SOC/304 Aviz CESE privind extinderea măsurilor de combatere a discriminării pentru domeniile din afara ocupării forţei de muncă

Eugen Lucan, membru in Comitetul Economic si Social European, anunta pe toti cei interesati ca in data de 28 aprilie 2008 la initiativa CESE sectiunea SOC va avea loc la sediul CESE din Bruxelles prima intalnire de lucru cu privire la opinia:
SOC/304 Aviz din proprie iniţiativă privind extinderea măsurilor de combatere a discriminării pentru domeniile din afara ocupării forţei de muncă

Există o legislaţie cuprinzătoare de combatere a discriminării, care acoperă toate aspectele, privind discriminarea pe motive de sex, rasă sau origine etnică. Cu toate acestea, în ceea ce priveşte religia sau credinţa, handicapul, vârsta sau orientarea sexuală, discriminarea este interzisă numai în domeniul ocupării forţei de muncă.

Reprezentantii societatii civile din Romania si in special ai organizatiilor care lupta impotriva discriminarii de orice fel sau care au beneficiari care sunt discriminati, sau care lupta pentru apararea drepturilor omului sunt invitate sa isi exprime parerea pe www.eugen.lucan.ro
Ma puteti contacta si la: la eugensucces@yahoo.com sau la 0741 134444, 0722 133935 (Lucan Eugen).

Mai jos aveti motivele de elaborarea a acestui aviz si varianta primara a avizului in limba engleza. In cateva zile voi traduce documentul si in limba romana si il voi posta pe blog pentru CONSULTARE PUBLICA!

Daca aveti puncte de vedere diverse si la obiect, prezentari de situatii particulare sau materiale relevante le voi supune dezbaterii publice in CESE.
Va multumesc !

DOCUMENTE:

Motivele elaborării avizului din proprie iniţiativă

Articolul 13 din Tratatul de instituire a Comunităţii Europene angajează Uniunea în sensul de a întreprinde acţiuni pentru combaterea discriminării pe bază de sex, rasă sau etnie, religie sau credinţă, handicap, vârstă sau orientare sexuală. Directiva-cadru privind ocuparea forţei de muncă (Directiva Consiliului 2000/78/CE) stabileşte un cadru general pentru un tratament egal în ocuparea forţei de muncă şi la locul de muncă indiferent de religie sau credinţă, handicap sau orientare sexuală. Cu toate acestea, Directiva privind egalitatea raselor (Directiva Consiliului 2000/43/CE) merge mai departe şi oferă protecţie împotriva discriminării în procesul de formare, învăţământ, în protecţia socială (inclusiv în asigurările sociale şi asistenţa medicală), avantajele sociale, aderarea la organizaţii ale lucrătorilor şi angajatorilor şi implicarea în acestea şi în accesul la bunuri şi servicii, inclusiv la locuinţe. Această directivă este similară ca domeniu de aplicare cu seria de directive adoptate începând din 1975 care scoteau în afara legii discriminarea pe motive de sex.
Unul din rezultatele Anului european al egalităţii de şanse pentru toţi 2007 a fost acela de a sublinia faptul că există o ierarhie a drepturilor în întreaga Uniune Europeană, care este contrară spiritului articolului 13.

Există o legislaţie cuprinzătoare de combatere a discriminării, care acoperă toate aspectele, privind discriminarea pe motive de sex, rasă sau origine etnică. Cu toate acestea, în ceea ce priveşte religia sau credinţa, handicapul, vârsta sau orientarea sexuală, discriminarea este interzisă numai în domeniul ocupării forţei de muncă.

Acest aviz din proprie iniţiativă va examina consecinţele acestei ierarhii a drepturilor şi posibilitatea elaborării unei directive antidiscriminare unice şi cuprinzătoare.

WORKING DOCUMENT

of the Section for Employment, Social Affairs and Citizenshipon

theExtending anti-discrimination measures for areas outside employment and the case for a single comprehensive anti-discrimination directive

(Own-initiative opinion)

1. Conclusions and recommendations

1.1 The right to equality is both a universal right and a fundamental principle of Community law. It is proclaimed in the Charter of Fundamental Rights. Its source is in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the other international instruments to which all Member States are signatories and in the constitutional traditions common to the Member States.

1.2 Article 13 TEC commits the EU to combating discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation in all areas within its competence.

1.3 Discrimination on the grounds within Article 13 may undermine the objectives of the European Community as set out in Article 2 TEC, including the promotion of a high level of employment and social protection, equality between men and women, the raising of the standard of living and quality of life, economic and social cohesion and solidarity among Member States.

1.4 Effective protection against discrimination outside the field of employment is important to ensure the development of democratic, tolerant societies which allow for the full participation and integration of all persons into economic and social life.

1.5 Action is required in response to the continuing inequality and discrimination in the EU. Such discrimination causes harm to individuals and to European societies generally. Current EU legislation is inadequate for this purpose. While all grounds referred to in Article 13 are protected against discrimination in employment and occupation, EU law provides protection against discrimination on grounds of racial or ethnic origin outside the field of employment in social protection, including social security and healthcare, social advantages, education and access to goods and services including housing and on grounds of sex in access to goods and services. On grounds of religion or belief, disability, age and sexual orientation there is no EU legal protection against discrimination outside the field of employment. EU anti-discrimination law fails to recognise and provide protection for multiple discrimination, that is, discrimination on two or more grounds or the combination or intersection of two or more grounds.

1.6 The actual picture of legal protection across the EU is complex. Many Member States go beyond EC requirements but with wide variation as to the content, nature and degree of protection offered while others barely meet minimum requirements. Despite the proven benefit of specialised equality bodies to combat discrimination and promote equality, EU law requires such bodies only in relation to racial or ethnic origin and sex equality. Many Member States have established equality bodies with mandates including equality on all or some of the other Article 13 grounds.

1.7 The EESC considers that there can be no justification for the EU to maintain a system of legislation based on a clear Treaty commitment to combat discrimination on six specified grounds that maintains disparities in protection with lesser protection against discrimination and more limited guarantee of equal treatment on certain grounds. Without binding obligation to meet an EU common standard there is no real incentive for Member States to enact laws providing consistent rights for all grounds.

1.8 The present hierarchy and inconsistent system of rights to equal treatment operates against the achievement of the aims of the EU. The EESC is concerned that achievement of the aims of the EU will be significantly hindered by a hierarchical scheme of protection against discrimination. Specifically it has the potential to impede freedom of movement of workers, and of goods; workers may be reluctant to move to countries with fewer enforceable rights, and providers of goods or services may be adversely affected by inconsistent requirements to meet different equality standards in different countries. It works against social cohesion and will limit levels of participation in civil society.

1.9 The EESC considers that there is now a need for new EU legislation prohibiting discrimination outside the field of employment on grounds of religion or belief, disability, age and sexual orientation. The EESC acknowledges that, consistent with principles of subsidiarity and proportionality in Article 5 TEC, to achieve a high common standard of legal protection across all Member States cannot be achieved other than by action at Community level.
1.10 Action by the EC should be in the form of a single directive covering the four grounds and applying to areas other than employment and occupation. To achieve coherence and consistency in EU and national law, the scope of the new directive should be congruent with that of the Race Equality Directive. The EESC believes that a single directive offers major advantages: it would provide maximum clarity for businesses and other providers of goods and services, encouraging early compliance; it would most effectively encompass protection against multiple discrimination; it supports greater social cohesion.

1.11 The EESC would seek assurance that the development of the new directive would not result in the reduction of protection under existing EU anti-discrimination legislation. It must require provision of reasonable accommodation so disabled people can participate fully in society. It should enable Member States to adopt measures permitting positive action, and preferential treatment on grounds of age or disability where this is consistent with the principle of equal treatment. It must not allow a general justification for direct discrimination, but should permit discrimination where it serves to promote equality and respect for human dignity. It should require the establishment or enlargement of specialised bodies to cover equality on the four outstanding grounds.

2. Equality is a fundamental principle of EU law

2.1 The right to equality is both a universal right and a fundamental principle of Community law. It derives from international instruments of which all Member States are signatories and from the constitutional traditions of Member States and is proclaimed in Articles 21 and 22 of the Charter of Fundamental Rights.

2.2 The right to non-discrimination between women and men in the workplace, which has been enjoyed by European citizens for more than 30 years, has been a key feature in the development of the Union. Equal treatment of women and men remains essential for a fair internal market, freedom of movement and the building of a strong and cohesive European society.

2.3 During the 1990's there was an increasing awareness of the need for measures to tackle discrimination on grounds other than sex and in areas other than employment within the competence of the EU. The incorporation of Article 13 in the Amsterdam Treaty was a major development conferring new powers and an expanded commitment to secure equal treatment. Article 13 commits the EU to combating discrimination not only on grounds of sex but also on grounds of racial or ethnic origin, religion or belief, disability, age and sexual orientation.

2.4 Recognising the pressing need for action in respect of discrimination on these other grounds, in 2000 the Council approved two directives: the Racial Equality Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and the Employment Framework Directive establishing a general framework for equal treatment in employment and occupation. Subsequently the Council approved in 2004 the Gender Goods and Services Directive implementing the principle of equal treatment between men and women in the access to and supply of goods and services.

2.5 Each of the three directives refers in its preamble to Article 6 of the Treaty on the European Union and each confirms that equality is a fundamental right not dependent on legislation but built on the rights enshrined in international instruments of which all Member States are signatories and the constitutional traditions common to all Member States.

2.6 This was endorsed by the European Court of Justice, in Mangold –v– Helm[1] in its preliminary ruling on the interpretation of Council Directive 2000/78/EC in relation to age discrimination:

- "74 … in accordance with Article 1[Directive 2000/78], the sole purpose of the directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation, the source of the actual principle underlying the prohibition of those forms of discrimination being found, as is clear from the third and fourth recitals in the preamble to the directive, in various international instruments and in the constitutional traditions common to the Member States.
- 75 The principle of non-discrimination on grounds of age must thus be regarded as a general principle of Community law".

There is no reason to suggest that the Court would not equally confirm this as a principle in respect of the other grounds within Directive 2000/78.

2.7 In Coleman –v– Attridge Law, a pending case in which the European Court of Justice is asked for a preliminary ruling on the scope of Council Directive 2000/78 the Advocate General in his Opinion stated[2]:

- "8 Article 13 EC is an expression of the commitment of the Community legal order to the principle of equal treatment and non-discrimination. ... The Court's case law is clear as regards the role of equal treatment and non-discrimination in the Community legal order. Equality is not merely a political ideal and aspiration but one of the fundamental principles of Community law."

2.8 Article 2 of the Treaty establishing the European Community includes the promotion of a high level of employment and of social protection, equality between men and women, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States. Recitals in both the Race Equality Directive and Employment Framework Directive[3] confirm the Council's view that discrimination based on the grounds referred to in Article 13 may undermine the achievement of these objectives.

3. The importance of effective protection against discrimination outside the field of employment

3.1 The Employment Framework Directive establishes a general framework for equal treatment on grounds of religion or belief, disability, age or sexual orientation in employment and occupation; the Race Equality Directive implements the principle of equal treatment between persons irrespective of racial or ethnic origin in relation not only to employment and occupation but also to social protection including social security and healthcare, social advantages, education and access to and supply of goods and services which are available to the public, including housing.

3.2 The Gender Goods and Services Directive supplements protection against sex discrimination in employment and occupation in directives adopted under Article 141 TEC[4] and implements the principle of equal treatment between men and women in the access to and supply of goods and services.

3.3 In the Race Equality Directive and the Gender Goods and Services Directive the Council has recognised that to ensure full participation of all persons, protection against discrimination should extend beyond employment[5].

3.4 In this context the EESC also refers to the Lisbon Strategy. In the view of the EESC the elimination of discrimination both within and outside of the labour market is essential for the achievement of these objectives. Alternatively, discrimination in areas such as social protection, healthcare, education and housing and in the access to essential public and private sector services will operate as a negative factor, hindering progress towards sustainable growth and more and better jobs.

4. Current position of equality and non-discrimination

4.1 The European Year of Equal Opportunities for All in 2007 provided a valuable opportunity for EU institutions, national governments and civil society to reflect on the importance of equality and the elimination of discrimination for the realisation of a more socially inclusive society. It exposed the fact clearly noted by the Council that inequality and discrimination on grounds of sex, racial or ethnic origin, age, disability, religion or belief or sexual orientation "continue to exist in the EU, at a substantial cost to the individual women and men concerned and European societies as a whole"[6].

4.2 By highlighting the significant developments across the EU in the promotion of equality, the European Year also exposed the disparity in protection against discrimination within the existing EU legislation. As mentioned in 3.1 above, for the grounds of religion or belief, age, disability and sexual orientation protection against discrimination under EU law applies only to employment and occupation, while for grounds of racial or ethnic origin, protection under the Race Equality Directive includes other important fields such as healthcare, education, access to goods and services and housing, and for sex, the Gender Goods and Services Directive includes access to goods and services. The EESC is concerned that denial of fair treatment on any of the Article 13 grounds in any of these areas may profoundly affect the quality of people's lives and their ability to work and to participate fully in society.

5. Multiple discrimination

5.1 As the Council noted in its Resolution, "The European Year has highlighted the aggravated difficulties stemming from multiple discrimination"[7].

5.2 "Multiple discrimination" recognises the complex identities of every natural person. It occurs when a person experiences discrimination or harassment on more than one of the grounds that form part of their identity.

5.3 A research report by the Danish Institute for Human Rights "Tackling Multiple Discrimination – Practices, policies and laws" was published in December 2007[8]. From their academic and legal research and consultation with stakeholders the authors conclude: "If the reality of discrimination and inequality is to be tackled, workable solutions to combat the existence of Multiple Discrimination have to be found"[9].

5.4 Currently some forms of multiple discrimination could be challenged under EU law in the field of employment as all six grounds of gender, age, race or ethnic origin, disability, religion or belief and sexual orientation have equal protection. Outside the field of employment and occupation the large gap in protection for grounds other than racial or ethnic origin mean that EU law fails to recognise the multiple identities of its citizens.

5.5 EU anti-discrimination legislation and national laws transposing EU legislation should be capable of providing protection against all forms of multiple discrimination. In order to do this, there needs to be parity of protection for all of the grounds. Currently this is not the case outside the field of employment.

6. Legal protection against discrimination across the EU

6.1 Although not all Member States have yet adequately transposed the Race Equality Directive or the Employment Framework Directive[10], many Member States have adopted laws, regulations or administrative provisions providing protection against discrimination that go beyond the protections required under the current Article 13 directives.

6.2 A mapping study[11] published in December 2006 looked at the law relating to discrimination on grounds of sex, sexual orientation, disability, religion and belief and age to the extent that such discrimination falls outside the current scope of EC law. As the author states:

"Perhaps the most striking features of the European countries surveyed are (1) the fact that most countries go well beyond current EC requirements and provide legal protection of some form in respect of much of the discrimination forming the subject matter of this report, and (2) the variety between the countries as to the degree, as well as the nature, of such protection"[12].

6.3 The comparison of Member States by Bell, Chopin and Palmer[13] reinforced the findings of the more detailed mapping study. Thus there exists an extremely complex matrix of provisions set out in national constitutions, generic anti-discrimination laws, special laws covering single areas, such as housing, national and regional laws which prohibit some forms of discrimination in some circumstances on all or some of the grounds of disability, religion or belief, sexual orientation or age, with generalised or specific exceptions which apply to all or some of the fields outside of employment within the scope of the Race Equality Directive.

6.4 Equivalent, but different, patterns of variation between countries exists in relation to the nature, form, extent and exceptions to non-discrimination rights for all of the other non-employment areas within the scope of the Race Equality Directive[14].
6.4
6.5 As the Council recognised in its Resolution to follow up the European Year, specialised equality bodies, which Member States were required to establish under the Race Equality Directive, and more recently in relation to sex under the Gender Goods and Services Directive and the Recast Gender Directive, are, or have the potential to be, key driving forces in combating discrimination and promoting equality in every Member State. There is no requirement to establish such bodies to support equality rights on grounds of religion or belief, disability, sexual orientation or age. As at January 2007 two Member States had not established a specialised body as required under Art. 13 of the Race Equality Directive. Where such bodies have been established: 5 cover race equality only; 8 cover all grounds within Article 13 TEC; 1 covers all Article 13 grounds except gender; 9 cover all Article 13 grounds plus additional grounds; 1 covers race and gender only; and 1 covers race and religion or belief only[15].

6.6 Thus in terms of the recognised benefits of a specialised equality body to strengthen protection against discrimination on all Article 13 grounds, the picture across the EU is nearly as complex and inconsistent as that for legal measures.

6.7 The EESC believes that there is no valid justification for a system of EU anti-discrimination legislation based on a Treaty commitment to combat discrimination on the six grounds that permits and perpetuates a lower degree of protection and more limited guarantees of equal treatment on certain of these grounds.

6.8 Without consistent legislation at EU level there is no real incentive for Member States to enact consistent legislation, and there is no legal basis for intervention by the Commission or the Council where there are uneven or inadequate levels of protection against discrimination. While some Member States, notably many of the newer 12, have enacted single equality laws covering all Article 13 grounds across all areas within the scope of the Race Equality Directive and have given competence to specialised equality bodies to work on all matters covered by these laws, other States have done no more than minimal compliance and therefore reflect the EU in terms of hierarchies of equality rights and mechanisms for enforcement.

6.9 The EESC accepts that the enactment of legislation prohibiting discrimination does not of itself rid a country of the scourge of discrimination, but it could be said at least to reflect recognition by the state of the harm to individuals and societies caused by discrimination and a commitment by government to use legal means to bring it to an end. The absence of anti-discrimination legislation conveys quite different messages, indicating a (mistaken) belief that such discrimination does not exist or that such discrimination is not a problem of sufficient gravity to warrant formal preventative measures, or, in political terms, indicating that the objections of potential discriminators to any form of regulation overshadow concerns to improve the quality of life for all citizens and to achieve greater social cohesion.

7. A hierarchy of rights to equality operates against the achievement of the aims of the EC

7.1 The EESC believes allowing the present inconsistent hierarchical system of EC protections against discrimination operates against the achievement of the aims of the EC:

· It impedes the freedom of movement of workers, who would have fewer enforceable rights to non-discrimination in some States than in others. For example, 69.2% of individual respondents to the Commission's on-line survey, Discrimination – Does it Matter, indicated that the level of legal protection against discrimination outside of work on grounds of age, disability, religion and sexual orientation would influence their decision to move to a different Member State[16].
· It may impede freedom of movement of goods, if suppliers must meet different equality standards for goods and services in different Member States.
· It affects the quality of life, since without a legal ban discrimination and harassment are likely to remain unchecked, and barriers to full and equal enjoyment of economic and social rights will remain in place.
· It militates against social cohesion, since it fails to give full and equal recognition to all groups within the society.
· It limits the degree of participation in civil society by major groups and communities.

7.2 The Council, in its Resolution of 5 December 2007 on the follow-up of the European Year:

· considered that despite much progress inequality and discrimination on the grounds within Art. 13 "continue to exist in the EU, at a substantive cost to the individual women and men concerned and European societies as a whole";
· welcomed the "balanced treatment of all discrimination grounds throughout the European Year's actions";
· noted that "discrimination can lead to poverty and social exclusion by preventing participation and access to resources" and that "the European Parliament and civil society have called for extending legal protection against discrimination to areas beyond employment and occupation";
· invited Member States and the European Commission to "strengthen efforts to prevent and combat discrimination … inside and outside the labour market" and to "secure and strengthen the effectiveness of specialised equality bodies".

8. A new directive is required

8.1 To respond to the Council's concerns and invitation and to ensure a consistent minimum standard of protection across the EU, there is a need for new legislation implementing the principle of equal treatment irrespective of disability, religion or belief, sexual orientation or age outside the field of employment, based on Art. 13(1) and reflecting the full scope of the Race Directive.

8.2 The nature and scale of the matters affected by the current levels of discrimination and their impact on the achievement of the objectives of the EU and the need for a common high level of protection in all the Member States cannot be sufficiently achieved by the Member States and therefore requires action at Community level, consistent with the principles of subsidiary and proportionality as set out in Article 5 TEC.

8.3 The EESC recommends that this should be in the form of a single directive prohibiting discrimination on grounds of disability, religion or belief, sexual orientation or age in relation to all areas outside the field of employment within the scope of the Race Directive and requiring the establishment or enlargement of an equality body with full competence to work across all matters within the scope of the legislation.

8.4 Even if the Council were willing to adopt separate directives for each of the relevant grounds, the EESC considers that a single directive covering all four grounds is strongly to be preferred:

· to provide maximum clarity and transparency for individuals and providers of goods and services; we are aware that private business rarely welcomes new forms of regulation, and to set separate EC non-discrimination standards for each ground separately, at different times, without any certainty of consistent requirements will make compliance far more difficult, especially for small businesses with limited resources;
· to enable effective response to and remedy for multiple discrimination; if there is consistent, equivalent protection for all grounds then individuals who face discrimination or harassment based on more than one characteristic of their identity will be able to seek appropriate and relevant redress;
· to make the law clear, comprehensible and accessible; a major concern of the Council, as stated in its Resolution to follow up the European Year, is the low level of public awareness of anti-discrimination legislation[17]. The task of improving awareness will be many times more difficult if there are complex variations of rights to equal treatment based on different grounds in different fields of activity in EC or national legislation;
· to avoid any form of hierarchy within a European system of rights to equal treatment; social cohesion depends on members of society feeling a shared commitment and sense of belonging; this will be far more difficult to achieve if different groups can read from the content of legislation that the rights to equal treatment of some groups carry greater weight than the rights of others.

8.5 The Race Directive has established the key areas outside the field of employment within the competence of the EU in which, to achieve the aims of the EU it is relevant and necessary to prevent discrimination on grounds of disability, religion or belief, sexual orientation and age; the EESC strongly advises the Commission, the European Parliament and the Council to bring these same areas within the scope of the new directive.

8.6 The EESC accepts that, in accordance with the principle of subsidiarity, in respect of certain areas of activity, for example housing, education or certain other public services, competence for organisation and delivery of provision and/or for other aspects of regulation is primarily within the competence of Member States, at national or regional level. The EESC believes that, pursuant to Article 5 TEC, to ensure the required comprehensive high level common standard of equal treatment in respect of all such areas of activity cannot be achieved other than by legislation at European level.

8.7 To reinforce the benefits of consistency the EESC recommends that, to the maximum extent possible, the new single directive should use the same definitions, for example of direct and indirect discrimination, harassment and positive action, and should impose the same or equivalent obligations on Member States, for example providing effective remedies, incorporating the shift of the burden of proof, protection against victimisation and rules requiring effective, proportionate and dissuasive sanctions as well as obligations to inform people of their rights, to encourage dialogue with social partners and NGOs.

8.8 The EESC is aware of certain matters that will need to be considered in the development and promotion of a new single directive to ensure that it achieves the purposes we have described:

8.8.1 Non-regression: the development of a new directive must not be used to reduce protection against discrimination in any EU legislation. The right to equality is a fundamental principle of EC law and protection of this right should not be diluted or diminished. For the reasons canvassed above, discrimination can undermine the achievement of the objectives of the EU, to the benefit of none of the groups within society whose interests the EESC was established to promote. Consistent with the existing Article 13 directives, the new directive should specifically prohibit Member States from using implementation of the directive as grounds for reduction in their existing level of protection against discrimination.

8.8.2 Reasonable accommodation for disabled people: Outside the field of employment disabled people meet the same or greater barriers to their full participation. All Member States and the European Community are signatories to the UN Convention on the Rights of Persons with Disabilities, and should thereby accept their obligations under Article 5(3) of the Convention.

8.8.2.1 The new directive should incorporate a two-pronged duty to provide reasonable accommodation. It should be made an obligation of all persons engaged in the provision of social protection, social advantages, education and goods and services to make anticipatory reasonable accommodation to ensure maximum access and use by disabled people. To fail to provide reasonable accommodation for a particular disabled person should be defined as a form of discrimination.

8.8.3 Multiple discrimination: the directive should confirm that the principle of equal treatment includes protection in relation to multiple discrimination so that this is given effect in national law; this should apply to multiple discrimination that may involve grounds of sex and racial or ethnic origin and should also apply in the field of employment and occupation, as covered by EU equality legislation.

8.8.4 Positive action: recognising that inequality is also well entrenched in areas of activity other than employment and occupation, for example in education, healthcare, housing and access to services such as hotels restaurants, insurance and travel arrangements, with a view to ensuring full equality in practice, the new directive should explicitly permit Member States to maintain or adopt measures to prevent or compensate for disadvantages linked to disability, religion or belief, sexual orientation or age.

8.8.5 Preferential treatment on grounds of disability or age: the new directive would need to recognise practices within Member States of providing certain benefits and social advantages to persons based on their age or their status as a disabled person. Many of these age- or disability-related benefits or concessions contribute to the participation of older or younger people and disabled people. New anti-discrimination legislation should not discourage public or private sector organisations from offering such benefits where they are intended to overcome or ameliorate real, financial or attitudinal barriers to equal participation. The new directive should enable Member States to permit such measures provided they have a legitimate aim that is consistent with the principle of equal treatment and the means of meeting that aim are appropriate and necessary.

8.8.5.1 Any exceptions must be narrowly defined. The EESC accepts that there will be circumstances in which discrimination may be appropriate and necessary. Exceptions to the prohibition of discrimination should not, however, be so wide as to take away the impact of the protection the directive is intended to provide; on the other hand the directive should not be overburdened by a long list of specific exceptions for particular circumstances on one or more grounds. Discrimination should be permitted within anti-discrimination legislation only where it serves to promote and enhance equality and human dignity and does not undermine the impact of the anti-discrimination provisions. Having regard to the obligations of the EU and Member States under international and European human rights and equality instruments, the new directive should not permit a general justification defence.

8.8.5.2 The new directive could allow Member States to provide in national law that a difference of treatment based on one or more of the relevant grounds would not constitute discrimination where this treatment has a legitimate aim consistent with ensuring full equality in practice and respect for human dignity, provided the means for achieving that aim are appropriate and necessary.

8.8.5.3 Additionally, discrimination could be permitted where it could be shown to be necessary in a democratic society for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.

8.8.6 Specialised bodies: there is little doubt that the effective enforcement of national laws and the promotion of equal treatment benefits greatly by there being a body resourced and able to carry out the functions specified in the Race Directive (Art. 13) or the Gender Goods and Services Directive (Art. 12). The new directive should require the establishment of a body (or the extension of an existing body) for disability, religion or belief, sexual orientation and age.

[1] [2005] EUECJ C-144/04 of 22 November 2005.
[2] [2008] EUECJ C-303/06 of 31 January 2008.
[3] Council Directive 2000/43/EC, recital 9; Council Directive 2000/78/EC, recital 11.
[4] E.g. Directives 76/207/EEC and 2002/73/EC.
[5] Council Directive 2000/43/EC, recital 12, and Council Directive 2004/113/EC, recital 9.
[6] Council Resolution of 5 December 2007 on the follow-up of the European Year of Equal Opportunities for All (2007), page 1.
[7] Idem, page 3.
[8] Office for Official Publications of the European Communities, 2007 ISBN 978-92-79-06953-6.
[9] Idem, page 7.
[10] See M. Bell, I. Chopin and F. Palmer, "Developing Anti-Discrimination Law in Europe – The 25 EU Member States Compared", July 2007, Office for the Official Publication of the European Communities, 2007, ISBN 978-92-79-06572-9.
[11] See A. McColgan, J. Niessen and F. Palmer, "Comparative Analyses on National Measures to Combat Discrimination Outside Employment and Occupation" VT/2005/062, Migration Policy Group and Human European Consultancy, December 2006.
[12] Idem, page 3.
[13] Op.cit. Comparative Tables pages 83–113.
[14] Op.cit. Comparative Tables pages 36 – 45 and See M. Bell, I. Chopin and F. Palmer, "Developing Anti-Discrimination Law in Europe – The 25 EU Member States Compared", July 2007, Office for the Official Publication of the European Communities, 2007, ISBN 978-92-79-06572-9, pages 97–104.
[15] See M. Bell, I. Chopin and F. Palmer, "Developing Anti-Discrimination Law in Europe – The 25 EU Member States Compared", July 2007, Office for the Official Publication of the European Communities, 2007, ISBN 978-92-79-06572-9, pages 108-113.
[16] Consultation on-line July – October 2007.
[17] Consultation on-line July – October 2007, page 1.