Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on certain Community measures to combat discrimination
21. 12. 1999 EN Official Journal of the European Communities C 369/3 Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on certain Community measures to combat discrimination (1999/C 369/03) 1. INTRODUCTION The European Union is founded on the principles of liberty, democracy, respect for human rights and funda- mental law, principles freedoms and on the rule of which are common to the Member States (1). Covenants on Civil and Political Rights, Economic, Social and Cultural Rights; the UN Conventions on the elimination of all forms of discrimination against women and against racial discrimination; the European Convention on Human Rights Fundamental Freedoms; and, limited to employment and occupation, by the ILO Convention No 111 (2). and it has never been more important The right to equality before the law and the protection of all persons against discrimination constitutes a funda- mental right and is essential to the proper functioning of democratic societies. It contributes to the objectives of promoting economic and social progress and a high level of employment through the strengthening of economic and social cohesion. In Amsterdam in June 1997, the Heads of State and Government recognised to underline that these principles. They agreed to strengthen the European Union’s capacity to act in this area by intro- ducing Article 13 of the Treaty establishing the European Community which provides the Community with specific powers to take action to combat discrimi- nation based on sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation. Action to promote equal treatment and combat discrimination is important for the sake of citizens and their commitment to the ideals of the Union. But it is also important, including in the context of enlargement, to make clear that these principles must be more than simple words. The purpose of the proposals presented under the cover of this Communication is to give effect to the new powers bestowed upon the Community by Article 13. 2. BACKGROUND: THE INTERNATIONAL, NATIONAL AND COMMUNITY CONTEXT The right of individuals not to be discriminated against on arbitrary grounds has long been recognised by Inter- national Organisations, the European Union and its Member States. 2. 1. The international context The right to non-discrimination is recognised as an autonomous right or associated with the exercise of the UN rights by, other fundamental inter alia, (1) See Annex I regarding EU Declarations and other relevant documents adopted by the European Community Institutions and the Member States concerning human rights and fundamental freedoms. Although all EU Member States are either signatories to, or have ratified, these international agreements, with the the UN Convention on racial discrimi- exception of nation and ILO Convention No 111, this does not mean that individuals have a legally enforceable right the State has made a to redress. that to for commitment non-discrimination within its jurisdiction. It means to guarantee respect the right 2. 2. The national dimension There is considerable diversity in the constitutional and ordinary laws of the Member States on the right to equality and the prohibition of discrimination (3). 2. 2. 1. Constitutional provisions All Member States, except one, have Constitutional provisions outlawing various forms of discrimination. The United Kingdom does not have a written Consti- tution, but its unwritten constitution prohibits discrimi- nation. The wording of these constitutional provisions varies In some cases, from Member State to Member State. they explicitly mention a closed list of factors of discrimination which are prohibited. In other Member States, the Constitutions establish an open-ended list, with residual forbidding discrimination in general terms, referring to matters such as áany other condition or personal or social circumstanceí or áany other considerationí. clauses (2) See Annexes III and IV on UN and Council of Europe human rights instruments and ILO conventions. (3) See Annexes V and VI on Member States constitutional and to combat discrimination on grounds of religion or belief, disability age and ordinary provisions racial and ethnic origin, sexual orientation. C 369/4 EN Official Journal of the European Communities 21. 12. 1999 prohibiting The Constitutions of most Member States explicitly cover the following grounds of discrimination: race or ethnic origin; religion or belief; and, increasingly include discrimination on the basis of disability (4). Although many Member States have developed ordinary legis- one lation Member State refers to age explicitly in its Constitution, whilst the Constitutional Court of another Member State has declared this ground to be implicit within its Consti- tution (5). The courts of three Member States (6), have interpreted their national Constitutions to prohibit discrimination on the basis of sexual orientation. discrimination, only age áanti-discrimination or The equalityí Constitutional clauses are legally enforceable by individuals in most Member States. In the other Member States individuals cannot fully rely on Constitutional equality provisions when appearing those before national are, however, principles which should provisions in certain cases, could be inspire public action and, invoked to justify a challenge to ordinary law on grounds of constitutionality. tribunals: 2. 2. 2. Ordinary legislation As far as ordinary legislation is concerned, all Member States’ legal systems have regulations governing equal treatment and non-discrimination in many facets of the employment relationship, for example in the areas of access to employment, remuneration and working conditions during employment. States, equal established and In many Member non-discrimination are general or residual clauses referring to áall phases of employmentí, In áall working conditionsí or áthe other conditionsí. some cases, such as working time pay or promotion. Some Member States’ they mention specific matters treatment by (4) Belgium, France, Luxembourg, Sweden do not have Constitutional provisions dealing with these grounds; Spanish courts have inter- preted Article 14, which provides that Spaniards are equal before the law, without any discrimination for reasons of birth, race, sex, religion, opinion, or any other personal or other social condition or circumstanceí to include disability; Italian courts have implied such a ground from Articles 3, 4 and 38 of the Constitution; and the Dutch Courts have interpreted Article 1 of the Netherlands’ Consti- tution, All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on grounds of religion, belief, political opinion, race or sex or any other grounds whatsoever shall not be permittedí, to include disability. (5) Article 14 of the Spanish Constitution. (6) The Constitutional provisions of all three provide for an implied right against discrimination: Spain - Article 14; The Netherlands - Article 1; and Finland - S5(2), as referred to in the Preamble. systems also render void or ineffective certain clauses or regulations if their effect is discriminatory or results in discriminatory treatment. In more general terms, a number of Member States do not have comprehensive legislation (other than isolated labour or criminal provisions contained in various to combat discrimination on the grounds of codes) racial or ethnic origin, religion or belief, age and sexual orientation. Specific anti-discrimination legislation in two Member States does not cover age and sexual orientation; legis- lation in two other Member States does not cover age and disability and legislation in another Member State does not cover age. 2. 3. EU context 2. 3. 1. Community law a European Community long-standing has The towards equal opportunities and equal commitment treatment between women and men. It has also consis- tently shown its commitment to eliminating all other forms of discrimination through a variety of instruments - joint declarations, resolutions, directives and action programmes (7). The 1989 Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination in order to ensure equal treatment for all. However, the Community was often criticised for not going further and in particular for the lack of a specific legal base for action going beyond equal treatment for men and women in the employment field. In order to ensure the non-discriminatory application of Community legislation pending the outcome of the IGC, the Commission, in its Communication on racism, xeno- phobia and antisemitism of 13 December 1995, promised to propose the insertion, where appropriate, of anti-discriminination clauses, both in new community instruments up-dating Community legislation. and when revising and (7) See Annex II on relevant documents made by European Union institutions concerning disability, racial or ethnic origin, age and sexual orientation. 21. 12. 1999 EN Official Journal of the European Communities C 369/5 Following this, general non-discrimination clauses were introduced in a number of Commission’s proposals, in praticular in the amended revision of Regulation (EEC) No 1612/68 on freedom of movement for workers. appropriate to make the Article 13 proposals dependent upon the final adoption of the Charter. Moreover, as a matter of principle, Article 1(a) of Staff Regulations of officials of the European Communities as modified in 1998 establish a non-discrimination clause on grounds of race, political, philosophical of religious belief, sex or sexual orientation. In the Intergovernmental Conference in June 1997, the Heads of State and Government included a new Article 13 in the Amsterdam Treaty providing the Community with specific powers to take action to combat discrimi- nation based on sex, race or ethnic origin, religion or the belief, disability, age and sexual orientation. At Cardiff European Council in June 1998, Heads of State and Government looked forward to further proposals for the Commission’s Communication on an Action Plan against Racism. The Union’s commitment to the fight against discrimi- nation was clearly confirmed by the European Council of Tampere of October 1999. common action following 2. 3. 2. Provisions on fundamental rights significantly more the European Convention sets non-discrimination. Article 6(2) of the Treaty on European Union states that the Union respects fundamental rights as guaranteed by the European Convention on Human Rights. Article 14 forth a general of this However, of principle provision is limited than the proposed measures implementing Article 13 of the EC Treaty. Although it prohibits discrimination, Article 14 of the Convention does not create any independent rights and, furthermore, it only imposes obligations on Governments. to the principle of non-discrimination in very broad terms. In contrast, the proposal to implement Article 13 of the Treaty lay down a legislative framework to be imple- mented by the Member States and provide for directly enforceable judicial remedies before national courts. In addition, Article 14 refers At the Cologne European Council meeting in June 1999, the Heads of State and Government decided that a Charter of fundamental rights of the European Union should be drawn up. The elaboration of a Fundamental Rights Charter, even if this is a parallel exercise, has in this respect considerable significance. However, it is not clear at this stage whether the Charter will provide for directly enforceable judicial remedies. It would not be 2. 3. 3. Other EU initiatives - A Joint Action (8) on the basis of Article K. 3 of the Treaty of European Union concerning action to combat racism and xenophobia was adopted by the Council on 15 July 1996. The main objective of the Joint Action was to ensure effective judicial co-operation between Member States in the fight against racism and xenophobia. In that context the Joint Action refers to the need to prevent perpe- these offences from exploiting the fact trators of that these activities are classified differently in different Member States by moving from one country to another to escape criminal in order proceedings. A report on the assessment of the implementation of the Joint Action prepared in April 1998 showed that the conduct listed in the Joint Action are already punishable as offences by Member States’ legislation or that Member states are reviewing legislation in order to ensure that the activities listed in the Joint Action can be dealt with as criminal offences. However, it was noted that additional steps could be taken, for example in the area of contact points to develop the effectiveness of the Joint Action. A the implementation should be further undertaken by the Council before the end of June 2000. review of The Commission will assess the necessity of further initiatives in this field, taking into account the new types of legal instruments introduced by the Treaty of Amsterdam, and taking into consideration the report on the Joint Action due for June 2000. It - A Communication on crime victims in the European focuses Union (9) was adopted in July 1999. mainly on the person who becomes a victim in another Member State that his own. The purpose of the Communication is to initiate discussion on concrete measures to improve the situation of crime victims. It proposes measures on prevention, assistance, compensation and the standing of victims in the criminal procedure. The particular vulner- ability of certain categories of victims such as foreign origin would justify special victims of attention being paid to the assistance which can be afforded to them and in the accessibility to these services. The Conclusions of the Tampere European Council of 15 and 16 October 1999 underline the importance of improving the protection of victims and their access to justice. (8) OJ L 185, 24. 7. 1996, p. 5. (9) COM(1999) 349 final. C 369/6 EN Official Journal of the European Communities 21. 12. 1999 - In the framework of the training and exchange programmes in the field of judicial and police coop- eration, namely the Grotius and OISIN programmes, the Commission already funded some projects which are relevant in preventing and combating racism and xenophobia. These projects aim at facilitating judicial cooperation by law, procedures and institutions of the Member States’ systems; at improving the way police officials are trained to deal with ethnic minorities, and at contributing to the development of new policies in the field of recruiting police officers, with a view of having different communities and minorities more accurately. awareness of improving reflecting police forces the On the basis of the results of these projects, the Commission is willing to support further activities to strengthen judicial cooperation, the role of the law enforcement authorities and police training in the field of the fight against racism and xenophobia. 3. CONSULTATIONS the need for racial the Commission announced that Long before the signature of the Amsterdam Treaty, various institutions and interested parties - notably the European Parliament and NGOs - had called for In European legislation to combat discrimination. particular, legislation was widely acknowledged during the 1997 European Year against in its Social Action Programme 1998 to Racism and, 2000, it would launch a broad debate on the implementation of including the possibility of a framework Article 13, forms of discrimination. programme to combat all the Following the the new Treaty, Commission held extensive consultations about the scope of such legislation with civil society including the and the social partners, European Parliament. the Member States signature of to fight against discrimination. Finally, instrument Representatives of the Member States were consulted in the framework of the High Level Group on Non-Discrimination. the Governments of During these consultations, confirmed the importance of four principles: the key actors involved - the need to move forward on a broad front: Community action addressing discrimination across the board was considered necessary, taking account of the specificities but also the similarities of discrimination on the different grounds; - the need to take account of the varying levels of progress made in the Member States: while some Member States have relied on constitutional clauses alone to assert rights to non-discrimination, others have developed very specific legislation in certain areas; - the need to make available to secure greater momentum and political will progress where this was possible in specific areas; full use of the - the need to contribute to the development of practical policies on the ground as well as to the establishment of the right not to be discriminated against: dual approach based on binding legislation action accompanied programme. reinforced and by an and conferences This consultation took place in a formal series of seminars in Oxford, Manchester, Innsbruck, Vienna and Berlin and in the Second Social Policy Forum in Brussels in June 1998. A large number of representatives from the European institutions, the Member States, civil society and the social partners discussed issues related to the fight against all the the forms of discrimination cited in Article 13 of Treaty. Further discussions also took place with the and in the European Platform of Social NGOs the framework of in European Parliament January and December 1998, which expressed clear views on the use of Article 13 in the field of racism and its Committee on Employment and Social Affairs adopted a Working Document in March 1999 which binding for gives In addition, adopted two Resolutions the social dialogue. a horizontal support general 4. THE COMMISSION’S PACKAGE OF PROPOSAL The Commission has taken full account of these views, and of the more detailed comments it has received, in developing its package of proposals. It has also drawn on the experience of the Community in combating gender discrimination. This has shown that, while legis- lation to outlaw discrimination is an essential part of an effective strategy to change attitudes and behaviour, sending clear signals about what society regards as acceptable or unacceptable, is behaviour, sending clear signals about what society regards as acceptable or unacceptable, it is not sufficient on its own. Legis- lation must be underpinned by concrete action which enables people to learn from the success and failures of others and to build those lessons into their own action to tackle discrimination at local level - where it is often most effective. it 21. 12. 1999 EN Official Journal of the European Communities C 369/7 The Treaty provides the Council with the power to take appropriate action to combat discrimation. Experience in the field of gender discrimination has shown that one of the most effective ways to combat discrimination is through promoting equal treatment, while at the same time allowing the possibility for Member States to adopt compensate positive long-standing inequalities groups of people who, by historically, have not been afforded equal treatment. action to suffered for The Community is already active in the fight against discrimination in particular in the employment and social fields. The Commission has taken this experience into account in proposing a range of initiatives based on a mix of legal instruments, which builds on these efforts while recognising that discrimination goes beyond the labour market and calling for an integrated approach. to this package will Taken together, combating the including promotion of equal treatment. contribute through discrimination, The draft directives proposed by the Commission do not affect the principle of equality enshrined in national constitutions and in Common law. They simply intend to legislative reinforce measures implementing the principle of equality. supplement national and First, the Commission proposes a directive to combat discrimination in the labour market on all grounds referred to in Article 13, with the exceptions of sex, which has been covered by important Community legis- lation going back as far as the 1970s and which has a specific legal basis for action in the employment field (Article 141 of the TEC). This proposal will tackle the area in which discrimination on all grounds is most evident and where it is frequently most damaging to individuals’ chances of success in society. Second, the Commission proposes a directive to combat discrimination on grounds of racial and ethnic origin takes which goes beyond the labour market. This account of the experience of the Community during the European Year against Racism and, in particular, of the strong political will which exists to take action to combat as many aspects as possible of racial discrimi- nation. In formulating these proposals, the Commission has taken account of past action in related fields, in particular the experience of fighting discrimination on grounds of sex embodied in Directives 76/207/EEC directives, (Equal treatment) following and the including Directive 97/80/EC (Burden of proof). It has also legal consideration instruments in the field of discrimination. international taken into It is important to underline that the material scope of the two draft directives overlaps to the extent that both cover discrimination based on racial or ethnic origin in employment. The reason for this is that the proposals, while similar in design, are intended to be independent pieces of If one directive were adopted by the Council before the other, the remaining proposal would be amended accordingly. legislation that could stand alone. designed by to supporting the supplementing Third, the Commission proposes a programme of action, legislative complement the proposals and Member States’ efforts to combat discrimination. This will address all grounds of discrimination covered by Article 13 of the Treaty, except sex discrimination. In the Community’s experience in previous the light of action in this field and of the specific importance attached to the principle of equality between women and men by other Treaty provisions - notably Articles 2, 3 and 141 - discrimination on grounds of sex will be included within a new programme on gender equality, that the Commission is currently preparing. However, according to the new provisions of Articles 2 and 3 of the EC Treaty, the Commission will ensure that a gender perspective is effectively included in all actions and activities addressed in the programme to combat all other grounds of discrimination. has elderly experience considerable The Community in supporting practical measures to assist other groups which are frequently victims of discrimination - the visible minorities, people with and disabilities. Much of this experience has focused on measures designed to integrate individuals into society rather than to combat at source the discrimination this experience has which they suffer. Nevertheless, been taken into account in the design and structure of in particular, in the proposed action programme and, the involvement of discriminated groups in its implementation. it places on the emphasis Together, these three proposals will constitute a compre- hensive basis for action, providing a minimum level of legal rights not to be discriminated against, supported by practical action to promote the effective application of those rights on the ground. C 369/8 EN Official Journal of the European Communities 21. 12. 1999 that But they are not the Community’s only response. It is the fight against discrimination is carried vital through all at Community and national levels. The Community has launched a range of actions which take account of this need. activities relevant First, the Employment Guidelines commit Member States to make the fight against discrimination against women a priority for all their actions in the labour market. They also require special attention to the needs of the disabled, ethnic minorities and other groups and individuals who may be disad- including by discrimi- vantaged in the labour market, nation. them to give the Social through In addition, these groups can benefit the Structural Funds. Fund will, from the ordinary Second, the assistance of European new Community Initiative EQUAL, address issues linked to exclusion, discrimination and inequality, to the extent that they interact with employment. It will focus on thematic priorities agreed between the Member States and the Commission, which relate to the four pillars The of Community Action Programme will not provide support funding for actions which are eligible for under EQUAL. Employment European Strategy. the the new education, Third, youth programmes will continue to promote the integration including people exposed to of disadvantaged groups, discrimination on various grounds, as one of their hori- zontal priorities. training and Fourth, as noted above, the Commission is preparing a new Community Action Programme equiality between women and men to build on the valuable the current Community Programme which gains of comes to an end on 31 December 2000. for promote cooperation Finally, the Commission is also preparing a programme of action to combat social exclusion under Article 137. Discrimination can, of course, be a contributory factor leading to social exclusion. The Inclusion Programme at policy-oriented will to underpin Member States’ efforts Community level It will focus to prevent and combat social exclusion. on measures to promote the integration of groups which are excluded or are at risk of exclusion, while the programme included in this package based on Article 13 will concentrate on supporting and improving the effec- tiveness of Member States’ measures to combat discrimi- nation. to support Member States’ efforts Beyond this, the Commission intends to turn to good account the new opportunities given by the coming into force of the Amsterdam Treaty and made clear by the conclusions of the extraordinary European Council of Tampere. In fact, the rejection of all forms of discrimi- is an nation particularly of racism and xenophobia, essential condition for the maintenance and devel- opment of the European Union into an area of freedom, security and justice as foreseen in Article 2 of the TUE. July 1998 (10), Already taken up by the Commission in its communi- repeated in the letter by cation of President Prodi to the Finnish Prime Minister Lipponen dated 23 September 1999 and supported by the resolution dated 16 September European Parliament 1999, this fundamental principle was confirmed by the Heads of State and Government without ambiguity, and what is needed now is its implementation. Moreover, it will also be up to the Commission to continue it’s action in the fight against discrimination by using the right of to new measures coming under Title VI TUE wherein Article 29 contains an express reference to the prevention of racism and xenophobia, and of Title IV TCE especially in the fields of asylum and immigration. initiative in respect 5. ECONOMIC IMPACT labour market. The social participation and, Evidence from the Member States shows that groups of people who are most frequently the victims of discrimi- nation are likely to experience the greatest difficulties in terms of social integration and, in particular, of access to the two draft directives, by combating discrimination in a variety of situations, in will promote wider supporting people’s particular, ability to fulfil their potential in economic and social terms. At the same time, they will ensure that society and enterprises are able to make best use of their human resources. To achieve this gain, some enterprises in Member States which currently have no or limited non-discrimination provisions will experience temporary costs associated with adjusting to the new requirements (such as training relevant staff). employability, thus is explored in greater detail This point directives in the impact assessment attached to each proposal. for the two forms which are (10) COM(98) 459 final dated 14. 7. 1998. 21. 12. 1999 EN Official Journal of the European Communities C 369/9 6. SUBSIDIARITY AND PROPORTIONALITY: AND ADDED VALUE JUSTIFICATION In introducing the new Article 13 into the Treaty, Heads of State and Government recognised that there is a need for the Community to take action to combat discrimi- nation. Nevertheless, the fight against discrimination is not an area of exclusive Community competence and, in accordance with Article 5, the Community must therefore act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. This test ist met by the three proposals annexed to this Communication. Subsidiarity Most Member States have included in their constitu- tional and/or legal order provisions which assert the the right not scope and the enforceability of such provisions - and the ease of access to redress - vary greatly from one Member State to another. to be discriminated against. However, the possibility The draft directives would lay down a set of principles including on equal treatment covering key issues, protection against harassment, for positive action, appropriate remedies and enforcement measures. These principles would be applied in all Member States, thus providing certainty for individuals about the common level of protection from discrimi- nation they at achieved through Community co-ordinated action. can expect. Common standards can only be level Proportionality If European legislation is necessary to reach the objectives of it must nevertheless go no further than is necessary to reach those objectives. the Treaty, In light of the differences that still exist in the ordinary legislation of the Member States, it is necessary to define common principles in order to give effect to Article 13. However, during the extensive consultations with all interested parties, both the Member States and the NGOs emphasised how important it was to respect the different traditions of the Member States, both to enable flexibility in implementation and to avoid inter- fering with the good practices which already exist in some Member States. Therefore, the proposals intend to set a limited number of requirements based on a number of general principles, allowing Member States to discretion in how they considerable implement the different them. This takes account of traditions and circumstances of Member States and, furthermore, it does not prevent Member States going further. Moreover, this approach is not new since it was already taken by Community legislation on equality between men and women. choose in actors between cooperation The draft Decision on the Action Programme enables multi-lateral the Member States leading to an improvement in the effec- tiveness of policies and practices to combat discrimi- nation across Such cooperation requires co-ordination at European level both to ensure efficiency and to avoid overlap with other Community initiatives. The programme was designed following an extensive evaluation ex ante to identify the ways in which Community support could best add value to Member States’ existing practices. the Community. CONCLUSION The Commission has prepared this package over a long period, as a result of extensive consultations with the Member States, NGOs, the social partners and the European Parliament. The issues raised are particularly sensitive because they directly affect society’s conceptions. The Commission is taking a reasonable, progressive and pragmatic approach. The Action Programme aims to raise awareness about discrimination in general, which affects a significant number of people either directly or indirectly. The two directives lay down a limited number of requirements, while leaving the necessary margin of discretion to the Member States in how they choose apply them. treatment framwork for equal The two proposed directives are intended to give effect to the Treaty. The first directive establishes a Article 13 of general in the employment field, by prohibiting discrimination on the various gorunds set forth in Article 13. The second directive is a response to the many calls to combat racism in fields beyond employment, prohibiting discrimination in other areas which fall within the competence of the Community. For these reasons, following the call for action by the Tampere European Council, and without prejudice to the preparation of a European Charter of is necessary to move forward now. the Commission considers that fundamental rights, it Community action is a clear signal that discrimination is not acceptable within the European Union. C 369/10 EN Official Journal of the European Communities 21. 12. 1999 ANNEXES I. Declarations and documents from EC Institutions and Member States on fundamental rights and freedoms II. Documents from EC Institutions on disability, racial or ethnic origin, age and sexual orientation III. Table: UN and Council of Europe human rights instruments to which EU Member States are not parties IV. Table: ILO Conventions V. Table: Constitutional provisions to combat discrimination VI. Table: Statutory provisions to combat discrimination ANNEX I EU declarations and other documents of the European Community institutions and Member States concerning human rights and fundamental freedoms - Paris Summit Declaration (19 and 20 October 1972). - Document on the European identity (Copenhagen Summit, 14 December 1973). - Joint Declaration on fundamental rights (European Parliament, Council and Commission, 5 April 1977). - Declaration on democracy (Copenhagen European Council, 8 April 1978). - Single European Act (February 1986). - Statement on human rights (Foreign Ministers meeting in the framework of European political cooperation, and Council, 21 Juli 1986). - Declaration of fundamental rights and freedoms (European Parliament, 12 April 1989). - Declaration on human rights (Luxembourg European Council, 28 and 29 June 1991). - Resolution on human rights, democracy and development (Council and Member States meeting within the Council, 28 November 1991). - Treaty on European Union (preamble, common provisions and specific provisions on citizenship of the Union, development cooperation, a common foreign and security policy, and cooperation in the fields of justice and home affairs). - Resolution of 10 February 1994 on the Constitution of the European Union (European Parliament). (OJ C 61, 1994, p. 155). (There is an annex to this resolution: Draft Constitution of the European Union of 1994, adopted by the institutional committee of the EP). - Resolution of 6 May 1994 on violations of the freedoms and fundamental rights of women (European Parliament). - Commission Communication on the inclusion of respect for democratic principles and human rights in agreements between the Community and Third Countries (COM(95) 216 of 23 May 1995). - Commission Communication The European Union and the external dimension of human rights policy: from Rome to Maastricht and beyondí (COM(95) 567 of 22 November 1995). - Report from the Commission on the implementation of measures intended to promote observance of human rights and democratic principles (for 1995) COM(96) 672 final. 21. 12. 1999 EN Official Journal of the European Communities C 369/11 - Resolution of 12 December 1996 on human rights throughout the world in 1995-96 and the Union’s human rights policy (European Parliament). - Resolution on the Commission report on the implementation of measures intended to promote observance of human rights and democratic principles (for 1995) (European Parliament) (C4-0095/97). - The Amsterdam Treaty (for instance Article 2, 6, 7, 11, 46 and 49 of the EU Treaty and Articles 12, 13, 17, 136, 141). - Resolution of 19 December 1997 setting up a single co-ordinating structure within the European Commission responsible for human rights and democratisation (European Parliament) (A4-0393/97). - Conclusions of the Luxembourg European Council of 12 and 13 December 1997. - Resolution on respect for human rights in European Union (1996) (European Parliament (A4-0034/98). - Conclusions of the Cardiff European Council of 15 and 16 June 1998. - Communication from the Commission to the Council and European Parliament of 12 March 1998: Democrati- sation, the rule of law, respect for human rights and good governance: the challenges of the partnership between the European Union and the ACP Statesí COM(98) 146 final. - Common Position of 25 May 1998 defined by the Council on the basis of Article J. 2 of the Treaty on European Union, concerning human rights, democratic principles, the rule of law and good governance in Africa. - Declaration of the EU adopted on 10 December 1998 on the occasion of the 50 anniversary of the Universal Declaration of Human Rights. - Council Regulation (EC) No 975/1999 of 29 April 1999 laying down in requirements for the implementation of development cooperation, which contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms (OJ L 120, 8. 5. 1999, p. 8). - Council Regulation (EC) No 976/1999 of 29 April 1999 laying down the requirements for the implementation of Community operations, other than those of development cooperation, which, within the framework of Community cooperation policy, contribute to the general objective of developing and consolidating democracy and the rule of law and to that or respecting human rights and fundamental freedoms in third countries (OJ L 120, 8. 5. 1999, p. 8). - Barros Moura Report on human rights in the world (1997-1998) and the policy of the EU in the field of human rights A4-0410/98 (European Parliament). - Schaffner Report on respect for human rights in the EU in 1997. A4-0468/98 (European Parliament) - Conclusions of the Cologne European Council (3/4 June 1999) and more particularly Decision on the drawing up of a Charter of fundamental rights of the European Union. C 369/12 EN Official Journal of the European Communities 21. 12. 1999 Relevant documents of European Union institutions concerning disability, racial or ethnic origin, age and sexual orientation ANNEX II DISABILITY Resolutions Council Resolution of the Representatives of the Governments of the Member States of the European Communities meeting within the Council on the 21 December 1981 concerning on the social integration of handicapped people at Community level (OJ C 347, 31. 12. 1981). Resolution of the Council and the Ministers of Education meeting within the Council on the 31 May 1990 concerning integration of children and young people with disabilities into ordinary systems of education (OJ C 162, 3. 7. 1990). Resolution of the European Parliament of 14 December 1995 on the human rights of disabled people (OJ C 17, 22. 1. 1996). Resolution of the European Parliament on the rights of disabled persons (A4-0391/96). Resolution of the European Parliament on the equality of opportunities for people with disabilities (A4-0044/97). Resolution of the Council and the representatives of the Governments of the Member States meeting within the Council of 20 December 1996 on Equality of opportunity for people with disabilities (OJ C 12, 13. 1. 1997). Council Resolution of 17 June 1999 on equal employment opportunities for people with disabilities (OJ C 186, 2. 7. 1999). Decisions Council decision (88/231/EEC) of 18 April 1988 establishing a second Community action programme for disabled people (Helios) (OJ L 104, 23. 4. 1988). Council decision (93/136/EEC) of 25 February 1993 establishing a third Community action programme to assist disabled people (Helios II 1993-1996) (OJ L 234, 17. 9. 1993) Council decision (93/512/EEC) of 21 September 1993 on a Community technology initiative for disabled and elderly people (TIDE) (1993 to 1994) (OJ L 240, 25. 9. 1993). Recommendations Council recommendation (86/379/EEC) of the 24 July 1986 on then employment of disabled people in the Community (OJ L 225, 12. 12. 1986). Reports Report by the Commission to the European Parliament and the Council on the implementation and the results of the Helios programme (1988-1991) (SEC/92/1206 FINAL). Report from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the regions on the evaluation of the third Community action programme to assist disabled people (Helios II 1993-1996) (COM(98) 0015 FINAL). Conclusions Conclusions of the Council on the employment of disabled people in the Community (OJ C 173, 12. 6. 1989) Communications Communication of the Commission on Equality of opportunity for people with disabilities - A new European Community disability strategy (COM(96) 406 FINAL). RACIAL OR ETHNIC ORIGIN Resolutions Resolution of the Council and the Representatives of Governments of the Member States, meeting within the Council of 29 May 1990 on the fight against racism and xenophobia (OJ C 157, 27. 6. 1990). Resolution on racism and xenophobia (European Parliament B4-0261/94). Resolution on racism, xenophobia and anti-semitism (European Parliament B4-1239/95). Resolution of the Council and the representatives of the governments of the Member States, meeting within the Council of 5 October 1995 on combating racism and xenophobia in the field of employment and the social field. 21. 12. 1999 EN Official Journal of the European Communities C 369/13 Resolution of the Council and the Representatives of the Government of the Member States of 23 July 1996 on the European Year against racism (1997) (OJ C 237, 15. 8. 1996). Resolution by the European Parliament on racism, xenophobia and anti-Semitism and the result of the European Year Against Racism (1997) (OJ C 56, 23. 2. 1998). Declarations The 1986 Joint Declaration against racism and xenophobia of Commission (OJ C 158, 25. 6. 1986) the European Parliament, the Council and the Declaration on anti-semitism, racism and xenophobia (Dublin European Council, 25 and 26 June 1990). Declaration on racism and xenophobia (Maastricht European Council, 9 and 10 December 1991). Joint Declaration of the social partners on the prevention of racial discrmination and xenophobia and the promotion of equal treatment at the workplace (October 1995) Declaration by the Council and the Representatives of the Governments of the Member States, meeting within the Council of the 24 November 1997 on the fight against racism, xenophobia and anti-semitism in the youth field (OJ C 368, 5. 12. 1997). Declaration by the Council and the representatives of the Governments of the Member States, meeting within the Council of the 16 December 1997 on respecting diversity and combating racism and xenophobia (OJ C 1, 3. 1. 1998). Regulations Council Regulation (EC) No 1035/97 of 2 June 1997 establishing a European Monitoring Centre on racism and xeno- phobia (OJ L 151, 10. 6. 1997). European Council Conclusions Conclusions of the Corfu European Council of 24 and 25 June 1994 on racism and xenophobia. Conclusions of the Essen European Council of 9 and 10 December 1994 on racism and xenophobia. Conclusions of the Cannes European Council of 25 and 26 June 1995 on racism and xenophobia. Conclusions of the Madrid European Council of 15 and 16 December 1995 on racism and xenophobia. Conclusions of the Florence European Council of 21 and 22 June 1996 on racism and xenophobia. Conclusions of the Dublin European Council of 13 and 14 December 1996 on racism and xenophobia. Communications Communication from the Commission on racism, xenophobia and anti-semitism and proposal for a Council Decision designating 1997 as European year against racism (COM(95) 653 FINAL). Commissions Communication, An action plan against racism (COM(98) 183 FINAL). Others Joint Action of 15 July 1996 adopted by the Council on the basis of Article K. 3 of the Treaty on European Union, concerning action to combat racism and xenophobia. Reports of the Consultative Committee on racism and Xenophobia (the Kahn Committee) drawn up for the meetings of the European Council in Essen, Cannes, Madrid and Florence. C 369/14 EN Official Journal of the European Communities 21. 12. 1999 AGE Recommendations Council recommendation of 10 December 1982 on the principles of a Community policy with regard to retirement age (OJ L 357, 18. 12. 1982). Reports Report from the Commission to the Council on the application of the Council recommendation of 10 December 1982 on the principles of a Community policy with regard to retirement age (COM(86) 0365 FINAL). Report from the Commission on the application in Member States of the Council Recommendation 82/857/EEC of 10 December 1982 on the principles of a Community policy with regard to retirement age (SEC/92/2288 FINAL). SEXUAL ORIENTATION Resolutions Resolution by Parliament on sexual discrimination at the workplace (OJ C 104, 16. 4. 1984). Resolution by Parliament on discrimination against transsexuals (OJ C 256, 9. 10. 1989). Resolution by Parliament on equal rights for homosexuals and lesbians in the EC (OJ C 61, 28. 2. 1994). Declarations Council declaration of 19 December 1991 on the implementation of the Commission recommendation on the protection of the dignity of women and men at work, including the code of practice to combat sexual harassment (OJ C 27, 4. 2. 1992). 21. 12. 1999 EN Official Journal of the European Communities C 369/15 ANNEX III Principal United Nations and Council of Europe human rights instruments to which EU Member States are not parties (taken from Leading by example: a human rights agenda for the European Union for the year 2000í (11)) A B DK FIN F D EL IRL IT L NL P E S UK UN 1 2 3 4 5 6 7 8 CE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × (11) A project of the European University Institute funded by the European Commission, marking the 50th anniversary of the Universal Declaration of Human Rights - October 1998. UN 1 2 3 4 5 6 7 8 CE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 369/16 EN Official Journal of the European Communities 21. 12. 1999 United Nations 1. The International Covenant on economic, social and cultural Rights. 2. The International Covenant on civil and political rights (ICCPR). 3. The Convention on the elimination of all forms of discrimination against women. 4. The Convention on the rights of the child. 5. The Convention against torture and other cruel, inhumane or degrading treatment or punishment. 6. The Convention on the elimination of all forms of racial discrimination. 7. The Optional Protocol to the ICCPR. 8. The Second Optional Protocol to the ICCPR. Council of Europe 9. The Convention for the protection of human rights and Fundamental Freedoms (ETS No 5) as complemented by Protocol No 2 (ETS No 44) of 6 May 1963 and amended by Protocol No 3 (ETS No 45) of 6 May 1963, Protocol No 5 (ETS No 55) of 20 January 1966 and Protocol No 8 (ETS No 118) of March 1985 (the ECHR). 10. The Protocol to the ECHR (ETS No 9, dealing, inter alia with the right to peacefull enjoyment of possessions, the right to education, freedom of expression and opinion through free elections, the application of the ECHR to Member State territories). 11. Protocol No 4 to the ECHR, securing certain rights and freedoms other than those already included in the Convention and the first protocol thereto (ETS No 46). 12. Protocol No 6 to the ECHR concerning the abolition of the death penalty (ETS No 114). 13. Protocol No 7 to the ECHR (ETS No 117, dealing, inter alia, with rights of lawfully resident aliens, and rights arising in criminal proceedings). 14. Protocol No 9 to the ECHR (ETS No 140, on matters concerning the jurisdiction of the European Court of Human Rights). 15. Protocol No 10 to the ECHR (ETS No 146, amending Article 32 of the ECHR with a view to reducing the two-thirds majority mentioned therein). 16. Protocol No 11 to the ECHR (ETS No 155, restructuring the control machinery established thereby). 17. The European Agreement relating to persons participating in Proceedings of the European Commission and Court of Human Rights (ETS No 67, concerning certain immunities and facilities for persons participating in legal proceedings). 18. European Agreement relating to persons participating in proceedings of the European Court of Human Rights (ETS No 161 concerning certain immunities and facilities for persons participating in proceedings in the European Court of Human Rights, having regard to Protocol 11). 19. The European Convention for the prevention of torture and inhumane or degrading treatment or punishment (ECPT) (ETS No 126). 20. Protocol No 1 to the ECPT (ETS No 151, concerning the accession of non-member States of the Council of Europe). 21. Protocol No 2 to the ECPT (ETS No 152, on matters concerning renewal of membership of members of the European Committee for the prevention of torture). 22. The European Social Charter (ESC) (ETS No 35). 23. The Additional Protocol to the ESC (ETS No 128, concerning the extension of social and economic rights provided in the ESC). 24. The Protocol amending the ESC (ETS No 142, containing measures designed to improve the supervisory machinery). 25. Additional protocol to the ESC providing for a System of Collective Complaints (ETS No 158). 26. European Social Charter (Revised) (ETS No 163). 27. European Charter for Regional or Minority Languages (ETS No 148). 28. Framework Convention for the Protection of National Minorities (ETS No 157). 21. 12. 1999 EN Official Journal of the European Communities C 369/17 ANNEX IV Some relevant ILO Conventions A B DK FIN F D EL IRL IT L NL P ILO 111 142 159 × × × × × × × × × × × × × × × × × × × × × × × × × × × E × × × S UK × × × × ILO CONVENTIONS - Convention 111 concerning discrimination in respect of employment and occupation, 1958, - Convention 142 concerning vocational guidance and vocational training in the development of human resources, 1975, - Convention 159 concerning vocational rehabilitation and employment (disabled persons), 1985. Constitutional provisions to combat discrimination on grounds of racial or ethnic origin, religion or belief, disability (12), age or sexual orientation ANNEX V Member State Constitutional provision Grounds covered Legally enforceable right Belgium Denmark Germany Greece Spain France Ireland Italy Article 10, 11 and 191 of the Constitution General principle of equality Full effect (13) Article 70 of the consti- tution Racial or ethnic origin and religion or belief Full effect Article 3 of tution the Consti- Racial religion disability or ethnic or belief origin, and Full effect Article 4(1), 5(1) and 5(2) of the Constitution Racial or ethnic origin and religion or belief Full effect Article 14 of the Consti- tution Racial or ethnic origin and religion or belief (14) Full effect Article 2 of tution the Consti- Racial or ethnic origin and religion or belief Full effect Article 40 of the Consti- tution General principle of equality Full effect Article 3 of tution the Consti- Racial or ethnic origin and religion or belief (15) Full effect Luxembourg Article 11 of the Consti- tution General principle of equality Limited effect (16) C 369/18 EN Official Journal of the European Communities 21. 12. 1999 Member State Constitutional provision Grounds covered Legally enforceable right The Netherlands Article 1 of tution the Consti- Racial or ethnic origin and religion or belief (17) Full effect Austria Portugal Finland Sweden Article 7(1) of the Consti- tution Racial religion disability or ethnic or belief origin, and Limited effect Article 13 of the Consti- tution Racial or ethnic origin and religion or belief Full effect Section 5 of the Consti- tution or ethnic origin, Racial religion or belief, disability and age (18) Limited effect Chapter 2 Articles 1(6), the 15 and 20(6) of Constitution Racial or ethnic origin and religion or belief Limited effect The United Kingdom Does not have a written constitution (12) Most Member States have general constitutional provisions on the integration of disabled people but these are not mentioned in this table. (13) Full effect means that the provision is legally binding and gives rise to judicial redress. (14) The wording of the article is comprehensive and for that reason it could be argued that the article also covers discrimination on grounds of disability, age and sexual orientation. (15) See footnote 8. (16) Limited effect means that general principles may be deduced from the constitutional provision. (17) See footnote 8. (18) Discrimination on grounds of sexual orientation is implicity covered. Statutory provisions, other than penal provisions, to combat discrimination on grounds of racial or ethnic origin, religion or belief, disability (19), age or sexual orientation ANNEX VI Member State Laws or collective agreements Grounds covered Scope Belgium Denmark Germany Greece Spain agreement Collective 6 December 1983 concerning the recruitment and selection of workers of Act 459 of 12 June 1996 on prohibition against discrimi- nation of in employment and occupation etc. respect service codes and the Act constitution Civil works (BetrVG) Racial religion or belief and age ethnic or origin, or ethnic Racial origin, religion or belief and sexual orientation Employment Employment Racial religion or belief or ethnic origin, Employment No anti-discrimination law - - The workers ( Estatuto de jadoresí) (20) statute los act Traba- Racial religion or belief and age ethnic or origin, Employment 21. 12. 1999 EN Official Journal of the European Communities C 369/19 Member State Laws or collective agreements Grounds covered Scope France The labour code or ethnic Racial origin, religion or belief, disability and sexual orientation Employment equality At, 1998 Racial or ethnic origin, religion or belief, disability, age and sexual orientation Employment Employment Ireland (21) Italy Law No 300 of 20 May 1970 (Workers Statute) and Law No 40 of 6 March 1998 Racial or ethnic origin and religion or belief Employment (Workers Statute) and the provision of services and goods (Law No 40) Luxembourg No anti-discrimination law - - The Netherlands (22) equal treatment Act The (1994) or ethnic Racial origin, religion or belief and sexual orientation Employment, Advice regarding choice of education or career and provision of goods and services Austria to the procedures (Verwaltungsverfahrens- The introductory Act administrative code gesetze) Racial or ethnic origin and religion or belief service Provision of public and admission to public places Portugal No anti-discrimination law - - Finland Sweden The Act employment on contracts of employment protection The Act ethnic the (1982), discrimination Act (1999), Act on discrimination of people (1999), Act with disabilities on discrimination on grounds of sexual orientation (1999) or ethnic Racial origin, religion or belief, age and sexual orientation or ethnic Racial origin, religion or belief, handicap and sexual orientation Employment Employment The United Kingdom The race relations Act 1976 and the disability discrimi- nation Act 1995 Racial religion disability or ethnic or belief origin, and training, the provision of facilities and services, and Employment, education, goods, or disposal of premises the management (19) Only legislation which makes it unlawful to discriminate against disabled people are mentioned in the table. Concerning the integration of the disabled people several Member States have systems of compulsory employment or quota schemes (Germany, Greece, Spain, Italy, Luxembourg, the Netherlands and Austria) while others rely on subsidies to employers. (20) Revised text approved by the Royal Legislative Decree No 1/1995 of 25 March 1995. (21) Legislation prohibiting discrimination on the same grounds are the employment equality Act in education, the provision of goods and services and the disposal or property and accommodation (equal status Bill) was presented to the national parliament on 15 April 1999. (22) Proposals for legislation prohibiting discrimination on grounds of age and disability is currently being prepared