Topic 1 Overview of the most important aspects and deadlines of the Directive

  • Directive 2000/43/EC of 29 June 2000 on the implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.
    • Infringement proceedings for failing to implement?
    • Putting into effect the principle of equal treatment

What are some examples of discrimination on the grounds of race and/ or ethnicity?

  • ‘there shall be no direct or indirect discrimination based on racial or ethnic origin.’ (Article 2(1))
  • All natural persons and all legal persons including nationals of third countries
  • ‘racial or ethnic origin’ not defined in the Directive?
    • ‘race’ person’s outward characteristics, such as skin colour
    • ‘ethnicity’ à language, religion, culture, social customs, traditions
  • Legal certainty?
  • Inclusive definitions and expanded application of the Directive? (Case C-83/14, CHEZ Razpredelenie Bulgaria)
  • Commission’s approach?

‘This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.’ Article 3(2)

Case C-668/15, Jyske Finans

Refused to attribute any significance to the overlaps between ethnic origin and nationality

Case C-54/07, Feryn

There does not need to exist an identifiable victim for a case to be brought to Court

“The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, something which is clearly likely to strongly dissuade certain candidates from submitting their candidature and […] hinder their access to the labour market, constitutes direct discrimination”

->Would a refugee or asylum seeker be able to rely on this Directive in order to complain that they are discriminated against?

Nationality ≠ Correlation between a refugee/asylum seeker and their ethnicity?

  • The Equality Ombudsman v. Skarets Fastigheter Aktiebolag (Swedish Court of Appeal case)
    • close correlation between a person being a refugee/asylum seeker and their ethnicity

‘direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin’ (Art. 2(2)(a))

->By the person actually undertaking the discriminatory conduct and a person instructing another to undertake the discriminatory conduct.

Can you think of examples of Direct Discrimination that would be prohibited by the Directive?

‘indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’ (Art 2(2)(b))

  • Apparent neutrality of the criterion or practice
  • By the person actually undertaking the discriminatory conduct and a person instructing another to undertake the discriminatory conduct
  • Case C-83/14, CHEZ Razpredelenie Bulgaria

○In order for a measure to be capable of constituting indirect discrimination under the Directive it is sufficient that ‘although using neutral criteria not based on the protected characteristic, it has the effect of placing particularly persons possessing that characteristic at a disadvantage’

Can you think of examples of Indirect Discrimination that would be prohibited by the Directive?

‘Harassment shall be deemed to be discrimination within the meaning of paragraph 1, when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.’ (Art 2(3))

  • establishing a hostile environment that has the effect of violating a person’s dignity is sufficient for a finding of Harassment
  • directed at specific racial or ethnic minority groups or individuals

Can you think of examples of Harassment that would be prohibited  by the Directive?

‘Member States shall introduce into their national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment.’ (Article 9)

 

  • Victimisation is any adverse measure taken by an organisation (including employers and public authorities) or by an individual in retaliation for efforts to enforce the right to equal treatment.

Article 5: ‘With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.’

  • organisations of persons of a particular racial or ethnic origin where their main object is the promotion of the special needs of those persons.

 

Article 4: ‘a difference of treatment which is based on a characteristic related to racial or ethnic origin shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’

  • How is the proportionality requirement assessed?
  • This defence that can be used ‘In very limited circumstances’ (Recital 18 in the preamble)

 

  • payment of compensation -> ‘effective, proportionate and dissuasive’
  • criminal case -> payment of a financial penalty or imprisonment
  • sanctions can take the form of prohibitory injunctions according to the rules of national law
  • Case C-81/12, Asociatia Accept v Consiliul National pentru Combaterea Discriminarii
    • Directive precludes national law under which sanctions are purely symbolic and that under certain conditions it would be in breach of the Directive if it is only possible to give a warning in a case of discrimination.

Jean, a Cameroonian national, has entered Rubinia, an EU Member State, irregularly and has applied for asylum. While waiting for his asylum application to be processed, he is told that asylum seekers are not allowed to work in any industry and therefore receive a monthly stipend. The stipend covers his accommodation, but does not leave him with enough money to eat by the end of the month; it is, by law, 60% of the minimum salary guaranteed to Rubinian nationals. Two months later, his asylum application is approved and he is granted refugee status. As a refugee, he is only allowed to work in the farming and agricultural sectors. He is told that this is a necessary governmental policy in order to ensure that the refugee application system is not abused and overwhelmed by economic migrants. When he does get a job, he realises that he is earning less than half of the salary that is earned by other employees that are Rubinian nationals. When he complains about this, he is told mockingly by the manager: ‘What are you going to do? Work as an IT consultant?’ Jean complains to the authorities and is immediately fired from his job for ‘stirring up unnecessary trouble with other employees’. Due to staff shortages and budgetary cuts, the authorities end up investigating the complaint three years later, by which time all witnesses claim to have forgotten the exchange between Jean and his manager.

Kuda isa good friend of Jean. He is a national of Rubinia and although not a person of African descent, he has a darker complexion. The manager mistakenly thinks that he was also a refugee, getting paid a reduced salary and is also planning to complain to the authorities. Just to be on the safe side, he fires him too.

Finally, Jean’s wife, Ayshe, is a Muslim and wears the burqa. She wants to get a job as a receptionist, but she is told that she must have a university degree and an excellent command of the Rubinian language. This had not been part of the job advertisement that she had seen when applying for the job; it was mentioned for the first time during the interview. When she attempts to go to University and to enrol in language classes, she is told that one cannot be a student if they are wearing the burqa. As a result, she is unable to attend University. When leave the University’s administration office, she spots a poster that says ‘This University supports “Radicals out of Rubinia”’. The poster prominently displays a picture of a woman wearing a burqa.

Advise the parties on whether and how they could rely on the Race Equality Directive.