Riedemann, P.: Migrants and Non-Discrimination: A challenge for equality bodies in EU Member States, 2012
In the year 2000 the Council of the European Union established the obligation to all EU Member States to settle up an equality body or bodies engaged with the promotion of equal treatment of all persons without any discrimination. This legal change was a manifestation on a European tendency to reinforce legal frameworks in social and human rights protection. The enactment of Protocol 12 to the European Convention on Human Rights in 2000, the enforceability of the Charter of Fundamental Rights which is in force since 2009 and, especially, the introduction of Article 13 to the Treaty establishing the European Community in 1997 (“Article 13”), are expressions of this tendency. Among others, these changes reached matters in the non-discrimination field. Article 13 provides the Council of the European Union with the proficiency and the mission to implement actions with the goal of combating discrimination on diverse grounds: “Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” This Article arranged the arena for generating legal improvements in the specific field of equality law and for establishing equality bodies in EU Member States.
Among the different Directives that the EU has enacted under Article 13 two stand out as more relevant for migrant population in European countries: firstly, Council Directive 2000/43/EC (Racial Equality Directive), which prohibits discrimination on the basis of race or ethnicity in the contexts of employment and in accessing the welfare system, social security and goods and services; secondly, Council Directive 2000/78/EC (Employment Equality Directive), which prohibits discrimination on the ground of sexual orientation, religious belief, age and disability, in the area of employment. These two directives, together with other specific regulations in matters of equal treatment, have been vital for ensuring a better living together of people with different cultural and ethnic background in the EU.
Due to European regulation and the case law addressed by the European Court of Justice, current non-discrimination results are said to be a cornerstone of the EC, which Member States are compelled to respect. Yet, until the enactment of the Article 13 Directives discrimination in the EU was legally combated in a limited way. Even if this issue was included in several regulations, they principally concentrated on tackling sex discrimination in the context of employment. The reason for this focus is that in the EC rights to non-discrimination were originally conceived as legal instruments to ensure the establishment and proper functioning of the common market. That is, in order to ensure that countries didn’t gain competitive advantages by artificially reducing their production costs through the employment of lower paid women, discrimination based on sex was prohibited. It was only later, especially after the 1970s, that political and legislative developments began to incorporate more social considerations as part of a strategy to build a social dimension to the EC policy. This recognition of equal treatment as an objective in its own right and no longer a means to reinforce market conditions implied a complete change in perspective (Schiek, Waddington and Bell, 2007). Now, the human condition of individuals was in the spotlight and features like ethnic origin or religious belief developed to become protected grounds. The current installation of equality bodies in EU Member States since year 2000 results from this new person-centered perspective of equality law, that aims to protect people from discrimination. This role is especially significant regarding European migrant population, likely to have some of the characteristics that are defined as protected grounds and could lead to discrimination. Regarding this topic, the so-called racial or ethnic origin appears as especially significant concerning migrant population.
The Racial Equality Directive does not define what is to be understood under “race or ethnicity” (as in general terms the Article 13 Directives do not provide definitions of the grounds protected under them). Furthermore, it doesn’t include nationality in this concept, which is instead listed separately by the European Convention on Human Rights, as are also colour and membership of a national minority. This can be seen as a shortcoming of the Racial Equality Directive, since all of these terms appear as inseparable from the definition of “race or ethnicity” (European Union Agency for Fundamental Rights/European Court of Human Rights/Council of Europe, 2010). Referring to this, the European Court of Human Rights has provided some insights, stating that language, religion, nationality and culture may all be seen as inseparable from race. In a case in 2004, the Court explained: “Ethnicity and race are related and overlapping concepts. Whereas the notion of race is rooted in the idea of biological classification of human beings into subspecies according to morphological features such as skin colour or facial characteristics, ethnicity has its origin in the idea of societal groups marked by common nationality, tribal affiliation, religious faith, shared language, or cultural and traditional origins and backgrounds.”
According to the report “Developing Anti-Discrimination Law in Europe. The 27 EU Member States compared”, nowadays almost every EU country counts with an equality body or bodies, and the main functions legally defined seem to be generally fulfilled (European Network of Legal Experts in the Non-Discrimination Field, 2010). While reading this report, one recognizes that as the range of potential action is huge, Member States have selected certain ways to deliver their program for countering discrimination in society. This selection depends primarily on structural factors –the legal constitution and the resources available to the body– and on the domestic circumstances and particular necessities of societies in which the work shall be implemented. Thus, having a thorough understanding of the particular needs and priorities of the relevant society is significant for the performance of equality bodies. An approach to migrant population communities appears as a crucial factor for identifying these needs, while it could provide valuable primary-source appreciations and help defining appropriate and focalized actions. Though, until present time equality bodies haven’t mainly developed a strategic working line based on migrants´ needs, which is why this still appears as a challenge to be met.
The legal means through which the mandate to install equality bodies was executed (the EU Directives) offers the opportunity to find the appropriate form for each country. Instead of ruling a top-down implementation model, the EU has defined a common basis –described as a “feature of mature human societies”– and has outlined the direction Member States should take in establishing national equality bodies (Schiek, Waddington and Bell, 2007). Since each Member State has its own socio-cultural particularities, it is neither possible nor appropriate to define an ideal structure for equality bodies. Regarding assistance to victims of discrimination equality bodies have found diverse ways to deliver. Nevertheless, their primary function has been focused on information and education. Equality bodies are instituted as a bridge between the non-discrimination legal system and victims of discrimination and in their informational sphere they embrace civil society. Disseminating specialized information and providing independent recommendations serve to generate social awareness in the fight against discrimination. Thus, these are strong means for empowering migrants as well as ethnic minority groups in societies.
In some EU Member States, equality bodies have also been entitled to go to court in defense of public interest. This strategy, a particularly outstanding way of challenging discrimination and generating public awareness, serves as a cost-effective way to establish legal precedents and install the theme in the public debate. This approach can be particularly relevant in societies dealing with discrimination against foreigners, since jurisprudence generated in these cases would provide migrants with concrete tools and specific legal substantiation for demanding equal treatment.
Evidence suggests that individuals find it difficult in practice to rely on international law as a source of protection against discrimination. Similarly, constitutional requirements on equality may be described as useful legal weapons in the fight against discrimination, but not necessarily sufficient instruments to provide comprehensive protection (Bell, 2002). Unlike other legislative and political actors in EU Member States, equality bodies have the advantage of being in a unique position as intermediaries as they work directly with victims of discrimination. This provides them with a direct source of information on social needs and concerns of migrant population. Through investigations carried out on the basis of victims’ complaints, the provision of non-binding opinions, the defense of victims´ rights in court and, principally, a rights-centered informational function, equality bodies are a significant means for empowering migrants on the defense of their rights.
The coming years will prove challenging for further developing and positioning equality bodies within the European societies. Meanwhile, it can be said that even though their concrete outcomes and potential political and social influence are not clear yet, the existence of bodies engaged with the defense of the principle of equal treatment appears as a powerful sign of social awareness and concern in this matter. This sign is especially relevant considering the heterogeneous European societies and the necessity to further develop tolerance and respect between people coming from different parts of the world and though sharing common living spaces. Regarding their functional and structural characteristics, equality bodies have the potential to bring far-reaching change in the fields of equality and tolerance. Still, there is a lot of work to do and equality bodies are challenged to adapt to ongoing socio-cultural changes within EU Member States. While doing this, they should pay special attention to migrant population. Not only will this provide them with significant information to identifying problem areas and defining working priorities, but also migrants embody a significant target group to capitalize the outcomes of equality bodies´ work.
Bell, Mark: Anti-Discrimination Law and the European Union (Oxford Studies in European Law, United Kingdom, Oxford University Press, 2002)
Council Directive 2000/43/EC of 29 June 2000, implementing the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin
Council Directive 2000/78/EC of 27 November 2000, establishing a General Framework for Equal Treatment in Employment and Occupation
European Network of Legal Experts in the Non-Discrimination Field: Developing Anti-Discrimination Law in Europe. The 27 EU Member States compared (prepared by Isabelle Chopin and Thien Uyen Do, EU Directorate-General for Justice, European Commission, 2010)
European Court of Human Rights: Judgement Timishev v. Russia (N° 55762/00 and 55974/00, December 13, 2005)
European Union Agency for Fundamental Rights/European Court of Human Rights/Council of Europe: Handbook on European Non-Discrimination Law (Publications Office of the European Union, Luxembourg, 2010)
Schiek, Dagmar/Waddington, Lisa/Bell, Mark (Ed.): Cases, Materials and Text on National, Supranational and International Non-Discrimination Law (IUS Casebooks for the Common Law of Europe, Portland, USA, Hart Publishing, 2007)