Equal treatment of persons irrespective of religion or belief, disability, age or sexual orientation: the proposal for horizontal anti-discrimination directive seems to be back on track !

The horizontal anti-discrimination directive would forbid discrimination based on religion or belief, disability, age or sexual orientation in access to goods and services, education, and access to social benefits. The proposal, issued by the Commission almost six years ago, needs unanimity in the Council but for a long time Germany and some other States have opposed it. Now it seems to be the moment to go ahead and reach an agreement since the Italian Presidency considers it as a priority and it also has the support of Mr. Juncker. LIBE Committee discussed the major obstacles in the meeting of the 5th of November at the presence of representatives of the Council and the Commission.

In 2008 the Commission presented a proposal for a directive which addresses discrimination outside the workplace on the grounds of religion or belief, disability, age and sexual orientation. This is the first attempt to tackle discrimination in an integrated way. It deals with discrimination that occurs in public and private sectors, in access to social protection, education and also in access to goods and services, including housing. Some states opposed the adoption of this directive since they feared the economic consequences of some of its aspects, such as access to social protection for everyone. Also the competence of the EU to legislate on this issue was questioned several times.

Now the matter is still under discussion but the Italian Presidency has decided to go ahead with the approval of this directive.

Within the European Parliament (EP) LIBE Committee is the one responsible for this directive. In the meeting held on the 5th of November there has been an exchange of views on the matter with representatives of the Council and the Commission, followed by the intervention of Ms. Lunacek, LIBE rapporteur for this directive.

The first person to intervene was the representative of the Presidency to the Council who declared that there has been progress in the Council but the complexity of the issue requires further discussion and clarification. One of the major challenges for the approval of this directive is the fact that it brings together many areas. The representative continued saying that the past presidencies focused on some particular aspects, some of them have worked more on disabilities, some others, such as Greece, on age related issues.

There are four open questions which represent a challenge in the Council. These questions regard: the scope of application, the anticipatory measures which regard accessibility in the field of disability, the subsidiarity problem and also the legal certainty for the overall directive.

There have been several working groups in the Council which tried to identify the main problems. In the views of the Council there are some aspects which need to be dealt with. One of these features is the problem of differentiation between the reasonable solutions and accessibility. The representative went further in saying that the Commission should have adopted the “Accessibility Act” but did not. For this reason now the Council is waiting to see how the new Commission will work on this issue. The second problem pointed out by the working groups was the surveillance. We do not have a system which obliges states to gather data which would monitor the situation of discrimination.

Now the Presidency has two main priorities. The first one is to promote a re-reading of the entire text in order to check where the more problematic areas are at this moment. What is clear now is that some delegations have problems of introducing education and social protection into the text.

The second priority is that of having a debate into the Council between the ministers to see the problematic areas. There are many problems but no State is against the objective of the directive. She added that in Coreper there will be another debate also on alternative routes.

Given these problems, it is rather unlikely to find an agreement within the Council by December. Also the Chair of LIBE was not so convinced about the support of the States and expressed his doubts after the representative of the Council intervention.

The representative of the Commission expressed the clear political commitment of the new Commission and declared that the Commission is ready and open to improvements of the proposal if necessary. Then it went on congratulating with the Italian Presidency for the “remarkable work in difficult circumstances”. The Commission is fully committed to the adoption of this proposal and Mr. Juncker made that clear when he declared that he will try to convince reticent Member States to approve this directive. Also Ms. Jourova expressed the willingness to work on this file as a priority. The representative of the Commission ended in asking for the support of the European Parliament in order to get this directive adopted.

Mrs. Lunacek, the rapporteur for this directive, declared that she was pleased to see this issue on the agenda. She continued asking why some Member States do not see the principle of equality that has to be implemented. She declared: “My impression is that is not any more a question of technicality or legal clarity, the point is political will. The real question is how do we get the reticent governments to move ahead?”

We have the principle of equality with regard to employment and also we have the directive against racial discrimination. The employment directive establishes that everybody has to be treated equally. But why the other vulnerable groups do not enjoy the same rights? Ms. Lunacek stated that a person can sue a discotheque if it does not allow him or her to enter because of the colour of the skin, but a gay couple and a disabled person do not enjoy this right.

The point, according to the Vice President of the EP, is that the European citizens expect from the EU equal treatment. She then turned to her colleagues saying asking them for their support at home. She exhorted her colleagues buy saying:

“Those of you who are from parties which are in government at home, act and try to convince your governments. (..) It is about equality and non-discrimination in all fields. It is about not discriminating some people and giving rights to others.

Mrs. Lunacek stressed the fact that the issue at stake here is access to services and goods for everyone. She continued asking why non-discrimination is legally binding only with regard to race and not on other grounds.

While the issues pointed out by Ms. Lunacek are true, the solution seems still not very close. The idea is that of trying to do some steps forward by December but some Member States are not really convinced.

On the 28th of october 2014, the Italian Presidency of the Council of the EU, in cooperation with the EU Agency for Fundamental Rights (FRA) and the General Secretariat of the Council organised a high-level conference “Tackling sexual orientation and gender identity discrimination: next steps in EU and Member State policy making”. During that event the outgoing Commissioner for Justice, Human Rights and Citizenship, Martine Reicherts declared that after six years of blocking it will be difficult to unblock this directive. There is the need for compromise on both sides. She also launched the idea of an enhanced cooperation on this matter among some Member States which are willing to go ahead with this directive. They should be allowed to adopt it and there is no point in obliging Member States to do something that they do not want. In the end the risk is that of damaging the people we seek to protect. She added: “If we push too much we can harm the people we are trying to help”.

Maybe this is not the ideal solution but if, despite the positive intentions of the Italian Presidency, the Commission and the EP, the directive will continue to remain stuck in the Council, an enhanced cooperation regarding non-discrimination can represent a valid alternative. Probably that was also the idea of the representative of the Council when referred to “alternative route” to be found at Coreper level.

Whatever the outcome will be, I think that a decision, even a negative one, is still better that a complete paralysis.

(Ana Daniela Sanda)


To know more:

     -. Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (EN) http://eur-lex.europa.eu/legal (FR) http://eur-lex.europa.eu/legal-content/FR/TXT/HTML/?uri=CELEX:52008PC0426&from=en

        -. Conclusions of the Conference “Tackling sexual orientation and gender identity discrimination” http://fra.europa.eu/en/event/2014

Adeline Silva Pereira

Après avoir effectué la deuxième année du master Sécurité Globale analyste politique trilingue à l'Université de Bordeaux, j'effectue un stage au sein d'EU Logos afin de pouvoir mettre en pratique mes compétences d'analyste concernant l'actualité européenne sur la défense, la sécurité et plus largement la coopération judiciaire et policière.

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