Written Comments of the European Roma Rights Center to European Commission

15 December 2004

In late spring 2004, the European Commission (EC) opened for comment a "Green Paper" on "Equality and Non-Discrimination in an Enlarged European Union". The EC Green Paper is available at: (Green paper). The ERRC joined debate on the Green Paper with a contribution on the problem of the "nationality exclusion" included in 3 key European Union Directives, and in particular in Directive 2000/43/EC "implementing the principle of equal treatment between persons irrespective of racial or ethnic origin" (the "Race Directive"), Europe's premiere document banning racial discrimination. The "nationality exclusion" in the Race Directive sets differential treatment based on nationality for the time being outside the scope of the European Union definition of racial discrimination, by including texts such as "This Directive does not cover difference 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 on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned." With reference to international law, the ERRC argues that the "nationality exclusion" in the Race Directive harms the anti-discrimination acquis by arbitrarily cleaving "nationality" from the definition of racial discrimination. The full text of the ERRC's comments to the Commission Green Paper follow below. In addition, the ERRC joined a statement by the recently-established "Coalition for Environmental Justice", a loose network of NGOs focussing on problems of the disparate impact of environmental harms on minorities and minority communities in Central and Eastern Europe. The statement by the Coalition for Environmental Justice focussed on the need to establish explicit links between EU environmental law on the one hand and EU anti-discrimination law on the other. The full text of the statement by the Coalition for Environmental Justice is available at: http://www.errc.org/cikk.php?cikk=2009.

Introduction

The European Roma Rights Center (ERRC) is an international public interest law organisation engaging in a range of activities aimed at combating anti-Romani racism and human rights abuse of Roma, in particular strategic litigation, international advocacy, research and policy development, and training of Romani activists. The ERRC welcomes the opportunity provided by the European Commission's DG Employment and Social Affairs opening for public debate of a Green Paper on "Equality and non-discrimination in an enlarged European Union¹".

The ERRC takes the opportunity of public discussion of the Green Paper to raise one aspect of concern with respect to the current state of the EU legal framework banning discrimination (including racial discrimination), namely the so-called "nationality exclusion" from the scope of the ban on racial discrimination, as well as the broader failure of the EU to provide adequate guidance as to how to regulate discrimination on grounds of nationality. As elaborated below, the ERRC holds that the "nationality exclusion" included in the Directive 43/2000 "implementing the principle of equal treatment between persons irrespective of racial or ethnic origin" has impermissibly cleaved "nationality" from the definition of racial discrimination as provided under the international law acquis, and thus introduced into EU law a partial and insufficient definition of discrimination on grounds of racial or ethnic origin, a definition discordant with international law. The ERRC further believes that the explicit exclusion of the ground of nationality from the ban on racial discrimination, as well as the very limited guidance provided by EU institutions as to how to regulate the ban on discrimination on grounds of nationality, has had pernicious impact in a number of ways, including but not limited to:

• Opening the possibility for discrimination on racial or ethnic grounds under the pretext that such discrimination is on grounds of "nationality";
• Leaving unregulated or at best under-regulated, for the purposes of EU law, the field of discrimination against non-nationals per se;
• Establishing potential dilemmas for Member States' governments due to divergent approaches between the EU acquis and the international law acquis in matters relating to discrimination against non-nationals;
• Inspiring, in some EU Member States, the erosion of domestic law standards which previously banned discrimination against non-nationals.

In light of the precarious situation of many non-nationals in Europe – including in particular dark-skinned and Romani non-nationals – the "nationality exclusion" is currently contributing significantly to social exclusion in Europe.

Discussion

In recent years, the European Union has played a leading role in Europe in the struggle against discrimination, including by enacting a number of binding standards banning discrimination by law on a range of grounds. Worryingly, however, a new corpus of European Union rules has left individuals dangerously exposed to arbitrary treatment, particularly where these individuals are – or are perceived to be – non-citizens of the country at issue. Particularly at risk are persons who are not citizens of the country at issue or of another EU Member State.

The Green Paper notes in a number of places problems of discrimination faced by "migrants" in today's Europe, for example in the following passage:

With regard to migrants and ethnic minorities, national measures in the employment and social inclusion field continue to place the main emphasis on the need for migrants to adapt, most notably through integration measures, such as language courses. While these initiatives are important, they should be accompanied by measures that address the potentially discriminatory behaviour, attitudes or practices of the majority of the population, which can prevent a migrant or member of an ethnic minority from accessing a job or service or training course irrespective of his or her qualifications, experience or language ability².

The Green Paper also notes that the EU institutions have in some areas of law banned discrimination on grounds of nationality, or at least committed to such a ban in principle:

The European Union's commitment to the principle of non-discrimination was reaffirmed by the proclamation in December 2000 of the Charter of Fundamental Rights³. Article 20 of the Charter sets out the general principle of equality before the law and Article 21 deals with the principle of non-discrimination.

EU Charter of Fundamental Rights, Article 21:

1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

2. Within the scope of the application of the Treaty establishing the European Community and the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.

Article 21 of the Charter covers all of the six grounds listed in Article 13 of the EC Treaty, as well as seven additional grounds (social origin, genetic features, language, political or other opinion, membership of a national minority, property and birth).

[...]

In accordance with Article 51 of the Charter, the principles it sets out should guide the development of policy in the EU and the implementation of these policies by national authorities. The European Court of Justice (ECJ) has consistently held that fundamental human rights, derived from the international instruments to which all the Member States are signatories, form part of the general principles of Community law, the observance of which it ensures⁴. The Charter has already become an important reference document for the ECJ in its interpretation of Community law⁵.

The principle of non-discrimination on grounds of sex or nationality [emphasis added] has been held on numerous occasions by the ECJ to be a fundamental right under community law, any exceptions to which must be narrowly interpreted⁶. This jurisprudence will, no doubt, influence the ECJ when it comes to examine the Race Equality and Employment Equality Directives for the first time.

The measures described notwithstanding, recent EU moves to elaborate the ban on racial discrimination by means of a detailed Directive under the revised Article 13 TEC, as well as the elaboration of directives in other areas relating to discrimination, have increasingly rendered the measures in the field of nationality described above inadequate, especially in light of their comparative weakness with respect to impact on Member States' domestic law and policy.

Strengthening norms in particular in the field of racial discrimination have been noteworthy for the "nationality exclusion", which sets differential treatment on grounds of nationality outside the scope of the ban on racial discrimination for the purposes of EU equality law. This exclusion – appearing in Directive 2000/43/EC "implementing the principle of equal treatment between persons irrespective of racial or ethnic origin" (Hereinafter "Race Equality Directive" or "Directive") – has left non-citizens and others dangerously exposed to the severe harm of racial discrimination, by opening the possibility that discriminators simply ground differential treatment in the pretext that this differential treatment is on grounds of nationality, not of racial or ethnic origin.

In addition, where the EU has adopted an anti-discrimination directive covering more than one ground of discrimination, this has also featured a "nationality exclusion" clause. Thus, although Directive 2000/78/EC "establishing a general framework for equal treatment in employment and occupation" (Hereinafter "Employment Discrimination Directive") appears at first glance to cover a range of grounds, namely (in addition to racial or ethnic origin, covered by the Race Equality Directive) religion or belief, disability, age or sexual orientation, it also includes a "nationality exclusion". As detailed below, the inclusion of "nationality excusion" clauses in these two directives raises questions about whether the European Union anti-discrimination law framework can be said to be fully in harmony with the anti-discrimination law acquis under international law. Indeed, at present, the EU anti-discrimination acquis and international anti-discrimination acquis appear – in terms of approach – to be taking divergent roads, with the UN increasingly developing a rights-by-rights-based approach, examining as it goes whether the individual right at issue is to be enjoyed by non-citizens (of this, more below).

In addition, while the European Union has provided increasing guidance on the ban on discrimination on a number of grounds, the EU has to date not yet rendered explicit how states are to regulate the ban on discrimination on grounds of nationality via an instrument as detailed (and binding) as the anti-discrimination directives.

The "nationality exclusion", included in several EU anti-discrimination directives and consequently inspiring in the Member States both a void of legal protections as well as glaring opportunities for pre-textual racial discrimination, is of particular concern in light of strong anti-foreigner sentiment in Europe, and widespread reports of discrimination against foreigners – particularly dark-skinned and Romani foreigners. It is also of concern insofar as there are clear indications that in the field of non-discrimination, lawmakers in the Member States currently appear to undertake only the bare minimum required under EU law (and sometimes not even that), and frequently seek to avoid international law obligations altogether. Thus, the failure by the EU adequately to address issues of discrimination as they relate to non-citizens has meant, in practice, an erosion of protections for non-citizens.

The Ban on Racial Discrimination Under International Law

Space considerations preclude an extensive discussion here of the ban on discrimination – and in particular racial discrimination – under international law. Three of the most core instruments regulating the ban – the definitions of discrimination as provided under the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of All Forms of Racial Discrimination follow:

The International Covenant on Civil and Political Rights (ICCPR) states, at Article 2(1): "Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Article 26 of the ICCPR further provides: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." In its General Comment 15 on the position of aliens under the Covenant, the Human Rights Committee elaborated that "[...] the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof [...]⁷"

The International Covenant on Economic, Social and Cultural Rights (ICESCR) provides, at Article 2(2): "... the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, birth or other status." The ICESCR also requires that states may provide limitations to the enjoyment of the rights in the Covenant "only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society." (Article 4). In its general comments on areas such as health, housing and education, the CESCR has emphasised that the principle of non-discrimination extends also to non-citizens. For example, in its General Comment 13 on the right to education, the Committee stated that "the principle of non-discrimination extends to all persons of school age residing in the territory of a State party, including non-nationals, and irrespective of their legal status⁸." Among a number of similar comments in recent years, in its concluding observations on Italy's third periodic report, the Committee criticised the government for limiting access to healthcare for asylum-seekers only to emergency situations⁹.

Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) states: "In this Convention, the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life." Although at Article 1(2) the ICERD provides that the Convention shall not apply with respect to treatment between citizens and non-citizens, the UN Committee on the Elimination of Racial Discrimination (CERD) has importantly emphasised that protections included in the Convention are to be seen within the broader context of the ban on discrimination included in the major international laws on human rights. In its General Recommendation XI on non-citizens, the CERD held: "The Committee further affirms that article 1, para.2 must not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in other instruments, especially the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights¹⁰."

Moreover, the CERD has also emphasised that a number of the rights included in the Convention extend to all persons on the territory of a given state. In its General Comment XX on non-discriminatory implementation of rights and freedoms, the CERD noted: "Whenever a State imposes a restriction upon one of the rights listed in article 5 of the Convention which applies ostensibly to all within its jurisdiction, it must ensure that neither in purpose nor effect is the restriction incompatible with article 1 of the Convention as an integral part of international human rights standards. [...] Many of the rights and freedoms mentioned in article 5, such as the right to equal treatment before tribunals, are to be enjoyed by all persons living in a given State; others such as the right to participate in elections, to vote and to stand for election are the rights of citizens¹¹."

The CERD later elaborated on this opinion in written response to a questionnaire sent by the UN Special Rapporteur on the rights of non-citizens, dated 20 March 2003, by noting: "As stressed by the Committee in its General Recommendation XX, several of the rights and freedoms mentioned in article 5 ICERD, are to be enjoyed by all persons living in a given state. The Committee is consistently reviewing the situation in State parties regarding the enjoyment by everyone, including non-citizens, of such rights and freedoms." In its response to the Special Rapporteur on the rights of non-citizens, the Committee also provided a summary of some areas in which it had in the past noted particular concerns with respect to treatment of non-citizens, focussing in particular on discrimination in access to housing, education, employment and access to justice, as well as to concerns related to ill-treatment of foreigners by law-enforcement officials¹².

Finally, at its 64th session, 23 February-12 March 2004, the CERD adopted General Recommendation 30, "Discrimination Against Non-Citizens",¹³ a document definitively setting to rest the idea that "nationality" can be cleaved from the racial discrimination acquis without significantly damaging that body of law. Key elements included in General Recommendation 30 include the requirement that States "[e]nsure that legislative guarantees against racial discrimination apply to non-citizens regardless of their immigrations status, and that the implementation of legislation does not have a discriminatory effect on non-citizens", as well as that States "[e]nsure that immigration policies do not have the effect of discriminating against persons on the basis of race, colour, descent or national or ethnic origin". The substantive provisions of General Recommendation 30 elaborate 28 separate items in the areas of "Protection against Hate Speech and Racial Violence", "Access to Citizenship", "Administration of Justice", "Expulsion and Deportation of Non-Citizens" and "Economic, Social and Cultural Rights". As to the latter, General Recommendation 30 provides, inter alia, that States:

29. Remove obstacles that prevent the enjoyment of economic, social and cultural rights by non-citizens, notably in the areas of education, housing, employment and health;
30. Ensure that public educational institutions are open to non-citizens and children of undocumented immigrants residing in the territory of a State party;
31. Avoid segregated schooling and different standards of treatment being applied to non-citizens on grounds of race, colour, descent, and national or ethnic origin in elementary and secondary school and with respect to access to higher education;
32. Guarantee the equal enjoyment of the right to adequate housing for citizens and non-citizens, especially avoiding segregation in housing and ensuring that housing agencies refrain from engaging in discriminatory practices¹⁴;

The ERRC appends herewith CERD General Recommendation 30 in its entirety, as an annex to these Written Comments.

In light therefore of the comprehensive nature of the ban on discrimination provided in particular at Article 26 of the ICCPR, as well as in view of the body of commentary by the CERD as to interpreting the Convention, it is evident (i) that non-citizens enjoy equal protection of the law in the realisation of a broad range of fundamental rights, and (ii) that the exclusion of "nationality" from bans on racial discrimination constitutes an impermissible constriction of the definition of discrimination on racial or ethnic grounds, as provided under international law.

Recent European Union Measures Banning Discrimination

In recent years, the European Union has led efforts to combat racism and xenophobia in Europe, in particular by adopting in June 2000 Directive 2000/43/EC "implementing the principle of equal treatment between persons irrespective of racial or ethnic origin" (Hereinafter "Race Equality Directive" or "Directive"). The Directive establishes a framework for the dimensions of laws banning racial discrimination, and set deadlines in 2003 for EU member states to transpose the requirements of the Directive into domestic law, and deadlines of the date of accession for transposition by candidate countries to the European Union, ten of which joined the European Union on May 1, 2004. Insofar as directives are binding on Member States, and insofar as the Race Equality Directive provides a very detailed menu as to the content, scope and limits of laws banning racial discrimination, in Europe, the Directive is now bringing about a quantum leap in the dimensions of legal protections available to individuals who have suffered the very serious harm of racial discrimination. A number of Member States governments have transposed the Directive into domestic law, and others are now doing so.

The Preamble of the Directive recognises that "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 and the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories." In the general provisions of the Directive, at Article 3(1), the Directive provides that its scope of application shall be "all persons".

However, Article 3(2) of Directive 2000/43/EC states: "This Directive does not cover difference 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 on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned." As yet, no body of jurisprudence exists to indicate how the tension between the provisions of Article 3(1) and Article 3(2) should be regulated¹⁵.

The apparent exclusion of nationality from EU regulations on the ban on racial discrimination – indeed the emphasis on the distinction between the ban on racial discrimination and "any treatment which arises from the legal status of the third-country nationals and stateless persons concerned" – opens possibilities for unequal treatment on grounds of nationality and arguably constitutes a significant erosion of integral parts of the ban on discrimination in Europe. To take the most glaring examples, under EU rules, not only is it apparently legal (absent any indication to the contrary and prior to the existence of a body of jurisprudence with respect to the Race Equality Directive) for an employer, housing provider, restauranteur or for that matter any other service provider in a European Union Member State to provide services to a French citizen instead of an Afghani solely on the basis of the nationality of the persons concerned, but it is also apparently fully legal for the same service provider to discriminate between a Canadian and an Afghani, again solely on the basis of the nationality of the persons concerned. It is difficult to see how such an approach could be harmonious with the anti-discrimination acquis as provided by international law. It is also apparent that excluding nationality opens the potential for allowing blatant racial discrimination into play, as long as it is disguised as discrimination on grounds of nationality. Indeed, the EU effort to parse discrimination on grounds of nationality from the corpus of the international acquis banning racial discrimination comes precisely at a moment when the UN bodies, as noted above, have sought to emphasise that the ban on discrimination on grounds of nationality is bound intrinsically to the ban on racial and ethnic discrimination, precisely because unequal treatment on grounds of racial or ethnic origin on the one hand, and unequal treatment on grounds of nationality on the other, are often blurred in practice to the point of being fully indistinguishable.

The approach of the European Union in adopting the rules included in the Race Equality Directive is also noticeably divergent from United Nations standards – and the developing approach of the CERD in particular – insofar as it fails to examine specific rights individually to determine whether non-citizens should enjoy equal protection of the law in the case of a given right.

Another problem arises from the fact that, in addition to excluding "nationality" from the scope of laws banning racial discrimination, the EU has provided very limited guidance to Member States as to how to regulate issues related to discrimination against non-nationals strictu sensu, i.e. where this is not pre-textual racial discrimination, but is actually the denial of services based on nationality. The failure to provide such guidance would seem to suggest that EU lawmakers intend not solely arbitrarily to cleave discrimination on grounds of nationality from the race discrimination acquis (as noted above an impermissible move), but actually to leave discrimination on grounds of nationality entirely unregulated for the purposes of EU law. Thus, the EU's major piece of catch-all anti-discrimination legislation to date, Directive 2000/78/EC "establishing a general framework for equal treatment in employment and occupation", a law which focuses on one sectoral field (employment) also includes a "nationality exclusion", despite its focus on banning discrimination in employment on a number of grounds. Directive 2000/78/EC (hereinafter "Employment Directive") states, at Article 3(2):

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 the Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.

Among other things, the Employment Discrimination Directive, taken together with the Race Equality Directive, cements in place, for the time being at least, a gaping hole in European anti-discrimination law, in which discriminators may (i) freely act out racial bias, so long as they conceal it within the justification of different treatment on grounds of nationality and (ii) actually legally discriminate on grounds of nationality.

EU institutions might legitimately plead that while EU law does not require a ban on discrimination on grounds of nationality, Member States' governments are of course free to adopt such a ban, should they so choose. Indeed, it might be argued, the occasion provided by the requirement to amend laws to meet the standards of the new anti-discrimination directives would provide a welcome opportunity also to incorporate a ban on discrimination on grounds of nationality, as required by international law. Some governments, such as the Bulgarian government, have in fact done just this.

However, anti-foreigner sentiment in most of the Member States – the very same force giving rise to serious problems of discrimination against migrants and other non-citizens – has meant that few if any of the Member States will take advantage of the opportunity provided by the requirement to transpose the directives and simultaneously elaborate ban under domestic law on discrimination on grounds of nationality. Indeed, in some EU Member States, the "nationality exclusion" incorporated in the new EU anti-discrimination framework may have actually inspired an erosion of protections available to individuals. Thus, for example, according to a document by Alessandro Simoni, available on the European Union website, in Italy's new anti-discrimination law, unlike an earlier law adopted in 1998, "The scope of application includes the same fields as those listed in the Directive. Unlike the 1998 Act, discrimination on ground of nationality is explicitly excluded from the scope of application of the decree, as are all legal rules concerning immigration, work, and assistance to citizens of non-EU countries. The exclusion of discrimination on ground of nationality, although permitted by the Directive, raises problems, since in Italy racial discrimination is often disguised as legitimate discrimination against 'non-EU citizens' [...]¹⁶." In general, without explicit EU guidance in this area, it seems extremely unlikely that any of the Member States will remedy the lacuna appearing where the ban on discrimination on grounds of nationality should be.

At minimum, the EU framework has not yet been elaborated so as to address a basic cause of social exclusion in Europe: laws and policies explicitly discriminating against non-nationals. To name only one example of the dimension of issues as yet to be addressed in some Member States, according to a website database maintained by the municipal body Wiener Integrationsfond, over one hundred existing regulations in Austria explicitly discriminate against non-citizens. Listed in the database are arbitrary legal provisions such as, for example, a city of Vienna ordinance requiring that persons may not be employed to oversee nature reserves if they are not Austrian citizens¹⁷.

Explicitly anti-foreigner parties have entered government in Austria, Denmark, Italy and the Netherlands and have scored major electoral successes in Belgium, France, Norway and other countries in Europe. The ten countries which joined the European Union in May 2004 have only very limited experience with migration and migrants, and are today very difficult places for non-citizens – particularly dark-skinned non-citizens – to live lives with dignity. In such an atmosphere, the signal sent by the European Union to member states and the countries joining in 2004 – that on a core concern in Europe today, the European Union is not only indifferent but actually legally speechless – is truly regrettable. There is currently a distinct threat to all Europeans and others living in Europe, as well as to the social peace in Europe as a whole, arising from the failure of the European Union to provide comprehensive and adequate law in the area of the ban on discrimination.

The European Union institutions should quickly act to remedy the gap currently existing under EU law in the area of discrimination on grounds of nationality. The Commission should use all means available to act in this area, in advance of European Court of Justice interpretation of the existing anti-discrimination directives.

Endnotes:

1. COM(2004)379 final, Brussels, 28.05.2004 (Hereinafter “Equality Green Paper”).
2. Equality Green Paper, p. 20.
3. http://europa.eu.int/comm/justice_home/unit/charte/index_en.html.
4. E.g. Case 29/69, Stauder v City of Ulm, Case 4/73 ECR [1969] 00419, Nold v Commission, Case C-60/00 ECR [1974] 00491, Case C-60/2000, Mary Carpenter v Secretary of State for Home Department ECR [2002] I-006279.
5. E.g. Case C-245/01 - RTL Television GmbH v Niedersächsische Landesmediienanstalt für privaten Rundfunk ECR [2003] 0000, Cases T-116-01 & T-118/01-P & O European Ferries (Vizcaya) & SA v and Diputación Foral de Vizcaya v Commission of the European Communities ECR [2000] 0000. (Equality Green Paper, pp. 9-10).
6. E.g. Case C-13/94, P v S and Cornwall County Council ECR [1996] I-02143, Case C-55/00, Gottardo ECR [2002] I-00413.
7. United Nations Human Rights Committee, General Comment No. 15: The position of aliens under the Covenant: 11/04/86. CCPR General Comment No. 15. (General Comments), pt. 2.
8. United Nations Committee on Economic, Social and Cultural Rights, The right to education (Art.13): 08/12/99. E/C.12/1999/10. (General Comments), pt. 34.
9. United Nations Committee on Economic, Social and Cultural Rights, Twenty-second session 25 April-19 May 2000 Concluding Observations on Italy’s third periodic report, para 17.
10. United Nations Committee on the Elimination of Racial Discrimination, General Recommendation No. 11: Non-citizens (Art. 1): 19/03/93, pt. 3.
11. United Nations Committee on the Elimination of Racial Discrimination, General Recommendation No. 20: Non-discriminatory implementation of rights and freedoms (Art. 5): 15/03/96, pt. 3.
12. See “CERD response to the questionnaire sent by the Special Rapporteur on the rights of non-citizens: 20/03/2003.CERD/C/62/Misc.17.Rev.3.
13. CERD/C/64/Misc.11/rev.3.
14. Ibid.
15. In April 2004, the ERRC and partner organisation Minority Rights Group specifically requested from DG Employment and Social Affairs information as to what written guidance the Commission had provided to Member States as to how the tension between these two provisions should be regulated. The Commission responded that no guidance had been provided as of that date by the Commission to the Member States, and that ultimately this was a matter on which the European Court of Justice would have to rule (communication on file at the ERRC).
16. Simoni, Alessandro, “Executive Summary on Race Equality Directive: State of Play in Italy”, 17 October 2003.
17. The full list of Austrian laws explicitly discriminating against non-citizens, as gathered by Wiener Integrationsfond, is available at: http://www.livetogether.at/gleichstellungs_site/gleichstellung_pages/gleichstellung2-02.htm.