EU Roma Integration Directive – Filling the Gap in the Equality Legal Regime

11 March 2005

On May 26, 2004 the EU Network of Independent Experts in Fundamental Rights published its “Report on the Situation of Fundamental Rights in the European Union for 2003”. In the report, among other things, the Experts called on the European Union to develop a “Directive specifically aimed at encouraging the integration of Roma”. Below is the interview conducted by the ERRC with Mr Olivier De Schutter, Coordinator of the EU Network of Independent Experts in Fundamental Rights, discussing matters related to that recommendation.

ERRC: When did the idea first come to you that an EU Directive on Roma Integration would be worthy of proposing?

Olivier De Schutter: This idea, although it was first put forward in the Report on the situation of fundamental rights in the European Union and its Member States in 2002 – which was published by the EU Network of Independent Experts in Fundamental Rights in March 2003 – really imposes itself naturally. Where there exists a history of discrimination, resulting in the segregation of a community in large fields of social life such as employment, housing and education, affirmative measures are required to move beyond the traces it leaves. In 1968, more than a decade after the United States Supreme Court declared, in Brown v. Board of Education, that segregation in public education was unconstitutional, it had to declare in Green that simply proclaiming equality was not enough: the constitutional mandate was to get rid of racism “root and branch”, and that “in order to move beyond racism, you must first take racism into account”. This was the beginning of court-ordered affirmative action and “busing” policies, all intended to get rid of the heritage left by Jim Crow laws in American society. Non-discrimination is crucial of course, but the principle of equal treatment may require more: that we strive towards positive integration, until it will have become unnecessary.

ERRC: Explain your reasoning behind proposing a Roma Integration Directive but at the same time not supporting calls for a Directive related to the rights of the disabled.

Olivier De Schutter: As a matter of fact the EU Network of Independent Experts has strongly advocated in favor of going beyond the Framework Directive 2000/78/EC of 27 November 2000 with respect to persons with disabilities, also since the first report it published. The argument there is simple: you cannot pretend to effectively combat discrimination in work and employment, without also addressing the question of access to goods and services, including in particular public transportation. Equal access to employment requires that the artificial barriers to integration are removed, not only at the workplace, not only in the working environment, but also in the general environment. As the UN Committee on Economic, Social and Cultural Rights emphasizes, “it is very often the physical barriers that society has erected in areas such as transport, housing and the workplace which are (…) cited as the reason why persons with disabilities cannot be employed” (General Comment n°5 (11th session, 1994). Report of the Committee on Economic, Social and Cultural Rights, UN doc. E/1995/22, at para. 22).

ERRC: If an Integration Directive is adopted, what would be its relation to the other EU Directives? Would it be an ordinary EU Directive? This is in practice an affirmative action instrument focusing, moreover, on one particular ethnic group. What are the arguments defending such an approach. Do you think such instrument could also have influence on international human rights law?

Olivier De Schutter: General international human rights law clearly recognizes that the adoption of such initiatives by States not only should not be considered as a form of discrimination – as confirmed by Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination – but may even be required. The Human Rights Committee takes the view that “the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant” (Human Rights Committee, General Comment n°18: Non-discrimination, adopted at the thirty-seventh session of the Committee (1989), in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, UN doc. HRI/GEN/1/Rev.7, 12 May 2004, para. 10). In its important General Recommendation XXVII (2000), the UN Committee on the Elimination of Racial Discrimination requested from States, in particular, that they “take special measures to promote the employment of Roma in the public administration and institutions, as well as in private companies [and that they] adopt and implement, whenever possible, at the central or local level, special measures in favour of Roma in public employment such as public contracting and other activities undertaken or funded by the Government, or training Roma in various skills and professions” (para. 28-29). In fact, by taking an initiative encouraging the EU Member States to adopt affirmative action measures in favor of the Roma, the European Community would simply be facilitating the implementation, in that respect, of their international obligations. The situation of the Roma, in my view, would justify this. The Roma cannot be compared to any other ethnic group in the Union, by the level of their exclusion and by the entrenched character of this exclusion.

ERRC: The text explaining reasoning behind your proposal for a Roma Integration Directive relies on gaps in the Race Directive (Directive 2000/43/EC), for example the observation that access to documents is not covered by the Race Directive, as well as with reference to issues related to nomadism. If you had to propose this list today, would you add any additional reasons?

Olivier De Schutter: Those who are better aware of the situation of the Roma would have many other concerns to express, which might justify a further initiative of the European Community. One particularly delicate question, which the last Report of the EU Network of Independent Experts on Fundamental Rights does not address, is the question of access to citizenship. This is of course a matter for the Member States to act upon. In the General Recommendation mentioned above, the UN Committee on the Elimination of Racial Discrimination requires that the States “ensure that legislation regarding citizenship and naturalization does not discriminate against members of Roma communities” (para. 4).

ERRC: How would you respond to persons who suggest that a legal mechanism is too radical a proposal and who would propose a financial instrument instead?

Olivier De Schutter: The two approaches are not mutually exclusive. In order to justify the adoption of a legal initiative, we do not have to underestimate the need for financial schemes which favor integration of Roma in schools, employment and housing. But a legal initiative grounded on the principle of equal treatment would have a strong symbolic value. Currently, the Member States are free to decide or not to adopt certain positive action measures in favor of certain ethnic groups, including the Roma. It is important to affirm that, in certain situations, there is an obligation to adopt such measures, as the simple prohibition of discrimination combined with market mechanisms will not suffice to ensure effective integration. We should never forget that anti-discrimination, just like market relationships, reward “merit”, and remain blind to the adverse circumstances which certain individuals may have been facing because of their background. The market and anti-discrimination are excellent tools in a world where no group is facing an entrenched, durable, exclusion from the mainstream of social institutions. This world is unfortunately not ours yet.

ERRC: How would you respond to opponents of the idea of a Roma Integration Directive who argue that the legal obligations suggested by such a Directive could not be made sufficiently clear so as to render them enforceable?

Olivier De Schutter: Such an instrument could be procedural rather than substantive. It could build on Directive 2000/43/EC, and define as one of the missions of the equality bodies set up in accordance with Article 13 of that instrument that they request from all public bodies that they present equality schemes defining how they intend to promote the integration of the Roma, and that they define quantitative objectives in order to attain that objective. In fact, it seems crucial for the success of such an integration process that it be monitored at national level, more closely than it could be followed by the European Commission for instance, if the objectives to be attained were to be defined uniformly throughout the Union.

Alternatively, we could of course consider an initiative imposing on States to collect adequate information about the situation of Roma in different sectors, to report to the Commission or within the Council, to define targets to achieve in order to improve the integration of the Roma, and to share best practices. In fact, the ideal instrument for this is not a Directive, but rather a form of coordination of the initiatives adopted by the Member States in order to fulfil objectives set at the level of the Union. Since the entry into force of the Nice Treaty on 1 February 2003, Article 13(2) EC provides that “incentive measures” may be adopted, “excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1 [combating discrimination based, inter alia, on ethnic origin]”. This may be the best way ahead. Politically, it is more realistic. It is easier to justify in terms of subsidiarity. And we have much to gain in sharing knowledge about the best ways to promote the integration of Roma within our different national traditions.

ERRC: How would you respond to those who might oppose the idea of a Roma Integration Directive by arguing that the Union would be incapable of adopting an instrument sufficiently strong to be worth the advocacy effort?

Olivier De Schutter: The advocacy is a goal in itself. Mobilizing in order to achieve such an objective may prove to be a powerful unifying factor for the Roma community, which today often appears fragmented, lacking recognised spokespersons. And it will be an important achievement if such an advocacy already succeeds in launching a debate and in leading the Member States to ask themselves whether in fact enough is being done in order to integrate Roma. Of course the final objective is important, but the process of trying to achieve it has its own benefits. Some people travel to arrive at their destination. Others travel for the sake of it, and for these, traveling is far more rewarding.

ERRC: Do you think we will see a Roma Integration Directive adopted by the EU in the near future? Has there been any discussion on this issue following your proposal? What arguments do you think should be brought to policy makers to persuade them of the necessity of such an instrument?

Olivier De Schutter: Such proposals take time to mature. Once the maturation is complete, it then may go very quickly. We are at the beginning of a process, but we need to prepare for the moment where the institutions will be ready to act. For the moment, the collection of data, the launching of a public debate on whether or not there would be an added value in an initiative being adopted by the European Community, should go ahead – and this is being done. I expect a lot from the report commissioned to the European Roma Rights Centre and Focus Consultancy on the situation of Roma of Europe. I think the time has come for the preparation and public discussion of an initiative which the Commission could be encouraged to take. Whether this is justified or not, the enlargement of the Union has made this a priority.