The European Parliament adopted by 500 votes in favour, 46 against and 24 abstentions a resolution based on the own-initiative report drafted by Kathalijne Maria BUITENWEG (Greens/EFA) on the application of Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Parliament believed that more needed to be done to implement the directive in full, notably on issues such as legal redress, the burden of proof in racial discrimination cases, awareness-raising, data collection and the independence of equality bodies.

The Directive, known as the Racial Equality Directive, was due to be implemented by all Member States by 19 July 2003. It does not limit protection against discrimination to the area of employment but also covers social security, education and access to housing.

Parliament reiterated the importance of the Directive, recalling that it was a minimum standard and should therefore act as the foundation on which a comprehensive anti-discrimination was built. It welcomed the Commission Communication, but stated that it would also have been useful to have been provided with a detailed description of the way in which the provisions of Directive 2000/43/EC have been incorporated into national law.

Whilst most Member States had taken action in order to implement the Directive, Parliament was disappointed that only a few had adequately transposed all of its provisions fully. A number of provisions, such as the definitions of direct and indirect discrimination, harassment and the burden of proof had not been correctly transposed in many countries. Parliament called, in particular, for strict monitoring of the application of the rule on the partial reversal of the burden of proof, which was particularly effective in the case of employment-related disputes. It expressed concern that Member States had exempted more areas of activity from the scope of the Directive than justifiable.

Parliament went on to make a series of recommendations to the Commission and Member States, and placed some emphasis on adequate and reliable data collection . The latter was essential in the fight against discrimination, and ethnically disaggregated statistical data could be essential in demonstrating indirect discrimination, informing policy and developing positive action strategies, but at the same time raises several ethical and legal questions. Parliament asked the Commission to study the various legal questions and parameters regarding the issue of data collection and to come forward with proposals to improve the recording of cases of discrimination, including toensure that such data collection does not infringe personal privacy by revealing individuals' identities or serve as a basis for ethnic or racial profiling. Provision should be made for comparable sets of data to be available from all the Member States. At present, these data are not available for all Member States and comparable data are critical to give a solid platform on which to build policy. Parliament called on Member States implementing national action plans to combat racism and discrimination to include components covering the gathering, checking and monitoring of data in key policy areas such as non-discrimination and equality, social inclusion, Community cohesion, integration, gender, education and employment.

The Commission was asked to submit a specific action plan on the mechanisms and methods of observation and description of the impact of the national implementation measures and to lay down common standards for data. Parliament went on to ask the Commission to do the following:

to request Member States to analyse the effectiveness of anti-discrimination legislation in combating patterns of systematic segregation of minorities and women, particularly in the education sector and as regards access to the labour market, healthcare and goods and services, and further to incorporate a gender equality perspective into the reports; to step up efforts to raise level of awareness of ant-discrimination legislation. Parliament considered that the Roma community, together with other recognised ethnic communities, need particular social protection, particularly further to enlargement, since the problems of exploitation, discrimination and exclusion have become more acute in their regard; to adopt a set of minimum standards under the open coordination method, so as to guarantee access for children from ethnic minorities – particularly girls – to high-quality education and equal conditions, and to adopt positive legislation making it compulsory to end segregation in schools and lay down detailed plans to put an end to the provision of separate, lower quality education for ethnic minority children; to monitor the independent functioning of equality bodies, for which purpose it can use as a reference the Principles relating to the Status of National Institutions ('the Paris Principles'); Parliament urged Member States to do the following: to ensure that all persons from ethnic minorities – particularly women – have access to primary, preventive and emergency healthcare services; to ensure equal treatment under employment and social inclusion policies, to address the extremely high unemployment rates recorded particularly among women from ethnic minorities and, in particular, to address the serious barriers raised by direct discrimination in recruitment procedures; to collect accurate and gender-disaggregated statistics relating to the following: the labour market, housing, education and training, health and social benefits, public access to goods and services, the criminal justice system, and civic and political participation, and to set clear, quantitative targets and indicators within the employment and social inclusion guidelines that enable them to measure progress in the situation of migrants and/or minorities.

Parliament also felt that it was vitally important that officials receive training on the subject of the aims and provisions of the Directive, in order to remove all risks of institutional racism within government bodies themselves. Member States were asked to invest in such training. Parliament asked them and the Commission to set up European programmes for exchanges between the various national administrative bodies.

With regard to equality bodies , Member States were asked to resource and empower their equality bodies properly so that they could perform their important function effectively, and so that where equalities bodies do have substantial powers, they exercise these fully. Member States should resource the NGOs active in informing citizens and providing legal aid in matters of discrimination. In informing citizens and providing legal aid, NGOs carry a disproportionate share of the burden without enjoying corresponding status and funding from the Members State authorities. Independent bodies must have adequate financial resources at their disposal in order at least to be able to guarantee that complaints will be dealt with free of charge in the case of those who are not in a position to contribute financially them themselves. The Committee recommended that Member States make use of the best practices of other Member States, such as allowing equality bodies to initiate legal proceedings on behalf of victims or participate as amicus curiae in legal proceedings. Such bodies should also be given the necessary powers to investigate cases.

Parliament asked the Commission to monitor attentively disguised discrimination based on ‘genuine and determining occupational requirements’, on the interaction between discrimination based on the application of this exemption on religious grounds in the framework of the Directive on employment and its consequences for race and ethnicity, and to pay particular attention to discrimination in the field of education.

Lastly, Parliament reiterated the political, social and legal desirability of putting an end to the hierarchy of protection against the different grounds of discrimination, and welcomed the Commission's intention to put forward a proposal for extending the scope of Directive 2000/43/EC to all other grounds of discrimination, as stated in its Annual Legislative Programme for 2008.

The Committee on Civil Liberties, Justice and Home Affairs adopted an own-initiative report drawn up by Kathalijne Maria BUITENWEG (Greens/EFA) on the application of Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. It reiterated the importance of the Directive, recalling that it was a minimum standard and should therefore act as the foundation on which a comprehensive anti-discrimination was built. It welcomed the Commission Communication (please see the summary of 31/10/2006) on the application of Directive 2000/43/EC, but stated that it would also have been useful to have been provided with a detailed description of the way in which the provisions of Directive 2000/43/EC have been incorporated into national law. It went on to make a series of recommendations to the Commission and Member States, and placed some emphasis on adequate and reliable data collection .

Whilst most Member States had taken action in order to implement the Directive, the Committee was disappointed that only a few had adequately transposed all of its provisions fully. A number of provisions, such as the definitions of direct and indirect discrimination, harassment and the burden of proof had not been correctly transposed in many countries. The Committee called, in particular, for strict monitoring of the application of the rule on the partial reversal of the burden of proof, which was particularly effective in the case of employment-related disputes. It expressed concern that Member States had exempted more areas of activity from the scope of the Directive than justifiable.

The Commission was asked to submit a specific action plan on the mechanisms and methods of observation and description of the impact of the national implementation measures and to lay down common standards for data. The Committee went on to ask the Commission to do the following:

to request Member States to analyse the effectiveness of anti-discrimination legislation in combating patterns of systematic segregation of minorities and women, particularly in the education sector and as regards access to the labour market, healthcare and goods and services, and further to incorporate a gender equality perspective into the reports;

to step up efforts to raise level of awareness of ant-discrimination legislation; to facilitate the exchange between Member States of best practices in the field of action to combat discrimination on the labour market, including on training courses, and with regard to anonymity in job applications. The Committee considered that the Roma community, together with other recognised ethnic communities, need particular social protection, particularly further to enlargement, since the problems of exploitation, discrimination and exclusion have become more acute in their regard; to adopt a set of minimum standards under the open coordination method, so as to guarantee access for children from ethnic minorities – particularly girls – to high-quality education and equal conditions, and to adopt positive legislation making it compulsory to end segregation in schools and lay down detailed plans to put an end to the provision of separate, lower quality education for ethnic minority children; to monitor the independent functioning of equality bodies, for which purpose it can use as a reference the Principles relating to the Status of National Institutions ('the Paris Principles');

The Committee urged Member States to do the following:

to ensure that all persons from ethnic minorities – particularly women – have access to primary, preventive and emergency healthcare services; to ensure equal treatment under employment and social inclusion policies, to address the extremely high unemployment rates recorded particularly among women from ethnic minorities and, in particular, to address the serious barriers raised by direct discrimination in recruitment procedures; to collect accurate and gender-disaggregated statistics relating to the following: the labour market, housing, education and training, health and social benefits, public access to goods and services, the criminal justice system, and civic and political participation, and to set clear, quantitative targets and indicators within the employment and social inclusion guidelines that enable them to measure progress in the situation of migrants and/or minorities.

With regard to equality bodies , Member States were asked to resource and empower their equality bodies properly so that they could perform their important function effectively, and so that where equalities bodies do have substantial powers, they exercise these fully. Member States should resource the NGOs active in informing citizens and providing legal aid in matters of discrimination. In informing citizens and providing legal aid, NGOs carry a disproportionate share of the burden without enjoying corresponding status and funding from the Members State authorities. Independent bodies must have adequate financial resources at their disposal in order at least to be able to guarantee that complaints will be dealt with free of charge in the case of those who are not in a position to contribute financially them themselves. The Committee recommended that Member States make use of the best practices of other Member States, such as allowing equality bodies to initiate legal proceedings on behalf of victims or participate as amicus curiae in legal proceedings. Such bodies should also be given the necessary powers to investigate cases.

Lastly, the Committee asked the Commission to monitor attentively disguised discrimination based on ‘genuine and determining occupational requirements’, on the interaction between discrimination based on the application of this exemption on religious grounds in the framework of the Directive on employment and its consequences for race and ethnicity, and to pay particular attention to discrimination in the field of education.

PURPOSE: presentation of a report on the application of Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

CONTENT: D irective 2000/43/EC was adopted with a view to tackling discrimination on the grounds of racial or ethnic origin, religion or belief, disability, age and sexual orientation. This legislation has had a major impact in raising the level of protection against discrimination for people throughout the EU. However, there have been delays in transposing these rules into national law in some Member States, and additional efforts are needed to ensure effective implementation and enforcement of the legislation.

To recall, Directive 2000/43/EC was the first adopted unanimously by the Council under the new Article 13 of the Treaty establishing the European Community which entered into force on 1 May 1999.

This report aims to flag up certain aspects of the Directive that are particularly problematic or important and to identify good practice. It concentrates on the impact of the Directive, transposition-related problems, dissemination of information, the enforcement of rights, the role of equality bodies, the social partners and NGOs, positive action and recommendations for the future.

In accordance with Article 17 of the Directive, the Member States had to communicate to the Commission the information necessary for this report by 19 July 2005. Despite a reminder in May 2005, many Member States missed the deadline, and some did not respond at all. By December 2005 Austria, Poland, the UK, France, Germany, Lithuania and Portugal had provided no information to the Commission, nor had the social partners, apart from the ETUC.

Main conclusions: Directive 2000/43/EC represents a major step forward in the fight against racial discrimination across the EU. Although all the Member States already had some sort of legal requirement in respect of equality and non–discrimination, for most of them the transposition of Directive 2000/43/EC required fairly extensive changes to existing legislation, or whole new Acts. This may explain the lateness with which many of the Member States transposed the Directive, but most of them have now done so.

The new legal framework has been in force for just over three years, which is not really long enough to evaluate its full impact or potential. Thus far, no cases have been referred by national courts to the European Court of Justice under the preliminary ruling procedure. It is only the ECJ that could give definitive guidance on how to interpret the provisions of the Directive. Future judgments will help the Member States to provide clear and uniform protection against discrimination throughout the EU.

Article 17 of Directive 2000/43/EC states that the European Commission's report on the application of the Directive "shall include, if necessary, proposals to revise and update this Directive". The Commission does not currently see a need to come forward with such proposals. It has reached this conclusion on the basis of the lack of experience with implementation of the Directive since its entry into force and the lack of case law from the ECJ.

The challenge for the coming years will be to ensure the full and effective transposition, implementation and enforcement of Directive 2000/43/EC. This will entail the establishment of mechanisms and methods for observing and reporting on the impact of national implementing measures. In this context, it will be important to develop the statistical basis and other indicators . Yet the scarcity of ethnic data in most Member States might hinder proper monitoring of the application of Community legislation.

There have been objections to the collection of such data on the grounds that it would breach the provisions of the EU Data Protection Directive. The Commission feels that this does not reflect the true situation. It is for the Member States to decide whether or not ethnic data should be collected to produce statistics for combating discrimination, provided that the safeguards set out in the Data Protection Directive are respected.

The Commission also recognises that legislation alone is not enough to prevent discrimination and to promote equality. It has set out a number of proposals for further action in this area in its Communication entitled “ A Framework Strategy on Non-Discrimination and Equal Opportunities for All”, adopted in June 2005. (Please see INI/2005/2191 ). In particular, 2007 has been designated as the European Year of Equal Opportunities for All, a very effective way of raising awareness of the right to nondiscrimination, and a catalyst for action at national level. The Commission concludes by stating that legislation that is properly implemented and enforced , combined with complementary policy measures at national and EU level, is the key to reducing discrimination on grounds of racial and ethnic origin.

This report focuses on Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, which was adopted under the new Article 13 of the Treaty establishing the European Community. Rather than give a detailed account of the transposition of the provisions of Directive 2000/43/EC in the Member States, this report flags up certain aspects that are particularly problematic or important and to identify good practice. It concentrates on the impact of the Directive, transposition-related problems, dissemination of information, the enforcement of rights, the role of equality bodies, the social partners and NGOs, positive action and recommendations.

The impact of the Directive: the report points to the ways in which this directive was an innovative one, since it extended the scope of protection against discrimination well beyond the traditional area of employment into fields such as social advantages, health care, education and, crucially, access to goods and services which are available to the public, including housing. It obliged the Member States to create a body for the promotion of equal treatment (if they did not already have one). All Member States, even those with long-standing race discrimination legislation, had to make some changes to national law to comply with the Directive (for example, the UK amended its definitions of indirect discrimination and harassment). The problems identified include fundamental issues such as definitions of direct and indirect discrimination and harassment in national law, which in some cases differ considerably from those given in the Directive. It appears that some Member States allow exceptions to the principle of non-discrimination which are wider-ranging than those permitted under the Directive. There is a series of problems related to the enforcement of rights of victims of discrimination, such as incorrect transposition of the rules on the burden of proof, the right of associations to help victims of discrimination, and sanctions and remedies. The Commission is examining the national legislative measures notified by the Member States, in order to assess their conformity with the Directive and to ensure that victims of discrimination can exercise the rights given to them.

Key Issues

-Right of redress: it is clear from the information provided that many victims of discrimination do not proceed to court with their complaints because of the cost and for fear of victimisation, and are more likely to turn to an NGO or an equality body, from which they can usually obtain information and advice free of charge. In most Member States, associations are able to help victims or represent them in court, but some countries have laid down strict rules governing the activities of associations in this area. It appears from the statistics provided by the Member States and equality bodies that most complaints of discrimination before national courts and/or equality bodies involve employment, followed by the provision of goods and services and housing. In the majority of the EU 10, statistics showed the Roma as the group most represented in complaints. The number of cases taken up by the Roma indicates that the Directive is being successfully used to challenge discrimination against that group.

-Equality bodies: the equality bodies give legal advice to individual victims of discrimination, but they only support a small number of cases before the courts. Supporting only strategic litigation is a clear aim of a number of equality bodies. In some Member States, the emphasis is on promotion of equal opportunities and prevention of discrimination, rather than legal support for individual complainants. The capacity of an equality body is directly linked to the way it is funded. Another issue is specific to Member States which have federal and regional governmental structures. If the equality body only exists at one of these levels, it may be powerless to act on matters falling within the other spheres of competence.

Dissemination of information: there is insufficient information about the way in which this obligation has been fulfilled. However, a number of interesting initiatives were undertaken, and these are detailed in the report.

The role of the social partners & NGOs: the obligation requiring Member States to promote dialogue between the two sides of industry to foster equal treatment, including through collective agreements, codes of conduct and the exchange of good practice, is met in different ways. The ETUC notes a trend among governments to favour dialogue on discrimination issues with NGOs rather than the social partners, although from the information received from the Member States the picture is somewhat mixed.

Gender mainstreaming and multiple discrimination: the Commission is aware of the problem of multiple discrimination and has launched a study on the subject as part of its work programme for 2006, which will look at what is being done in the Member States in this area and make recommendations.

Positive action: the Commission refers to Article 5 of the Directive and stresses the difference between positive action measures, which are allowed, and so-called "positive discrimination" measures, which are not compatible with the Directive. On the one hand, positive action measures aim to ensure full equality in practice by preventing or compensating for disadvantages linked to having a certain racial or ethnic origin. These measures may include, for example, providing specific training to people belonging to groups that do not usually have access to such training, or taking particular steps to ensure that certain racial or ethnic groups are fully informed about job advertisements. On the other hand, "positive discrimination" measures give an automatic and absolute preference (for example in access to employment) to members of a particular group over others. Attitudes towards positive action vary hugely across the Member States, and the report gives instances of different practices.

Conclusion: Directive 2000/43/EC is a major step forward in the fight against racial discrimination across the EU. Although all the Member States already had some sort of legal requirement in respect of equality and non–discrimination, for most of them the transposition of Directive 2000/43/EC required fairly extensive changes to existing legislation, or whole new Acts. This may explain the lateness with which many of the Member States transposed the Directive, but most of them have now done so.

The new legal framework has been in force for just over three years, which is not really long enough to evaluate its full impact or potential. So far, no cases have been referred to the European Court of Justice under the preliminary ruling procedure, and it is only the ECJ that can give definitive guidance on how to interpret the provisions of the Directive. Future judgments will help the Member States to provide clear and uniform protection against discrimination throughout the European Union. The Commission does not currently see a need to come forward with proposals for amending the legislation. It has reached this conclusion on the basis of the lack of experience with implementation of the Directive since its entry into force and the lack of case law from the ECJ.

The challenge for the coming years will be to ensure the full and effective transposition, implementation and enforcement of Directive 2000/43/EC. This will entail the establishment of mechanisms and methods for observing and reporting on the impact of national implementing measures. In this context, it will be important to develop the statistical basis and other indicators. Yet the scarcity of ethnic data in most Member States might hinder proper monitoring of the application of Community legislation. The Commission also recognises that legislation alone is not enough to prevent discrimination and to promote equality, and this paper details further action in this area.