European institutions and the EU anti-discrimination policy
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The European Union is a supranational organisation that gathers 28 member states in a consortium of liberal democracies. It plays a central role in combating discrimination in Europe, partly thanks to the European Parliament (EP). Before getting into the details, we will briefly review the key political institutions of the EU, as European law has had a powerful effect in broadening and strengthening national laws on equality in the EU’s member states.
Source: European Union
2. ABC of the EU Institutions
What does the Parliament do and what are the responsibilities of the Commission? What do we mean with the European Council and how is it different from the Council of the European Union?
Read the infographic for a brief guide to the EU's institutions:
Source: European Union
Discover how European citizens shape EU institutions:
Source: Multimedia Centre, European Parliament 2021
3. Division of competences between the EU and its Member States
Getting to know and understand European politics and the role of the European Parliament starts from knowing that the EU may only act within the limits of the competences conferred upon it by the EU countries in the Treaties to attain the objectives provided therein
This short video shows the powers of the EU:
Apart from the competences described above, the EU can take measures to ensure that EU countries coordinate their economic, social, and employment policies at EU level.
In this regard, the EU established the European Semester (January to June), a period when Member States receive indications to elaborate their economic, budget, and employment policy in as uniform manner as possible.
In some sectors, the EU does not have legislative, but only support competence, because Member States do not wish to give up sovereignty and/or harmonisation of legislation is particularly difficult due to the diversity of political-institutional contexts. In these cases, coordination of national policies is implemented through a different instrument, the Open Method of Coordination (OMC), whereby Member States do not introduce legally binding common legislation, but seek nonetheless to coordinate, establish common goals, compare notes on good practices, and monitor each other - especially in the areas of employment, social protection, education, youth, and professional training.
The EU’s common foreign and security policy is characterised by specific institutional features, such as the limited participation of the European Commission and the European Parliament in the decision-making procedure and the exclusion of any legislation activity. That policy is defined and implemented by the European Council (consisting of the Heads of state or government of the EU countries) and by the Council (consisting of a representative of each EU country at ministerial level). The President of the European Council and the High Representative of the Union for Foreign and Security Policy represent the EU in matters of common foreign and security policy.
EXERCISE OF COMPETENCE
The exercise of EU competences is subject to two fundamental principles laid down in Article 5 of the Treaty on European Union:
proportionality: the content and scope of EU action may not go beyond what is necessary to achieve the objectives of the Treaties;
subsidiarity: in the area of its non-exclusive competences, the EU may act only if — and in so far as — the objective of a proposed action cannot be sufficiently achieved by the EU countries, but could be better achieved at EU level.
4. European Legislation
The European Union is a complex legal structure that has evolved over time. It is worth providing a summary of its development and impact on anti-discrimination law.
EU legislation becomes part of each Member State's juridical system. It is divided into primary and secondary legislation.
Primary legislation establishes the division of competences between the EU and its Member States, and defines the juridical framework within which the EU institutions implement policies.
Secondary legislation includes Regulations and Directives. Regulations are of general application, binding in all their elements, and directly applicable in all Member States, with no need for transposition into national legislation. Regulations must be fully respected by individuals, Member States, and EU institutions. On the other hand, Directives require Member States to achieve a particular result, but national authorities are left to choose the form and instruments. The Directive, therefore, must be transposed by the Member State, that adapts national legislation to the objective set. Decisions are binding in all their elements but, if they deal with specific situations, only for those they address (e.g., a Member State, an individual, a company, and so on).
Non-binding legislation includes recommendations and opinions (art. 288 of the TFEU).
The rulings of the European Court of Justice (ECJ) are another source of EU law.
1 Source: FRA, Handbook on European non-discrimination law, 2010
5. The EU legislative process
The EU legislation process develops in the framework of the so-called "institutional triangle" made of three institutions:
The Parliament, the only directly-elected EU body, represents the EU’s 500 million inhabitants and consists of 751 deputies. It was first elected by universal suffrage in 1979 and its competences have been extended through following amendments to the EU treaties. The Parliament acts as a co-legislator, sharing with the Council the power to adopt and amend the legislative proposals made by the Commission, which is the only body entitled to initiate legislation.
The European Commission represents the interest of the European Union as a whole. Its main functions are: to draft common legislation and policy and guarantee they are respected; to make sure policy is implemented; and to manage the budget. It is appointed every five years, following the European elections. Members of the Commission - currently one per country (including the president and vice-presidents) - are vetted by the European Parliament before taking on their functions. The president of the Commission is elected by the Parliament upon proposal by the European Council. The Commission drafts legislation on its own initiative or at the request of other EU institutions or countries, or following a citizens' initiative, often after public consultations. The final proposal is forwarded simultaneously to the European Parliament, Council and national parliaments and, in some cases, to the Committee of the Regions and the Economic and Social Committee. The department of the Commission that deals with anti-discrimination provisions is the Directorate-General for Employment, Social Affairs and Equal Opportunities.
Take a look at the current composition of the European Commission:
Source: European Commission
The Council represents the member states' governments. Each member state takes it in turn to run the Council for six months. There is no fixed membership of the Council: each member state sends the most appropriate Minister for the subject under debate at any particular meeting: financial affairs, transportation, energy, agriculture, and so on.
The ordinary legislative procedure gives the same weight to the European Parliament and the Council of the European Union on a wide range of areas. The vast majority of European laws are adopted jointly by the European Parliament and the Council. Decisions are mostly made by qualified majority, i.e. with the vote in favour of 55% of Member States and 65% of the EU population, except for specific subjects, such as foreign policy and taxes, where unanimity is required.
Click on the infographic below to know about the ordinary legislative procedure, the possibility of one to three readings by the two co-legislators, and the conciliation procedure between the EP and the Council:
Source: European Union 1995-2017
6. EU anti-discrimination law: history
The principle of non-discrimination of workers on grounds of nationality and gender had already been introduced by the Treaties of Rome in 1957, in order to favour freedom of movement, equal pay, and equal conditions. In 1976, the Defrenne v Sabena verdict by the Court of Justice of the European Union (CJEU) had confirmed the principle of non-discrimination even in absence of national legislation in that regard.1
If the early developments of equality legislation were functional to the objective of economic integration, new momentum has been given by political integration since 1992, with the transformation of the EEC into the European Union.
The Amsterdam Treaty of 1997 gave the EU new powers in terms of tackling discrimination (art. 13), and legislation significantly expanded over few years.
Non-discrimination was acknowledged as a fundamental right by the Treaty of Nice in 2000, with the adoption of the Charter of Fundamental Rights, which includes a section on equality. In turn, the Charter became legally binding in the EU with the coming into effect of the Lisbon Treaty in December 2009, and has now the same legal effect as the Union treaties.
1 Source: ENAR “Law and equality: an introduction”, February 2009
7. Anti-discrimination norms
During the 1990s, significant lobbying was carried out by public interest groups calling for the prohibition on discrimination to be extended in EU law to cover other areas such as race and ethnicity, as well as sexual orientation, religious belief, age and disability.
The first anti-discrimination directive in European legislation was the Racial Equality Directive (2000/43/EC), which introduced the principle of equal treatment, independently from race and ethnicity, not only in the context of employment, but also in accessing goods and services as well as welfare and social security (healthcare, education, and housing).
Soon after, the Employment Equality Directive (2000/78/EC) or
Framework Employment Directive was adopted to prohibit discrimination on the basis of sexual orientation, religious belief, age and disability in the area of employment.
In 2004, the Gender Goods and Services Directive (2004/113/EC) expanded the scope of sex discrimination to this sector. However, protection on the grounds of sex does not quite match the scope of protection under the Racial Equality Directive, since it does not include social protection and access to healthcare and education.
Furthermore, the equality directives DO NOT oblige member states to use criminal law to address acts of discrimination. This is why a Framework Decision of the European Council, adopted in 2008, does oblige all EU Member States to provide for criminal sanctions in relation to incitement to violence or hatred based on race, colour, descent, religion or belief, national or ethnic origin, as well as dissemination of racist or xenophobic material and condonation, denial, or trivialisation of genocide, war crimes, and crimes against humanity directed against such groups. Member States are also obliged to consider racist or xenophobic intent as an aggravating circumstance.
The summary table submitted by Social Platform during a hearing at the European Parliament in 2012 shows the areas covered by European legislation:
As European legislation ended up providing uneven protection against discrimination (sexual orientation, religious belief, disability, and age are only protected grounds in the context of employment), European institutions elaborated a proposal (known as ‘Horizontal Directive’) to homogenise protection both in terms of the grounds for non-discrimination and the areas covered.
The European Parliament expressed a substantially positive opinion on the directive with a resolution adopted on April 2nd, 2009. However, the Horizontal Directive has since remained stalled in the Council due to the opposition of seven Member States, including Germany.
As the Lisbon Treaty introduced a horizontal clause to make sure that anti-discrimination is integrated into all EU policies and actions (art.10 of the TFEU), ordinary legislative procedure with approval by qualified majority is not sufficient to amend legislation. A special legislative procedure is required: the Council decides unanimously, pending approval by the European Parliament.
In the Commission working programme for 2016, the Anti-discrimination Directive was again included among the priorities of European governance, but Member States have failed to reach unanimity, necessary for its approval.
8. Transposition and implementation status
Anti-discrimination law aims at ensuring fair, equal access to opportunities for everyone. Persons in similar circumstances must receive similar treatment, with explicit prohibition of less favourable treatment based on any personal characteristic.
European citizens are entitled to file a complaint in case of discrimination, both direct - different treatment in similar situations - and indirect, i.e. a disadvantage that cannot be justified by a legitimate, proportioned objective.
All member states have now fully transposed the Directives (although there are still three pending infringement proceedings related to the EED's transposition or application as a result of complaints to the Commission).
However, their implementation has met with several obstacles, such as:
For an exhaustive account of the transposition status, country by country, we recommend reading the European Commission reports 2014 and 2015 http://ec.europa.eu/justi
Watch the intervention of MEP Yana Toom from Estonia (Alliance of liberals and democrats group) during the plenary session at the European Parliament in Brussels on September 15th, 2016.
Watch the intervention of Spanish MEP Javi Lopez (S&D group) during the plenary session on February 10th, 2015