The Race Directive: A New Dimension in the Fight against Ethnic Discrimination in Europe

in European Yearbook of Minority Issues Online
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The Race Directive: A New Dimension in the Fight against Ethnic Discrimination in Europe

in European Yearbook of Minority Issues Online


t For a comparison of national antidiscrimination legislation, see the EUMC (European Monitoring Centre on Racism and Xenophobia) Report "Study on the Comparison of the Adopted Article 13 Council Directives with Existing National Legislation in the EU Member States" (May 2002), 1 Council Directive 2000/43/EC of 29 June 2000 Implementing the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin, Official Journal L 180 ( 19 July 2000), 22. 2 Art. 1 of the Directive. 3 Even the use of the word "race" was subject to criticism from some member states who claimed that it could be interpreted as an acceptance of racist theories. By way of compromise, a recital was included m the text of the Directive declaring that the Community deplores theories based upon the alleged existence of human races. See Adam Tyson, "The Negotiation of the European Community Directive on Racial Discrimination", 4(3) European Journal of Migration and Law (EJML) �2001). 199, 202. It is, however, probable that the term "antidiscrimination law" will be employed by some member states in transposing the Directive. See e.g. for Germany, Rainer Nickel, "Handlungsauftrage zur Bekampfung von ethnischen Diskriminierungen in der neuen Gleichbehandlungsrichthnie 2000/43/EG", 54 Neue Juristische Wochenschrift ( 2001 2668, 2670. 4 Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation, Official Journal L 303 (2 December 2000). 16.

5 See e.g. Isabelle Chopin, "The Starting Line Group: A Harmonised Approach to Fight Racism and to Promote Equal Treatment", 1( 1 ) EJML ( 1999), 111; and id., "Campaigning Against Racism and Xenophobia: From a Legislative Perspective at European Level" (European Network Against Racism, 1999), at 2 2.pdf. 6 For details of the objections and amendments to the original Commission proposal, see Tyson, "The Negotiation ...", 199. For the development of the Directive, see also the respective opinions of the Committee of the Regions (12 April), the Parliament (18 May), the Economic and Social Committee (25 May) and the amended proposal of the Commission (COM (2000) 328 final, 31 May 2000). 7 During both the Amsterdam and Nice Intergovernmental Conferences, there were forces pushing for qualified majority voting (QMV ) for Art. 13 TEC. The Treaty of Nice allows for QMV at least insofar as it introduced into Art. 13 TEC the following new paragraph 2: "By way of derogation from para- graph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251." See Official Journal C 80 ( 10 March 2001 ), 14. 8 See e.g. Per Cramer and Pdl Wrange, "The Haider Affair, Law and European Integration", Europardttslig tidskrift (2000), 28; Mathew Happold, "Fourteen Against One: The EU Member States' Response to Freedom Party Participation in the Austrian Government", 49 Int'l & Comp. L. Q. (2000), 953; Gabriel N. Toggenburg, "La crisi austriaca: Delicati equilibrismi sospesi tra molte dimensioni", 2 Diritto publico comparato ed europeo (2001), 735; and Michael Merlingen, Cas Mudde and Ulrich Sedelmeier, "The Right and the Righteous? European Norms, Domestic Politics and the Sanctions Against Austria", 39 Journal of Common Market Studies (2001), 59. 9 See e.g. Kirsty Hughes representing the Commissioner Anna Diamantopoulou, speech held in Birmingham in February 2000, see at social/ speeches/000217ad.pdf: "... we wanted to make headway on all grounds but we did not want to waste the opportunity to go further on racial discrimination, where it was deemed politically possible. There is no question about the seriousness of our commitment to discrimination on the other grounds."

10 visa Waddington and Mark Bell, "More Equal than Others: Distinguishing European Union Equaliy Directives", 38 CMGR (2001), 587, 610. " See ECJ, joint cases C-117/76 and C-16/77, Ruckdeschel und Co. and Hansa-Lagerhaus Stroeh und Co. v. Hauptzollamt-St. Annen; Diamalt AG v. Hauptzollamt hzehoe, 19 October 1977 [1977] ECR 1753, 1769, in which it was stated that "... this does not alter the fact that the prohibition of discrimina- tion laid down in the aforesaid provision is werely a specific enunciation of the general principle of equality which is one of the fundamental principles of community law. This principle requires that similar situations shall not be treated differently unless differentiation is objectively justified." 12 see e.g. Uwe Kischel, "Zur Dogmatik des Gleichheitssatzes in der Europaischen Union". 24 EuGRZ (1997), 1.

" Article 21(2) of the Charter reads: "1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited." See Official Journal C 364 (18 December 2000), 13. 14 The European Parliament and NGOs have in the past sought inclusion of provisions on positive discrimination in the treaties. Accordingly, the Parliament postulates in its resolution on the func- tioning of the TEU with a view to the 1996 Intergovernmental Conference (IGC) that greater substance for the concept of EU citizenship should also be provided by "the preservation of Europe's diversity through special safeguards for national minorities in terms of human rights, democracy and the rule of law". Official Journal C 151 (19 June 1995), 56. for a discussion, see e.g. Stefan Griller et al., The Treaty of Amsterdam (Vienna, 2000), 161. 16 Other differences between Articles 12 and 13 are less evident, but nevertheless puzzling. See on related issues, Mark Bell, "The New Art. 13 EC Treaty: A Sound Basis for European Anti-Discrimination Law?" 1 Maastricht Journal (1999), 5; and Lisa Waddington, "Testing the Limits of the EC Treaty Article on Non-Discrimination", 28(2) Industrial Law Journal (1999), 133.

" Directive 97/80/EC on the Burden of Proof in Cases of Discrimination Based on Sex, Official Journal L 14 (20 January 1998), 6. 'e Emphasis added. " Tyson, "The Negotiation ...", 207. 20 Nickel, "Handlungsauftrage ..:', 2670 presumes that even a mere "Beleidigung" (offence) in terms of para. 185 of the German Criminal Code could represent harassment in the sense of the Directive.

this provision was only introduced with the Treaty of Amsterdam and allows member state measures which provide for "specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers". It is perceived that this formulation is slightly wider than that employed in the present Directive. Waddington and Bell, "More Equal than Others ...", 602. 22 See, however, the shift in perception of the ECJ from Kalanke to Marschall as detailed in Pedro Cabral, "A Step Closer to Substantive Equality", 23 European Law Review (1998), 481; and Helen Fenwick, "From Formal to Substantive Equality: The Place of Affirmative Action in European Union Sex Equality Law", 4 European Public Law (1998), 507. for an evaluation of the system of EU minority protection in South Tyrol from the perspective of EC law, see Gabriel N. Toggenburg, "Diritto comunitario e tutela delle minoranze in provincia di Bolzano: Due aspetti inconciliabili di un (unico) sistema?" in Joseph Marko, Sergio Ortino and Francesco Palermo (eds.), L'ordinamento speciale della provincia autonoma di Bolzano ( Verona, 2001), ), 139, 161.

24 Tyson. "The Negotiation ...", ?O8. 25 On the eventual tension between Diskriminierungsschutz and Priuarautonomie under German constitu- tional law. see Nickel, "Handlungsauftrage ...". 2669.

zb See ibid., 2670. 27 See Recital No. 18 to the Directive. z$ Directive 97/80/EC.

zs Art. 8 makes reference only to "direct or indirect discrimination", but Art. 2 interprets harassment as a sub-form of discrimination. 3o Tyson, "The Negotiation ...", 214. " This is true only for certain aspects. See Christopher McCruden, "National Legal Remedies for Racial Inequality", in Sandra Fredman (end Discrimination and Human Rights (Oxford, 2001), 251, 293.

'2 See also Tyson, "The Negotiation ...", 212. 33 This clause was introduced as the duty to aim at the conclusion of agreements between the social partners was perceived as an interference in the affairs of the social partners and seemed to force all member states to introduce a formalized "social dialogue". Tyson, "The Negotiation ..:', 215.

" Emphasis added. 'S See Tyson, "The Negotiation ...", 217. 36 For a systematic discussion see recently (in chronological order): Peter Hilpold, "Minderheiten im Unionsrecht", 39 Archiv des V61kerrechts (2001), 432; Gabriel N. Toggenburg, "A Rough Orientation

Through a Delicate Relationship: The European Union's Endeavours for its Minorities", in Snesznana Trifunovska (ed.), European Minorities and Languages (The Hague, 2001), 205, 235, and in 16 European Integration online Papers (2000), at; and Bruno de Witte, "Politics Versus Law in the EU's Approach to Ethnic Minorities", EUI Working Paper, RSC 2000/4, European University Institute, Robert Schumann Centre. 37 speech by da Costa held on 2 February 2000 before the European Parliament. the appointed individuals, M. Ahtisaari, J. Frowein and M. Oreja came to the conclusion that in Austria standards are "higher than those applied in many other EU countries" and that the FPO is a "right wing populist party". See for the text of the report 40 LL.M. (2001), 102. For a short comment, see A. Duxbury, "Austria and the European Union - the Report of the Three Wise Men", 1 Melbourne Journal of International Law (2000), 169. '9 De Witte, "Politics Versus Law ...", 19. 40 See the comments in the Presidency Conclusions of the meeting on fair treatment of third-country nationals. See as an example of this tendency the proposal of the European Commission for a Council

Directive Concerning the Status of Third-Country Nationals Who are Long-Term Residents, COM 2001/0127 final - CNS 2001/0074, Official Journal C 240 E (28 August 2001), 79. 41 See Toggenburg, "A Rough Orientation ...". °Z De Witte, "Politics versus Law ...". 3. For the problem of double standards in a broader context, see Bruno de Witte and Gabriel N. Toggenburg, "Human Rights and Membership of the Union', in Steve Peers (ed.), The European Union and Human Rights (forthcoming). 43 Dozens of proposals have been submitted to the body responsible for drafting the Charter. but none have received sufficient political consensus to be introduced into the document. See Guido Schwellnus, -Much Ado about Nothing? Minority Protection and the EU Charter of Fundamental Rights-. Constitutionalism Web-Papers (2001), at http:l/ 44 See ECJ, C-274/96, Criminal Proceedings against Horst Otto Bickel and Ulrich Franz 24 November 1998 [1998] ECR 7637. For comments, see e.g. Gabriel N. Toggenburg, "Der EuGH und der Minderheitenschutz", European Law Reporter (No. 1, 1999), 11; Bruno de R7itte, -Free Movement of Persons and Language Legislation of the Member States of the EU", Academia (No. 18, 1999), 1; Andrea Gattini, -La non discriminazione di cittadini comunitari nell'uso delia lingua nel processo penale: Il caso Bickel". RiUista di diritto internazionale (1999). 106; Barry Doherty, "Bickci-Extending the Boundaries of European Citizenship?" 8 (1/2) /rish Journal of European Law (1999), 70: Miele Bulterman. "Criminal Proceedings against Horst Otto Bickel and Ulrich Franz", 36 Common Market Law Review (1999), 1325; and Peter Hilpold, "Unionsbiirgerschaft und Sprachenrechte in der EU - Das Vorabentscheidungsverfahren Bickel und Franz". Juristische Blatter (2000), 93. °5 See ECJ C-281/98, Angonese v. Cassa di Risparmio di Bolzano SpA, judgment of 6 June 2000 [2000] ECR 4139. For comments, see Gabriel N. Toggenburg, "Horizontale Drittwirkung der Personenfreizugigkeit vor dem Hintergrund der Sudtiroler Autotnomie", European Law Reporter (No. 7/8, 2000), 242; Francesco Palermo, -Diritto comunitario e tutela delle minoranze: Alia ricerca di un punto di equilibrio", 3 Diritto Pubblico Comparato ed Europeo (2000), 969: and Robert Lane and Niamh Nic Shuibhne, -Case Note", 37 Common Market Law Reeiem (2000), 1237.

'6 See Art. 22 of the Charter of Fundamental Rights which states that the Union "shall respect cultural, religious and linguistic diversity". " Indeed, a recent judgment of the EFTA-Court (Case E-l/01, Hordur Einarsson v. Iceland, 22 February 2002, not yet reported), implies that the omission of comparable concepts in the European Economic Area Agreement are to be regarded as "intentional". A national policy which therefore aimed at the protection of an endangered language (in this case Icelandic) through the application of different rates of VAT on books would find no justification on the basis of e.g. a concept of cultural diversity. See Gabriel N. Toggenburg, "F6rderung von Nationalsprachen: 1st die EFTA vielfalts- oder einfallslos?" European Law Reporter (No. 6, 2002) 217. '8 Not only the European Year of Languages 2002, but also the Council Resolution on the promotion of linguistic diversity and language learning in the framework of the implementation of the objectives of the European Year of Languages, Official Journal C 50 (14 February 2002), 1, demonstrate the growing interest of the European Union in the notion of linguistic diversity.


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