Fwd: [multiethnic]: EU race equality directive
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Subject: Fwd: [multiethnic]: EU race equality directive
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Fwd: [multiethnic]: EU race equality directive
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COUNCIL OF THE EUROPEAN UNION
Brussels, 20 June 2000 (OR. en)
9339/00 LIMITE
SOC 221 JAI 67
LEGISLATIVE ACTS AND OTHER INSTRUMENTS
Council Directive implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin
DIRECTIVE 2000/ /EC OF THE COUNCIL
of implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community and in
particular Article 13 thereof,
Having regard to the proposal from the Commission,
Having regard to the Opinion of the European Parliament,
Having regard to the Opinion of the Economic and Social Committee,
Having regard to the Opinion of the Committee of the Regions,
Whereas:
(1) The Treaty on European Union marks a new stage in the process of
creating an ever closer union among the peoples of Europe.
(2) In accordance with Article 6 of the Treaty on European Union, the
European Union is founded on the principles of liberty, democracy,
respect for human rights and fundamental freedoms, and the rule of
law, principles which are common to the Member States, and should
respect fundamental rights as guaranteed by the European Convention
for the protection of Human Rights and Fundamental Freedoms and as
they result from the constitutional traditions common to the Member
States, as general principles of Community Law.
(3) The right to equality before the law and protection against
discrimination for all persons constitutes a universal right
recognised by the Universal Declaration of Human Rights, the United
Nations Convention on the Elimination of all forms of Discrimination
Against Women, the International Convention on the Elimination of all
forms of Racial Discrimination and the United Nations Covenants on
Civil and Political Rights and on Economic, Social and Cultural Rights
and by the European Convention for the Protection of Human Rights and
Fundamental Freedoms, to which all Member States are signatories.
(4) It is important to respect such fundamental rights and freedoms,
including the right to freedom of association. It is also important,
in the context of the access to and provision of goods and services,
to respect the protection of private and family life and transactions
carried out in this context.
(5) The European Parliament has adopted a number of Resolutions on the
fight against racism in the European Union.
(6) The European Union rejects theories which attempt to determine the
existence of separate human races. The use of the term "racial
origin" in this Directive does not imply an acceptance of such
theories.
(7) The European Council in Tampere, on 15 and 16 October 1999,
invited the Commission to come forward as soon as possible with
proposals implementing Article 13 of the EC Treaty as regards the
fight against racism and xenophobia.
(8) The Employment Guidelines 2000 agreed by the European Council in
Helsinki, on 10 and 11 December 1999, stress the need to foster
conditions for a socially inclusive labour market by formulating a
coherent set of policies aimed at combating discrimination against
groups such as ethnic minorities.
(9) Discrimination based on racial or ethnic origin may undermine the
achievement of the objectives of the EC Treaty, in particular the
attainment of a high level of employment and of social protection, the
raising of the standard of living and quality of life, economic and
social cohesion and solidarity. It may also undermine the objective
of developing the European Union as an area of freedom, security and
justice.
(10) The Commission presented a Communication on Racism, Xenophobia
and Anti-Semitism in December 1995.
(11) The Council adopted on 15 July 1996 Joint Action (96/443/JHA)
concerning action to combat racism and xenophobia under which the
Member States undertake to ensure effective judicial cooperation in
respect of offences based on racist or xenophobic behaviour.
(12) To ensure the development of democratic and tolerant societies
which allow the participation of all persons irrespective of racial or
ethnic origin, specific action in the field of discrimination based on
racial or ethnic origin should go beyond access to employed and
self-employed activities and cover areas such as education, social
protection including social security and healthcare, social advantages
and access to and supply of goods and services.
(13) To this end, any direct or indirect discrimination based on
racial or ethnic origin as regards the areas covered by this Directive
should be prohibited throughout the Community. This prohibition of
discrimination should also apply to nationals of third countries, but
does not cover differences of treatment based on nationality and is
without prejudice to provisions governing the entry and residence of
third-country nationals and their access to employment and to
occupation.
(14) In implementing the principle of equal treatment irrespective of
racial or ethnic origin, the Community should, in accordance with
Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to
promote equality between men and women, especially since women are
often the victims of multiple discrimination.
(15) The appreciation of the facts from which it may be inferred that
there has been direct or indirect discrimination is a matter for
national judicial or other competent bodies, in accordance with rules
of national law or practice. Such rules may provide in particular for
indirect discrimination to be established by any means including on
the basis of statistical evidence.
(16) It is important to protect all natural persons against
discrimination on grounds of racial or ethnic origin. Member States
should also provide, where appropriate and in accordance with their
national traditions and practice, protection for legal persons where
they suffer discrimination on grounds of the racial or ethnic origin
of their members.
(17) The prohibition of discrimination should be without prejudice to
the maintenance or adoption of measures intended to prevent or
compensate for disadvantages suffered by a group of persons of a
particular racial or ethnic origin, and such measures may permit
organisations of persons of a particular racial or ethnic origin where
their main object is the promotion of the special needs of those
persons.
(18) In very limited circumstances, a difference of treatment may be
justified where a characteristic related to racial or ethnic origin
constitutes a genuine and determining occupational requirement, when
the objective is legitimate and the requirement is proportionate.
Such circumstances should be included in the information provided by
the Member States to the Commission.
(19) Persons who have been subject to discrimination based on racial
and ethnic origin should have adequate means of legal protection. To
provide a more effective level of protection, associations or legal
entities should also be empowered to engage, as the Member States so
determine, either on behalf or in support of any victim, in
proceedings, without prejudice to national rules of procedure
concerning representation and defence before the courts.
(20) The effective implementation of the principle of equality
requires adequate judicial protection against victimisation.
(21) The rules on the burden of proof must be adapted when there is a
prima facie case of discrimination and, for the principle of equal
treatment to be applied effectively, the burden of proof must shift
back to the respondent when evidence of such discrimination is
brought.
(22) Member States need not apply the rules on the burden of proof to
proceedings in which it is for the court or other competent body to
investigate the facts of the case. The procedures thus referred to
are those in which the plaintiff is not required to prove the facts,
which it is for the court or competent body to investigate.
(23) Member States should promote dialogue between the social partners
and with non-governmental organisations to address different forms of
discrimination and to combat them.
(24) Protection against discrimination based on racial or ethnic
origin would itself be strengthened by the existence of a body or
bodies in each Member State, with competence to analyse the problems
involved, to study possible solutions and to provide concrete
assistance for the victims.
(25) This Directive lays down minimum requirements, thus giving the
Member States the option of introducing or maintaining more favourable
provisions. The implementation of this Directive should not serve to
justify any regression in relation to the situation which already
prevails in each Member State.
(26) Member States should provide for effective, proportionate and
dissuasive sanctions in case of breaches of the obligations under this
Directive.
(27) The Member States may entrust management and labour, at their
joint request, with the implementation of this Directive as regards
provisions falling within the scope of collective agreements, provided
that the Member States take all the necessary steps to ensure that
they can at all times guarantee the results imposed by this Directive.
(28) In accordance with the principles of subsidiarity and
proportionality as set out in Article 5 of the EC Treaty, the
objective of this Directive, namely ensuring a common high level of
protection against discrimination in all the Member States, cannot be
sufficiently achieved by the Member States and can therefore, by
reason of the scale and impact of the proposed action, be better
achieved by the Community. This Directive does not go beyond what is
necessary in order to achieve those objectives,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Purpose
The purpose of this Directive is to lay down a framework for combating
discrimination on the grounds of racial or ethnic origin, with a view
to putting into effect in the Member States the principle of equal
treatment.
Article 2
Concept of discrimination
1. For the purposes of this Directive, the principle of equal
treatment shall mean that there shall be no direct or indirect
discrimination based on racial or ethnic origin.
2. For the purposes of paragraph 1:
(a) 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;
(b) 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.
3. 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. In this context, the concept of
harassment may be defined in accordance with the national laws and
practice of the Member States.
4. An instruction to discriminate against persons on grounds of racial
or ethnic origin shall be deemed to be discrimination within the
meaning of paragraph 1.
Article 3
Scope
1. Within the limits of the powers conferred upon the Community, this
Directive shall apply to all persons, as regards both the public and
private sectors, including public bodies, in relation to:
(a) conditions for access to employment, to self-employment and to
occupation, including selection criteria and recruitment conditions,
whatever the branch of activity and at all levels of the professional
hierarchy, including promotion;
(b) access to all types and to all levels of vocational guidance,
vocational training, advanced vocational training and retraining,
including practical work experience;
(c) employment and working conditions, including dismissals and pay;
(d) membership of and involvement in an organisation of workers or
employers, or any organisation whose members carry on a particular
profession, including the benefits provided for by such organisations;
(e) social protection, including social security and healthcare;
(f) social advantages;
(g) education;
(h) access to and supply of goods and services which are available to
the public, including housing.
2. 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 4
Genuine and determining occupational requirements
Notwithstanding Article 2(1) and (2), Member States may provide that 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.
Article 5
Positive action
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.
Article 6
Minimum requirements
1. Member States may introduce or maintain provisions which are more
favourable to the protection of the principle of equal treatment than
those laid down in this Directive.
2. The implementation of this Directive shall under no circumstances
constitute grounds for a reduction in the level of protection against
discrimination already afforded by Member States in the fields covered
by this Directive.
CHAPTER II
REMEDIES AND ENFORCEMENT
Article 7
Defence of rights
1. Member States shall ensure that judicial and/or administrative
procedures, including where they deem it appropriate conciliation
procedures, for the enforcement of obligations under this Directive
are available to all persons who consider themselves wronged by
failure to apply the principle of equal treatment to them, even after
the relationship in which the discrimination is alleged to have
occurred has ended.
2. Member States shall ensure that associations, organisations or
other legal entities, which have, in accordance with the criteria laid
down by their national law, a legitimate interest in ensuring that the
provisions of this Directive are complied with, may engage, either on
behalf or in support of the complainant, with his or her approval, in
any judicial and/or administrative procedure provided for the
enforcement of obligations under this Directive.
3. Paragraphs 1 and 2 are without prejudice to national rules relating
to time limits for bringing actions as regards the principle of
equality of treatment.
Article 8
Burden of proof
1. Member States shall take such measures as are necessary, in
accordance with their national judicial systems, to ensure that, when
persons who consider themselves wronged because the principle of equal
treatment has not been applied to them establish, before a court or
other competent authority, facts from which it may be presumed that
there has been direct or indirect discrimination, it shall be for the
respondent to prove that there has been no breach of the principle of
equal treatment.
2. Paragraph 1 shall not prevent Member States from introducing rules
of evidence which are more favourable to plaintiffs.
3. Paragraph 1 shall not apply to criminal procedures.
4. Paragraphs 1, 2 and 3 shall also apply to any proceedings brought
in accordance with Article 7(2).
5. Member States need not apply paragraph 1 to proceedings in which it
is for the court or competent body to investigate the facts of the
case.
Article 9
Victimisation
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 10
Dissemination of information
Member States shall take care that the provisions adopted pursuant to
this Directive, together with the relevant provisions already in
force, are brought to the attention of the persons concerned by all
appropriate means throughout their territory.
Article 11
Social dialogue
1. Member States shall, in accordance with national traditions and
practice, take adequate measures to promote the social dialogue
between the two sides of industry with a view to fostering equal
treatment, including through the monitoring of workplace practices,
collective agreements, codes of conduct, research or exchange of
experiences and good practices.
2. Where consistent with national traditions and practice, Member
States shall encourage the two sides of the industry without prejudice
to their autonomy to conclude, at the appropriate level, agreements
laying down anti-discrimination rules in the fields referred to in
Article 3 which fall within the scope of collective bargaining. These
agreements shall respect the minimum requirements laid down by this
Directive and the relevant national implementing measures.
Article 12
Dialogue with Non-Governmental Organisations
Member States shall encourage dialogue with appropriate
non-governmental organisations which have, in accordance with their
national law and practice, a legitimate interest in contributing to
the fight against discrimination on grounds of racial and ethnic
origin with a view to promoting the principle of equal treatment.
CHAPTER III
BODIES FOR THE PROMOTION OF EQUAL TREATMENT
Article 13
1. Member States shall designate a body or bodies for the promotion of
equal treatment of all persons without discrimination on the grounds
of racial or ethnic origin. These bodies may form part of agencies
charged at national level with the defence of human rights or the
safeguard of individuals' rights.
2. Member States shall ensure that the competences of these bodies
include:
- without prejudice to the right of victims and of associations,
organisations or other legal entities referred to in Article 7(2),
providing independent assistance to victims of discrimination in
pursuing their
complaints about discrimination,
- conducting independent surveys concerning discrimination,
- publishing independent reports and making recommendations on any
issue relating to such discrimination.
CHAPTER IV
FINAL PROVISIONS
Article 14
Compliance
Member States shall take the necessary measures to ensure that:
(a) any laws, regulations and administrative provisions contrary to
the principle of equal treatment are abolished;
(b) any provisions contrary to the principle of equal treatment which
are included in individual or collective contracts or agreements,
internal rules of undertakings, rules governing profit-making or
non-profit-making associations, and rules governing the independent
professions and workers' and employers' organisations, are or may be
declared, null and void or are amended.
Article 15
Sanctions
Member States shall lay down the rules on sanctions applicable to
infringements of the national provisions adopted pursuant to this
Directive and shall take all measures necessary to ensure that they
are applied. The sanctions, which may comprise the payment of
compensation to the victim, must be effective, proportionate and
dissuasive. The Member States shall notify those provisions to the
Commission by * at the latest and shall notify it without delay of any
subsequent amendment affecting them.
Article 16
Implementation
Member States shall adopt the laws, regulations and administrative
provisions necessary to comply with this Directive by * or may entrust
management and labour, at their joint request, with the implementation
of this Directive as regards provisions falling within the scope of
collective agreements. In such cases, Member States shall ensure that
by *, management and labour introduce the necessary measures by
agreement, Member States being required to take any necessary measures
to enable them at any time to be in a position to guarantee the
results imposed by this Directive. They shall forthwith inform the
Commission thereof.
When Member States adopt these measures, they shall contain a
reference to this Directive or be accompanied by such a reference on
the occasion of their official publication. The methods of making
such a reference shall be laid down by the Member States.
Article 17
Report
1. Member States shall communicate to the Commission by * and every
five years thereafter, all the information necessary for the
Commission to draw up a report to the European Parliament and the
Council on the application of this Directive.
2. The Commission's report shall take into account, as appropriate,
the views of the European Monitoring Centre on Racism and Xenophobia,
as well as the viewpoints of the social partners and relevant
non-governmental organisations. In accordance with the principle of
gender mainstreaming, this report shall, inter alia, provide an
assessment of the impact of the measures taken on women and men. In
the light of the information received, this report shall include, if
necessary, proposals to revise and update this Directive.
Article 18
Entry into force
This Directive shall enter into force on the day of its publication in
the Official Journal of the European Communities.
Article 19
Addressees
This Directive is addressed to the Member States.
Done at
For the Council
The President
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