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The new anti-discrimination Directive
On 23 October 2007 the Commission adopted its Legislative Work Programme for 2008, in which it announced its intention to propose a new legislative framework. Thus, on 2 July 2008, the Commission adopted a proposal for a new directive, aiming to implement the principle of equal treatment irrespective of religion or belief, disability, age or sexual orientation outside the labour market. It sets out a framework for the prohibition of discrimination on these grounds and establishes a uniform minimum level of protection within the European Union for people who have suffered such discrimination.
On 2 April 2009 the European Parliament adopted the proposal. The proposal and amendments can be downloaded from the following link:
The new Directive outlaws discrimination in social protection, including social security and health care, social advantages, education and access to and supply of goods and services which are available to the public, including housing. Article 3 stipulates that the Directive does not cover national laws relating to the secular nature of the State and its institutions, nor to the status of religious organisations. The Directive does not prohibit differences in treatment based on nationality (Art. 3 par.5) or differences of treatment based on sex which are covered by Articles 13 and 141 of the EC Treaty and related secondary legislation. Moreover, the Directive is without prejudice to national laws on marital or family status and reproductive rights or to the responsibilities of Member States for the content of teaching, activities and the organisation of their educational systems, including the provision of special needs education (Art. 3 par. 2 and 3).
The Directive prohibits direct and indirect discrimination, harassment, victimisation and instruction to discriminate (Art. 2 par. 2, 3 and 4). It introduces a new concept, the denial of reasonable accommodation, which is considered a form of discrimination (Art. 2 par. 5), in accordance with the recently adopted UN Convention on the Rights of Persons with Disabilities. The definitions of the principle of equal treatment and of the concept of direct and indirect discrimination and of harassment are identical to those in the two other anti-discrimination Directives (Art. 2). Similarly, the Member States can choose to provide a higher level of protection than that introduced by the Directive (Art. 6). The Directive allows differences in treatment on grounds of age, if they are justified by a legitimate aim and the means of achieving that aim are appropriate and necessary (Art. par. 6).
For people with disabilities, non-discrimination also entails the concept of general accessibility (Art. 4). Nevertheless, the Directive avoids imposing a disproportionate burden on service providers by taking account of the size and resources of the organisation, its nature, the estimated cost, the life cycle of the goods and services and the possible benefits of increased access for persons with disabilities (Art. 4 par. 2). In addition, Member States remain free to maintain measures ensuring the secular nature of the State or concerning the status and activities of religious organisations (Art. 3 par. 4).
The new Directive includes the same provisions on positive action (Art. 5), defence of rights (Art. 7), the shift in the burden of proof (Art. 8), victimisation (Art. 9), dissemination of information (Art. 10) and sanctions (Art. 14) as the other two anti-discrimination Directives of Article 13 EC. To ensure the effectiveness of the proposed measures, civil society organisations will be able to assist victims in judicial and administrative procedures, either on behalf or in support of them (Art. 7 par. 2). It also stipulates the designation of equality bodies to promote the principle of equal treatment, as provided for in the Race Equality Directive (Art. 12). These bodies will have a mandate to provide independent assistance to victims of discrimination in pursuing their complaints, to conduct independent surveys, to publish independent reports and to make recommendations on issues relating to discrimination.
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