Changes in National Legislation

Despite the deadlines for transposition having passed, laws are still being amended and adopted in a number of EU Member States to implement the two anti-discrimination Directives.

In Slovakia, the Anti-Discrimination Act was adopted in May 2004.

In Ireland, the Equality Act 2004 became law in July 2004, amending the Employment Equality Act 1998 and the Equal Status Act 2000.

In Malta, legislation was adopted in November 2004, aimed at filling the employment-related gaps in transposition left after the adoption of the 2002 Employment and Industrial Relations Act.

In December 2004, a new law was adopted in Denmark to transpose the age and disability provisions of the Employment Equality Directive, legislation was adopted in France to create the High Authority against Discrimination and for Equality, intended to complete transposition of the Racial Equality Directive, and a government decree was implemented in Hungary on the Equal Treatment Authority.

In Belgium, the Walloon region and French-speaking and German-speaking Communities adopted new legislation in May 2004.

In Austria, legislation was adopted in 2004 in the provinces of Styria, Vienna, Lower Austria and Carinthia and draft laws were introduced in the provinces of Vorarlberg and Upper Austria.

In Greece, a law covering all the grounds of discrimination specified in the two Directives was published in January 2005, and, in Sweden, legislation against discrimination on grounds of sexual orientation in respect of social security entered into force in the same month.

In Poland, the Law on National and Ethnic Minorities and Regional Language, will enter into force in May 2005.

Legislation is going through Parliament in the Czech Republic (Anti-Discrimination Bill transposing the two Directives), France (reforming the 1975 Law on Disability), Germany (in respect of the two Directives and the gender Directive — Directive 2002/73/EC), Luxembourg (Bills 5248 transposing the Racial Equality Directive and Bill 5249 transposing the Employment Equality Directive) and Austria (draft law for a new version of the Equal Status Act for People with Disabilities).

In Latvia, a comprehensive Anti-Discrimination Bill had its first reading in Parliament in April 2004 but seems to have been abandoned by the new government, which appears to want to transpose the Directives through amendments to several existing laws.

In Spain, a Bill on clauses in collective agreements concerning the termination of contracts when workers reach retirement age was adopted by the government in December 2004 and is now before Parliament.

In Cyprus, a Bill abolishing the legal maximum age limit of 60 years to be a member of the Commission for Public Education (which deals with appointments and other labour matters as regards public sector teachers) is also now before parliament.

In the UK, a Disability Discrimination Bill is progressing through Parliament. In addition, in March 2005, the government published a new Equality Bill which, on the one hand, proposes the establishment of a Commission for Equality and Human Rights and, on the other, plans to extend the protection against discrimination on grounds of religion and belief to the provision of goods, facilities and services to the public, the provision and management of premises and the carrying out of public functions.

In Northern Ireland, public consultation has taken place on options for a new Single Equality Bill, which aims to harmonise existing anti-discrimination legislation so far as practicable and to update and extend present provisions where appropriate. In addition, it will consult on draft disability education regulations in Autumn 2005 with a view to these taking effect from September 2006.

Meanwhile, in Norway, there is a proposal for an Act Prohibiting Discrimination on the Grounds of Ethnicity, Religion etc. and another proposal for an Act concerning the Equality and Discrimination Ombudsman (on the five grounds of the Directives) and the Equality and Discrimination Board of Appeal.

In Estonia, legislation still needs to be introduced to transpose the non-employment aspects of the Racial Equality Directive and in Spain, a Royal Decree is due to be enacted on the make-up and functions of the Council for promotion of equal treatment of all persons without discrimination on grounds of racial or ethnic origin so that the specialised body can start functioning.

The Consultation Process in Different Countries

In Sweden, proposals for legislation prohibiting discrimination on grounds of racial or ethnic origin in respect of education have recently been published. Proposals for outlawing discrimination on grounds of age and disability are under preparation and are planned to be published in 2005. In each case, there will be close consultation with the social partners, the law courts, the Ombudsmen against discrimination, universities, NGOs and other interest groups within the wider public over the contents.

In the UK, the plan is to implement the requirements of the Employment Equality Directive regarding age by October 2006. The arrangements for ensuring wide consultation follow a similar pattern to that for other legislation against discrimination already introduced:

• the publication of a consultation document and draft regulations for comment in Spring 2004;
• a mailing of this to all major interest groups, in addition to all those who responded to the previous consultation Equality and Diversity: Age Matters;
• the posting of information on the consultation on two government internet sites.

In Latvia, a working group was set up to consider proposals for meeting the requirements of the Racial Equality Directive, including representatives from various relevant government ministries, the National Human Rights Office, the Institute for Human Rights and the Latvian Centre for Human Rights and Ethnic Studies. In addition, legal experts were invited to give their views and European Commission officials were also consulted. Amendments to the Labour Law were drafted in cooperation with the social partners and checked with the trade unions association and the employers’ confederation.

What can the European Commission do if a Member State fails properly to implement the Directives?

Under the European Community Treaty, the European Commission can launch enforcement proceedings against Member States for failing to meet the requirements of the Directives (Article 226). Such proceedings can be launched for not communicating transposition and for not conforming with the provisions of the Directives where the transposition is incomplete or incorrect. Proceedings begin with a formal letter from the Commission to the Member State outlining why it believes the State has failed to meet its obligations. The State has two months to reply. If the matter has not then been resolved, the Commission delivers a ‘reasoned opinion’, to which the Member State has a further two months to reply. If it fails to reply or to reply satisfactorily, the Commission can refer the Member State to the European Court of Justice.

If the Court finds that the Member State has failed to fulfil its obligations, the State must take the necessary measures to comply with the Court’s judgment. After that, if the Commission considers the Member State has not taken satisfactory measures, it gives the State the opportunity to submit its observations, then issues a reasoned opinion detailing the points with which the State has not complied (Article 228 of the EC Treaty) and gives the Member State a limited amount of time to comply with these. If it still fails to comply, the Commission can bring the Member State back to the Court of Justice and specify the amount it thinks it should pay. If the Court finds the Member State has not complied with its judgment, it can impose a lump sum or penalty payment on it.

Rights of individuals in cases where the Directives have not been fully transposed

Where the alleged discriminator is the State or a public body, provisions of the anti-discrimination Directives which are clear, precise and unconditional can be directly invoked before national courts. Such provisions are defined as having ‘vertical direct effect’. This means that, if a Member State has failed to transpose the Directives on time, or has transposed them incorrectly, individuals who allege they have been discriminated against by a public body can nevertheless invoke the provisions of the Directives.

Where the alleged discriminator is another individual or private entity, national courts must give Directives ‘indirect effect’ and do everything possible to interpret national law to comply with European Community law. This means they must, so far as possible, interpret national law in the light of the wording and purpose of the Directive in order to achieve the result intended by the Directive. It is irrelevant whether the national legislation was adopted before or after the Directive (Case C-106/89 Marleasing [1990] ECR 4135).

A third principle of Community law helps to ensure that Member States properly implement the Equality Directives, namely the principle of ‘State liability’ (Cases C-6 & 9/90 Francovich, joined cases C46/93 Brasserie du Pzcheur and C-48/93 Factortame). Where, by the transposition deadline, there is no national law implementing a directive, or national law is contrary to EC law, the Member State must compensate for loss resulting from this failure to implement the Directive. For the State to be liable, certain conditions must be satisfied: firstly, the aim of the Community provision which has been breached must be to grant rights to the individual; secondly, the breach must be sufficiently serious; thirdly, there must be a causal link between the State’s failure and the damage suffered by the persons affected. National courts can be asked to decide whether the Member State has wrongly implemented the Equality Directives, and if the court finds it has and these conditions are met, the complainant may be entitled to monetary compensation.

Conciliation Arrangements

In a number of Member States (such as Sweden and the UK), civil courts and employment tribunals have a deliberate policy of trying to reach an agreed settlement in discrimination cases. Conciliation arrangements or services are, therefore, in place to help the two parties involved to resolve their differences and to agree a suitable remedy. In many countries, specific organisations have been set up, or designated, to perform this role.

In Denmark, Sweden, the Netherlands and Finland, one of the functions of the independent Equality Body is to act as a mediator in discrimination cases.

In Austria, the Commission for Equal Treatment (GBK), whose remit is due to be extended by pending legislation to cover all grounds of discrimination specified by the Directives, is intended to operate in a non-bureaucratic way so that it is more accessible and more effective in bringing about conciliation.

In France, people suffering discrimination at work can take their case to the Labour Court (Conseil des prud’hommes) to try to reach an agreed settlement. Once the planned independent Equality Body begins operating in 2005, this will also have powers to mediate in discrimination cases.

The Entitlement of Trade Unions and NGOs to Support Victims of Discrimination

Remedies and sanctions redressing infringements of individual rights

Under the Directives, national courts must ensure violations of the principle of equal treatment are satisfactorily remedied. Sanctions against discriminators must be effective (i.e. achieve the desired outcome), proportionate (i.e. adequately reflect the gravity and nature of the loss and/or harm suffered) and dissuasive (i.e. deter future acts of discrimination). It is still early to accurately assess whether or not the various sanctions available in the respective EU Member States meet this requirement. This will become clearer as more cases are decided by the national courts.

Some Member States have traditionally imposed criminal sanctions for certain forms of discrimination, especially fines and imprisonment. The EC Directives have, however, generally been implemented through civil, labour and administrative law so sanctions such as compensation, are likely to be more common in the future. Financial compensation may include compensation for past and future loss and for injury to feelings, damages for personal injury such as psychiatric harm, or exemplary damages to punish the discriminator. The victim is accordingly directly compensated, in contrast to criminal law fines which are paid instead to the State. Other remedies include interim relief to stop the discrimination and obliging the discriminator to take action to prevent or reduce the effects of discrimination on the victim, such as an order to reinstate him or her in their job or to adopt a particular code of practice. Sometimes there are specific sanctions on companies or organisations which differ from those imposed on individuals.

A great many countries have sanctions that are especially designed to redress discrimination, in place of or in addition to more general civil, criminal or administrative sanctions. For example, sanctions in Belgium include criminal law fines, imprisonment and compensation for damages, civil damages, declaring contract clauses null and void, ordering the cessation of a discriminatory practice and the publication of a judgment. In cases where employees have been dismissed because they complained about discrimination (victimisation), they may be reinstated and receive back-pay, or alternatively they may seek damages equivalent to six months remuneration.

In Italy, under the decrees transposing the Directives, a judge can order the discriminatory behaviour to stop, its effects to be removed and the situation before discrimination to be restored. This is based on the idea that every discriminatory act is unlawful and consequently void. Discriminatory dismissals are always considered null and void and workers unfairly dismissed can be reinstated in their post. Judges can also order the publication of a decision in a national newspaper. Victims may claim compensationfor financial and other damages. Enterprises found guilty of discrimination on grounds of racial or ethnic origin, religion or nationality can have any tenders, supply contracts or financial assistance from public bodies withdrawn. In certain cases, enterprises may be excluded from tenders or financial assistance for up to two years.

Compensation Arrangements

Provisions in Legislation on the Burden of Proof

Examples of Equality Bodies

Measures to Promote Equality

In Sweden, the 2003 Act prohibits discrimination in employment services and labour market programmes. It also states explicitly that this does not prevent these services and programmes from accommodating the special needs of ethnic minorities. A number of programmes have, therefore, been undertaken specifically aimed at this section of the community. The Committee of Enquiry set up to review the workings of the legislation and due to report in 2005 will consider the possible need for positive action in other areas.

In Sweden also, legislation puts a positive obligation on employers in both the public and private sectors to make conscious efforts to promote ethnic diversity among their work forces. They must also prevent any employee from being subjected to harassment or retaliation as a result of complaining about abuse or unfair treatment. Employers equally have an obligation to make sure that people from ethnic minorities are given every opportunity to apply for job vacancies and for promotions.

This is similar in the UK, where under the Race Relations (Amendment) Act 2000, public authorities have a statutory duty not only to avoid acting in a discriminatory way but to promote racial equality. The Commission for Racial Equality has published certain codes for providing information and guidance to public authorities on the duty to promote equality.

In Portugal, the Commission for Immigrants and Ethnic Minorities (ACIME) has a task force aimed at identifying the obstacles to the integration of the Roma community into Portuguese society. Two of the organisations working with the Roma community are represented on the task force as are four members nominated by the community itself.

In France, pilot action programmes have been carried out in six cities, since the beginning of 2001, to educate and train local officials in ways of avoiding and preventing discrimination in employment practices. In addition, in October 2003, the Ministry of Justice published a guide on the provisions available in law to combat racism and other forms of discrimination.

In France also, a government policy of ‘positive mobilisation’ includes giving grants to 30 000 schools in disadvantaged areas, a sponsorship scheme aimed at helping young immigrant graduates to find a job, with a target of 25 000 in 2004, and the setting up of 10 centres to help young people prepare for public service entrance exams.

In the Netherlands, the Ministry of Social Affairs and Employment has initiated the ‘Article 13 Project’, aimed at putting equality of treatment on to the agenda of works councils and associations of small and medium-sized firms. The project consists of a special training package emphasising the need to pay more attention to the issue, developed in cooperation with other Ministries, the Equal Treatment Commission, the Royal association of SMEs and various NGOs.

In Poland, under the new amendments to the Labour Code, employers are obliged to make available to employees the text of provisions on equal treatment in employment in the form of a written document distributed at places of work.

Trade Union Activities against Discrimination