Legal provisions of COM(1999)566 - Implementation of the principle of equal treatment between persons irrespective of racial or ethnic origin

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dossier COM(1999)566 - Implementation of the principle of equal treatment between persons irrespective of racial or ethnic origin.
document COM(1999)566 EN
date June 23, 2000


CHAPTER I: GENERAL PROVISIONS

Contents

Article 1 - Purpose

The purpose of this Directive is to put into effect in the Member States the principle of equal treatment between individuals irrespective of racial or ethnic origin.

Article 2 - Concept of discrimination

1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin.

2. For the purposes of paragraph 1:

(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated on grounds of racial or ethnic origin;

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice is liable to affect adversely a person or a group of persons of a particular racial or ethnic origin, unless that provision, criterion or practice is objectively justified by a legitimate aim which is unrelated to the racial or ethnic origin of a person or group of persons and the means of achieving that aim are appropriate and necessary.

3. Harassment of a person or group of persons related to racial or ethnic origin, which has the purpose or effect of creating an intimidating, hostile, offensive or disturbing environment in any of the areas covered in Article 3, shall be deemed to be discrimination within the meaning of paragraph 1.

Article 3 - Material scope

Within the limits of the powers conferred upon the Community, this Directive shall apply to:

(a) the conditions for access to employment, self-employment and occupation, including selection criteria and recruitment conditions, whatever the sector or branch of activity and at all levels of the professional hierarchy, including promotion;

(b) access to all types and to all levels, of vocational guidance, vocational training, advanced vocational training and retraining;

(c) employment and working conditions, including dismissals and pay;

(d) membership of and involvement in an organisation of workers or employers, or any other organisation whose members carry on a particular profession, including the benefits provided for by such organisations;

(e) social protection and social security;

(f) social advantages;

(g) education, including grants and scholarships, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity;

(h) access to and supply of goods and services.

Article 4 - Genuine occupational qualifications

Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to racial or ethnic origin shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine occupational qualification.

Article 5 - Positive action

This Directive shall be without prejudice to the right of the Member States to maintain or adopt measures intended to prevent or compensate for disadvantages suffered by a group of persons of a particular racial or ethnic origin.

Article 6 - Minimum requirements

1. Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.

2. The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive.

CHAPTER II: REMEDIES AND ENFORCEMENT

Article 7 - Defence of rights

1. Member States shall ensure that judicial and/or administrative procedures for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.

2. Member States shall ensure that associations, organisations or other legal entities may pursue, on behalf of the complainant with his or her approval, any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.

Article 8 - Burden of proof

1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

3. Paragraph 1 shall not apply to criminal procedures, unless otherwise provided by the Member States.

4. Paragraphs 1, 2 and 3 shall apply to any legal proceedings commenced in accordance with Article 7(2).

Article 9 - Victimisation

Member States shall introduce into their national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to legal proceedings aimed at enforcing compliance with the principle of equal treatment.

Article 10 - Dissemination of information

1. Member States shall ensure that adequate information on the provisions adopted pursuant to this Directive is provided throughout their territory, and in particular in vocational training and educational bodies and in the workplace.

2. Member States shall ensure that competent public authorities are informed by appropriate means as regards all national measures taken pursuant to this Directive.

Article 11 - Social dialogue

1. Member States shall take adequate measures to promote the social dialogue between the two sides of industry with a view to fostering equal treatment, including through the monitoring of workplace practices, collective agreements, codes of conduct, research or exchange of experiences and good practices.

2. Member States shall encourage the two sides of the industry to conclude, at the appropriate level, including at undertaking level, agreements laying down anti-discrimination rules in the fields referred to in Article 3 which fall within the scope of collective bargaining. These agreements shall respect the minimum requirements laid down by this Directive and the relevant national implementing measures.

CHAPTER III: INDEPENDENT BODIES FOR THE PROMOTION OF EQUAL TREATMENT

Article 12 - Independent bodies

1. Member States shall provide for an independent body or bodies for the promotion of equal treatment of persons of different racial or ethnic origin. These bodies may form part of independent agencies charged at national level with the defence of human rights or the safeguard of individuals' rights.

2. Member States shall ensure that the functions of these independent bodies include receiving and pursuing complaints from individuals about discrimination on grounds of racial or ethnic origin, commencing investigations or surveys concerning discrimination based on racial or ethnic origin and publishing reports and making recommendations on issues relating to discrimination based on racial or ethnic origin.

CHAPTER IV: FINAL PROVISIONS

Article 13 - Compliance

Member States shall take the necessary measures to ensure that:

(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished.

(b) any provisions contrary to the principle of equal treatment which are included in individual or collective contracts or agreements, internal rules of undertakings, rules governing lucrative or non-lucrative associations, and rules governing the independent professions and workers' and employers' organisations, are declared null and void or are amended.

Article 14 - Penalties

Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by the date specified in Article 15 at the latest and shall notify it without delay of any subsequent amendment affecting them.

Article 15 - Implementation

Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2002. They shall forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

Article 16 - Report

Member States shall communicate to the Commission, within two years of the date mentioned in Article 15, all the information necessary for the Commission to draw up a report to the European Parliament and the Council on the application of this Directive.

Article 17 - Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.

Article 18 - Addressees

This Directive is addressed to the Member States.