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Legislative framework

June 4th 2012
On a European level there are two different legislative frameworks regarding equality and non-discrimination law, that of the EU (EU non-discrimination directives) and that of the Council of Europe (European Convention of Human Rights, ECHR). There are also United Nations conventions that make up the broader international legislative framework in the field.

EU legislative framework

European Union legislation is legally binding in all EU Member States, who have the obligation not only to respect and apply the EU laws themselves, but to implement them to ensure that their citizens have to respect and apply them as well.

In the field of equality and non-discrimination law, there are a certain number of Directives regarding different grounds of discrimination and also different areas of law, as well as the European Union Charter of fundamental rights.

EU Charter of fundamental rights

The Charter of Fundamental Rights of the EU assembles in a single document the fundamental rights and freedoms protected in the EU, regrouped in six chapters: dignity; freedoms; equality; solidarity; citizens’ rights and justice. Adopted in 2000, the Charter is legally binding since the entry into force of the Lisbon Treaty in 2009. It is addressed to the institutions and bodies of the EU and the national authorities of EU Member States when they are implementing EU legislation. Title III on equality contains general provisions of equality before the law and prohibition of any form of discrimination as well as more specific provisions concerning the rights of the child and of the elderly, integration of persons with disabilities, equality between women and men and linguistic diversity.

Framework employment Directive

Directive 2000/78/EC against discrimination at work on grounds of religion or belief, disability, age or sexual orientation:

  • Principle of equal treatment in employment and training irrespective of religion or belief, disability, age or sexual orientation;
  • Definitions of direct and indirect discrimination and of harassment;
  • Positive action to ensure full equality in practice;
  • The right to complain through a judicial or administrative procedure, with appropriate penalties for those who discriminate;
  • Shared burden of proof in civil and administrative cases: victims must provide evidence of alleged discrimination; defendants must provide prove that there has been no breach of the equal treatment principle;
  • Employers must make reasonable efforts to accommodate disabled people who are qualified to participate in training or paid employment;
  • Limited exceptions to the principle of equal treatment where the ethos of a religious organisation needs to be preserved, or where an employer legitimately needs an employee to be from a certain age group.

Race and ethnic origin Directive

Directive 2000/43/EC against discrimination on grounds of race and ethnic origin:

  • Protection against discrimination on grounds of racial or ethnic origin in employment and training, education, social protection, membership of organisations and access to goods and services;
  • Same rules as the Framework employment directive regarding definitions of discrimination and harassment, positive action, rights of redress and sharing the burden of proof;
  • Limited exceptions to the principle of equal treatment (where a difference in treatment on the grounds of race or ethnic origin is a genuine occupational requirement);
  • Creation, in each EU country, of an organisation to promote equal treatment and assist victims of racial discrimination (National Equality Bodies).

Gender recast Directive

Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast):

1. Equal treatment of men and women in access to:

  • work (including selection criteria);
  • self-employment;
  • occupations;
  • vocational training;
  • career advancement;
  • working conditions (including dismissals).

2. Prohibition of any discrimination - direct or indirect - on grounds of gender, including:

  • reference to marital or family status;
  • less favourable treatment of women related to pregnancy or maternity leave;
  • harassment, whether of a sexual nature or not;
  • instructions to discriminate.

3. Same rules as the Framework employment directive regarding positive action, rights of redress and sharing the burden of proof.

4. Protection from dismissal or any other form of retaliation by the employer of employees who complain or take legal action to enforce their right to equal treatment.

5. Creation, in each EU country, of an organisation to promote equal treatment and assist victims of gender discrimination in the fields covered by the directive (National Equality Bodies).

Gender Goods and services Directive

Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services:

1. Equal treatment of men and women in the access to and supply of goods and services:

  • Applicable to all persons and organisations that make goods and services accessible to the public,
  • Only outside the area of private and family life,
  • Not applicable to the content of media and advertisement or to education.

2. Prohibition of any discrimination – direct or indirect – on the grounds of sex in the fields covered by the directive, including:

  • less favourable treatment of women for reasons of pregnancy or maternity,
  • harassment, whether of a sexual nature or not,
  • instructions to discriminate.

3. Exceptions:

  • in general permitted if justified by a legitimate aim, proportionate and necessary,
  • no prohibition of more favourable provisions concerning the protection of women as regards pregnancy and maternity,
  • specific exception for insurance and related financial services, declared invalid by the CJEU in 2011 in the Test-Achats case (C-236/09).

4. Same rules as the Framework employment directive regarding positive action, rights of redress and sharing the burden of proof.

5. Creation, in each EU country, of an organisation to promote equal treatment and assist victims of gender discrimination in the fields covered by the directive (National Equality Bodies).

Framework Directive Proposal

A Proposal for a Directive against discrimination based on age, disability, sexual orientation and religion or belief beyond the workplace was also adopted by the European Commission in 2008 and is being negotiated by the EU legislature:

  • Equal treatment in the areas of social protection, including social security and health care, education and access to and the supply of goods and services which are commercially available to the public, including housing;
  • Prohibition of direct and indirect discrimination as well as harassment and victimisation;
  • An obligation to provide people with disabilities with general accessibility as well as "reasonable accommodation" in all the areas covered. Both are subject to the condition that they do not impose a disproportionate burden on service providers.

Other related and relevant directives and proposals:

Council of Europe legislative framework (ECHR)

The European Convention of Human Rights (ECHR) is an international agreement adopted (so far) by 47 European States, including all 27 EU Member States. It is legally binding and the States who adopted it have an obligation to ensure it is fully applied and respected on their territories. If they do not fulfil this obligation they can face charges for violation of the ECHR before the European Court of Human Rights in Strasburg.

Article 14 of the ECHR prohibits any discrimination in the enjoyment of the rights of the Convention (right to life, right not to be victim of torture or inhuman behaviour, right to freedom of expression, etc.) on “any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Thus, there is no general prohibition of discrimination as such but an extended prohibition of discrimination on “any ground” in the enjoyment of the rights of the Convention.

Directly or indirectly, through the prohibition of discrimination in Article 14, other specific provisions of the ECHR can in many cases have an influence on equality and non-discrimination legislation in the Member States. For instance, issues linked to discrimination on the grounds of religion or belief, are often covered by Article 9; Freedom of thought, conscience and religion and discrimination on the grounds of sexual orientation can be covered by Article 8; Right to respect for private and family life.

International legislative framework (UN Conventions)

Convention on the Rights of Persons with Disabilities (CRPD)

Adopted in 2006, the CRPD entered into force in the signatory States in 2008. It aims at changing attitudes towards persons with disabilities, to be regarded as subjects with rights which they are capable of claiming instead of as objects of medical treatment, charity and social protection. It reaffirms that all persons with disabilities must enjoy all human rights and fundamental freedoms, clarifying how these rights are to be applied and identifying areas where adaptations need to be made. Several European national equality bodies are also designated within their States as monitoring and implementation bodies in accordance with Article 33.2 of the Convention.

Convention on the elimination of all forms of discrimination against women (CEDAW)

Adopted in 1979, the CEDAW defines the meaning of equality between men and women and how it can be achieved, establishing a “bill of rights” for women and an action plan for States to guarantee the enjoyment of those rights. The focus of the Convention is placed on three areas: the legal status of women; their reproductive rights and the impact of cultural factors on the situation and fundamental rights of women. The implementation of the Convention is monitored by a Committee of independent experts on women’s rights, receiving regular reports form the signatory States on the situation of women.

Universal Declaration of Human Rights (UDHR)

Proclaimed by the UN General Assembly in Paris in 1948 “as a common standard of achievement for all peoples and all nations”, the UDHR sets out for the first time fundamental human rights to be universally acknowledged and protected. By its simplicity and universal character the UDHR remains an important basic set of rights, however they have been further detailed and defined in subsequent international or other treaties. As regards the principle of equality, the Preamble and Article 1 in general and Article 2 in particular underline the importance of equality in dignity and rights of all persons, “without distinction of any kind” on the basis of the status of the country of origin of a person or his/her own personal status of any kind.

International Covenant on Economic, Social and Cultural Rights (CESCR)

Adopted by the UN General Assembly in 1966, the ICESCR proclaims fundamental human rights of the “second generation”, such as the right to work and to form or join trade unions, the protection of the family including mothers before and after childbirth, and the rights to an adequate standard of living and to education. According to Article 2 the States Parties are bound to guarantee that the proclaimed rights are exercised without “discrimination of any kind”, while according to Article 3 they should “ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights” of the Covenant.

International Covenant on Civil and Political Rights (ICCPR)

Adopted at the same time as the CESCR in 1966, the CCPR proclaims fundamental rights such as the right to life, the right not to be subjected to torture or held in slavery and the right to liberty and security of person. In addition to the same general obligation for States Parties to ensure the enjoyment of the proclaimed rights without discrimination, as can be found in the CESCR, the ICCPR also recognizes the right of all persons to equality before the courts and tribunals (Article 14) as well as before the law (Article 26). It also recognizes basic rights of persons belonging to ethnic, religious or linguistic minorities (Article 27).

Convention on the Rights of the Child (CRC)

The Convention on the Rights of the Child was adopted in 1989 and sets out the basic human rights that children everywhere have, setting standards in the fields of healthcare, education and legal, civil and social services. The four main principles of the Convention are: non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child. Article 2 of the Convention obliges the States Parties to ensure that the rights enumerated by the Convention are applied “to each child within their jurisdiction without discrimination of any kind”.