European institutions and the EU anti-discrimination policy
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.