EU Anti-Discrimination Legislation Tansy Hutchinson Policy Officer European Network Against Racism

Evolving equality standards 1st Generation: Constitutional Guarantees. Ex Article 14 ECHR 2nd Generation: Enforceable anti- discrimination law - treat all the same. 3rd Generation: Positive action, recognition that different treatment can be necessary for equality 4th Generation: Positive duties, recognition of institutional and structural discrimination, mainstreaming of right to equality

The International Bill of Rights Universal Declaration of Human Rights: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ICCPR Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

European Law ECHR Article 14: Rights without discrimination EU Charter of Fundamental Rights Article 21: Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. Article 13 EC Treaty: Power to “take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”

EU Action 1990s: Campaign for a Directive 1997: Amsterdam Treaty Article 13: EU Competence –6 grounds & within EU competence 2000: The Race Equality Directive & the Framework Employment Directive 2008: Proposed Directive outside employment Key features of EU action: Laws focus on basic non-discrimination ban - not 4 th Generation. Do not extend into a range of areas (no coverage of criminal justice, migration etc) Provision for positive action Provision for accommodating ‘specificities’

Creating Change: The Starting Line Group Key features: A group of legal experts in 15 MS; A network without formal structure Members: key NGOs in 15 MS fighting against racism (around 400) The role of the Churches Social justice Human rights advocacy

ENARs Role Continuing the starting line: running the marathon! Race Equality Directive seen as the high standard –Transposition a priority - monitoring, SOLID Project Gaps: –Nationality & Legal Status –Multiple discrimination - Race/Religion cross over –Scope - migration law & policy, criminal justice

The Proposal: Key features The Directive meets ENARs call by: Being multi-ground Using the scope of the Race Equality Directive as the starting point Using the mostly the same concept and definitions of the Race Equality Directive Reference to the ‘Paris Principles’ Potential enhanced legal standing for NGOs Not seeking to amend the Race Equality Directive (protecting what we have)

Problems Need to see the Directive as PART OF securing fundamental rights Lack of recognition of multiple discrimination – question remains of recital or text? Discrimination by association or ‘presumed membership’ Blanket exception on access to education on ground of religion or belief Blanket exception on secularism ‘Commercial activity’ provision Nationality and legal status exception Need for a more enabling positive action provision Need for independent legal standing for NGOs & National Equality Bodies

Questions for discussion How can you use these standards to support your work: ex advocating for the rights of migrants, asylum seekers and other vulnerable persons? Do you need to call for changes to enable this? Ex nationality and legal status exception? How will you need to prepare? What are implications of the interaction of freedom of religion and anti-discrimination on grounds of religion? Does the exception for access to education meet your needs while securing the right to education? Are there more proportionate methods that could be used?