Implementing European Anti-Discrimination Law

10 April 2001

The European Roma Rights Center is pleased to announce the launch of a new project it has taken on together with two partner organisations, the London-based Interights and the Brussels-based Migration Policy Group. Below is a brief description outlining the principal activities to be undertaken in the framework of this three-year initiative, aiming to make the most of the historic opportunity for enhanced anti-discrimination litigation and advocacy created by the recently-adopted European Union Race Equality Directive and the Protocol No. 12 to the European Convention on Human Rights, which we look forward to carrying out in close cooperation with numerous local partners throughout Europe.

A Joint Project of the European Roma Rights Center, Interights and the Migration Policy Group

Introduction

In late June 2000, the Council of the European Union adopted Directive 2000/43/EC, “implementing the principle of equal treatment between persons irrespective of racial or ethnic origin” (the “Race Equality Directive” or “Directive”). The product of a ten-year campaign by Starting Line Group, a broad network of non-governmental organisations coordinated by the Migration Policy Group, the Race Equality Directive presents Europe with an historic opportunity to make a lasting contribution to the struggle for racial equality.

The Directive constitutes a landmark in Europe’s legal development. Within three years, all EU member states must conform their legislation to implement its principles. Moreover, the Directive is now part of the “acquis communautaire,” the body of law which all states wishing to join the Union must adopt. Hence, each of the EU candidate countries will have to enact legislation and educate their judges, prosecutors and other public officials about these new legal standards. Among the Directive’s most significant features are the following:

• The Scope of Discrimination: The Directive expressly includes both “direct” and “indirect” discrimination within the scope of prohibited action. By including “indirect” discrimination within its ambit, the Directive reaches a broad swath of discriminatory policies and actions which, though not motivated by overt and readily provable racial hatred, nonetheless “disadvantage” members of racial or ethnic minority groups. In so doing, it goes beyond the current, more limited conceptions contained in, inter alia, the case law of the European Court of Human Rights and the U.S. Supreme Court;
• The Scope of Discriminators: The Directive applies to “both the public and private sectors, including public bodies,” thus eliminating the “state action” hurdle which has hampered anti-discrimination law enforcement in other contexts;
• The Scope of Activities: The Directive applies to access to employment, including self-employment and occupation, vocational training and working conditions; to social security and healthcare; to social advantages; to education; and to the provision of “goods and services which are available to the public, including housing.” It thus covers many of the areas in which racial discrimination manifests itself;
• Positive Action: The Directive leaves open the possibility for States to adopt “specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin;”
• Legal Remedies: The Directive mandates the establishment of “judicial and/or administrative procedures” to implement its provisions, and authorises “associations, organisations or other legal entities” to engage in seeking legal remedies on behalf of victims who so approve;
• Burden of Proof/Evidence: The Directive makes it practically feasible for many victims to prove the discrimination they have suffered in two principal ways. First, the Directive shifts the burden of persuasion in civil cases by requiring that, once a prima facie case of discrimination has been established, “it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.” Second, the Directive provides that indirect discrimination may be “established by any means, including on the basis of statistical evidence;”
• Enforcement Bodies: By requiring that States designate a body capable of “providing independent assistance to victims of discrimination in pursuing their complaints,” the Directive opens the way to the establishment of effective enforcement bodies capable of taking legal action to secure equal treatment;
• Sanctions: The Directive makes clear that “effective, proportionate and dissuasive” sanctions must be imposed for violation of national anti-discrimination norms, and that such sanctions “may comprise the payment of compensation to the victim;”
• Monitoring: The Directive requires that the European Commission report on the “application of this Directive” within the Member States within five years. Such report must “take into account, as appropriate […] the viewpoints of […] relevant non-governmental organisations.”

Notwithstanding the major step forward the Directive represents, civil society actors will need to ensure its effective implementation both in the EU and candidate countries. While the EU will no doubt invest resources toward this end, it will need help from the non-governmental community in highlighting the significance of this development and the nature of the legal and institutional changes required, and in assisting and supporting lawyers, other advocates and government officials in making use of this new legal tool in their anti-discrimination work.

Moreover, independent legal and advocacy expertise from the NGO sector will be needed to ensure that ambiguous and potentially broad-ranging provisions are applied in a manner most favourable and accessible to discrimination’s victims. Questions are sure to arise concerning, inter alia, the effectiveness of the sanctions required, the independence and functions of the government enforcement bodies to be established, and the scope of “disadvantage” needed to constitute a prima facie case of discrimination. Absent sustained NGO input, the Directive’s potential to transform anti-discrimination law in Europe may not be fully realised.

A second significant development providing opportunities for enhanced action in the field of racism and discrimination was the adoption in late June by the Committee of Ministers of the Council of Europe of Protocol No. 12 to the European Convention on Human Rights (“Protocol No. 12” or “the Protocol”), broadening the scope of the Convention’s Article 14 on non-discrimination, which presently prohibits discrimination only in the enjoyment of the rights already enshrined in the Convention. Unlike the Race Equality Directive, however, this Protocol enters into force only after ten states have ratified it. A major task ahead lies in convincing at least the minimum ten required Council of Europe member states to make this important instrument a reality.

In short, given these significant new developments, and in view of the European preparations for the upcoming United Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (to be held in South Africa in August-September 2001), “Implementing European Anti-Discrimination Law” provides a platform and means to bring together judges, lawyers, local and regional NGOs, government officials and others throughout the continent to establish strategies and methods for ensuring effective implementation of European anti-discrimination norms at the national level.

Project objectives

“Implementing European Anti-Discrimination Law” is a three-year initiative which aims to support local and regional groups and individuals in making the most of the historic opportunity for enhanced anti-discrimination efforts created by the recently adopted European Union Race Equality Directive and Protocol No. 12 to the European Convention on Human Rights. The Project started in January 2001, and focuses on the 15 EU member states and 11 candidate countries (Turkey and 10 in Central and Eastern Europe). Working in conjunction with local NGOs and individuals, the Project engages in three principal activities, each designed to promote the Directive’s effective application and the Protocol’s timely entry into force:

• Workshops for judges, lawyers, NGO anti-discrimination advocates, government officials, members of parliament and representatives of specialised bodies to provide key actors throughout Europe with information about the legal obligations flowing from the Directive and the Protocol, support for their creative use and application, and the opportunity for individuals from different countries to discuss approaches and methods;
• Legislative advocacy before individual governments and relevant EU institutions to ensure that the requirements of the Directive – in short, the adoption of comprehensive anti-discrimination legislation and the establishment of effective enforcement bodies – are swiftly and adequately complied with, and that Protocol No. 12 to the ECHR is speedily ratified by at least the minimum ten states required for its entry into force;
• Test litigationbefore selected constitutional and Supreme Courts, the European Court of Human Rights and theEuropean Court of Justice, to ensure the adoption in judicial caselaw of the various elements of the Directive and the Protocol.

All three Project components are predicated on high-quality research conducted by local lawyers to identify the principal legal and institutional issues in each country. To this end, the Project has begun working with lawyers from each of the 26 countries to prepare a detailed country-by-country analysis of existing legal provisions and relevant jurisprudence pertaining to racial and other forms of discrimination.

Expected results

At the conclusion of the Project, in December 2003, the following tangible results — all achieved in conjunction with local NGOs and individuals — are expected:

1. Legal analyses of existing domestic legislation in 26 countries (15 EU member states and 11 candidate countries) identifying modifications required to conform such legislation with the Race Equality Directive and Protocol No. 12;
2. Fiveworkshops, each for 40-50 lawyers, NGO advocates and relevant governmental representatives on how to use and enforce the requirements of the Race Equality Directive and Protocol No. 12; one Colloquium for approximately 50 judges; and one larger-scale, concluding Conference assembling approximately 150 selected workshop participants, to sum up and evaluate achievements and assess concrete next steps. At the conclusion of this series of workshops, several hundreds of judges, lawyers, NGO activists, government officials and representatives of specialised bodies will have been provided information and support in making effective use of the Race Equality Directive and Protocol No. 12 in their respective fields of work;
3. The launch of at least 20 significant test cases striving to enforce in domestic courts the norms embodied in the Race Equality Directive and Protocol No. 12;
4. A comprehensive publication containing, inter alia, a comparative legal analysis based on national studies (see under (i)); summaries of the discussions and conclusions of the workshops, the Colloquium, and the concluding Conference; selected papers and other contributions from experts and participants, and other information and material of relevance to the aims and objectives of the Project;
5. Assistance/persuasion of 26 governments to bring their legislation and practice into compliance with the requirements of the Race Equality Directive; and
6. Assistance/persuasion of at least ten governments to ratify Protocol No. 12 to the ECHR (the minimum required for its entry into force).

Project partners

The European Roma Rights Center (ERRC) is an international public interest law organisation which monitors the human rights situation of Roma in Europe and provides legal defence in cases of abuse. Since its establishment in 1996, ERRC has developed an acknowledged expertise in human rights litigation on behalf of Roma, established an extensive network of contacts with lawyers, legal advocates and NGOs throughout much of Europe, and acquired a track record of effective advocacy targeting intergovernmental organisations, including the Council of Europe and the European Union. ERRC’s role in the Project reflects the broadly acknowledged fact that Roma are among the most deprived ethnic/racial groups in Europe. ERRC publications and additional information about the organisation are available at www.errc.org. Contact person for the Project: Veronika Leila Szente, Advocacy Director, tel.: (36-1) 413 2234 or 413 2200; fax: (36-1) 413 2201;

Migration Policy Group (MPG), an independent organisation based in Brussels, is committed to improving policy development on international migration, diversity and anti-discrimination through the promotion of facilitated exchange between key stakeholders in Europe, North America and the international community, and through the production of substantive, comparative policy analysis. Acting as the coordinating body for the regional initiative known as Starting Line Group, MPG has taken the lead in designing and campaigning for the adoption of Europe-wide proposals for anti-discrimination legislation which resulted in the EU Race Equality Directive. In co-operation with the European Monitoring Centre on Racism and Xenophobia, MPG is currently preparing a report comparing legislation of the EU member states with the EU Race Equality Directive. At the request of the Council of Europe, MPG has organised 24 round tables on migration, integration and anti-discrimination policies in both west and east European countries. MPG has prepared for the Council of Europe the report ‘Diversity and cohesion, new challenges for the integration of immigrants and minorities’, which will guide the work of the Council and its member states for the years to come. More information can be found at www.migpolgroup.com. Contact person for the Project: Isabelle Chopin, Programme Director, tel.: (32-2) 230 85 12; fax: (32-2) 280 09 25;

Interights is an international centre for the legal protection of human rights, created in 1982. Interights’s main purpose is to assist judges and advocates, NGOs and the victims of human rights violations in accessing and applying international and comparative human rights law and mechanisms. Interights undertakes regional and national projects in Central and Eastern Europe, Africa and South Asia in partnership with local organisations both to enhance the capacity of human rights organisations and individual lawyers and to develop jurisprudence which effectively protects human rights. To achieve its goals, Interights: (i) offers assistance or legal representation in cases of strategic importance with the aim of developing, interpreting and applying international human rights norms; (ii) organises training sessions for judges and practising lawyers; (iii) prepares and distributes legal materials and publications in a variety of languages, including Bulgarian, English, French, Hungarian and Russian; and (iv) maintains an Internet database containing summaries of international human rights judicial decisions. For more information about the activities of Interights, see www.interights.org. Contact person for the Project: Mariann Meier-Wang, Legal Officer, tel.: (44-20) 72 78 32 30; fax: (44-20) 72 78 43 34;

Project funding

The Project received substantial financial support from the Open Society Institute, enabling activities to start in January 2001. Additional funds are being sought from other donors, including from national Open Society Foundations in the Central and Eastern European countries covered by the Project.