(2004/C 84 E/0524)

WRITTEN QUESTION P-0799/04

by Baroness Sarah Ludford (ELDR) to the Commission

(5 March 2004)

Subject:   UK implementation of Directive 2000/78/EC

Are UK regulations The Employment Equality (Sexual Orientation) Regulations 2003', with particular regard to section 7(3), in full compliance with Directive 2000/78/EC (1), in particular Article 4(2)?

If the regulations do not fully comply with the Directive, what action does the Commission intend to take?

Answer given by Mr Dimas on behalf of the Commission

(31 March 2004)

The Commission is reviewing the legislation submitted to it by Member States and which implements Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, including The Employment Equality (Sexual Orientation) Regulations 2003 submitted by the United Kingdom.

The Commission expects all Member State legislation to fully and properly implement the Directive. The Commission will pay particular attention to the way in which the Member States use any of the derogations set out in the Directive including Article 4(2) regarding genuine, legitimate and justified occupational requirements. As with any exception to the principle of equal treatment, the provisions of this Article are to be interpreted strictly.

The first paragraph of Article 4(2) allows Member States to maintain provisions in their legislation which are in force at the date of the adoption of the Directive and which provide that differences of treatment based on a person's religion or belief shall not constitute discrimination when the religion or belief, by the nature of the activities or the context in which they are carried out, constitutes a genuine, legitimate and justified occupational requirement having regard to the organisation's ethos. This is also the case when Member States adopt new legislation, but only, if at the time of the adoption of the Directive, national practices pursuing this aim were already in existence.

It is also important that this paragraph refers only to differences of treatment based on a person's religion or belief. Differences of treatment on other grounds are not mentioned. Furthermore, the paragraph stipulates that this difference of treatment ‘should not justify discrimination on another ground’. Therefore, differences of treatment which are not based on a person's religion or belief are not permissible under Article 4(2).

As already mentioned, the Commission is reviewing Member States' legislation. Where Member States choose to take advantage of the derogations from the principle of equal treatment set out in the Directive and the Commission concludes that their legislation does not meet the strict requirements of the derogations within the Directive, including Article 4(2), then the Commission will take all necessary actions under the EC Treaty to ensure Member State compliance.

(1)  OJ L 303, 2.12.2000, p. 16.