The European Union Race Directive attorney Lilla Farkas LLM

Definitions direct discrimination indirect discrimination harassment instruction to discriminate victimisation

Direct discrimination one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin

Indirect discrimination an apparently neutral provision, criterion or practice would put persons of a racial origin at a particular disadvantage compared with other persons, unless objective justification can be demonstrated

Harassment an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating human dignity, creating hostile environment, etc.

Victimisation adverse treatment or consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment

Burden of proof ECJ case law on indirect sex discrimination Directive 97/80/EC - sex discrim – contemporaneous comparator (disadvantages) perceived or self identification – visible minorities

Sanctions Article 15 RD: effective, proportionate, dissuasive criminal civil: may be compensation –– exemplary damages? administrative

Enforcement Article 13 RD: agency model reports, recommendations, assistance of victims individual justice model equality as participation

Effect in domestic law TEC Article 249 binding on Member States as to results to be achaived – methods to be selected domestically

Incorrect transposition TEC Article 226 infringement procedure – Commission may bring MS not in compliance with RD before ECJ

Incorrect transposition TEC Article preliminary referrals any court may refer case to ECJ for interpretation of RD if no remedy against decision of given court, referral is compulsory

Incorrect transposition Marleasing principle: domestic courts’ obligation to interpret domestic law in compliance with community legislation Francovich claim: confer individual rights, sufficiently serious breach, causal link b/w state’s failure and damage suffered

Scope Private and public employment social protection (health care) social advantages education access to services (police – racial profiling)