27.5.2010   

EN

Official Journal of the European Union

CE 137/68

Thursday 2 April 2009
Equal treatment of persons irrespective of religion or belief, disability, age or sexual orientation *

P6_TA(2009)0211

European Parliament legislative resolution of 2 April 2009 on the proposal for a Council directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (COM(2008)0426 – C6-0291/2008 – 2008/0140(CNS))

2010/C 137 E/22

(Consultation procedure)

The European Parliament,

having regard to the Commission proposal to the Council (COM(2008)0426),

having regard to Article 13(1) of the EC Treaty, pursuant to which the Council consulted Parliament (C6-0291/2008),

having regard to Rule 51 of its Rules of Procedure,

having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs, and the opinions of the Committee on Employment and Social Affairs, the Committee on the Environment, Public Health and Food Safety, the Committee on Culture and Education, the Committee on Legal Affairs and the Committee on Women’s Rights and Gender Equality (A6-0149/2009),

1.

Approves the Commission proposal as amended;

2.

Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;

3.

Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

4.

Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;

5.

Instructs its President to forward its position to the Council and the Commission.

TEXT PROPOSED BY THE COMMISSION

AMENDMENT

Amendment 1

Proposal for a directive

Recital 2

(2)

The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms of Discrimination Against Women, the International Convention on the Elimination of all forms of Racial Discrimination, the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the UN Convention on the Rights of Persons with Disabilities, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, to which [all] Member States are signatories. In particular, the UN Convention on the Rights of Persons with Disabilities includes the denial of reasonable accommodation in its definition of discrimination.

(2)

The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms of Discrimination Against Women, the International Convention on the Elimination of all forms of Racial Discrimination, the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the UN Convention on the Rights of the Child, the UN Convention on the Rights of Persons with Disabilities, Article 14 of and Optional Protocol 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, to which [all] Member States are signatories. In particular, the UN Convention on the Rights of Persons with Disabilities includes the denial of reasonable accommodation in its definition of discrimination.

Amendment 2

Proposal for a directive

Recital 2 a (new)

 

(2a)

The principle of equality and the prohibition of discrimination are general principles of international, European and national law, that bind the EU and its Member States in all matters within their competence. This Directive contributes to reaching this aim and to overcome discrimination that is not compatible with it.

Amendment 3

Proposal for a directive

Recital 2 b (new)

 

(2b)

This Directive is one means by which the Community is complying with its obligations under the UN Convention on the Rights of Persons with Disabilities, and should be interpreted in that light.

Amendment 4

Proposal for a directive

Recital 2 c (new)

 

(2c)

In accordance with Article 5 of the Political Declaration agreed at the conclusion of the United Nations World Conference on Ageing in Madrid 2002, it was agreed to reaffirm the commitment to spare no effort in eliminating all forms of discrimination, including age discrimination; to recognise that persons, as they age, should enjoy a life of fulfilment, health, security and active participation in the economic, social, cultural and political life of their societies; to enhance the recognition of the dignity of older persons; and to eliminate all forms of neglect, abuse and violence.

Amendment 5

Proposal for a directive

Recital 2 d (new)

 

(2d)

Physical and mental health and well-being are key to the quality of life of individuals and society and are vital factors for achieving the objectives of the European Union’s Lisbon Strategy.

Amendment 6

Proposal for a directive

Recital 3

(3)

This Directive respects the fundamental rights and observes the fundamental principles recognised in particular by the Charter of Fundamental Rights of the European Union. Article 10 of the Charter recognises the right to freedom of thought, conscience and religion; Article 21 prohibits discrimination, including on grounds of religion or belief, disability, age or sexual orientation; and Article 26 acknowledges the right of persons with disabilities to benefit from measures designed to ensure their independence.

(3)

This Directive respects the fundamental rights and observes the fundamental principles recognised in particular by the European Convention for the Protection of Human Rights and Fundamental Freedoms, including Article 9 on freedom of thought, conscience and religion and Article 10 on freedom of expression, as well as by by the Charter of Fundamental Rights of the European Union. Article 10 of the Charter recognises the right to freedom of thought, conscience and religion; Article 20 provides that everyone is equal before the law; Article 21 prohibits discrimination, including on grounds of religion or belief, disability, age or sexual orientation; Article 24 gives specific rights to children; and Article 26 acknowledges the right of persons with disabilities to benefit from measures designed to ensure their independence.

Amendment 7

Proposal for a directive

Recital 4

(4)

The European Years of Persons with Disabilities in 2003, of Equal Opportunities for All in 2007, and of Intercultural Dialogue in 2008 have highlighted the persistence of discrimination but also the benefits of diversity.

(4)

The European Years of Persons with Disabilities in 2003, of Equal Opportunities for All in 2007, and of Intercultural Dialogue in 2008 have highlighted the persistence of direct and indirect discrimination , multiple discrimination and discrimination by association, but also the need to promote the benefits of diversity.

Amendment 8

Proposal for a directive

Recital 4 a (new)

 

(4a)

The diversity of European society is a key aspect of the cultural, political and social integration of the Union and must be respected.

Amendment 9

Proposal for a directive

Recital 7 a (new)

 

(7a)

Discrimination based on religion or belief, disability, age, or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and of social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity. It may also undermine the objective of developing the European Union as an area of freedom, security and justice.

Amendment 11

Proposal for a directive

Recital 8

(8)

The Community has adopted three legal instruments on the basis of Article 13(1) of the EC Treaty to prevent and combat discrimination on grounds of sex, racial and ethnic origin, religion or belief, disability, age and sexual orientation. These instruments have demonstrated the value of legislation in the fight against discrimination. In particular, Directive 2000/78/EC establishes a general framework for equal treatment in employment and occupation on the grounds of religion or belief, disability, age and sexual orientation. However, variations remain between Member States on the degree and the form of protection from discrimination on these grounds beyond the areas of employment.

(8)

The Community has adopted a set of directives on the basis of Article 13(1) of the EC Treaty to prevent and combat discrimination on grounds of sex, racial and ethnic origin, religion or belief, disability, age and sexual orientation. These directives have demonstrated the value of legislation in the fight against discrimination. Directive 2000/43/EC establishes a framework against discrimination based on racial or ethnic origin inside and outside the labour market. Directive 2004/113/EC establishes a framework for equal treatment between men and women in the access to and supply of goods and services. Directive 2000/78/EC establishes for the grounds of religion or belief, disability, age and sexual orientation a general framework for equal treatment in employment and occupation. It does not cover areas outside this scope.

Amendment 12

Proposal for a directive

Recital 9

(9)

Therefore, legislation should prohibit discrimination based on religion or belief, disability, age or sexual orientation in a range of areas outside the labour market, including social protection, education and access to and supply of goods and services, including housing. It should provide for measures to ensure the equal access of persons with disabilities to the areas covered.

(9)

Therefore, legislation should prohibit direct and indirect discrimination , multiple discrimination and discrimination by association based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation or gender in a range of areas outside the labour market, including social protection, education and access to and supply of goods and services, such as housing , transport, associations and health . It should provide for measures to ensure the equal access to the areas covered of persons of a particular religion or belief, disability, age or particular sexual orientation, or a combination of these specific characteristics, and of persons associated with them .

Amendment 13

Proposal for a directive

Recital 9 a (new)

 

(9a)

In this Directive, goods should be taken to be those within the meaning of the provisions of the EC Treaty relating to the free movement of goods. Services should be taken to be those within the meaning of Article 50 of the EC Treaty.

Amendment 14

Proposal for a directive

Recital 9 b (new)

 

(9b)

Persons with disabilities frequently face discrimination in the form of inaccessible public transport and the built environment, as well as inaccessible communications and information. Member States must take measures to ensure accessibility in these areas in order to put into effect the principle of equal treatment.

Amendment 15

Proposal for a directive

Recital 11

(11)

This Directive should be without prejudice to the competences of the Member States in the areas of education, social security and health care. It should also be without prejudice to the essential role and wide discretion of the Member States in providing, commissioning and organising services of general economic interest.

(11)

This Directive is without prejudice to the exercise of the competences of the Member States in the areas of education and social protection, including social security and health care. It is also without prejudice to the essential role and wide discretion of the Member States in providing, commissioning and organising services of general economic interest.

Amendment 16

Proposal for a directive

Recital 12

(12)

Discrimination is understood to include direct and indirect discrimination, harassment, instructions to discriminate and denial of reasonable accommodation.

(12)

Discrimination is understood to include direct and indirect discrimination, multiple discrimination, harassment, instructions to discriminate and denial of reasonable accommodation.

Amendment 17

Proposal for a directive

Recital 12 a (new)

 

(12a)

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, whether environmental or attitudinal, may hinder their full and effective participation in society on an equal basis with others.

Amendment 82

Proposal for a directive

Recital 12 b (new)

 

(12b)

Owing to the excessive burden on micro-enterprises, they should be afforded special protection, following the model of the US Civil Rights Act.

Amendment 19

Proposal for a directive

Recital 12 c (new)

 

(12c)

Discrimination is understood to include denial of medical treatment on the grounds of age alone.

Amendment 20

Proposal for a directive

Recital 12 d (new)

 

(12d)

Discrimination on the grounds of disability includes discrimination on the grounds that a person is accompanied by or assisted by a recognised guide dog or assistance dog which has been trained in accordance with the standards of either the International Guide Dog Federation or Assistance Dogs International.

Amendment 21

Proposal for a directive

Recital 12 e (new)

 

(12e)

Effective non-discriminatory access can be provided by a variety of means, including through ‘design for all’ and through facilitating the use of assistive devices by persons with disabilities, including aids to mobility and access, such as recognised guide dogs and other assistance dogs.

Amendment 22

Proposal for a directive

Recital 12 f (new)

 

(12f)

An alteration is fundamental with regard to Article 4 if it alters the goods or services or the nature of the trade, profession or business to the extent that the provider of the goods or services is effectively providing a completely different kind of goods or services.

Amendments 10 and 23

Proposal for a directive

Recital 13

(13)

In implementing the principle of equal treatment irrespective of religion or belief, disability, age or sexual orientation, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination.

(13)

This Directive also takes into account multiple discrimination. As discrimination can occur on two or more of the grounds listed in Articles 12 and 13 of the EC Treaty, in implementing the principle of equal treatment, the Community should, in accordance with Articles 3(2) and 13 of the EC Treaty, aim to eliminate inequalities relating to sex, race or ethnic origin, disability, sexual orientation, religion or belief, or age or a combination of these, and to promote equality , whatever combination of characteristics relating to the above-mentioned factors a person may have. Effective legal procedures should be available to deal with situations of multiple discrimination . In particular national legal procedures should ensure that a complainant can raise all aspects of a multiple-discrimination claim in a single procedure.

Amendment 24

Proposal for a directive

Recital 14 a (new)

 

(14a)

Differences in treatment on grounds of age and disability may be permitted if they are objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Such differences of treatment may include, for example, special age conditions regarding access to certain goods or services such as alcoholic drinks, arms, or driving licences. The promotion of the economic, cultural or social integration of young or older persons or persons with disabilities may also be regarded as a legitimate aim. Therefore measures relating to age and disability which set more favourable conditions than are available to others, such as free or reduced tariffs for the use of public transport, museums, or sport facilities, are presumed to be compatible with the principle of non-discrimination.

Amendment 83

Proposal for a directive

Recital 15

(15)

Actuarial and risk factors related to disability and to age are used in the provision of insurance, banking and other financial services. These should not be regarded as constituting discrimination where the factors are shown to be key factors for the assessment of risk.

(15)

Actuarial and risk factors related to disability and to age are used in the provision of insurance, banking and other financial services. These should not be regarded as constituting discrimination where they are shown to be determining factors for the assessment of risk , and where the service provider can demonstrate significantly higher risks, by actuarial principles, statistical data or medical data. These data should be accurate, recent and relevant and made available on request. The actuarial and risk factors should reflect positive changes in life expectancy and active ageing as well as increased mobility and accessibility for people with disabilities. Medical data are understood as being limited to objective and verified medical facts and to undisputed medical knowledge that comply with medical data collection standards.

Amendment 26

Proposal for a directive

Recital 15 a (new)

 

(15a)

The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law is subject to compliance with the principles of the Treaty and in particular with the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and with the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. Legal requirements on the co-ordination of procedures for the award of public works contracts, public supply contracts and public service contracts having been laid down by Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1), so that the award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law, is subject to compliance with the principles of the EC Treaty and in particular with the principle of equal treatment irrespective of sex, race or ethnic origin, disability, sexual orientation, religion or belief or age and the principle of non-discrimination. However, for public contracts above a certain value, provisions of Community coordination of national procedures for the award of such contracts have been drawn up so as to ensure the opening-up of public procurement to competition. Member States should interpret these coordinating provisions in accordance with the principles of equal treatment irrespective of sex, race or ethnic origin, disability, sexual orientation, religion or belief or age and other rules of the Treaty.

Amendment 27

Proposal for a directive

Recital 16

(16)

All individuals enjoy the freedom to contract, including the freedom to choose a contractual partner for a transaction. This Directive should not apply to economic transactions undertaken by individuals for whom these transactions do not constitute their professional or commercial activity.

(16)

All individuals enjoy freedom to contract, including the freedom to choose a contractual partner for a transaction. It is important, in the context of the access to and provision of goods and services, to respect the protection of private and family life and transactions carried out in this context. Transactions between private individuals acting in a private capacity are therefore not covered by this Directive, where they do not constitute a professional or commercial activity by the contracting parties.

Amendment 28

Proposal for a directive

Recital 17

(17)

While prohibiting discrimination, it is important to respect other fundamental rights and freedoms, including the protection of private and family life and transactions carried out in that context, the freedom of religion, and the freedom of association. This Directive is without prejudice to national laws on marital or family status, including on reproductive rights. It is also without prejudice to the secular nature of the State, state institutions or bodies, or education.

(17)

While prohibiting discrimination, it is important to respect other fundamental rights and freedoms, including the freedom of religion, the freedom of association , freedom of expression and freedom of the press . This Directive is without prejudice to the secular nature of the State, state institutions or bodies, or education. This Directive does not alter the division of competences between the European Union and its Member States, including in the area of marital and family law and health law.

Amendment 85

Proposal for a directive

Recital 18

(18)

Member States are responsible for the organisation and content of education. The Commission Communication on Competences for the 21st Century: An Agenda for European Cooperation on Schools draws attention to the need for special attention to be paid to disadvantaged children and those with special educational needs. In particular national law may provide for differences in access to educational institutions based on religion or belief. Member States may also allow or prohibit the wearing or display of religious symbols at school.

(18)

Member States are responsible for the organisation and content of education. They should ensure effective protection against discrimination on grounds of religion or belief, disability, age or sexual orientation. The Commission Communication on Competences for the 21st Century: An Agenda for European Cooperation on Schools draws attention to the need for special attention to be paid to disadvantaged children and those with special educational needs. Member States may allow, only on the basis of objective justifications , for differences in access to educational institutions based on religion or belief when requiring individuals to act in good faith and with loyalty to the organisation’s ethos, provided that this does not justify discrimination on any other ground and that other educational institutions are geographically accessible and form a reasonable alternative, in order to prevent indirect discrimination. Member States shall ensure that this does not lead to a denial of the right to education.

Amendment 30

Proposal for a directive

Recital 19

(19)

The European Union in its Declaration No 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. Measures to enable persons with disabilities to have effective non-discriminatory access to the areas covered by this Directive play an important part in ensuring full equality in practice. Furthermore, individual measures of reasonable accommodation may be required in some cases to ensure such access. In neither case are measures required that would impose a disproportionate burden. In assessing whether the burden is disproportionate, account should be taken of a number of factors including the size, resources and nature of the organisation. The principle of reasonable accommodation and disproportionate burden are established in Directive 2000/78/EC and the UN Convention on Rights of Persons with Disabilities.

(19)

The European Union in its Declaration No 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations.

Amendment 31

Proposal for a directive

Recital 19 a (new)

 

(19a)

Measures to enable persons with disabilities to have effective non-discriminatory access to the areas covered by this Directive play an important part in ensuring full equality in practice. Furthermore, individual measures of reasonable accommodation may be required in some cases to ensure such access. In no cases are measures required that would impose a disproportionate burden. In assessing whether the burden is disproportionate, account should be taken of whether the measure in question is impracticable and unsafe and could not be made practicable and safe by a reasonable change to rules, policies or practices or the removal of architectural, communication or transport barriers or the provision of auxiliary aids or services. Reasonable accommodation would not necessarily require significant structural changes to buildings whose structure is protected specifically under national law on account of their historical, cultural or architectural value. The principles of reasonable accommodation and disproportionate burden are established in Directive 2000/78/EC and the UN Convention on the Rights of Persons with Disabilities.

Amendment 32

Proposal for a directive

Recital 21

(21)

The prohibition of discrimination should be without prejudice to the maintenance or adoption by Member States of measures intended to prevent or compensate for disadvantages suffered by a group of persons of a particular religion or belief, disability, age or sexual orientation. Such measures may permit organisations of persons of a particular religion or belief, disability, age or sexual orientation where their main object is the promotion of the special needs of those persons.

(21)

The prohibition of discrimination should be without prejudice to the maintenance or adoption by Member States of measures intended to prevent or compensate for disadvantages suffered by persons of a particular religion or belief, disability, age or sexual orientation , or having a combination of characteristics relating to these specific factors, and persons associated with them. This prohibition may be accompanied by measures designed to promote equal treatment and equal opportunities which take account of the gender dimension and affirmative actions aimed at meeting the special needs of persons or categories of persons who, because of their characteristics, require structures, services and assistance not required by others . Such measures shall be accompanied by the establishment of independent organisations of persons of a particular religion or belief, disability, age or sexual orientation where their main object is the promotion of the special needs of those persons.

Amendment 34

Proposal for a directive

Recital 25

(25)

The effective implementation of the principle of equal treatment requires adequate judicial protection against victimisation.

(25)

The effective implementation of the principle of equal treatment requires adequate judicial protection against victimisation. Effective judicial protection of individual rights must be accompanied by active promotion of non-discrimination and equal opportunities.

Amendment 35

Proposal for a directive

Recital 26

(26)

In its resolution on the Follow-up of the European Year of Equal Opportunities for All (2007), the Council called for the full association of civil society, including organisations representing people at risk of discrimination, the social partners and stakeholders in the design of policies and programmes aimed at preventing discrimination and promoting equality and equal opportunities, both at European and national levels.

(26)

In its resolution on the Follow-up of the European Year of Equal Opportunities for All (2007), the Council called for the full association of civil society, including organisations representing people at risk of discrimination, the social partners and stakeholders in the design of policies and programmes aimed at preventing discrimination and promoting equality and equal opportunities, both at European and national levels. With this in view, the Commission and Member States should take steps to ensure that the provisions laid down in this Directive and those already in force in this sector are brought to the notice of the public and stakeholders – through information and press campaigns aimed inter alia at eliminating stereotypes – by appropriate, adequate and accessible means, such as sign language or special websites for the visually impaired.

Amendment 36

Proposal for a directive

Recital 31 a (new)

 

(31a)

In interpreting the meaning of the grounds of discrimination, international and European human rights instruments should be taken into account by courts and tribunals, including the recommendations and case-law of their supervisory organs, such as the European Court of Human Rights.

Amendment 37

Proposal for a directive

Article 1

This Directive lays down a framework for combating discrimination on the grounds of religion or belief, disability, age, or sexual orientation, with a view to putting into effect in the Member States the principle of equal treatment other than in the field of employment and occupation.

1.    This Directive lays down a framework for combating discrimination , including multiple discrimination, on the grounds of religion or belief, disability, age, or sexual orientation, with a view to putting into effect in the Member States the principle of equal treatment other than in the field of employment and occupation.

2.     Multiple discrimination occurs when discrimination is based:

(a)

on any combination of the grounds of religion or belief, disability, age, or sexual orientation, or

(b)

on any one or more of the grounds set out in paragraph 1, and also on the ground of any one or more of

(i)

sex (in so far as the matter complained of is within the material scope of Directive 2004/113/EC as well as of this Directive),

(ii)

racial or ethnic origin (in so far as the matter complained of is within the material scope of Directive 2000/43/EC as well as of this Directive), or

(iii)

nationality (in so far as the matter complained of is within the scope of Article 12 of the EC Treaty).

3.     In this Directive, multiple discrimination and multiple grounds shall be construed accordingly.

Amendment 38

Proposal for a directive

Article 2 – paragraph 2

2.   For the purposes of paragraph 1:

(a)

direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;

(b)

indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

2.   For the purposes of paragraph 1:

(a)

direct discrimination shall be taken to occur where one person, or persons who are or who are assumed to be associated with such a person, is treated less favourably than another is, has been or would be treated in a comparable situation, on one or more of the grounds referred to in Article 1;

b)

indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation, or persons who are or who are assumed to be associated with such persons, at a particular disadvantage compared with other persons, unless that provision, criterion or practise is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Amendment 39

Proposal for a directive

Article 2 – paragraph 3

3.   Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.

3.    Without prejudice to freedom of speech, harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national law and practice of the Member States.

Amendment 40

Proposal for a directive

Article 2 – paragraph 4

4.   An instruction to discriminate against persons on any of the grounds referred to in Article 1 shall be deemed to be discrimination within the meaning of paragraph 1.

(4)   An instruction or request, based on a hierarchical relationship, to discriminate against persons on any of the grounds referred to in Article 1 shall be deemed to be discrimination within the meaning of paragraph 1.

Amendment 41

Proposal for a directive

Article 2 – paragraph 4 a (new)

 

4a.     Discrimination based on assumptions about a person’s religion or belief, disability, age or sexual orientation or because of association with persons of a particular religion or belief, disability, age or sexual orientation, shall be deemed to be discrimination within the meaning of paragraph 1.

Amendment 42

Proposal for a directive

Article 2 – paragraph 5

5.   Denial of reasonable accommodation in a particular case as provided for by Article 4 (1)(b) of the present Directive as regards persons with disabilities shall be deemed to be discrimination within the meaning of paragraph 1.

5.   Denial of reasonable accommodation in a particular case as provided for by Article 4(1)(b) of the present Directive as regards persons with disabilities or persons who associate with a person with a disability, where the accommodation is needed to enable such persons to provide personal assistance to a person with a disability, shall be deemed to be discrimination within the meaning of paragraph 1.

Amendment 43

Proposal for a directive

Article 2 – paragraph 6

6.    Notwithstanding paragraph 2, Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are justified by a legitimate aim, and if the means of achieving that aim are appropriate and necessary. In particular, this Directive shall not preclude the fixing of a specific age for access to social benefits, education and certain goods or services.

6.    This Directive does not preclude differences in treatment on grounds of age if they are objectively and reasonably justified by a legitimate aim, and if the means of achieving that aim are appropriate, proportionate, necessary and effective.

Amendments 87 and 44

Proposal for a directive

Article 2 – paragraph 7

7.   Notwithstanding paragraph 2, in the provision of financial services Member States may permit proportionate differences in treatment where, for the product in question, the use of age or disability is a key factor in the assessment of risk based on relevant and accurate actuarial or statistical data.

7.   Notwithstanding paragraph 2, in the provision of financial services proportionate differences in treatment where, for the product in question, the use of age or disability is a determining factor in the assessment of risk based on relevant actuarial principles, accurate statistical data or medical knowledge, shall not be deemed to constitute discrimination for the purposes of this Directive. These data should be accurate, recent, and relevant and made available on request, in an accessible way. The actuarial and risk factors should reflect positive changes in life expectancy and active ageing as well as increased mobility and accessibility for people with disabilities. The service provider must be able to objectively demonstrate significantly higher risks and ensure that the difference in treatment is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are proportionate, necessary and effective .

Amendment 45

Proposal for a directive

Article 2 – paragraph 8

8.   This Directive shall be without prejudice to general measures laid down in national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and the protection of the rights and freedoms of others.

8.   This Directive shall be without prejudice to general measures laid down in national law which, in a democratic society, are necessary and proportionate for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and the protection of the rights and freedoms of others.

Amendment 46

Proposal for a directive

Article 2 – paragraph 8 a (new)

 

8a.     This Directive recognises that the right to privacy is a means of combating the discrimination referred to in this Article.

Amendment 47

Proposal for a directive

Article 3 – paragraph 1 – subparagraph 1 – point d

(d)

Access to and supply of goods and other services which are available to the public, including housing.

(d)

Access to and supply of goods and other services which are available to the public, including housing and transport.

Amendment 48

Proposal for a directive

Article 3 – paragraph 1 – subparagraph 1 – point d a (new)

 

(da)

affiliation to and activities in associations and the services provided by such organisations.

Amendment 49

Proposal for a directive

Article 3 – paragraph 1 – subparagraph 2

Subparagraph (d) shall apply to individuals only insofar as they are performing a professional or commercial activity.

Subparagraph (d) does not concern transactions between private individuals for whom the transactions do not constitute a commercial or professional activity.

Amendment 50

Proposal for a directive

Article 3 – paragraph 2

2.   This Directive is without prejudice to national laws on marital or family status and reproductive rights.

2.   This Directive does not alter the division of competences between the European Union and its Member States .

Amendments 89 and 51

Proposal for a directive

Article 3 – paragraph 3

3.   This Directive is without prejudice 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. Member States may provide for differences in treatment in access to educational institutions based on religion or belief.

3.   This Directive shall not apply to the content of teaching, activities and the organisation of national educational systems, while Member States shall ensure the rights of persons with disabilities to education without discrimination and on the basis of equal opportunities. Member States shall also ensure that, in determining which type of education or training is appropriate, the views of the person with a disability are respected . Member States may allow for differences in access to educational institutions based on religion or belief, so as to maintain the particular character and ethos of such establishments and a plurality of educational systems, provided that this does not represent an infringement of the right to education and does not justify discrimination on any other grounds. Member States shall ensure that this does not lead to a denial of the right to education.

Amendments 95 and 52

Proposal for a directive

Article 3 – paragraph 4

4.   This Directive is without prejudice to national legislation ensuring the secular nature of the State, State institutions or bodies, or education, or concerning the status and activities of churches and other organisations based on religion or belief. It is equally without prejudice to national legislation promoting equality between men and women.

4.   This Directive shall not apply to national law ensuring the secular nature of the State, State institutions or bodies, or education, or concerning the status, activities and legal framework of churches and other organisations based on religion or belief where this falls outside the competence of the EU. Where the activities of churches or other organisations based on religion and belief fall within EU competence, they shall be subject to the Union’s non-discrimination provisions. It is equally without prejudice to national legislation ensuring equality between males and females.

Amendment 53

Proposal for a directive

Article 3 – paragraph 5

5.   This Directive does not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons in the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.

5.   This Directive does not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons in the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned. Discrimination on the grounds of religion or belief, disability, age or sexual orientation which is presented as a difference in treatment based on nationality shall be treated as discrimination within the meaning of Article 1.

Amendment 91

Proposal for a directive

Article 3 – paragraph 5 a (new)

 

5a.     The advertising and media sectors shall be excluded from the scope of this Directive.

Amendment 55

Proposal for a directive

Article 4 – paragraph 1 – introductory part

1.   In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities:

1.   In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities , whereby ‘disability’ is to be understood in the light of the UN Convention on the Rights of Persons with Disabilities, and persons with chronic diseases :

Amendment 97

Proposal for a directive

Article 4 – paragraph 1 – point a

a)

The measures necessary to enable persons with disabilities to have effective non-discriminatory access to social protection, social advantages, health care, education and access to and supply of goods and services which are available to the public, including housing and transport, shall be provided by anticipation, including through appropriate modifications or adjustments. Such measures should not impose a disproportionate burden, nor require fundamental alteration of the social protection, social advantages, health care, education, or goods and services in question or require the provision of alternatives thereto.

a)

The measures necessary to enable persons with disabilities to have effective non-discriminatory access to social protection, social advantages, health care, education and access to and supply of goods and services which are available to the public, including housing, telecommunication and electronic communications, information including information provided in accessible formats, financial services, culture and leisure, buildings open to the public, modes of transport and other public spaces and facilities, shall be provided by anticipation, including through appropriate modifications or adjustments. Where failure to provide effective non-discriminatory access arises from practice, policy or procedure, measures shall be taken so that it no longer has that effect.

Amendment 57

Proposal for a directive

Article 4 – paragraph 1 – point b

b)

Notwithstanding the obligation to ensure effective non-discriminatory access and where needed in a particular case, reasonable accommodation shall be provided unless this would impose a disproportionate burden.

b)

For the purposes of this paragraph, effective non-discriminatory access involves the identification and elimination of obstacles and barriers and the prevention of new obstacles and barriers that hamper the access of persons with disabilities to goods, services and facilities available to the general public, irrespective of the nature of the obstacle, barrier or disability. Subject to the provisions of this Directive, and regardless of the measures chosen to remove the obstacles or barriers, effective non-discriminatory access for persons with disabilities shall be provided under the same terms and conditions as for persons without disabilities wherever possible, and the use of assistive devices by persons with disabilities shall be facilitated, including aids to mobility and access, such as recognised guide dogs and other assistance dogs wherever necessary. Where reasonable accommodation cannot be made to ensure effective non-discriminatory access, despite all efforts, provided under the same terms and conditions, and in accordance with the provisions of this Directive, a meaningful alternative to access shall be provided . For the purposes of this provision, ‘reasonable accommodation’ means alternative measures needed in a particular case to enable a person with a disability to have access to and/or enjoy or exercise on an equal basis with others rights that fall within the scope of this Directive as defined in Article 3(1).

Amendment 98

Proposal for a directive

Article 4 – paragraph 2

2.   For the purposes of assessing whether measures necessary to comply with paragraph 1 would impose a disproportionate burden, account shall be taken, in particular, 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. The burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the equal treatment policy of the Member State concerned.

2.    Measures to obtain effective non-discriminatory access should not impose a disproportionate burden or require a fundamental alteration. For the purpose of assesing whether the measure in question would give rise to a disproportionate burden, account should be taken of whether the measure in question is impracticable or unsafe and could not be made practicable and safe by a reasonable change to rules, policies or practices or the removal of architectural, communication or transport barriers or the provision of auxiliary aids or services. A change is fundamental if it alters the goods and services or the nature of the trade, profession or business, to such an extent that the provider of the goods or services is effectively providing a completely different kind of goods or services. Reasonable accommodation shall not necessarily require significant structural changes to buildings whose structure is protected specifically under national law on account of their historical, cultural or architectural value. The burden shall not be deemed disproportionate when it is sufficiently remedied by measures existing in the Member State concerned. The principle of reasonable accommodation and disproportionate burden should be interpreted in the light of Directive 2000/78/EC and the UN Convention on the Rights of Persons with Disabilities.

Amendment 60

Proposal for a directive

Article 4 – paragraph 3

3.   This Directive shall be without prejudice to the provisions of Community law or national rules covering the accessibility of particular goods or services.

3.   This Directive shall be without prejudice to the provisions of Community law or national rules covering the accessibility of particular goods or services. However, wherever possible, EU institutions and Member States shall take measures to encourage providers of goods and services, in particular manufactured goods, to design accessible solutions, for instance through public procurement practices. Accessible products and services are those designed so that they may be used by all users.

Amendment 61

Proposal for a directive

Article 5

With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to religion or belief, disability, age, or sexual orientation.

With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures or from allowing these measures to be taken by the public, private or voluntary sectors to prevent or compensate for disadvantages linked to religion or belief, disability, age, or sexual orientation.

Amendment 62

Proposal for a directive

Article 7 – paragraph 1

1.   Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.

1.   Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available in practice to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.

Amendment 64

Proposal for a directive

Article 7 – paragraph 3 a (new)

 

3a.     Member States shall introduce in their national legal systems such measures as are necessary to ensure real and effective compensation or reparation, as the Member States determine, for the loss and damage sustained by a person injured as a result of discrimination within the meaning of this Directive, in a way which is dissuasive and proportionate to the damage suffered.

Amendment 65

Proposal for a directive

Article 8 – paragraph 2

2.   Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

2.   Paragraph 1 shall not prevent Member States from introducing rules which are more favourable to plaintiffs.

Amendment 66

Proposal for a directive

Article 9 a (new)

 

Article 9a

Promotion of Equality

Member States shall actively promote equality between persons irrespective of religion or belief, disability, age or sexual orientation when formulating and implementing laws, regulations, administrative provisions, policies and activities in the areas within the scope of this Directive.

Amendment 86

Proposal for a directive

Article 10

Member States shall ensure that the provisions adopted pursuant to this Directive, together with the relevant provisions already in force, are brought to the attention of the persons concerned by appropriate means throughout their territory.

Member States shall ensure that the provisions adopted pursuant to this Directive, together with the relevant provisions already in force, are brought to the attention of the persons concerned by appropriate means , including the Internet, throughout their territory.

With a view to promoting the principle of equal treatment, Member States shall organise ad hoc information and awareness campaigns and training.

Amendment 68

Proposal for a directive

Article 11

With a view to promoting the principle of equal treatment, Member States shall encourage dialogue with relevant stakeholders, in particular non-governmental organisations, which have, in accordance with their national law and practice, a legitimate interest in contributing to the fight against discrimination on the grounds and in the areas covered by this Directive .

With a view to promoting the principle of equal treatment, Member States shall encourage dialogue with relevant stakeholders, in particular non-governmental organisations, and such consultation shall also include monitoring the implementation of the Directive .

Amendment 69

Proposal for a directive

Article 12 – paragraph 1

1.   Member States shall designate a body or bodies for the promotion of equal treatment of all persons irrespective of their religion or belief, disability, age, or sexual orientation. These bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals’ rights, including rights under other Community acts including Directives 2000/43/EC and 2004/113/EC.

1.   Member States shall designate an independent functioning and adequately funded body or bodies for the promotion of equal treatment of all persons irrespective of their religion or belief, disability, age, or sexual orientation. Member States shall ensure that the body or bodies have competence in the fields covered by this Directive and the fields of employment and occupation under Directive 2000/78/EC. These bodies may form part of agencies charged at national level with the defence of the rights under other Community acts including Directives 2000/43/EC , 2000/78/EC and 2004/113/EC.

Amendment 70

Proposal for a directive

Article 12 – paragraph 2 – indent -1 (new)

 

—

facilitating administrative or legal proceedings concerning discrimination where the victim is resident in a Member State other than that of the respondent, by contacting the equivalent organisation or organisations in the Member State of the respondent,

Amendment 71

Proposal for a directive

Article 12 – paragraph 2 – indent -1a (new)

 

—

ensuring access by the complainant to legal aid in accordance with Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes (2), where appropriate,

Amendment 72

Proposal for a directive

Article 12 – paragraph 2 – indent 2

—

conducting independent surveys concerning discrimination,

—

monitoring and conducting independent surveys concerning discrimination, including on the application of anti-discrimination law,

Amendment 73

Proposal for a directive

Article 12 – paragraph 2 – indent 3 a (new)

 

—

cooperating and exchanging information with the Fundamental Rights Agency and with other corresponding EU bodies.

Amendment 74

Proposal for a directive

Article 12 – paragraph 2 a (new)

 

2a.     Member States shall provide these bodies with sufficient resources to enable them to carry out their duties in an effective and accessible manner.

Amendment 75

Proposal for a directive

Article 13 – point a

a)

any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished;

a)

any laws, regulations and administrative provisions contrary to the principle of equal treatment are immediately abolished;

Amendment 76

Proposal for a directive

Article 14

Member States shall lay down the rules on sanctions applicable to breaches of the national provisions adopted pursuant to this Directive, and shall take all measures necessary to ensure that they are applied. Sanctions may comprise the payment of compensation, which may not be restricted by the fixing of a prior upper limit, and must be effective, proportionate and dissuasive.

Member States shall lay down the rules on sanctions applicable to breaches of the national provisions adopted pursuant to this Directive, and shall take all measures necessary to ensure that they are applied. Sanctions may comprise the payment of compensation, which may not be restricted by the fixing of a prior upper limit, and must be effective, proportionate and dissuasive and result in the cessation of the discriminatory conduct and the removal of its effects .

Amendments 59 and 77

Proposal for a directive

Article 15 – paragraph 2

2.   In order to take account of particular conditions, Member States may, if necessary, establish that the obligation to provide effective access as set out in Article 4 has to be complied with by … [at the latest] four [years after adoption].

Member States wishing to use this additional period shall inform the Commission at the latest by the date set down in paragraph 1 giving reasons .

2.   In order to comply with the obligation to provide effective non-discriminatory access to existing infrastructures, policies or procedures within the meaning of Article 4(1)(a), Member States may, if necessary, have an additional period of 10 years [from the deadline for transposition] to comply with that obligation.

Member States wishing to make use of the additional period shall submit to the Commission a plan for progressive compliance with the requirements set out in Article 4(1)(a), including targets, means and timeline. Any Member State which chooses to make use of this additional period shall report biannually to the Commission on the steps taken to provide effective non-discriminatory access and on the progress made towards the implementation of Article 4(1)(a). The Commission shall report biannually to the Council.

Amendment 78

Proposal for a directive

Article 16 – paragraph 1

1.   Member States and national equality bodies shall communicate to the Commission, by …. at the latest and every five years thereafter, all the information necessary for the Commission to draw up a report to the European Parliament and the Council on the application of this Directive.

1.   Member States shall communicate to the Commission, by …. at the latest and every five years thereafter, all the information necessary for the Commission to draw up a report to the European Parliament and the Council on the application of this Directive.

Amendment 79

Proposal for a directive

Article 16 – paragraph 1 a (new)

 

1a.     No later than … years after the entry into force of this Directive, a comprehensive Community legal framework relating to non-discrimination must be brought into force in the form of a single Directive consolidating and thus replacing all existing Directives based on Article 13 of the EC Treaty, including this Directive. The new directive shall provide for an equal level of protection for each ground for discrimination.

Amendment 80

Proposal for a directive

Article 16 – paragraph 2

2.   The Commission’s report shall take into account, as appropriate, the viewpoints of the social partners and relevant non-governmental organizations, as well as the EU Fundamental Rights Agency. In accordance with the principle of gender mainstreaming, this report shall, inter alias, provide an assessment of the impact of the measures taken on women and men. In the light of the information received, this report shall include, if necessary, proposals to revise and update this Directive.

2.   The Commission’s report shall take into account, as appropriate, the viewpoints of the social partners and relevant non-governmental organizations, as well as the EU Fundamental Rights Agency. The report shall include a review of the current practices in Member States in relation to Article 2(7), with regard to the use of age or disability as a factor in the calculation of premiums and benefits. In accordance with the principle of gender mainstreaming, this report shall, inter alias, provide an assessment of the impact of the measures taken on women and men. The report shall also contain information about multiple discrimination, covering not only discrimination on grounds of religion or belief, sexual orientation, age and disability, but also discrimination on grounds of sex, race and ethnic origin. In the light of the information received, this report shall include, if necessary, proposals to revise and update this Directive.

(1)   OJ L 134, 30.4.2004, p. 114.

(2)   OJ L 26, 31.1.2003, p. 41.