The prohibitions on worker discrimination according to the EU Treaties - Francesco Orbitello - ebook

This book aims to explain how anti-discrimination and equal opportunities law flows into a broader set of interventions and actions aimed at achieving equality. Fair treatment is a basic straightforward of the European Union. Discrimination by gender, age, disability, ethnic or racial origin, religion, beliefs or sexual orientation is illegal.

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The prohibitions on worker discrimination according to the EU TreatiesOf Orbitello Francesco


A decisive contribution to the development of protection against discrimination not only in working relations came from EU law.

Directive 2000/43 / EC prohibits discrimination based on race or ethnic origin.

This is accompanied by Directive 2000/78 / EC which establishes a series of measures for equal treatment in the field of employment and working conditions, prohibiting discrimination based on religion or belief, disability, age or sexual orientation.


1 – Summary.

Directive 2000/78/EC, establishing a general framework for equal tratment in emplyment and occupation.

The purpose of this directive is to ensure that people with a specific religion or personal belief, disability, age or sexual orientation are not the object of both direct discrimination and indirect discrimination. Harassment, which creates a hostile climate, is considered discrimination.

EU countries are obliged to ensure that judicial and/or administrative procedures are available to all people who consider themselves wronged by a failure to apply the principle of equal treatment to them. This still applies even after the relationship in which the discrimination is alleged to have occurred has ended. Further details about remedies and enforcement can be read in Chapter II of the directive.

2 – Report from the Commission to the European Parliament and the Council.

Joint Report(COM/2014/02 FINAL) on the application of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘Racial Equality Directive’) and of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘Employment Equality Directive’)

1. introduction

Protection from discrimination is one of the areas in which EU law closely affects the everyday life of people in the EU. The comprehensive framework provided by the EU's two anti-discrimination Directives[1] has shaped the landscape of European anti-discrimination law for over a decade now. Some Member States had hardly any legislation in this field before the transposition of the two Directives, and the Directives introduced novel elements like protection from age discrimination into the legislation of all Member States.

The anti-discrimination Directives: – prohibit discrimination on grounds of racial or ethnic origin (Directive 2000/43/EC) and religion or belief, disability, age and sexual orientation (Directive 2000/78/EC); – provide protection in a number of key areas of life: employment and vocational training (both Directives); education, social security and healthcare, and access to and supply of goods and services, including housing (Directive 2000/43/EC); – prohibit various forms of discrimination: direct and indirect discrimination, harassment, instruction to discriminate and victimisation; – require Member States to provide efficient sanctions and remedies.

The first implementation reports were adopted in 2006[2] and in 2008[3] respectively. Given that both of the anti-discrimination Directives[4] have to be reported on regularly, the present document is a joint report because the regulatory approach and content of most of the provisions are identical. In addition, most Member States have transposed the two Directives in a single national act. The first reports were adopted at a time when many Member States had only recently transposed the anti-discrimination Directives into national law and therefore lacked experience in applying them.

Today, all 28 Member States have transposed the Directives and gained experience in their application. The Court of Justice of the European Union (CJEU) has also developed the interpretation of the Directives through its case-law. This report provides an opportunity to examine the application of the Directives, to take stock of the interpretation given by the CJEU and national courts and to identify challenges ahead. [5]

In accordance with the Directives[6], all Member States gave the Commission information contributing to this report. In addition, the Commission consulted national equality bodies[7], the European Network of Equality Bodies (Equinet), the EU Fundamental Rights Agency, social partners[8], civil society organisations[9] and the European Network of Legal Experts in the Non-discrimination Field[10].

2. State of Transposition and infringement procedures

Both Directives have been transposed into national laws in all 28 Member States[11] and the conformity of all those laws with the Directives has been checked by the Commission. Infringement proceedings due to non-conformity with both Directives were launched, mainly between 2005 and 2007, against 25 Member States[12]. The fact that many Member States initially had problems with transposition can be explained by the novelty of the two Directives at the time. Typical problems concerned the definitions of direct and indirect discrimination, harassment, victimisation, legal standing of interested organisations, limitations to the scope and too extensive interpretation of the derogations which are permitted under the Directives. Almost all these ‘first generation’ infringement cases have now been closed because Member States have brought their legislation into line with the Directives[13]. In one case infringement proceedings initiated by the Commission led to a decision by the CJEU finding the Member State in breach of its obligation to properly implement Directive 2000/78//EC in relation to reasonable accommodation for disabled persons in employment[14].

The Commission continues to monitor developments in the Member States and brings infringement proceedings when necessary[15].

The Commission receives a number of complaints every year concerning these Directives (around 20-30 on average), but the majority are individual cases of discrimination, which are not about incorrect transposition or application of the Directives and therefore do not lead to infringement proceedings. A much larger number of complaints are dealt with at national level. While remedies for discrimination in individual cases are only available under national law and can only be claimed in national courts, it is the Commission’s role to scrutinise whether a complaint reveals incorrect transposition or application of the Directives by the Member State concerned. Three complaint-based cases under Directive 2000/78/EC are currently pending in infringement proceedings[16].

3. implementation and application of the directives

Both Directives have been transposed into national law, but the review of national experiences reveal that there are still challenges to their implementation and application.

The Commission, the European Network of Equality Bodies (Equinet), the EU Fundamental Rights Agency (FRA) and individual Member States have consequently all published guidance relevant to the application of the two Directives to tackle these challenges[17]. In addition, the Commission provides funding for the training of judges and other legal practitioners aimed at promoting the correct application of the Directives by improving their knowledge of EU equal treatment legislation[18].

3.1 Awareness of rights

Both Directives[19] stress the importance of dissemination of information to ensure that the persons concerned know of their rights to equal treatment. All Europeans, not only minority populations, tend to lack awareness of their rights[20]. For example, people may not know that discrimination in employment is prohibited even at the stage of applying for a job[21]. Many Member States view such lack of awareness as an important challenge and have reported ways in which they are addressing this issue, such as through information and guidance documents, awareness-raising campaigns and information portals, including for specific target groups (minorities, young people)[22]. Targeting persons who are most at risk as well as those who are in a position to commit breaches, such as employers, appears to represent an effective use of resources[23].

In the area of employment, the trade unions and social partners have a key role to play in raising anti-discrimination awareness of both employees and employers[24]. Many Member States also provide useful practical guidance on their anti-discrimination laws covering workplace situations. [25]

3.2 Lack of equality data