Introduction to EU Anti-discrimination Law

Good morning. My name is Peter Reading and I am going to give you an introduction to the EU Equality Directives. I think there are four things which need to be borne in mind when introducing you to these topics. First of all, and perhaps the most important is to understand the context of why we need protection from discrimination in the context of protecting human rights. Secondly, I am going to give you an overview of the EU system and in particular some of the main developments which have occurred in the last few years. Thirdly, I’m going to introduce to you the interaction between the EU system and the Council of Europe system of human rights protection because there has been an increasing convergence in those systems recently. And finally, I am also going to touch on the relationship between the EU system of human rights and the United Nations system because once again there have been some major developments in that regard in the last two years.

So first of all why do we need these protections and I think recent developments across Europe in relation to the economic recession and the impact that has had in relation to human rights issues, rising racism and xenophobia in a wide range of countries highlights that our protection from discrimination is vital and even more important in these particular times. We’ve seen in recent weeks for example in the Greek elections the far rights party Golden Dawn reached 7% of the vote for the first time and the first time its achieved seats in Parliament. Similar events have happened in France, for example the National Front party obtained approximately 18% of the votes. But it’s also an issue that major political parties have been increasingly and concerningly raising in their rhetoric, so for example Mr Sarkozy stated that it was his intention to potentially renegotiate the Schengen agreement in terms of the free movement of EU citizens within the EU. So I think we need to be very conscious of the need to reinforce these protections by enforcing them and also consider ways in which those protections could be enhanced.

Secondly, in terms of the actual improvements in the system I think it is very important to bear in mind that the Lisbon Treaty which came into force in 2009 substantially strengthened the quality in human rights framework in the EU. So for example the EU Charter of Fundamental Rights has the same status as the other two treaties - that is the Treaty of the European Union and the Treaty of the Functioning of the European Union. That’s very important because all EU institutions and all member states must comply with the Charter in developing and implementing EU law.

The place of the Directives is now in the Treaty on the Functioning of the European Union and in particular Article 19. The Charter itself is actually also broader than the discrimination provisions. So, for example, it provides the right to non-discrimination which includes other protected characteristics such as social origin, political opinion, language etc. and in that regard it is very important to bear in mind that the discrimination provisions in the Charter take a broad human rights approach to equality. Now in effect that’s had an impact on the case law in relation to the Directive and one key example of that is the Test-Achats (C-236/09) case, which was decided in 2000 by the Court of Justice and it concerns the Gender Directive on Goods and Services. Effectively it looked at whether or not an exception for gender based insurance premiums was compliant with the Charter and the non-discrimination provision and that case held that it wasn’t in fact compliant because the exception was too broad and didn’t provide any justification for having such an exception so effectively that provision has now been ruled invalid and all member states need to comply with that by adjusting there national laws that implemented the Directive. So that’s the EU and the Charter. What about the relationship between the EU and the Council of Europe? As I said there have been some major developments there.

Well the Treaty of the European Union specifically states that the EU must accede to the European Convention on Human Rights and there is a really important reason for that. Although all current member states to the EU must comply with the European Convention because they are parties to the Council of Europe there is no requirement that the EU institutions themselves, such as the European Commission or the European Parliament must comply with the European Convention. So it was decided that it was really important to ensure that that gap in protection was closed by the EU acceding to the Convention. Now the institutions are in the process of negotiating that with the Council of Europe and it is hoped that agreement can be reached either this year or next year. What that means in practice is that the EU institutions will need to comply with the European Convention, and it will be possible in the future for EU citizens once they have exhausted their domestic remedies to bring a claim either in the Court of Justice or in turn, if that is necessary, in the European Court of Human Rights in relation to possible breaches by the EU of the European Convention. So that could have significant impacts on the relationship between the decisions of the Court of Justice and the European Court of Human Rights.

I also wanted to mention a couple of cases that have highlighted the relationship between the EU and the Council of Europe to date because although there was no that direct relationship before in terms of acceding to the convention there’s been some number of important cases that have dealt with the relationship to date. I am just going to mention one case and that’s called DH v the Czech Republic and that’s a case in the European Court of Human Rights concerning special schools for Roma children in the Czech Republic. It was argued that the placing of them in those separate schools from other children breached their Article 2 of Protocol 1 right to education together with the right to non-discrimination under Article 14. But what was really interesting in terms of the relationship between the EU and the Council of Europe is that in the case there was specific references made to the EU Directives in terms of helping to decide the law under Article 14. And the reason for that is to date the Article 14 jurisprudence especially on indirect discrimination hadn’t been sufficiently developed. So the DH v the Czech Republic case looked at issues such as indirect discrimination whether statistical evidence can be used to prove that and what is the appropriate burden of proof required in relation to indirect discrimination cases and they used the concept under the Equality Directives to apply those to Article 14 and indirect discrimination. So it was a particularly helpful case in developing Strasbourg jurisprudence.

So that’s the EU and the Council of Europe. I also just wanted to touch on the relationship between the EU and the United Nations because again there’s been some major developments there. In 2008 the United Nations Convention on the Rights of Disabled People was agreed and that has meant that member states in the EU, in fact all of them now are parties to the Convention. The EU in a similar way to the European Convention on Human Rights decided it would be helpful if itself also ratified the UN Convention so it itself would become a party and that actually occurred in 2001. So since that time the EU institutions must now also consider whether they are compliant with the Convention. So what does that mean in practice? I think, firstly, it is important that the EU will have to set up an independent mechanism to monitor its compliance with the Convention. Those negotiations are currently in process but it’s planed that the European Commission, the European Parliament, the Fundamental Rights Agency and the European Ombudsman will share that responsibility to monitor such compliance. It could also have important practical effects on the Equality Directives because currently in relation to disability there is only a requirement to prohibit discrimination on grounds of disability in relation to the sector of employment. There was a proposal to expand that protection in 2008 to cover other sectors such as housing, education, health and so on but to date the EU institutions have been unable to agree that proposed Directive, which is obviously of great concern. But it also because of the EU ratification of the Convention may actually mean that the EU is not compliant with the Convention. And the reason for that is if you look through the Convention it requires discrimination to be prohibited not only in relation to employment, but also those key sectors I have just mentioned, whether that’s housing, healthcare or education. So I think in the future we will see calls form interested parties, NGOs etc. for the EU to agree that proposed Directive in order to comply with the Convention. So there you can see an important way in which the ratification of the UN Convention will hopefully have a very positive impact on the development of the EU Equality Directives in the future.

So in summary I think there are three things to conclude from the structure that we now have. The first is we need to be vigilant about the protection of these rights. These aren’t just issued of theory that lawyers look at in there law firms etc. These are really practical, serious concerns given the fact that there has been a rise in racism and xenophobia over the last year or two during the economic crisis. So we need these laws and the member states and their leaders need to take action to prevent such discrimination. Secondly, I think it's important to conclude that the Lisbon Treaty and the Charter of Fundamental Rights have been vitally important in reinforcing the place of human rights in the EU. But these laws haven’t gone far enough in relation to equality. So we have this gap currently in relation to the proposed Directive, for example where the EU has been unable to finalise that better protection. And finally I think it is very important to conclude from the structure we have that you must understand the interaction between the EU, the Council of Europe and the United Nations if you are to fully understand how we can provide better protection and how we can maintain what we have.

Thank you very much for your time.