It should be recall that in October 2004 the President of the European Commission, José Manuel Barroso, has promised a framework-directive based on Article 13 of the EC Treaty to extend the scope of legislation on access to goods and services to include all forms of discrimination. However, the Commission has changed its mind and has announced last April that it will put forward a directive solely covering protection against discrimination on disability grounds whereas recommendations to Member States will cover discrimination on the grounds of sexual orientation, age, religion.
Last May the European Parliament adopted a non-binding report on progress made in equal opportunities and non-discrimination in the EU. The European Parliament has called on the Commission to fulfil its commitment to put forward a comprehensive directive covering discrimination on all grounds. The EPP-ED group has tabled an amendment to the report deploring discrimination but stressing that "a non-specific directive prohibiting discrimination” is not "the appropriate tool for dealing with the complex needs of individuals." The amendment was defeated. Obviously, the Commission has taken the European Parliament suggestions on board. The Commission has decided to return to its original plan.
Hence, last July, the European Commission put forward a proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation. A general framework for equal treatment in employment and occupation on the grounds of religion or belief, disability, age and sexual orientation is already established by the Directive 2000/78/EC. However, according to the Commission there are differences among the Member States on the level of protection from discrimination on these grounds beyond the employment areas.
Consequently, the aim of the draft Directive is to prohibit discrimination on grounds of religion or belief, disability, age or sexual orientation, by both the public and private sector, in several areas outside the labour market including, health care, social care, social security, education and the supply of goods and services, including housing. In what concerns access to goods and services, the Commission proposal deals with commercial transactions therefore does not cover purely private transactions between individuals.
The Draft Directive will prohibit direct and indirect discrimination as well as would require harassment and the denial of reasonable accommodation to a disabled person to be treated as discrimination. The Law Society has “serious reservations about a prohibition of “harassment” on grounds of religion and belief in “open” environments.”
According to the Law Society “Perceptions are important, and the prospect of legislation may raise expectations that ought not to be met.” It gives the example of a shop with a notice board posting material that some people might find offensive on religious grounds. The Law Society has said “even if they consider that the presence of the material violates their dignity or creates an offensive environment – which would amount to harassment under the existing legislation – that ought not to amount to actionable harassment in relation to religion or belief.”
The Directive will not require Member States to amend their laws on the organisation and content of education, recognition of marital or family status, adoption, and reproductive rights. The proposal does not cover national laws relating to the secular nature of the State and its institutions, nor to the status of religious organisations. Under the draft directive Member States may “provide for differences in treatment in access to educational institutions based on religion or belief.” Moreover, Member States would be allowed to provide that differences of treatment on grounds of age are not to constitute discrimination if: “they are justified by a legitimate aim, and if the means of achieving that aim are appropriate and necessary.”
Under the draft directive providers would be required to make appropriate modifications or adjustments so as to enable people with disabilities to have non-discriminatory access to housing, transport and other services, goods, social security, social and health care and education. According to the Commission such measures would not be required if they would impose a disproportionate burden. The Commission provides a non-exhaustive list is of factors that could be taken into account in assessing whether the burden is disproportionate.
Under the Draft Directive people who believe that they have been the victim of discrimination should use administrative or judicial procedures, even after the relationship in which the discrimination is alleged to have taken place has ended. Moreover, the proposal provides that organisations, which have a legitimate interest in the fight against discrimination, should be allowed to help victims of discrimination in judicial or administrative procedures in order to strengthen the right to effective legal protection.
Member States would be required to provide for effective, proportionate and dissuasive sanctions for breaches of the obligations of this Directive. It is specified in the draft proposal that that there should be no upper limit on the compensation payable in cases of breach of the principle of equal treatment.
Obviously, businesses are not pleased with the Commission proposal as they believe it will entail further costs.
Under Article 13 EC any directive on anti-discrimination requires unanimity in the Council in order to be adopted. The proposal goes through the consultation procedure.
Last October the Employment Council debated the proposed directive. Several Member States criticised the vagueness of the proposal and questioned the need for EU legislation in this area. They are also concerned with the economic and financial impacts of the proposed directive.
According to the Parliamentary Under-Secretary of State for Women and Equality at the Government Equality Office, Barbara Follett, the draft proposal “is broadly compatible with UK policy and legislation.” Nevertheless, the Government will further consider the Community’s competence to legislate on some of the issues covered by the draft Directive such as education and healthcare as well as the cost implications for health and social care. Moreover, the Government will seek clarification on the provisions providing access for disabled people.
On 2 April, the European Parliament endorsed the Commission’s proposal by adopting a consultation report with 360 votes in favour, 226 against and 64 abstentions. The Government has reservations about many of the amendments adopted by the European Parliament.
MEPs have proposed to extend the scope of the Directive. According to the European Parliament the directive should also cover transport, telecommunications, information, financial services, culture and leisure. Moreover, according to the MEPs the directive should cover multiple discrimination, based on two or more grounds and discrimination by association.
According to the Government provisions on multiple discrimination should be dealt with in national legislation.
It should be mentioned that the Minister for Women and Equality, Harriet Harman, has recently announced that the Government has decided to extend the prohibition against associative and perceptive direct discrimination and harassment to areas where this does not currently apply. Hence, the Equality Bill will prohibit direct discrimination and harassment based on association and perception in respect of race, sex, gender reassignment, disability, sexual orientation, religion or belief and age and in relation to both employment and areas such as goods and services. In this way, the UK is implementing the Coleman judgment where the ECJ ruled that the “Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination (…).”
The European Court of Justice ruling has confirmed that Community law protects against discrimination on grounds of association with a disabled person but it not clear if this concept covers all matters included in Article 13 EC Treaty.
The Commission’s proposal provides that risk factors related to disability and to age use in the provision of insurance, banking and other financial services should not be regarded as a form of discrimination where they are key factors for the assessment of risk. The European Parliament has amended this provision in order to require service providers to demonstrate the risks precisely “by actuarial principles, statistical data or medical data.” The Government wants to ensure that excessive restrictions are not imposed on the providers of financial services’s ability to take into account the series of factors required for a proper evaluation of the risk associated with a given financial product.
The official line of the EPP-ED group was to vote against the report. Manfred Weber, MEP for Bavaria with the Christian Social Union, has said “The EPP-ED group militates against any kind of discrimination. Nevertheless, we fear the additional red tape which would be generated by this new directive. Many of its regulations are not favourable to all parties involved, including disabled people.”
According to Dan Hannan, MEP, “The proposals, if interpreted literally, would mean that the Labour Party could be sued if it declined to hire Tories as its press officers, or the Royal Opera Company if it declined to interview men for soprano roles.”
