Antidiscrimination policy in the European Union
Antidiscrimination policy in the European Union
At European level, a wide range of activities has been unfolding in the field of antidiscrimination policy. As well as legal provisions, these include for example the initiative For Diversity. Against Discrimination by the European Commission. In this connection, the European Court of Justice (ECJ) plays an important role. It rejected suits against “the quota”, i.e. against the promotion of women where qualifications are the same, and developed the legal concept of indirect discrimination, which is also largely recognized now in national court adjudication (Högl, 2004, p. 104). You can find the most important decisions regarding German promotional regulations and on indirect discrimination here.
In 1999 an Article 13 was inserted into the EC Treaty (Amsterdam Treaty) demanding the fighting of discrimination on grounds of sex, “race”, ethnic origin, religion or belief, disability, age or sexual orientation. Since 2000, four antidiscrimination Directives have been issued, which significantly expand freedom from discrimination (Baer, 2003). These Directives relate in particular to employment law, but also civil law, in other words, legal relations between private persons.
The “Antiracism Directive" (Council Directive 200/43/EC) of 6 June 2000 relates to the implementation of the principle of equal treatment between persons irrespective of racial or ethnic origins. It applies in the areas of employment and occupation, education, health and social benefits, but also with regard to access to goods and services.
The “Framework Directive on Employment” (Council Directive 2000/78/EC) of 27 November 2000 offers protection against discrimination on grounds of religion, belief, disability, age and sexual orientation, and relates to equal treatment in employment and professional life. Working life is thus seen as a key area for equal treatment. “Racial” and ethnic origins are not mentioned here, since the Antiracism Directive already includes provisions concerning employment. Nor is sex covered, since special provisions apply in the EC Treaty as in the rest of EU law, especially via Directives.
The “Amendment Directive on Sex” (Council Directive 2002/73/EC) of 23 September 2002 which extends the old antidiscrimination Directive dealing with sex (Council Directive 76/207/EEC) and adapts it to fit the current legal situation in the EU, specifies the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. This Directive is based on the provision concerning equal treatment between women and men in working life (Article 141 paragraph 3 of the EC Treaty).
Finally, the “Directive on Goods and Services” (Council Directive 2004/113/EC), known as the Unisex Directive, of 13 December 2004, regulates the implementation of the principle of equal treatment between women and men in the area of private law, i.e. as regards access to and supply with goods and services in mass transactions. The background to this Directive was mainly the originally planned introduction of unisex insurance premiums in EU Member States. In view of the heavy political resistance to this, differentiation by sex continues to be allowed in rates and benefits if it can be justified on an actuarial basis (Berghahn and Wersig, 2005, p. 2).
These Directives also established mechanisms for improved enforcement of antidiscrimination policies. These include the involvement of associations in protecting those affected. As well as this, there is the easing of the burden of proof for the victim, so that the victim initially has to give a credible presentation of facts, whereupon, however, the defendant is then obliged to prove that the principle of equal treatment has not been violated. Moreover, the Antiracism Directive and the Amendment Directive on Sex provide for an independent antidiscrimination ombudsperson[German link] to implement equal treatment.
The harmonization of these European provisions into national law did not take place by the permitted deadline in Germany, which was the subject of breach of Treaty proceedings in the ECJ. After various attempts at harmonizing the Directives, the General Equal Treatment Act (AGG) has now come into force on 1 August 2006.
Regarding the details of the AGG, you can find comprehensive information on the following sites:
Federal Ministry of Justice
German Anti-Discrimination League
In 1999 an Article 13 was inserted into the EC Treaty (Amsterdam Treaty) demanding the fighting of discrimination on grounds of sex, “race”, ethnic origin, religion or belief, disability, age or sexual orientation. Since 2000, four antidiscrimination Directives have been issued, which significantly expand freedom from discrimination (Baer, 2003). These Directives relate in particular to employment law, but also civil law, in other words, legal relations between private persons.
The “Antiracism Directive" (Council Directive 200/43/EC) of 6 June 2000 relates to the implementation of the principle of equal treatment between persons irrespective of racial or ethnic origins. It applies in the areas of employment and occupation, education, health and social benefits, but also with regard to access to goods and services.
The “Framework Directive on Employment” (Council Directive 2000/78/EC) of 27 November 2000 offers protection against discrimination on grounds of religion, belief, disability, age and sexual orientation, and relates to equal treatment in employment and professional life. Working life is thus seen as a key area for equal treatment. “Racial” and ethnic origins are not mentioned here, since the Antiracism Directive already includes provisions concerning employment. Nor is sex covered, since special provisions apply in the EC Treaty as in the rest of EU law, especially via Directives.
The “Amendment Directive on Sex” (Council Directive 2002/73/EC) of 23 September 2002 which extends the old antidiscrimination Directive dealing with sex (Council Directive 76/207/EEC) and adapts it to fit the current legal situation in the EU, specifies the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. This Directive is based on the provision concerning equal treatment between women and men in working life (Article 141 paragraph 3 of the EC Treaty).
Finally, the “Directive on Goods and Services” (Council Directive 2004/113/EC), known as the Unisex Directive, of 13 December 2004, regulates the implementation of the principle of equal treatment between women and men in the area of private law, i.e. as regards access to and supply with goods and services in mass transactions. The background to this Directive was mainly the originally planned introduction of unisex insurance premiums in EU Member States. In view of the heavy political resistance to this, differentiation by sex continues to be allowed in rates and benefits if it can be justified on an actuarial basis (Berghahn and Wersig, 2005, p. 2).
These Directives also established mechanisms for improved enforcement of antidiscrimination policies. These include the involvement of associations in protecting those affected. As well as this, there is the easing of the burden of proof for the victim, so that the victim initially has to give a credible presentation of facts, whereupon, however, the defendant is then obliged to prove that the principle of equal treatment has not been violated. Moreover, the Antiracism Directive and the Amendment Directive on Sex provide for an independent antidiscrimination ombudsperson[German link] to implement equal treatment.
The harmonization of these European provisions into national law did not take place by the permitted deadline in Germany, which was the subject of breach of Treaty proceedings in the ECJ. After various attempts at harmonizing the Directives, the General Equal Treatment Act (AGG) has now come into force on 1 August 2006.
Regarding the details of the AGG, you can find comprehensive information on the following sites:
Federal Ministry of Justice
German Anti-Discrimination League
Further reading
English:
Baer, Susanne, “The End of Private Autonomy” or Rights-Based Legislation? The Anti-Discrimination Law Debate in Germany, in ANNUAL OF GERMAN AND INTERNATIONAL LAW (AGEL), 2004, pp. 323-333.
European Commission: Equality and Non-Discrimination Annual Report 2005
European Network of Legal Experts in the Non-Discrimination Field: Developing Anti-Discrimination Law in Europe. The 25 Member States compared. Brussels, 2005
German:
Baer, Susanne: Europäische Richtlinien gegen Diskriminierung, in: evangelische Akademie Loccum (Hg.), Gleiches Recht - gleiche Realität? Welche Instrumente bieten Völkerrecht, Europarecht und nationales Recht für die Gleichstellung von Frauen?, Loccumer Protokolle 71/03, S. 173-183.
Baer, Susanne: Rechtsgrundlagen zum Antidiskriminierungsrecht
Bednarz-Braun, Iris: Gleichstellung im Konflikt mit Personalpolitik. Praxis und Theorie beruflicher Geschlechterkonkurrenz im internationalen Vergleich: USA, Großbritannien, Deutschland, Opladen 2000.
Berghahn, Sabine / Wersig, Maria: Einflüsse des Europäischen Rechts auf die Geschlechterverhältnisse und andere Diskriminierungsgründe, in genderpolitikonline, Berlin 2005
Deutscher Juristinnenbund: Stellungnahme zum Entwurf eines Allgemeinen Gleichbehandlungsgesetzes vom Mai 2006, BR Drs 329/06.
Högl, Eva: Zukunftsweisend für die europäische Frauenpolitik: Die europäischen Antidiskriminierungs-Richtlinien, in: femina politica, Heft 2, Jg. 13, S. 104-108.
Online-Glossar Thema Recht und Geschlecht an der HU Berlin: Antidiskriminierungsrecht
Schlachter, Monika: Wege zur Gleichberechtigung. Eine rechtsvergleichende Untersuchung des Arbeitsrechts der Bundesrepublik und der Vereinigten Staaten, Beck-Verlag, München 1993.
Wahl, Angelika von: Gleichstellungsregime: Berufliche Gleichstellung von Frauen in der Bundesrepublik und den USA, Opladen 1999.
zurück
nach oben
drucken
erstellt von Administrator
—
zuletzt verändert:
02.01.2010 20:07
