SUMMARY

This commentary of the Netherlands Equal Treatment Commission deals with the following subjects:

1.      The differing ways in which the discriminatory grounds referred to in Article 13 of the EC Treaty are dealt with and the accompanying danger of ranking of these grounds.

2.      The desirability of basing the definitions of discriminatory grounds on those used in international law, for example in international conventions.

3.      The desirability of keeping a system of possible justification in the event of direct discrimination as closed as possible and of defining the concept of objective justification in the case of indirect discrimination in such a way that it links up with the criteria developed in this respect by the Court of Justice of the EC. 

4.      The desirability of expressing in the definition of the term harassment that intimidation at the workplace can adversely affect working conditions and the desirability of including an identical provision in the proposed additional directive on equal treatment on the grounds of sex.

5.      The desirability of ensuring that the present provision on positive action links up as closely as possible with the new Article 141 (4) of the Treaty,

6.      The desirability of establishing a system of reporting in respect of the exception of genuine occupational qualifications and for reviewing the exempted professions, in accordance with a system on the basis of Article 2 (2) of Directive 76/207.

7.      The desirability of making group action possible in practice.

8.      The desirability of providing in the directive on employment and occupation for the establishment of a national structure involving monitoring by an independent body of enforcement of the non-discrimination directives.

9.       The desirability of stipulating in respect of the burden of proof that there is an obligation to provide information, and that the risk of an untransparant policy is borne by the party responsible for it.

10.  The desirability of including a clear and adequate sanction in the victimisation provisions in the directives. 

11.  The desirability of continuing to monitor the effects of the directives even after 2004 and of establishing a system of regular reporting and evaluation.

INTRODUCTION

On 25 November 1999 the European Commission presented its proposals for new anti-discrimination legislation based on Article 13 of the EC Treaty. The proposals consist of a Council Directive establishing a general framework for equal treatment in employment and occupation of all persons irrespective of racial or ethnic origin, religion or belief, disability, age or sexual orientation (COM (1999) 565), a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin in the field of employment and occupation, education, social security and the access to and supply of goods and services (COM (1999) 566) and a European Action Programme to combat discrimination 2001-2006. The Netherlands Equal Treatment Commission (ETC) takes this opportunity to express its appreciation of the energetic way in which the European Commission has implemented this article of the Treaty.

The Netherlands ETC is a semi-judicial body whose function is to enforce the equal treatment legislation in the field of employment and occupation, the provision of goods and services and the provision of advice on education and vocational choice and, more generally, to promote equal treatment.  For this purpose it hears cases brought by complainants and organisations regarding discrimination, itself institutes one-off investigations into more structural forms of discrimination, and provides information about equal treatment standards. The Netherlands Equal Treatment Act presently prohibits discrimination on the grounds of religion, belief, political opinion, race, sex, nationality, heterosexual or homosexual orientation and marital status. As the national equal treatment authority, the ETC has experience of applying national and international rules on equal treatment. As enforcement body the Equal Treatment Commission comments on national proposals for the review of equal treatment legislation.

The ETC is also involved in developments at the international level (UN and the Council of Europe). Since the role of the European Union in the field of equal treatment is steadily expanding, the Equal Treatment Commission would like to use its expertise and experience in matters relating to the establishment of European anti-discrimination directives too. 

SUBSTANTIVE COMMENTARY

From the point of view of its function, the ETC is mainly concerned to ensure the practicability and effectiveness of the directives now proposed. In addition, it is necessary to prevent a situation in which different anti-discrimination schemes are created for different discriminatory grounds as a result of which greater protection is afforded in respect of one ground than others. In this respect the ETC envisages various problems which could, in its opinion, be remedied by means of a few simple amendments.

1.                     Different discriminatory grounds

The ETC is pleased about the wide scope of the Council Directive establishing a general framework for equal treatment in employment and occupation. The ETC has seen in practice that bringing together different discriminatory grounds within a statutory framework provides good opportunities for enforcement, particularly where the forms of discrimination are current or related. In addition, it is gratifying that a directive is proposed in respect of discrimination on the grounds of racial or ethnic origin which not only prohibits discrimination in the labour market and in the professions but is also intended to guarantee equal treatment in other fields of social life.

The ETC endorses the view of the European Commission that, since the legal grounds for regulating discrimination on the grounds of sex differ from those for regulating discrimination on other grounds and since there are good arguments for leaving intact existing legislation (which is of proven value), it is not desirable to include the equal treatment of men and women in these new directives.  Nonetheless, the protection afforded to the different categories should be equal (taking into account the different backgrounds and the manifestations of unequal treatment on different grounds). This is not the case in all respects with the present proposals. In a number of respects the prohibition of discrimination on the ground of sex will be regulated more strictly than in the proposed directives and in a number of other respects the measures to combat discrimination on grounds of sex will lag behind those on the basis of the newly proposed grounds. The proposed directives go further in some ways in terms of their scope (the proposed directive on equal treatment between persons irrespective of racial or ethnic origin also regulates access to and the provision of goods and services although a similar provision is not contained in the employment and occupation directive or in the directives on the equal treatment of men and women) and in terms of the degree of protection (both the proposed directives regulate, for example, harassment, which is a subject that is not been dealt with in the legislation on the equal treatment of men and women). As a result, there is a danger of ranking: the situation where the protection provided against one discriminatory ground is greater than that provided against other discriminatory grounds. The European Commission has itself stated that it expressly wishes to prevent such a situation and will therefore have to make proposals for this purpose. The risk that legislation relating to the different grounds of discrimination may diverge unduly will become greater if the race/ethnic origin directive is adopted in the short term and the employment directive is not.

Close comparison of the two proposed directives also reveals various differences between the texts. This can give rise to interpretation problems, particularly in respect of matters which are inherently difficult, for example the objective justification test for indirect discrimination and the victimisation provision.

The ETC therefore recommends that:

(a)       the texts of the standards contained in the two proposed directives should be closely co-ordinated with each other;

(b)       an additional directive relating to equal treatment of men and women should be prepared in order to cover matters that fall outside the scope of the existing directives in this field but which are dealt with in the proposed directives on race/ethnic origin and employment; this would then afford them the protection of this prohibition of discrimination;

(c)       a provision should be included in the employment and occupation directive to the effect that this is a first step and that the European Commission will introduce additional measures in order to prohibit discrimination on these grounds in fields other than employment and occupation.

2.          Definitions

The draft directives use the concepts of "racial or ethnic origin" that are found in Article 13 of the EC Treaty. It would be advisable to have a more detailed definition of the term race based on that used in the UN Convention on the Elimination of All Forms of Racial Discrimination of 1966 (CERD). Article 1 of the Convention defines race as including colour, descent and national or ethnic origin. In interpreting the concept of race the European Court of Human Rights[1], the Human Rights Committee which monitors enforcement of the UN Covenant on Civil and Political Rights[2] and the Netherlands Supreme Court[3] have all relied on the definition contained in the UN Convention on the Elimination of All Forms of Racial Discrimination.

In order to prevent differences of interpretation, the preamble in the directive should indicate that for the purposes of the directive the concept of "racial or ethnic origin" is based on the definition in the UN Convention. The ETC recommends that reference be made to international documents and human rights treaties in the case of the other grounds of discrimination too. For example, the term ‘disability’ is defined by the World Health Organisation in the Internatio­nal Classification of Functioning and Disabilities (Geneva 1999).

3.         The concept of discrimination and objective justification 

In principle the two directives apply a closed system of justification for direct discrimination (i.e. the justifications mentioned in the Directive) and an open system for indirect discrimination (i.e. the possibility of invoking an objective  justification). The ETC can endorse this system. The experience gained from Dutch legislation shows that a system of this kind offers good safeguards for strict monitoring of unequal treatment. This does not alter the fact that, in view of the different backgrounds to the various forms of unequal treatment, a certain degree of differentiation is desirable. This is why the ETC endorses the proposal to allow objective justification in the case of direct discrimination on the grounds of age as expressed in the words ‘in particular’ in the opening phrase of Article 5 of the Employment and Occupation Directive. In its commentary on the Dutch bills governing age discrimination, the ETC emphasised, however, that a test of this kind should be strict and should not protect the formation of stereotype images. For the same reasons a degree of discretion in respect of handicap may be necessary, particularly since in the case of this ground too no social consensus has emerged on the question of what differences of treatment are justified and what differences are not. 

The ETC considers that these departures from the closed system should be linked very emphatically to these two grounds of discrimination and that they may not result in acceptance of objective justification in the case of direct discrimination on the grounds of race/ethnic origin, sex, religion and sexual orientation.

As regards the definition of objective justification the ETC would observe that this is fairly broad in comparison with the test developed by the Court of Justice of the European Communities in relation to equal treatment of men and women. Since harmonisation of the different equal treatment standards is desirable, the ETC recommends that the relevant sentence in the text be amended as follows:  

Article 2 (2) (b) of both Directives:

… unless the aim of the contested provision, criterion or practice is objectively justified because it corresponds to a real need of the undertaking or meets a necessary aim of the social policy of a Member State which is unrelated to discrimination on the grounds referred to in article 1 / unrelated to race or ethnic origin / and the means of achieving it are appropriate and necessary.

4.            Harassment

The ETC welcomes the fact that the definition of the concept of discrimination includes harassment as a special form of discrimination. However, the ETC considers that harassment should be defined more broadly by explicitly recognising that harassment can adversely affect working conditions, as also recognised in the standard case law of the ETC. The ETC applies a wide definition of the concept of working conditions, namely the scope for a person to develop and gain experience in the course of his or her work. For example, an atmosphere at work which is intimidating to women or etnic minority employees may mean that the employees discriminated against is not able to perform their work in the same way as their colleagues and that their job performance is therefore adversely affected. This leads to a finding of discrimination on the ground of sex or, as the case may be on the ground of race. The ETC also recommends that the definition of harassment in the directives should be expanded in the following sentence: 

Article 2, paragraph 3, of both Directives:

….or disturbing environment (in any of the areas covered in Article 3): or gives this person reasonable grounds to believe  that his or her objection would adversely affect his or her position, shall be deemed to be discrimination….

It is, in fact, not clear whether harassment is for this purpose confined to harassment by the employer and/or fellow employees or whether it extends to harassment by third parties, for example customers and patients. The ETC would opt for the latter. The ETC considers it desirable that an identical provision be included in the proposed additional directive governing equal treatment between men and women. 

5.            Positive action

The article on positive action in both directives provides that Member States have the right to maintain or adopt measures intended to prevent or compensate for disadvantages suffered by members of a group that come under one of the discriminatory grounds referred to in the directives.

The ETC would observe first of all that the introduction of legislation to prohibit discrimination must not make it necessary to legitimate all kinds of forms of social policy intended to afford better opportunities to disadvantaged groups. It is therefore necessary to make a clear distinction between pursuing a policy of preferential treatment whereby individual members of disadvantaged groups are given preferential treatment and pursuing a general social policy aimed at equal opportunities for everyone. In the case of handicaps above all, it is necessary to pursue a policy of offering disabled people all kinds of provisions that enable them to function as fully and as independently as possible in society. Such provisions must not be assessed by reference to the strict requirements applied in respect of the policy on preferential treatment.

The ETC also considers that the articles concerning preferential treatment need to be clarified. It would recommend in this connection that the article should include a provision to the effect that the disadvantage must be first established and that the means of eliminating this disadvantage should comply with a requirement of proportionality. This means that the policy of preferential treatment is no longer permitted once the disadvantage has been eliminated. Policy on preferential treatment is therefore policy of a temporary nature.

Finally, the ETC notes that it is not clear whether these provisions are intended to follow the case law of the Court of the Justice of the EC relating to policy on preferential treatment. The ETC considers that this case law is not automatically applicable to discrimination on other grounds. As a response to the strict case law of the European Court, an amendment was included in the Treaty of Amsterdam in the form of Article 141 (4) EC Treaty. The ETC considers that this last article should serve as the basis because it expresses the fact that Member States are not only competent to pursue such policy but should also implement the non-discrimination principle. There is therefore a positive obligation to do so.

6.         The genuine occupational qualifications test

As regards this possibility of a general exception in the case of direct discrimination, the ETC would point out that such a provision without further restriction leaves scope for stereotype views that lead to maintenance of patterns of unequal treatment. In this respect the ETC proposes that in relation to discrimination on the grounds of racial or ethnic origin, religion or belief and sexual orientation the provision should be based on the system that exists in the directive on equal treatment of men and women, and that the Member State should be obliged to implement this test.

The ETC therefore recommends that an obligation be included to regulate at national level what occupations are covered by this exception in the form of specific lists of occupations drawn up for this purpose. These lists should be notified to the European Commission and evaluated at regular intervals (at least once every five years) and adjusted. (Such an arrangement would be analogous to that which applies in respect of Article 1 (2) of Directive 76/207). A list of occupations of this kind is not possible in respect of handicaps and age, but in these cases a national instruction could be drawn up regarding the manner in which this exception is to be applied. This instruction too should be regularly evaluated.

7.      Group actions

A collective right of action for private and public organisations is lacking in the draft directives. Although the proposals make it possible for organisations to act on behalf of an individual complainant, this possibility already exists in all EU Member States.  The aim of the right of group action is that alleged unequal treatment can be assessed by a court independently of the special circumstances of the individual case. This provides for the possibility of combating structural forms of discrimination.  The right of group action also makes it possible for interests which individual victims do not pursue before the courts to be represented jointly. Finally, organisations can act in cases where individuals dare not do so for fear of reprisals, for example by their employer.

The wording of the collective right of action could be based on the guidelines for the protection of consumers in which this right is frequently contained.  For example, the Directive on the protection of consumers in respect of distance contracts provides that “consumer organisations having a legitimate interest in protecting consumers are entitled to take action under national law".[4]

The ETC considers that in view of the positive experience gained from the Dutch Equal Treatment Act in this respect the new directives should contain a collective right of action. This could be achieved by amending the draft directives in the following way:

In Article 8 (2) Directive Com (1999) 565 and Article 7 (2) Directive Com (1999) 566:

the words on behalf of the complainant with his or her approval should be deleted and replaced by the following phrase: If their legal action is based on the treatment of an individual citizen they cannot pursue a claim without the approval of this person.

8.            Enforcement

The directive on equal treatment in employment and occupation does not contain an obligation for the establishment of a structure within which the national legislator must provide for a national specialised body that has the statutory duty of investigating free of charge complaints about discrimination and then ruling on these cases or submitting the complaints to judicial bodies. However, the directive on race/ethnic origin does contain such a provision (in article 12). In view of the high threshold which victims of discrimination have to overcome in order to file complaints, the existence of specialised equal treatment institutions meet a significant need in practice (examples are the British Commission for Racial Equality and the Dutch Equal Treatment Commission).  In this way it is possible to compensate for the normal procedural barriers (time, money and trouble) and the disinclination to submit discrimination cases to the courts. The ETC proposes that the employment and occupation directive should be brought into line with the directive on race and ethnic origin.

9.         The burden of proof

The ETC endorses the importance of an arrangement for the apportionment of the burden of proof.  It should be noted in this connection that the burden of proof has not been completely reversed in the proposed directives, contrary to what has often been suggested (for example by the European Commission in the explanatory notes). However, the burden of proof has, to some extent already shifted. The ETC has seen in practice that if the equal treatment standards are to be effectively forced it is essential that the burden of proof placed on the person able to adduce the proof. This means that the complainant must produce primer facie evidence of discrimination, after which the burden of proof is shifted the other party, who must then refute the allegation.

It follows from the above that there is an obligation on the defendant to adduce data and that in the event of an untransparant system the burden of proof was shifted to the defendant, as laid down in the case law of the Court of Justice of the European Communities in relation to sex discrimination (Danfoss). The ETC therefore recommends that an obligation be included in the directives for defendants and third parties to provide the organisations responsible for enforcement with the requested information and that the risk of untransparant policy should be imputed to the party responsible for it.

10.            Victimisation

In point 15 of the preamble to the draft directive on race and ethnic origin there is a reference to adequate judicial protection in civil matters against victimisation. It is not clear whether "civil matters" is intended to limit the scope to relationships under private law. If so, this would mean that in cases involving legal relationships with government bodies protection against victimisation is not considered necessary. The directive should exclude the possibility of this conclusion by referring to “legal matters” rather than "civil matters".

The problem of victimisation is widespread, but there is no adequate sanction. Nor is any sanction mentioned in the proposed directives. As mentioned previously, the Equal Treatment Commission considers that the right of collective action is an adequate instrument to provide protection against victimisation. The ETC also considers it desirable that a clear and adequate sanction be included in the victimisation provisions of the directives. The amount of compensation should be sufficient to act as a deterrent and shoud be effective. Furthermore, the compensation should only benefit the victim of the discrimination. Finally, the ETC recommends that the discrepancies between the relevant provisions of the two directives should be eliminated. 

11.            Evaluation provision

The directives provide for a duty to communicate information concerning the implementation of the equal treatment standards and for a report to be drawn up within two years of the entry into force of the directive. The directives make no further provision for monitoring their effects in the period after 2004. Permanent monitoring is advocated in various commentaries on the directives.  Article 128 of the Treaty establishing the European Community, which deals with employment policy, is one of the examples cited here. Under this article the Member States submit an annual report to the Council and the Commission. The Council then uses this report to carry out an annual survey of implementation. On the basis of this survey the Council and the Commission report to the European Council.

The ETC considers it important that the implementation of both directives by the Member States should be regularly monitored. Provision for this could be made by obliging the Member States to report to the Commission every two years on the application of the directives. It is desirable for this purpose that both directives should include provisions governing the reporting obligation comparable to those in respect of employment policy in Article 128 (3) of the Treaty establishing the European Community Convention. However, the ETC considers it equally important that an evaluation of the effects of both directives should take place at some point, for example five years after implementation of the directives in the Member States. A provision to this effect should also be included in the directives.