really long enough to evaluate its full impact or potential. So far, no cases have been referred to the European Court of Justice under the preliminary ruling procedure, and it is only the ECJ that can give definitive guidance on how to interpret the provisions of the Directive. Future judgments will help the Member States to provide clear and uniform protection against discrimination throughout the European Union. The Commission does not currently see a need to come forward with proposals for amending the legislation. It has reached this conclusion on the basis of the lack of experience with implementation of the Directive since its entry into force and the lack of case law from the ECJ.

The challenge for the coming years will be to ensure the full and effective transposition, implementation and enforcement of Directive 2000/43/EC. This will entail the establishment of mechanisms and methods for observing and reporting on the impact of national implementing measures. In this context, it will be important to develop the statistical basis and other indicators. Yet the scarcity of ethnic data in most Member States might hinder proper monitoring of the application of Community legislation. The Commission also recognises that legislation alone is not enough to prevent discrimination and to promote equality, and this paper details further action in this area.

COM(2006)0643
EUR-Lex

Directive 2000/43
OJ L 180 19.07.2000, p. 0022

EUR-Lex
OJ C 311 31.10.2000, p. 0169 E
COM(2000)0328

EUR-Lex
COM(2000)0328

CES0596/2000
OJ C 204 18.07.2000, p. 0082

T5-0236/2000
OJ C 059 23.02.2001, p. 0138-0263

Debate in Parliament

T5-0236/2000

A5-0136/2000
OJ C 059 23.02.2001, p. 0066

A5-0136/2000

2259

CDR0513/1999
OJ C 226 08.08.2000, p. 0001

EUR-Lex
OJ C 116 26.04.2000, p. 0056 E
COM(1999)0566

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COM(1999)0566