Main legislation

However, it has not ratified yet Protocol no. 12 to the European Convention on Human Rights and the Council of Europe Framework Convention for the Protection of National Minorities. After ratification, these international instruments constitute part of the domestic legal order and can be applied directly by domestic courts if the provision at stake is sufficiently clear and precise for direct application.

Articles 10 and 11 of the Constitution, which prohibits discrimination, are applicable generally, without any restriction either as to the grounds on which the discrimination is based (they require that the principle of equality be respected in relation to all grounds) or as to situations concerned (they are applicable to all contexts, going beyond not only employment and occupation, but also the scope of the Racial Equality Directive). However, they are rarely invoked in private relationships, because of their very general formulation and the delicate issues which would be entailed by their application in this context, for instance to protect an individual from private acts of discrimination by an employer.

These constitutional provisions have been most effective when invoked against either legislative norms or administrative acts, which violate the principles of equality and non-discrimination which they contain.

Today, the major anti-discrimination legislation at federal level is embodied in three Acts adopted on 10 May 2007. First, the Federal Act amending the Act of 30 July 1981 criminalising certain acts inspired by racism or xenophobia, hereafter the Racial Equality Federal Act. This Act aims at implementing both the Racial Equality Directive and the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, in one single legislation prohibiting discrimination on grounds of alleged race, colour, descent, national or ethnic origin, and nationality. Secondly, the Federal Act pertaining to fighting certain forms of discrimination, hereafter the General Anti-discrimination Federal Act which covers age, sexual orientation, civil status, birth, property, religious or philosophical belief, actual or future state of health, disability, physical characteristic, political opinion, trade union opinion, language, genetic characteristic and social origin. Thirdly, the Federal Act pertaining to fighting against discrimination between women and men, wich relates to sex and assimilated grounds, i.e. maternity, pregnancy and transgender.

Apart from the federal legislator, the Regions and Communities have also taken action in their respective fields of competence. The Flemish Community/Region adopted, on 10 July 2008, a piece of legislation establishing a Framework Decree for the Flemish equal opportunities and equal treatment policy which tackles the same grounds as those covered at the federal level. Its scope relates to employment policy, health care, education, goods and services available to the public (i.e. housing, energy, cultural services), social advantages, economical, social, cultural and political activities outside the private sphere. This piece of legislation comprises two main parts: (1) the design of a general framework for the implementation of a proactive and preventive policy on equal opportunities; (2) specific provisions against discrimination based on a very similar closed list of grounds to those prohibited at the federal level.

The French-speaking Community adopted a Decree, on 12December 2008, on the fight against certain forms of discrimination which tackles the same grounds as those covered at the federal level. It applies to the selection, promotion, working conditions, including dismissals and pay in the public service of the French-speaking Community, education andvocational training, health policy, social advantages, membership of and involvment in any professional organisation funded by the French-speaking Community, and access to goods and services available to the public.

The Walloon Region adopted a Decree, on 6November 2008, on the fight against certain forms of discrimination, including discrimination between women and men in the fields of economy, employment and vocational training.

It tackles the same grounds as those covered at the federal level andapplies, more precisely, to vocational guidance, socio-professional integration, placing of workers, funding for the promotion of employment, funding for employment and financial incentives to companies in the framework of the economic policy, including social economy and vocational training, in the public and the private sectors. To fill the gaps remaining in its material scope of application, this Decree was amended on 19 March 2009 to cover, within the field of competences of the Walloon Region, social protection (including health care and social advantages), supply of goods and services which are available to the public and outside private and family sphere(including social housing), access, participation or any exercise of an economic, cultural or political activity open to the public, as well as employment relationships (under civil status) in departments of the Walloon Government, public authorities depending on the Walloon Region, decentralised bodies (such as provinces, municipalities, etc.) or public Centres for social assistance.

The Region of Brussels-Capital adopted two Ordinances fighting against discrimination on 4 September 2008. The first Ordinance, relates to the fight against discrimination and equal treatment in the employment field. It tackles the same grounds as those covered at the federal level and chiefly applies to placing of workers and promotion of employment. It is worth noting that this Ordinance provides for public allowances and labels for business implementing diversity plans. The second Ordinance relates to the promotion of diversity and the fight against discrimination in the civil service of the Region of Brussels-Capital. It applies to the employment field in the civil service of the Region of Brussels-Capital and covers access conditions, criteria selection, promotion, work conditions, including dismissals and pay. By encouraging public institutions to adopt diversity plans, this second Ordinance also puts in place a broad policy of equal treatment. As to the fight against discrimination in social housing, an Ordinance modifying the Brussels Housing Code was adopted on 19 March 2009 and filled the last gap regarding the material scope of protection in the Region of Brussels-Capital.

The German-speaking Community adopted a Decree on the guarantee of equal treatment on the labour market on 17 May 2004, which prohibits direct and indirect discrimination with respect only to the bodies or persons who fall under the powers of the German-speaking Community. The grounds concerned are sex, race, colour, descent, national or ethnic origin, sexual orientation, civil status, birth, property, age, religious or philosophical convictions, current or future state of health, disability or physical characteristic. In June 2007, this Decree was amended in order to comply with EU law in different respects (modification of the definitions of discrimination, victimisation, legal standing of organisations, etc.)

The French Community Commission of the Region of Brussels-Capital (Cocof) adopted a first Decree on equal treatment between persons in vocational training on 22 March 2007, which is based on an open list of prohibited criteria. Recently, the Cocof adopted a second Decree on the fight against certain forms of discrimination and on the implementation of the principle of equal treatment on 9 July 2010.

The purpose of this legal instrument is to lay down a general and harmonised framework for combating certain forms of discrimination and for promoting equal treatment in the fields of competences of the Cocof, more precisely school transport and school building management, municipal, provincial, inter-municipal and private facilities with regard to physical education, sports and outdoor life, tourism, social advancement, health policy, assistance for people[1], access to goods and services, access, participation and any other exercise of economic, social, cultural or political activities publicly available and labour relations within public institutions of the Cocof. This piece of legislation is based on a list of prohibited criteria in line with the Federal Anti-discrimination Acts. It also aims at promoting diversity to the extent that each public institution of the Cocof is required to develop a diversity action plan

At regional level, all the Regions/Communities (Cocof, German-speaking Community, Flemish Community/Region, Region of Brussels-Capital, French-speaking Community, Walloon Region) have now adopted statutory law fighting against discrimination in order to fully implement the Directives. They have endeavoured to harmonize their content to the Federal Anti-discrimination Acts and are, to a large extent, in line with the Directives.