EUROPEAN COMMISSION
Brussels, 19.3.2021
COM(2021) 139 final
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL
on the application of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘the Racial Equality Directive’) and of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (‘the Employment Equality Directive’)
{SWD(2021) 63 final}
1.Introduction
Equality is one of the EU’s founding values. The Commission has taken important steps to promote and mainstream it and build a true Union of equality. With the support of its internal Task Force on Equality, created in 2019, the Commission is integrating an equality dimension in all EU policies and major initiatives. To take recent examples, the 2020-2025 gender equality strategy, the 2020-2025 EU anti-racism action plan, the new Roma strategic framework for equality, inclusion and participation, the 2020-2025 LGBTIQ equality strategy, the EU Strategy to strengthen the application of the Charter, the 2021-2030 strategy for the rights of persons with disabilities and the action plan implementing the European Pillar of Social Rights all stress the importance of preventing and tackling discrimination (e.g. by fighting stereotypes and biases), enforcing EU law and principles in this field and improving data collection.
This report focuses on the application of two EU Directives on equality:
·the Racial Equality Directive, which requires that people be treated equally in the areas of employment and vocational training, education, social protection including social security, social advantages, access to and supply of goods and services (including housing) regardless of their racial and ethnic origin; and
·the Employment Equality Directive, which requires that people be treated equally in employment and vocational training regardless of their religion or belief, disability, age and sexual orientation.
Both Directives require the Commission to report every five years on their application. Since 2014, the Commission has opted to provide a joint report on these two Directives, as their regulatory approach and the content of many of their provisions are identical.
In order to have a good understanding of the situation on the ground, the Commission regularly conducts ‘Eurobarometer’ opinion surveys on discrimination in the EU. Surveys from the European Union Agency for Fundamental Rights (FRA) also produce useful figures and information on trends.
There seems to be a general sentiment that little progress has been made in the fight against discrimination since 2014. The general population recognises that discrimination is widespread in the EU and discrimination is also experienced frequently in most Member States. Surveys found that almost one in four people from ethnic or immigrant minority groups (24%) had felt discriminated against in the previous 12 months in one or more areas of daily life because of their background. In a 2019 Eurobarometer survey, about one in five respondents (21%) who had felt discriminated against on one or more grounds in the previous 12 months said that this had happened at work and 13% when looking for work.
Against this background, it is crucial that the legislation based on EU non-discrimination rules is properly enforced at national level. Following on from previous reports on the application of the Directives in 2006, 2008 and 2014, this report:
Øassesses the current situation and developments since 2014;
Øidentifies the main issues and challenges stemming from developments in the area of non-discrimination;
Øhighlights a number of good practices and initiatives;
Øshows how cases before the Court of Justice of the European Union (CJEU) have clarified how the Directives should be interpreted;
Ølooks into the implementation of the Commission’s 2018 Recommendation on standards for equality bodies, in line with the LGBTIQ equality strategy, the Roma strategic framework for equality, inclusion and participation and the EU anti-racism action plan (see in particular the annex on equality bodies);
Øpresents, as indicated in the EU anti-racism action plan, potential gaps in the protection offered by the Racial Equality Directive.
The report builds on information sent to the Commission by Member States and consultations with the European Network of Equality Bodies (Equinet), the FRA, social partners and civil society organisations. It also draws on the Commission’s work in helping with the application of the Directives and on relevant publications. It takes due account of relevant European Parliament resolutions and studies.
2.Issues common to both Directives
The Directives contain similar provisions on the concept of discrimination and on remedies and enforcement.
Most Member States and stakeholders consulted did not highlight any major difficulties regarding the interpretation of those provisions. However, some indicated that a number of issues (continue to) pose challenges, in particular as regards:
·the scope of the concept of ‘discrimination’ (see Section 2.1.); and
·the enforcement of rights (see 2.2.), e.g. when it comes to:
oreporting complaints (see 2.2.1.);
oproving a case (see 2.2.2.);
obeing protected against victimisation (see 2.2.3.); and
oapplying adequate sanctions (see 2.2.4.).
Awareness‑raising and dialogue with social partners and civil society organisations are key for the effective implementation of the Directives (see 2.3). The work of national equality bodies (see 2.4.) and the availability of equality data (see 2.5.) are cross-cutting issues, crucial for assisting victims of discrimination and supporting, monitoring and promoting equality and non‑discrimination law.
2.1.The concept of ‘discrimination’
The concept of ‘discrimination’ covers direct and indirect discrimination, and includes harassment.
Some stakeholders point to a limited awareness and application of indirect discrimination in domestic judicial practice. In addition, some Member States stress that national courts pay insufficient attention to harassment on grounds other than sex.
Recent CJEU case law has provided useful clarifications on the concept of indirect discrimination. The European Network of Legal Experts in the Non-Discrimination Field will issue a report on the application of this concept in 2021, updating its previous (2008) report.
The CJEU has not yet ruled on the interpretation (and the boundaries) of harassment under the two Directives. In national (case) law, the concept is used in relation to several types of conduct, including physical and psychological violence, intimidation, bullying and hate speech. In some EU countries, the concept seems underexplored by national courts.
In relation to the concept of ‘discrimination’, the CJEU provided useful clarification on various situations or concepts:
·discrimination on a combination of grounds – In 2016, the CJEU acknowledged that ‘discrimination may indeed be based on several of the grounds’ protected under EU law. Nevertheless, it also held that ‘… no new category of discrimination resulting from the combination of more than one of those grounds … may be found to exist where discrimination on the basis of those grounds taken in isolation has not been established’.
Since ‘intersectional discrimination’ is about discrimination based on an inseparable combination of protected grounds, rather than one of the grounds taken separately, the Court did not recognise intersectional discrimination as a protected ground, as it currently has no clear legal basis in the Directives. Some stakeholders nevertheless stressed the importance of both intersectionality and the need to fight multiple discrimination more effectively.
The Commission acknowledged the importance of intersectional discrimination and the need to address this phenomenon in all its equality strategies. It has also offered its support for the effective recognition of multiple discrimination at national level by commissioning studies and co-organising a seminar where government officials were able to explore challenges and good practices in addressing it in legislation and policymaking;
·‘discrimination by association’ (where a person or group is disadvantaged because of their association with a person or group who possesses the protected characteristic) – The CHEZ case showed that a person who was not of Roma origin could benefit from protection even though she was not ‘a member of the [protected] group concerned’, but ‘nevertheless suffer[ed] less favourable treatment or a particular disadvantage on one of those grounds’. It follows from the case that a finding of discrimination does not depend on the existence of an intimate or close relationship between the alleged victim and the group with which he or she is associated. Many Member States indicate that discrimination by association is covered in national (case) law.
The CJEU has yet explicitly to address the issue of ‘discrimination by perception’ or ‘discrimination by assumption’, i.e. when the different treatment follows from an incorrect belief or an incorrect perception that a person -himself or herself- has one of the protected characteristics. In several EU countries, although fewer compared to discrimination by association, there is an explicit protection against discrimination by assumption provided for in national (case) law.
2.2.Remedies and enforcement
2.2.1.Defence of rights
Under the Directives, Member States have to provide all those who consider themselves to be victims of discrimination with adequate means of legal protection.
Besides general awareness‑raising campaigns on non-discrimination, several Member States have indicated specific initiatives to facilitate reporting. Some are aimed at alleviating the financial burden of proceedings, e.g. by:
üreducing court fees for discrimination cases;
ücreating tax incentives; and
üsetting up funds that provide victims of discrimination with advance coverage of legal costs.
Other good practices include:
üenabling online reporting;
üimproving the capacity and accessibility of local authorities and local intermediary or community organisations;
üsetting up easily accessible dispute settlement bodies;
üproviding for specialised legal advice clinics; and
üestablishing networks of police officers and magistrates trained in discrimination issues.
Reporting on discrimination and the number of complaints increased slightly since the 2014 report, but under-reporting remains a problem. Surveys show that those who felt discriminated against would not easily report the incident. As a consequence, many incidents may pass ‘under the radar’, leaving victims without any form of redress. This negatively affects access to justice, as well as the effectiveness of the Directives, more generally. While many Member States point to the important work of equality bodies at national and local level to tackle discrimination and address underreporting, few people would, according to the surveys, report an incident of discrimination to such bodies.
Reasons for not reporting cases of discrimination may include:
ûdoubt that there are serious chances of success;
ûunawareness of rights and/or of the existence of equality bodies;
ûdifficulties to provide evidence; and/or
ûfear of retaliation.
Other concrete problems that may hamper access to justice (which particularly affect the most vulnerable or marginalised groups), include:
ûshort legal time limits for bringing action;
ûthe costs, complexity and length of proceedings;
ûuncertainty as to the outcome of the case; and
ûthe prospect of a low level of compensation.
Organisations such as trade unions and equality bodies can help victims to seek individual redress, especially when they have legal standing. They can also play an important role in supporting ‘strategic litigation’ and/or seeking collective redress, particularly as the CJEU has long recognised that EU law also prohibits discrimination where there is no identifiable individual victim, e.g. in the case of an employer’s public statement of an intent to discriminate.
Some Member States reported that organisations’ legal standing plays a decisive role in cases of collective discrimination harming people who are not directly or immediately identifiable. Some equality bodies or organisations assisting victims of discrimination have also brought cases before the CJEU.
2.2.2.Burden of proof
To ease the challenges faced in proving discrimination claims, the Directives provide for a shift in the burden of proof. Where a complainant establishes facts from which a prima facie case of discrimination can be presumed, it falls to the respondent to prove that there has been no breach of the principle of equal treatment.
Some Member States’ higher courts provided clarification in this area and other Member States amended their legislation. However, some stakeholders reported that national courts still do not always apply the rules correctly or consistently, and standards of proof may vary in practice.
There are some situations in which it is especially difficult to establish prima facie evidence, e.g. for claims of indirect discrimination, where the claimant needs to establish facts from which it can be presumed that a certain measure or practice, which seems neutral, puts certain persons at a particular disadvantage compared to others. The collection of such facts is even more complicated where the alleged discrimination follows from the use of artificial intelligence. Moreover, even where indirect discrimination can be established on the basis of statistical evidence, stakeholders pointed to difficulties in the availability and accessibility of relevant statistical data, and how courts take them into account.
2.2.3.Victimisation
National legal systems have to ensure protection against victimisation and offer adequate legal measures against retaliation; this is vital for the effective implementation of the right not to be discriminated against.
However, in a few Member States, such protection seems to be limited in practice. It appears that protection against victimisation applies mainly in the field of employment. Member States have different legal requirements when it comes to determining who is entitled to protection – some cover claimants, victims and witnesses only, while the CJEU extends protection to anyone who could be affected by the reaction of the party subject to a complaint or to proceedings. Other Member States reported a broad scope of protection at national level, e.g. covering individuals other than the victim, such as witnesses, those helping or supporting the victim, anyone treated less favourably because of a refusal to discriminate, and people who suffer victimisation by presumption or association.
The Commission monitors the implementation of the victimisation provision in the light of the CJEU’s Hakelbracht judgment. The infringement proceedings launched against Belgium for not correctly transposing that provision (among others) in both Directives were later closed, but another procedure is still ongoing in relation to a similar provision in Directive 2006/54/EC.
2.2.4.Sanctions
Member States must provide for effective, proportionate and dissuasive sanctions applicable to breaches of national provisions prohibiting discrimination in line with the Directives. The Directives do not prescribe specific measures and allow Member States to decide on suitable remedies for achieving the objectives pursued. Depending on the legal avenue chosen, these can take various forms, such as a fine, compensation, an injunction for the wrongdoer to perform or refrain from certain action, publicising the wrongdoing, requiring an apology or imposing criminal sanctions.
The CJEU has issued guidance on how to interpret the legal requirements on sanctions, in particular:
Øremedies must:
orespect the principle of proportionality;
oguarantee real and effective judicial protection; and
oensure a genuinely deterrent effect and prevent further discrimination; this involves imposing penalties even in the absence of an identifiable victim;
Øany pecuniary reparation must be:
oadequate in relation to the loss and damage sustained;
onot subject to a pre‑determined upper limit; and
Øa purely symbolic sanction cannot be considered sufficient
.
In practice, some difficulties in the implementation of the Directives seem to persist, e.g. in relation to compensation ceilings and cases without an identifiable victim. Some national courts tend to establish rather moderate levels of damages, favour non‑monetary compensation or offer amounts of compensation at the lower end of the scale. Such tendencies may discourage victims from taking legal action or from asking for pecuniary compensation in court.
The Commission continues to monitor the standards applied in the use of sanctions and remedies in the Member States, although detailed information at national level is difficult to gather and often not available. Equinet also carries out important work on this issue.
2.3.Information, dialogue and gender mainstreaming
2.3.1.Information
The Directives require Member States to bring their provisions to the attention of those concerned. Many Member States, equality bodies, civil society organisations and social partners acknowledge the importance of raising awareness and are quite active in this respect, e.g. preparing brochures, guides and studies, carrying out general and targeted campaigns, and providing training.
Nevertheless, low awareness of the anti-discrimination legislation and of the existence of equality bodies that assist victims remain major challenges in fighting discrimination. For instance, 71% of members of ethnic or immigrant minority groups report to be unaware of any organisation offering support or advice to victims of discrimination. In contrast, awareness among the general population of the existence of an institution offering support for victims of discrimination at work is relatively high (61%).
To contribute to awareness‑raising, in 2019-2020 the Commission carried out an information campaign on combating discrimination in the workplace. This consisted of:
·a general strand raising awareness of people’s rights and obligations under EU anti‑discrimination legislation; and
·a targeted strand addressing employers and disability; this involved:
orunning seminars in eight Member States; and
oproducing a good practice guide for companies across the EU seeking to accommodate workers with disabilities.
As another example, the Commission, between 2015 and 2016, supported local authorities in targeted communication activities to fight anti‑Roma discrimination and stereotypes.
The Commission also continued to encourage information activities through its support for Equinet and the European Equality Law Network, which publish flashes, brochures, reports and studies on key issues relating to the Directives.
In addition, the Commission supports training for judges, lawyers and other professionals in the interpretation and application of the Directives, familiarising them with the key concepts, proof-related issues and sanctions for violations.
2.3.2.Dialogue
In several Member States, civil society organisations and social partners are consulted or actively involved in the preparation or implementation of equality legislation, action plans and strategies. Some Member States provide by law for regular dialogue or negotiations on equality with civil society organisations. Several have established advisory committees within their national equality bodies that bring together civil society organisations and/or social partners.
At the same time, civil society organisations in some Member States alleged that dialogue is usually limited or even lacking. Others reported difficulties in working properly in a few Member States, as a result of restrictive legislation and problems with access to funding, but also harassment.
Social partners play a crucial role in fighting discrimination and promoting equality and diversity in the workplace. Trade unions and employers’ associations work together by concluding collective agreements, issuing joint texts and guidelines, and carrying out projects.
2.3.3.Gender mainstreaming
Both Directives contain a requirement for the Commission to report on the impact of measures on women and men, in accordance the principle of gender mainstreaming.
Some Member States report a general gender mainstreaming obligation in their legislation. Others explain that gender is a factor in their overall approach to intersectionality. Accordingly, they pay special attention to the more vulnerable situation of, for instance, Roma women and girls, migrant women and women with disabilities.
2.4.Equality bodies
In accordance with the Racial Equality Directive, all Member States have designated one or more specialised bodies to be responsible for the promotion of equal treatment regardless of racial and ethnic origin. A number of Directives of the EU equal treatment legislation have played a major role in this respect, as only 11 (of 27) Member States had established such a body prior to their adoption. While the Employment Equality Directive does not provide for the creation of an equality body, nearly all Member States’ bodies also have competence in relation to the scope of that Directive.
The Racial Equality Directive leaves Member States a wide margin of discretion on the functioning of equality bodies. Article 13 requires only that they have certain minimum competences:
·providing victims of discrimination with independent assistance in pursuing their complaints;
·conducting independent surveys on racial discrimination; and
·publishing independent reports and making recommendations on any issue relating to such discrimination.
Because Member States are responsible for the actual implementation of the provisions, there are divergences between equality bodies in terms of their mandate, powers, structure, leadership, independence, resources and effectiveness. In turn, these divergences have led to an unequal enforcement of the Directive across Member States, as regards the level and nature of protection and the promotion of equality and awareness‑raising among the general public and national institutions.
Nevertheless, in most cases, equality bodies have proved to be key to promoting and enforcing equal treatment legislation. They have emerged as necessary and valuable institutions for change at the level of individuals, institutions and society at large.
On 22 June 2018, the Commission adopted a Recommendation on standards for equality bodies, in order for them all to achieve their full potential. In June 2019, to complement this, it co‑organised a good practice seminar with government officials.
Equality bodies are essential for ensuring that individuals and groups facing discrimination can enjoy their right in full. They should therefore be able to effectively perform the tasks assigned to them under EU law. The Commission committed to examine in more details to which extent Member States have followed the 2018 Recommendation, with a particular focus on the role and independence of equality bodies.
Over 2 years after the adoption of the Recommendation, four Member States have declared an intention to amend their national provisions on equality bodies to follow-up on some of the recommendations and around ten Member States have already done so for example by an increase in budget. However, the majority report either no change at all or no major reform.
The Staff Working Document attached to this report provides such a detailed analysis of the implementation of the Recommendation. It concludes that a limited and unequal level of implementation of the Recommendation continues to hinder some equality bodies in effectively exercising their role. In practice, this leads to different levels of protection against discrimination across the EU. Continuing to share good practice and/or guidance at EU level and raising awareness will be very beneficial to strengthen the role of equality bodies. However, the experience with the implementation of the Recommendation shows that this is not sufficient. The Commission will therefore assess whether to propose possible legislation to strengthen the role of national equality bodies by 2022.
2.5.Data collection
Equality data are crucial for raising awareness, sensitising people, quantifying discrimination, showing trends over time, proving the existence of discrimination, evaluating the implementation of equality legislation, demonstrating the need for positive action, and contributing to evidence-based policymaking.
There is no general requirement under the Directives to collect, analyse and use equality data. However, the Racial Equality Directive requires that equality bodies conduct independent surveys, publish independent reports and make recommendations on issues relating to racial discrimination (see above).
The following important steps have been taken at EU level to address the lack of equality data and the need for practical guidance on equality data collection:
üthe Commission presented a series of studies on equality data
üthe Commission supported the work of the Equality Data Subgroup of the EU High‑Level Group on Non‑Discrimination, Equality and Diversity, which issued:
oguidelines on improving the collection and use of equality data at national level – these underline that the General Data Protection Regulation (GDPR) does not prevent equality data collection, including when disaggregated by racial and ethnic origin, if it is done in an appropriate way;
oa ‘compendium of promising practices’; and
oa diagnostic mapping tool
üthe Commission’s ‘rights, equality and citizenship’ (REC) programme listed the improvement of equality data collection among its priorities.
Many Member States reported good practices on equality data collection, including:
·involving (and coordinating between) a range of relevant actors, e.g. statistical offices, public departments and agencies, inspectorates, universities, research centres, civil society organisations, data protection authorities and the private sector;
·publishing data on complaints received by equality bodies, the police, public services, inspectorates and the judiciary, and on judgments;
·using the FRA’s expertise on data collection;
·fostering the collection and use of equality data through dedicated projects;
·using equality data to examine and evaluate the impact and effectiveness of non‑discrimination legislation;
·using ‘mystery shopping’ and situation testing to examine patterns of discrimination;
·involving minority organisations in collecting and disseminating equality data;
·developing statistical data that can serve as proof of indirect discrimination; and
·collecting disaggregated equality data in population censuses.
Nevertheless, many Member States still consider the lack of equality data as a problem at national level. There is particular room for improvement in relation to the regularity and comparability of the data, the collection of data on complaints and on cases of discrimination (including on sanctions issued), the gathering of data disaggregated by racial or ethnic origin, the collection of data by private actors (including employers), and as regards cooperation among all those concerned.
3.Issues specific to the Racial Equality Directive
A comprehensive system of legal protection against discrimination requires ensuring that there are no gaps in this protection. Twenty years after the adoption of the Racial Equality Directive, in line with the EU anti-racism action plan, potential gaps in the protection offered by the Directive are also presented.
Under-reporting on discrimination remains an issue and the collection of data on complaints and on cases of discrimination is still to be improved. This makes it difficult to conduct a thorough assessment of the areas of life where incidents of discrimination materialise on the ground.
Surveys of the FRA show that people across the EU regularly experience high levels of discrimination because of their racial or ethnic origin. Of the areas covered by the Racial Equality Directive, FRA data make clear that employment is that in which discrimination based on ethnic or immigrant background is experienced most. This covers situations in which people are ‘looking for work’ or ‘in the workplace’.
3.1.The notion of ‘ethnic and racial origin’
The Racial Equality Directive does not define the concept of ‘racial or ethnic origin’. The CJEU has offered guidance on interpreting the notion of ‘ethnic origin’; more specifically, the CHEZ judgment recognised that ‘the concept of “ethnicity” has its origin in the idea of societal groups marked in particular by common nationality, religious faith, language, cultural and traditional origins and background’. Whether racial or ethnic origin is at play can thus be determined on the basis of diverse characteristics, including language, religion, origin, skin colour and nationality. As FRA data show that a person’s skin colour and/or religion represent specific triggers of ethnic or racial discrimination, this is of important practical relevance.
In Jyske Finans, the CJEU stressed that a person’s country of birth could also be considered a relevant factor. However, it clarified that this cannot be accepted as a sufficient criterion. A person’s country of birth ‘is only one of the specific factors which may justify the conclusion that a person is a member of an ethnic group and is not decisive in that regard’. According to the Court, different treatment by a credit institution solely on the basis of a person’s country of birth (in the absence of any other factor) is insufficient to support a claim of discrimination based on ‘ethnic origin’. Therefore, to establish indirect discrimination, one would have to identify a specific ethnic group that has been disadvantaged, as compared with other groups. In the Court’s view, a claim that a person’s country of birth ‘is generally more likely to affect persons of a “given ethnicity” than “other persons” cannot be accepted’.
The CJEU confirmed its approach in its judgment in the Maniero case, which concerned an educational scholarship available only to individuals who had passed a German state law examination and not to those who had passed an equivalent exam in other countries. In line with its reasoning in Jyske Finans, the Court argued that no specific ethnic group could be considered as being disadvantaged, as compared with others.
When reporting on the application of the Racial Equality Directive, several Member States drew attention to the protection offered at national level against discrimination on grounds such as skin colour, place of birth, language, descent or national origin. Grounds such as colour, language and birth, among others, are explicitly mentioned in Article 21 of the Charter of Fundamental Rights of the European Union. The Charter applies within the scope of EU law and its Article 21 has been recognised as having direct horizontal effect. When interpreting the notion of ethnic origin, the CJEU has relied on the importance of ensuring effective protection for the right to equality and non‑discrimination, as set out in Article 21 of the Charter. While it ruled that the scope of the Directive cannot be defined restrictively, it however made it clear that it may not be extended to discrimination on grounds other than those listed exhaustively in the Directive.
3.2.Scope
Within that scope, the Directive also applies to discrimination resulting from the use of artificial intelligence.
As regards employment, the Directive applies to conditions for access to employment, self-employment and occupation, to access to all types and to all levels of vocational guidance and training and to employment and working conditions, including dismissals and pay. There is however an exception whereby a difference of treatment based on a characteristic related to racial or ethnic origin shall not constitute discrimination where it corresponds to a specific requirement indispensable for a certain professional activity. This means, for example, that a casting director may seek for an actor of a particular racial origin for a role in a film.
The Directive covers all types of education, general and vocational, public and private, religious and secular, from pre-school to higher education. In the Maniero judgment, the CJEU clarified the coverage of ‘education’. Reading the Directive in the light of its objective of promoting equality, it interpreted the notion widely, as including access to education and the elimination of relevant financial hurdles. The award of financial benefits closely linked to an individual’s participation in educational projects thus falls within the scope of the Directive.
The Racial Equality Directive covers access to and supply of goods and services, which are available to the public. The meaning of the notion of ‘services’ is taken from Article 57 TFEU – they must constitute an economic activity, i.e. normally be provided for remuneration and include, in particular, activities of an industrial or commercial character.
The Directive applies regardless of whether the goods and services available to the public are supplied in the public or the private sector. Public services are thus covered, however only in as far as they correspond to the meaning of a ‘service’ in the sense of Article 57 TFEU, as outlined above.
Services within the meaning of the Directive include, for example, housing or supply of electricity
. Healthcare is covered as an aspect of social security but may also fall under the scope of services, however only if provided in return for remuneration by a profit-making body
.
The legislator did not include in the Directive’s material scope of application public‑sector actions that entail the ‘exercise of public authority’ (e.g. by the police, by fraud detection authorities, criminal and civil justice authorities) without any element of ‘service provision’. For example, the Directive is not applicable when a person is stopped or harassed by the police because of his or her racial or ethnic background.
The reference to goods and services ‘available to the public’ is a concept that sometimes raises questions. The condition of ‘availability to the public’ includes situations where the offer to provide a certain good or service has been made in the public domain (e.g. by an advertisement in a newspaper or on a publicly accessible website, or on a leaflet on a window) but not those offered only to the circle of family members.
3.3.Roma people are among the groups most affected by discrimination
Several Member States and stakeholders indicate that Roma people are particularly affected by discrimination, mostly in the areas of education, access to employment and housing (this is in line with FRA surveys). Roma communities also face serious issues as regards rights awareness and access to justice. The COVID-19 pandemic has affected Roma disproportionately, further aggravating inequalities, in particular in education, healthcare and employment.
To tackle these challenges, Member States have reported specific policy actions, research and campaigns. Following its evaluation of the EU framework for national Roma integration strategies up to 2020, the Commission issued a reinforced and reformed EU Roma strategic framework for equality, inclusion and participation for 2020-2030. In a three-pillar structure, it complements socio-economic inclusion of Roma with fostering equality and promoting participation. Improved data collection is an important aspect of the initiative.
The new framework is accompanied by a proposal for a Council Recommendation on Roma equality, inclusion and participation. One of the key aims is the effective implementation of the Racial Equality Directive by preventing and combating discrimination against Roma people. It includes recommendations for tackling antigypsyism and encourages Member States to step up the involvement of, and cooperation with, national equality bodies and civil society organisations in reaching these objectives.
Since 2014, the Commission has initiated infringement procedures against three Member States for school segregation of Roma children. These procedures are still ongoing.
4.Issues specific to the Employment Equality Directive
Member States did not flag any major difficulties with regard to the interpretation and application of the provisions of the Employment Equality Directive in 2014-2020, while noting some difficulties with concepts common to both Directives. Some stakeholders focused in particular on the issue of reasonable accommodation of persons with disabilities including as regards challenges in understanding this concept, applying it in practice and having adequate guidance in this regard. A few stakeholders proposed to extend the obligation of reasonable accommodation to cover discrimination grounds other than disability.
There are currently no infringement proceedings in relation to the Directive. However, the CJEU issued an important number of judgments in preliminary cases submitted by several Member States’ national courts regarding discrimination on all grounds covered by the Directive.
4.1.Scope
The CJEU handed down several important judgments on the scope of application of the Employment Equality Directive.
It clarified that the concept of ‘conditions for access to employment’ in Article 3(1)(a) may cover an employer’s public statements, even in the absence of a recruitment procedure, provided that they relate, in fact, to a firm’s recruitment policy. The case concerned a lawyer’s public statements that he would never recruit homosexual candidates for employment. The interpretation is not affected by the possible limitation to the exercise of freedom of expression.
In another judgment, the Court held that the Directive applies to a taxation scheme designed to improve access to vocational training for young people, whereby the tax treatment of training costs differs according to the trainee’s age. However, in another context in the case of C, it ruled that national legislation on a supplementary tax on retirement pension income does not fall within the substantive scope of the Directive. Such legislation does not concern ‘pay’, but rather the rate of tax, which is external to the employment relationship.
The Court confirmed its case law that the discrimination grounds set out in Article 1 of the Directive are listed exhaustively and do not include the professional category nor the nature of the employment relationship of the individuals concerned.
4.2.Religion
For the first time since the adoption of the Directive, the CJEU had the opportunity to issue important judgments on the provisions relating to discrimination on the grounds of religion.
In the Achbita case, the Court interpreted ‘religion’ in a broad sense covering people’s freedom to manifest their religious beliefs in public. It held that an internal rule of a private undertaking that prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination, provided it applies to all workers in the same way. However, such an apparently neutral rule may constitute indirect discrimination unless it is objectively justified on the basis of appropriateness and necessity. A policy of political, philosophical and religious neutrality may constitute a legitimate objective.
In the Bougnaoui judgment, the Court held that, in the absence of a neutrality policy, an employer cannot require a worker not to wear an Islamic headscarf at work in response to a customer’s wishes. Such treatment does not constitute a ‘genuine and determining occupational requirement’ within the meaning of Article 4(1) of the Directive, justified by the nature/context of the worker’s occupational activities.
Two other CJEU judgments concerned the interpretation of Article 4(2) of the Directive, which provides for an exception to the non-discrimination principle as regards churches or other ethos-based organisations. The Court held that national courts must subject occupational requirements imposed by ethos-based organisations to effective judicial review. The requirements have to be necessary and objectively linked to the nature/context of the occupational activity, taking into account the organisation’s ethos. They may not cover considerations foreign to that ethos or the organisation’s right to autonomy, and must comply with the proportionality principle.
The Court is expected to refine its jurisprudence further in two pending cases, namely C-804/18 and C-344/20. The latter also raises a question on the concept of ‘belief’. A number of Member States have said that they would welcome further clarification of the notion through EU case law.
4.3.Sexual orientation
Taking into account the objectives and fundamental values underpinning the Directive, the Court clarified the conditions under which homophobic public statements constitute discrimination. The expression of discriminatory opinions in matters of recruitment by an employer is likely to deter individuals from applying for a post.
In another judgment, the Court pointed out that the Member States are free to regulate marriage between persons of the same sex or an alternative form of legal recognition of their relationship, and to lay down the date of effect of such a marriage. It concluded that a rule in Ireland, whereby the right to a survivor’s benefit was subject to a civil partnership having been entered into before the member of an occupational benefit scheme reached the age of 60, did not constitute discrimination on grounds of sexual orientation, even though national law did not allow civil partnerships before the partners reached that age.
4.4.Disability
A few stakeholders mentioned some challenges in interpreting the notion of ‘disability’. In this regard, the CJEU provided useful clarification by referring to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which was approved on behalf of the European Community by Council Decision 2010/48/EC and has become from the time of its entry into force i.e. 3 May 2008, an integral part of the EU legal order. The Court held that the concepts of ‘disability’ and ‘long-term’ limitation of a person’s capacity at work must be given autonomous and uniform interpretation throughout the EU.
The concept of ‘disability’ refers to a limitation resulting in particular from long-term physical, mental or psychological impairments, which in interaction with various barriers may hinder a person’s full and effective participation in professional life on an equal basis with other workers. The Court specified in its Z judgment that the inability to have a child by conventional means does not in itself constitute a hindrance to the exercise of a professional activity. In the FOA judgment, it held that, while obesity does not in itself constitute a ‘disability’, it may, under certain circumstances, meet the conditions required by the Directive and thus be covered by it.
The specific situation and needs of workers with a disability have to be taken into account in assessing whether they are placed at a disadvantage in comparison with others or whether national measures satisfy the proportionality test. Thus, in the Ruiz Conejero case the Court held that people with disabilities have the additional risk of being absent from work by reason of an illness connected with their disability and run a greater risk of accumulating days of absence because of illness, and consequently of reaching the limits laid down in the law. The Court concluded that this is liable to place workers with disabilities at a disadvantage and so to bring about a difference of treatment indirectly based on disability. Furthermore, in assessing the proportionality of the national measures at issue, the Court held that it should not be overlooked that people with disabilities generally face greater difficulties than people without disabilities in re-entering the labour market.
In another case, the Court held that, if an employer did not provide reasonable accommodation (Article 5 of the Directive), the dismissal of a worker with a disability on the basis of criteria determined by the employer (low productivity, a low level of multi-skilling and a high rate of absenteeism) constitutes indirect discrimination on grounds of disability. In this regard, the Court cited Article 2 UNCRPD, under which denial of reasonable accommodation is a form of discrimination.
In a recent judgment, the Court interpreted the concept of ‘discrimination’ (Article 2 of the Directive) and ruled that the principle of equal treatment is intended to protect a worker who has a disability against any discrimination on the basis of that disability, not only as compared with workers who do not have disabilities, but also as compared with other workers with disabilities.
4.5.Age
The majority of CJEU judgments regarding the Employment Equality Directive concern age-related differences of treatment. While the Member States transposed the Directive properly, several issues of compatibility arose with regard to specific national laws. In assessing these, the Court examined in particular:
-the comparability of situations;
-the possible existence of an objective, neutral factor that is unconnected to age;
-the legitimacy of the objective(s) pursued; and
-the appropriateness/proportionality of the means used.
Citing the right to work enshrined in Article 15(1) of the EU Charter of Fundamental Rights, the Court paid particular attention to the participation of older workers in the labour force and thus in economic, cultural and social life, and noted that retaining them promotes diversity. However, it also acknowledged that Member States may pursue a social or employment policy aiming at promoting young workers’ access to the labour market. It is for the competent authorities of the Member States to find the right balance between the different interests involved. In assessing the proportionality of the national legislation at issue, the Court accepted that account may be taken of the fact that the exclusion from work affected retired persons, whose professional life has ended and who are in receipt of a retirement pension. It left it to the national court that submitted the preliminary case to verify whether such exclusion is appropriate for ensuring attainment of the objective pursued and genuinely reflects a concern to attain it in a consistent and systematic manner.
Several cases concerned age discrimination with regard to pay. Some national laws on public‑sector salaries used age as a proxy for years of service. Others did not take account of periods of service before the age of 18 when calculating salaries. In some cases, the legal amendments intended to remedy the situation actually perpetuated the discrimination.
The Court also clarified the meaning of ‘genuine and determining occupational requirements’ in two cases concerning maximum recruitment ages for police forces, taking into account the specific nature of the jobs in question.
5.Conclusions and way forward
The CJEU developed useful guidance on several provisions, thus clarifying some issues of interpretation. At both national and EU level, important initiatives have been taken to apply the non‑discrimination provisions better in practice.
Those initiatives have led to some positive developments, inter alia as regards data collection. At the same time, major concerns remain, such as victims’ fear of retaliation, low and diverging levels of compensation, shortage of evidence, and little awareness of rights and support mechanisms (e.g. equality bodies). These challenges all contribute to the under-reporting of discrimination.
Follow-up action to address the challenges identified in this report could include the following:
Øcloser monitoring by Member States of the implementation of the Directives, in particular in relation to protection against victimisation and the application of effective, proportionate and dissuasive sanctions. The Commission will offer support in this regard, e.g. by commissioning a study on sanctions;
Øcontinuing efforts at national and EU level to:
oraise awareness among the public at large and among those particularly at risk of discrimination, in particular about their rights and existing support mechanisms;
osupport projects; the Commission will continue to promote equality and support victims through EU funding channels, including through the ‘citizens, equality, rights and values’ (CERV) programme and the Justice programme; and
ooffer regular information and training for policymakers, judges and lawyers on non‑discrimination law, including key issues such as indirect discrimination, harassment, the burden of proof, sanctions, and algorithmic discrimination; and
Øencouraging data collection at national level, with a focus on statistics, complaints, judgments, sanctions and breakdowns by equality factors (including those considered potentially sensitive, such as ethnic or racial origin). To ensure data comparability over time and between regions/countries, a coordinated approach at EU level remains essential.
In all these endeavours, equality bodies are key partners. A further strengthening of their visibility, their role and their effective and independent functioning is crucial as analysed in the Staff Working Document attached to this report. The continuing sharing of good practices at EU level and awareness‑raising will also be very beneficial, including in the field of prevention. In addition, and as already announced, the Commission will assess whether to propose new legislation to strengthen the role of national equality bodies by 2022.
All stakeholders concerned, including trade unions, employers and their associations, and civil society organisations, have a role to play in their respective spheres of competence. To realise the full potential of the Directives, the Commission will continue to work with the Member States, equality bodies, the FRA, civil society organisations and social partners, in order to ensure the systematic protection of victims of discrimination.
Circumstances have changed since the adoption of the Racial Equality Directive on 29 June 2000, including due to technological advances. Despite the challenges posed by the under-reporting, experiences of discrimination on the grounds of racial or ethnic origin remain widespread in the EU, following from a wide range of causes, including stereotypes and bias. A further assessment would be required to determine the relationship between the persistence of racial discrimination experienced in the EU and possible shortcomings in the enforcement of EU rules. It would also allow looking into possible gaps in the scope and coverage of the legislation. Coherence between the Racial Equality Directive and other relevant EU instruments should also be analysed. Data should be gathered on the areas where incidents of discrimination materialise, including where law enforcement authorities may discriminate. Such assessment, which would need to include a consultation of all relevant stakeholders, would serve to obtain robust, good quality data to provide evidence of racial discrimination experienced on the ground.
