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Challenges in implementing EU anti-discrimination legislation in Member States.

Anti-discrimination directives

The two Council directives that have laid the foundation for EU competences and action against discrimination are the Racial Equality Directive and the Employment Equality Directive. The "Article 13 Directives", as they are sometimes styled to trace their origin to Article 13 of the Treaty of Amsterdam, guarantee a minimum common level of protection for all EU citizens against all forms of discrimination. According to Article 13 of the Treaty establishing the European Community: "Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation". Their purpose is also to strengthen the national legislation articles on equality and non-discrimination.

Consequently, the Racial Equality Directive 2000/43/CE introduces the principle of equal treatment among people regardless their racial or ethnic origin. It further encompasses the prohibition of discrimination in the domain of employment and training, education, social security and health care, and in the areas of goods, services and housing. It provides definitions of the concepts of direct discrimination, indirect discrimination, harassment and victimisation and banns discriminatory teachings. Also, targets of discrimination become acquainted to a right to make a complaint through a judicial or administrative procedure. The directive suggests penalties for those who commit discriminations, while, at the same time, laying down examples of legitimate derogations to the principle of equal treatment, for instance the case in which what seems to be difference in treatment motivated by racial and ethnic origin is in fact a necessity imposed to preserve the authentic nature of a profession. Furthermore it divides the burden of proof between the alleged victim and alleged author. In other words the Directive stipulates that if a supposedly victim has in his/her possession facts able to lead to the suspicion of discrimination, the hardship of finding evidence on the absence of any discrimination passes to the presupposed author, both in civil and administrative cases. Moreover a provision of the Directive makes it mandatory for Member States to create an organization for equal treatment and independent assistance to the victims of racial discrimination.

At the same time, the Employment Equality Directive 2000/78/EC implements the principle of equal treatment in the areas of employment, occupation, training and membership and involvement in organizations of workers no matter their religion, belief, disability, age, or sexual orientation. It encompasses the same stipulations as the Racial Equality Directive regarding definitions of discrimination, victimisation and harassment, the ban on instructions to make discriminations, the right of legal redress and the so-called division of the burden of proof. The Directive demands that appropriate measures (or as they are styled "reasonable accommodation") should be taken by the employers to integrate a disabled person who has the qualifications to perform a certain job so that the person receives salary and training. Finally as in the case of the Racial Equality Directive, the Employment Equality Directive, too, permits legitimate exceptions to the equal treatment principle: "(23) In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission".

Delays in implementing Equality Directives

The delays in the introduction of the Equality Directives into national legislation of Member States represent matters for which the European Commission can react by opening infringement proceedings against Member States who do not respect Union decisions. In this situation a first step is sending formal requests. This was the case in June 2007 when the Commission stated that it had formally requested Czech Republic, Estonia, Greece, Spain, France, Ireland, Italy, Latvia, Poland, Portugal, Slovenia, Slovakia, Sweden and United Kingdom to complete the implementation of the Racial Equality Directive (1). Member States that were thus requested to comply had not met the deadline for implementation of the Directives, which was 19 July (for the Racial Equality Directive) and 2 December 2003 (for the Employment Equality Directive) for EU15, while for the 10 new Member States which joined the Union in 2004, the term was extended to 1 May 2004, Romania and Bulgaria having a separate deadline: 1 January 2007. Since there were countries that did not implement the Equality Directives according to Union demands, they received formal requests to do so under the form of a reasoned opinion, the states having a term of two months for taking the necessary measures.

The next step is taking the case to the European Court of Justice in Luxembourg if the State concerned does not act so as to complete the transposition successfully. The Court's decision can even materialize into a fine or penalty on the State in question. However, the European Commission reacted to the States that have taken the necessary measures to implement the Racial Equality Directive into their legislation, by announcing it has closed the infringement proceedings against Malta, Spain and Slovakia (2)--on 20 November 2009 --, against Finland and Estonia--on 29 October 2009 --, while, at the same time, it has send reasoned opinions to Germany and the Netherlands to take actions against lack of legal measures in the same field (3).

In search for an explanation

Alongside with studying the anti-discrimination legislation adopted in Member States, there are other options to search for proof standing for the States' commitment to the respect and guarantee of human rights. In this sense, the existence and functioning of a system of sanctions, at national level, that would effectively discourage any act of discrimination, can be regarded as a step in each of the States' fight against racism and discrimination.

At this point we find necessary to present the view of the European Fundamental Rights Agency (FRA), as expressed in some of its studies and reports. In March 2007 the FRA took over the mandate of the former European Monitoring Centre on Racism and Xenophobia. The mandate of the new Agency expanded to encompass the monitoring of the respect of human rights within the European Union and offering guidance in the same field (4) to Member States and the Union when implementing legislation. In 2008 the European Fundamental Rights Agency reported that the United Kingdom was, by far, the Member State with the highest number of sanctions applied to discriminatory actions for the period between 2006-2007, distantly followed by Bulgaria, Ireland, France, Italy, Hungary, Romania, Finland and Sweden (5). In its Annual Report released in 2008, the Fundamental Rights Agency argues that one possible explanation for the absence or low number of sanctions could be the absence or lack of appropriate powers of an equality body (6). The Equality Directives provide for the establishment in each Member State of an equality body that would act, among others, in the field of offering support to victims of discrimination. Moreover, the Fundamental Rights Agency offers another possible explanation to this small number of complaints in some Member States by arguing that it is due to the lack of public information on the rights of victims of discrimination.

This small number can also be explained in a great extent through some Member States' failures to implement the specific anti-discrimination directives (7), as well as through the absence of specialized and competent organisms. Thus, victims of discrimination cannot make an official complaint due to the fact that there are no special public bodies that register or record complaints (8). In other words, as regards the cases of discrimination taken to court within the European Union territory, their number is influenced by the fact that, on the one hand, not all states have implemented the anti-discrimination legislation, and, on the other hand, the states have not created victims' assistance mechanisms.

Lack of rights' awareness or disbelief?

A series of surveys demanded by the FRA (EU-MIDIS--Minorities and Discrimination Survey) shows that the number of cases of discrimination is greater than the official complaints, since there is a greater number of cases of discrimination which remain hidden, an overwhelming number of respondents having acknowledged their being discriminated against within the 12 month-period before the questionnaire being applied (9). The numbers are alarming with respondents claiming that discrimination appears mostly in employment and believing that efforts of reporting discrimination are useless since they feel no action will be triggered, appreciating discrimination as normal and frequent and/or lacking information on where to report an act of discrimination (10). Consequently, from the findings the FRA claims that reasons for not reporting discrimination vary from disbelief that anything should change with reporting to lack of awareness (11) on why or where to report, from fear of follow-ups to accepting discrimination as a normal, ordinary thing, part of the daily life (12). Also, as regards Muslims, it appears that ethnicity is the major source for discriminatory acts.

By studying the number of cases of discrimination that have reached national courts, one could undoubtedly jump to the conclusion that their number is relatively small (13). In fact, this relatively small number of cases of racial and ethnic discrimination taken to court might be caused by the fact that there are numerous cases of unreported racist crime. The rationale is that taking legal measures requires much more energy and financial resources than other measures, in a lesser extent official, such as negotiations, solving conflicts etc. Or it may be argued that there are really few cases of discrimination, a situation less likely to appear though.

As regards the creation (as required by the EU Equality Directives) of national monitoring organisms of acts of discrimination and assistance offered to victims of discrimination, these organisms can be centred around offering comparable, sure and efficient data and information on racism and xenophobia and studying these phenomena by highlighting the general trends, causes and consequences of their manifestation. However, the mandate of such national organisms cannot stop here, since migrant workers, ethnic groups and other possible victims of racism and discrimination require more than the mere study of the general trends and aspects, requiring even the analysis of individual cases. Migrant workers need to be protected against unequal treatment both through a sound and coherent economic and social policy and through the existence of organizations whose mandate possesses the legal capacity of representation or the function of assisting the persons who constitute targets for discrimination. Consequently, alongside with highlighting the need to raise awareness on the rights of victims of discrimination and the importance of reporting racist crime, we believe that a national equality body can and should also offer assistance to victims of discrimination in taking those cases to court.

Effects of migrants' portrayal in the media on security within the Union Until recently, one may have noticed a growing demand for immigrant workers as they represented a cheaper and skilled labour force for the developed host countries and were capable and willing to accept most unwanted jobs. However, this fact has only in part reduced the discriminatory attitudes we have talked about. The severance of economic recession in Member States has led to their being viewed as an economic threat to the population of the host country. Consequently, this has resulted in a recurrence in the discriminatory rhetoric which increasingly affects the employment perspectives and work conditions for the representatives of minority groups and for migrant workers.

A significant part of the public opinion of the Member States' population considers that migrant workers coming from ethnic minorities, especially the Roma, financially support their families through begging and theft. These beliefs are fuelled by the negative portrayal of migrants by the racist-wing populism and extremism (14). And once one creates a not-necessarily real or proven connection between migrants, asylum seekers and ethnic or religious minorities and the groups employed in illicit activities, one can be certain of the appearance of negative stereotypes (15) which can degenerate in the escalation of acts of racist crime against those targeted groups.


All in all, the studies on discrimination published by the European Fundamental Rights Agency show that the number of incidents reported does not necessarily reflect the true image of the frequency of discriminatory acts. Thus, one recognizes the need of establishing efficient mechanisms to report and record discrimination and racist crime, as well as a coherent mandate and clearly stipulated powers for national equality bodies. It has become necessary to raise awareness on the existence and purpose of complaints mechanisms and on the rights of victims of discrimination.

In the light of the delays and other challenges with the implementation of the anti-discrimination directives, the European Parliament has requested the adoption of a more comprehensive directive regarding the fight against any form of discrimination based on sex, racial or ethnic origin, religion or beliefs, handicap, age or sexual orientation. The European MPs have also requested for finding solutions against all problems linked to the implementation of anti-discrimination legislation, introducing sanctions for infringements and supplying assistance for victims of discrimination. As a result the European Commission presented a Proposal for a Council Framework Decision on Combating Racism and Xenophobia (COM(2001) 664 final) which was adopted by the Council seven years later, on 28 November 2008.


(1) European Fundamental Rights Agency (FRA), Annual Report, Vienna, 2008

(2) do?reference=IP/09/1783&format=HTML&aged=0&language=EN&guiLanguage=en

(3) Id=89&newsId=626&furtherNews=yes

(4) In order to learn more on the scope and activities of the FRA, please visit the official website

(5) For more information regarding the existence, number or absence of sanctions for discriminatory actions and attitudes, please visit FRA, op. cit., 2008. Moreover, the report also mentions the states in which no records were found of sanctions applied to discrimination.

(6) FRA's Annual Report on the Agency's activities in 2006 and 2007 also lists the countries in which no such equality body existed at the moment the report was written--the Czech Republic, Luxembourg and Spain are mentioned in this sense.

(7) Council Directive 2000/43/CE, of 29 June 2000, regarding the implementation of equal treatment principle among persons, no matter their racial and ethnic origin, and Council Directive 2000/78/CE, of 27 November 2000, for the creation of a general framework in favour of the equal treatment regarding employment and work conditions.

(8) Haleh Chahrokh, Wolfgang Klug, Veronika Bilger, Migrants, Minorities and legislation: Documenting legal measures and remedies against discrimination in 15 Member States of the European Union, Report submitted by the International Centre for Migration Policy Development (ICMPD), 2004, pp. 102-106.

(9) In order to see the findings of the survey as regards the percentage of unreported racist crime by type (assault and threat, or serious harassment), see European Union Agency for Fundamental Rights, EU-MIDIS at a glance: Introduction to the FRA's EU-wide discrimination survey, Elanders Hungary Kft., Budapest, 2009, p. 11.

(10) For the accurate findings on reasons for not reporting discrimination on ethnic groups of respondents, please see FRA, EU-MIDIS European Union Minorities and Discrimination Survey. Main Results Report (Conference Edition), 2009, pp. 55-56, available at: eumidis_mainreport_conference-edition_en_.pdf

(11) For percentage of awareness of complaints mechanisms among the Roma see European Union Agency for Fundamental Rights, EUMIDIS European Union Minorities and Discrimination Survey. Data in Focus Report 1: The Roma, Elanders Hungary Kft., Budapest, 2009, p. 7.

(12) For a presentation of the main results of the survey see European Union Agency for Fundamental Rights, EU-MIDIS at a glance: Introduction to the FRA's EU-wide discrimination survey, Elanders Hungary Kft., Budapest, 2009.

(13) Haleh Chahrokh, Wolfgang Klug, Veronika Bilger, op. cit., pp. 107-115.

(14) In this sense, please see the study made by the European Research Centre on Migration and Ethnic Relations (Ercomer), on behalf of the European Monitoring Centre on Racism and Xenophobia, Vienna, (EUMC): Jessika ter Wal (ed.), Racism and cultural diversty in the mass media. An overview of research and examples of good practice in the EU Member States, 1995-2000, Luxembourg, Office for Official Publications of the European Communities, 2004.

(15) Constantin, Daniela, Diana Preda, Valentina Vasile, Luminita Nicolescu, The migration phenomenon from the perspective of Romania's accession to the European Union, Bucharest, European Institute in Romania, 2004, pp. 10-11.
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Author:Georgescu, Catalina Maria
Publication:Revista de Stiinte Politice
Article Type:Report
Date:Jul 1, 2009
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