Legal provisions of COM(2008)426 - Implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation - Main contents
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dossier | COM(2008)426 - Implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual ... |
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document | COM(2008)426 ![]() |
date | July 2, 2008 |
Contents
- Chapter 1 - GENERAL PROVISIONS
- Article 1 - Purpose
- Article 2 - Concept of discrimination
- Article 3 - Scope
- Article 4 - Equal treatment of persons with disabilities
- Article 5 - Positive action
- Article 6 - Minimum requirements
- CHAPTER II - REMEDIES AND ENFORCEMENT
- Article 7 - Defence of rights
- Article 8 - Burden of proof
- Article 9 - Victimisation
- Article 10 - Dissemination of information
- Article 11 - Dialogue with relevant stakeholders
- Article 12 - Bodies for the Promotion of Equal treatment
- CHAPTER III - FINAL PROVISIONS
- Article 13 - Compliance
- Article 14 - Sanctions
- Article 15 - Implementation
- Article 16 - Report
- Article 17 - Entry into force
- Article 18 - Addressees
Chapter 1 - GENERAL PROVISIONS
Article 1 - Purpose
Article 2 - Concept of discrimination
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 in a comparable situation, on any of the grounds referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
3. Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.
4. An instruction to discriminate against persons on any of the grounds referred to in Article 1 shall be deemed to be discrimination within the meaning of paragraph 1.
5. Denial of reasonable accommodation in a particular case as provided for by Article 4 (1)(b) of the present Directive as regards persons with disabilities shall be deemed to be discrimination within the meaning of paragraph 1.
6. Notwithstanding paragraph 2, Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are justified by a legitimate aim, and if the means of achieving that aim are appropriate and necessary. In particular, this Directive shall not preclude the fixing of a specific age for access to social benefits, education and certain goods or services.
7. Notwithstanding paragraph 2, in the provision of financial services Member States may permit proportionate differences in treatment where, for the product in question, the use of age or disability is a key factor in the assessment of risk based on relevant and accurate actuarial or statistical data.
8. This Directive shall be without prejudice to general measures laid down in national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and the protection of the rights and freedoms of others.
Article 3 - Scope
(a) Social protection, including social security and healthcare;
(b) Social advantages;
(c) Education;
(d) Access to and supply of goods and other services which are available to the public, including housing.
Subparagraph (d) shall apply to individuals only insofar as they are performing a professional or commercial activity.
2. This Directive is without prejudice to national laws on marital or family status and reproductive rights.
3. This Directive is without prejudice to the responsibilities of Member States for the content of teaching, activities and the organisation of their educational systems, including the provision of special needs education. Member States may provide for differences in treatment in access to educational institutions based on religion or belief.
4. This Directive is without prejudice to national legislation ensuring the secular nature of the State, State institutions or bodies, or education, or concerning the status and activities of churches and other organisations based on religion or belief. It is equally without prejudice to national legislation promoting equality between men and women.
5. 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 Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.
Article 4 - Equal treatment of persons with disabilities
a) The measures necessary to enable persons with disabilities to have effective non-discriminatory access to social protection, social advantages, health care, education and access to and supply of goods and services which are available to the public, including housing and transport, shall be provided by anticipation, including through appropriate modifications or adjustments. Such measures should not impose a disproportionate burden, nor require fundamental alteration of the social protection, social advantages, health care, education, or goods and services in question or require the provision of alternatives thereto.
b) Notwithstanding the obligation to ensure effective non-discriminatory access and where needed in a particular case, reasonable accommodation shall be provided unless this would impose a disproportionate burden.
2. For the purposes of assessing whether measures necessary to comply with paragraph 1 would impose a disproportionate burden, account shall be taken, in particular, of the size and resources of the organisation, its nature, the estimated cost, the life cycle of the goods and services, and the possible benefits of increased access for persons with disabilities. The burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the equal treatment policy of the Member State concerned.
3. This Directive shall be without prejudice to the provisions of Community law or national rules covering the accessibility of particular goods or services.
Article 5 - Positive action
Article 6 - Minimum requirements
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
2. Member States shall ensure that associations, organisations or other legal entities, which have a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.
3. Paragraphs 1 and 2 shall be without prejudice to national rules relating to time limits for bringing actions as regards the principle of equality of treatment.
Article 8 - Burden of proof
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.
4. Member States need not apply paragraph 1 to proceedings in which the court or competent body investigates the facts of the case.
5. Paragraphs 1, 2, 3 and 4 shall also apply to any legal proceedings commenced in accordance with Article 7(2).
Article 9 - Victimisation
Article 10 - Dissemination of information
Article 11 - Dialogue with relevant stakeholders
Article 12 - Bodies for the Promotion of Equal treatment
2. Member States shall ensure that the competences of these bodies include:
- without prejudice to the right of victims and of associations, organizations or other legal entities referred to in Article 7(2), providing independent assistance to victims of discrimination in pursuing their complaints about discrimination,
- conducting independent surveys concerning discrimination,
- publishing independent reports and making recommendations on any issue relating to such discrimination.
CHAPTER III - FINAL PROVISIONS
Article 13 - Compliance
(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished;
(b) any contractual provisions, internal rules of undertakings, and rules governing profit-making or non-profit-making associations contrary to the principle of equal treatment are, or may be, declared null and void or are amended.
Article 14 - Sanctions
Article 15 - Implementation
When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
2. In order to take account of particular conditions, Member States may, if necessary, establish that the obligation to provide effective access as set out in Article 4 has to be complied with by … [at the latest] four [years after adoption].
Member States wishing to use this additional period shall inform the Commission at the latest by the date set down in paragraph 1 giving reasons.
Article 16 - Report
2. The Commission's report shall take into account, as appropriate, the viewpoints of the social partners and relevant non-governmental organizations, as well as the EU Fundamental Rights Agency. In accordance with the principle of gender mainstreaming, this report shall, inter alias, provide an assessment of the impact of the measures taken on women and men. In the light of the information received, this report shall include, if necessary, proposals to revise and update this Directive.