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Lutte contre les discriminations. Elles sont multiples et le Parlement européen entend lutter contre elles.

pdf mise en ligne :06 04 2009 ( NEA say… n° 64 )

NON-DISCRIMINATION > Programme de La Haye

            Les discriminations n'existent pas uniquement dans le domaine de l'emploi, mais aussi dans l'accès aux biens et services: banque, éducation et transport, santé... Une directive visant à garantir l'égalité de traitement dans ces secteurs a reçu le soutien  du Parlement Européen, qui souligne notamment le besoin de s'attaquer aux discriminations multiples. Les seniors trop souvent oubliés

La directive proposée par la Commission européenne vise à lutter contre les discriminations fondée sur la religion ou les convictions, l'âge, le sexe ou l'orientation sexuelle, qu'elles soient directes ou indirectes, et basées sur des critères réels ou supposés. Elle vient compléter un dispositif existant comprenant trois directives: une contre les discriminations fondées sur l'origine raciale ou ethnique, une pour l'égalité de traitement en matière d'emploi et de travail, et une sur l'égalité de traitement entre hommes et femmes. Des objectifs approuvés par les députés qui ont adopté  le rapport consultatif (FR) (EN) de Kathalijne Buitenweg (Verts/ALE, NL).
 
Cette directive devrait s'appliquer à la protection sociale et aux soins de santé, aux avantages sociaux, à l'éducation et à l'accès aux biens et aux services, y compris l'accès au logement. Les députés souhaitent qu'elle couvre également l'accès au transport et à la santé. En revanche, ils soulignent que les transactions entre personnes privées, hors du champ de l'activité professionnelle ou commerciale, devraient être exclues de son champ d'application.
 
Pour les députés, la directive doit couvrir aussi les discriminations multiples, c'est-à-dire lorsque la discrimination se produit sur la base de deux motifs ou davantage, et les discriminations par association. Ils précisent que les petites et moyennes entreprises, pour lesquelles ces règles pourraient représenter une charge excessive, devraient bénéficier d'un régime particulier.
 
Pas d'incidence sur le droit matrimonial ou la laïcité de l'Etat.Les députés soulignent que la directive ne modifie pas la division des compétences entre l'Union européenne et les Etats membres, et n'affecte pas les législations nationales sur le droit matrimonial, le droit de la famille et de la santé. De même, les Etats membres restent responsables de l'organisation et du contenu de l'éducation. La directive n'affecte pas les lois nationales sur le caractère laïc de l'Etat, et ne couvre pas les différences de traitement fondées sur la nationalité. Elle n'empêche également pas les Etats membres d'adopter des mesures pour prévenir ou compenser des désavantages (comme l'action positive, ou les quotas), ou de permettre que de telles mesures soient prises par le secteur public, privé ou associatif.
 
Le harcèlement, une discrimination. Selon la directive, le harcèlement  - lorsqu'un comportement indésirable se manifeste, ayant pour effet de porter atteinte à la dignité d'une personne et de créer un environnement intimidant, hostile, dégradant, humiliant ou offensant – doit être considéré comme une forme de discrimination. Les députés précisent que le concept de harcèlement doit être défini conformément aux lois nationales en vigueur et à la pratique des Etats membres.
 
Prévoir des aménagements pour les personnes handicapées. La directive interdit les discriminations à l'encontre des personnes handicapées – le terme "handicap" étant entendu selon la définition de l'Organisation des Nations Unies - dans l'accès à la protection sociale, aux avantages sociaux, aux soins de santé, à l'éducation et aux biens et services. Les députés précisent que cet accès doit également concerner le transport, les télécommunications, l'information, les services financiers, la culture et les loisirs. Des "aménagements raisonnables" (par exemple, pour l'accès des bâtiments en fauteuil roulant) devront être prévus, ou, le cas échéant, des solutions alternatives. Ces mesures ne devront cependant pas entraîner de "charge disproportionnée", ni entraîner de modification fondamentale de la nature des biens et services fournis.
 
Certaines différences de traitement doivent être tolérées.
Les Etats membres pourront cependant permettre un certain nombre de différences de traitement, comme dans l'accès à l'éducation dispensée par des institutions religieuses, à condition que ces différences soient nécessaires et proportionnées, et qu'elles ne violent pas elles-mêmes le droit à l'éducation.
 
Des facteurs de risque liés au handicap et à l'âge utilisés dans le cadre des services d'assurance ou de banque ne devraient pas être considérés comme des discriminations, lorsqu'ils s'avèrent être des facteurs déterminants pour l'évaluation du risque. Les députés demandent cependant que le fournisseur de services concerné démontre ces risques de façon précise.
 
De même, précisent les députés, des différences de traitement en fonction de l'âge peuvent être acceptées si elles sont légitimes, comme par exemple la vente d'alcool, d'armes, ou l'attribution du permis de conduire. A l'inverse, jeunes et personnes handicapées doivent également pouvoir bénéficier de conditions plus favorables comme des tarifs préférentiels pour l'utilisation des transports en commun, l'accès aux musées, ou au sport.
 
Prise de positions de la Commission européenne sur les divers amendements

Amendments

 

Amendment
 
Intention / subject 
Commission position
Am.  1
Recital 2
 Adds other references  to the list of sources of the principle of equality  Accept

Am.  2
Recital 2 a (new)
 Introduces new recital:
"(2a) The principle of equality and the prohibition of discrimination are general principles of international, European and national law, that bind the EU and its Member States in all matters within their competence. This Directive contributes to reaching this aim and to overcome discrimination that is not compatible with it." Accept

Am.  3
Recital 2 b (new)
 Introduces a new recital:
"(2b) This Directive is one means by which the Community is complying with its obligations under the UN Convention on the Rights of Persons with Disabilities, and should be interpreted in that light." Accept substance - Reject drafting
The adoption of the Directive would improve coherence of the legal interpretation of the UN Convention at the European level. 
However, before the Directive is adopted, the European Union is not obliged to comply with its obligations in the scope covered by the Directive, since it has not yet exercised its competence regarding that scope.
Am.  4
Recital 2 c (new)
 Reference to the Political Declaration agreed at the conclusion of the United Nations World Conference on Ageing in Madrid 2002 Accept
Am.  5
Recital 2 d (new)
 Introduces a new recital:
"(2d) Physical and mental health and well being are key to the quality of life of individuals and society and are vital factors for achieving the objectives of the European Union's Lisbon Strategy." Accept
Am.  6
Recital 3
 Adds further references to ECHR and Charter of Fundamental Rights to the list of fundamental rights and principles that the Directive respects Accept
Further clarification of the context of human rights in which the Directive is operating.
In order to be complete, a reference to Article 25 of the EU Charter of fundamental rights on the rights of the elderly could be added.
Am.  7
Recital 4
 Introduces changes in recital 4 (in bold):
"(4) The European Years of Persons with Disabilities in 2003, of Equal Opportunities for All in 2007, and of Intercultural Dialogue in 2008 have highlighted the persistence of direct and indirect discrimination, multiple discrimination and discrimination by association, but also the need to promote the benefits of diversity." Accept

Am.  8
Recital 4 a (new)  Introduces a new recital:
 "(4a) The diversity of European society is a key aspect of the cultural, political and social integration of the Union and must be respected." Reject – basic idea already included in recital 4, a reference to diversity, apparently a good idea, may be used to justify differences of treatment incompatible with the wording and spirit of the Directive
Am.  9
Recital 7 a (new)
 Introduces a new recital:
"(7a) Discrimination based on religion or belief, disability, age, or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and of social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity. It may also undermine the objective of developing the European Union as an area of freedom, security and justice." Accept
Useful clarification: based on recital 9 in the Directive 2000/43
Am.  10
Recital 7 b (new)
 Introduce "multiple discrimination" in the scope of the Directive, including on the grounds of gender, race and nationality – see also amendment 37
 Accept in substance – reservations on drafting
The Commission suggests to recognise the importance of the concept of multiple discrimination on the grounds of Article 13 in recital 13 (amendment 23)

But rejects reference to multiple discrimination on the grounds of Article 12, viz. nationality because of lack of legal base.

Am.  11
Recital 8
 Adds reference to other Directives against discrimination outside employment on the grounds of race and gender Accept
Am.  12
Recital 9
 Adds reference to the fact that legislation should prohibit multiple discrimination based also on sex, gender and race and also in transport, associations and health Accept partially – transport and health are already covered; associations activities' are covered if the latter are within the material remit of the Directive (ex. shop open to the public), but right to freedom of association has to be considered. Reference to gender redundant.
Am.  13
Recital 9 (new)
 Introduces a new recital:
"(9a) In this Directive, goods should be taken to be those within the meaning of the provisions of the EC Treaty relating to the free movement of goods. Services should be taken to be those within the meaning of Article 50 of the EC Treaty." Reject – No need, concepts used in anti-discrimination law may have a different meaning as compared to those used in free movement law, since the objective of the latter is primarily economic, while the aim of anti-discrimination law is also that of ensuring social integration, moreover it makes sense to follow the approach of Directive 2000/43/EC which does not make this reference
Am.  14
Recital 9 b (new)
 Introduces a new recital:
"(9b) Persons with disabilities frequently face discrimination in the form of inaccessible public transport and the built environment, as well as inaccessible communications and information. Member States must take measures to ensure accessibility in these areas in order to put into effect the principle of equal treatment." Reject – its useful content is either already contained in the main provisions, or is not appropriate for a recital. The Directive does not cover built environment in itself, therefore providing in a recital that Member States have an obligation to ensure accessibility "in these areas" may be confusing for the definition of the material scope of the draft Directive.
Am.  15
Recital 11
 Introduces changes in recital 11(in bold):
"(11) This Directive is without prejudice to the exercise of the competences of the Member States in the areas of education and social protection, including social security and health care. It is also without prejudice to the essential role and wide discretion of the Member States in providing, commissioning and organising services of general economic interest." Accept
Useful clarification
Am.  16
Recital 12
 Introduces a reference to multiple discrimination in the recital that mentions the different types of discrimination
 Accept in substance partially
The Commission accepts to refer to multiple discrimination in recital 13 (amendment 23)
Am.  17
Recital 12 a (new)
 New recital referring to the definition of disability of the UN Convention Accept in substance
Inclusion of the slightly amended "open" definition of disability in the UN Convention on the Rights of Persons with Disabilities (but the latter does not include the reference to "environmental or attitudinal"). See also amendment 55
Am.  18
Recital 12 b (new)
 Introduces a new recital:
"(12b) Owing to the excessive burden on small and medium-sized enterprises (SMEs), they should be afforded special protection, following the model of the US Civil Rights Act." Reject – The situation of SMEs is already taken into account for ex. in the concept of reasonable accommodation and disproportionate burden; and not appropriate to define material scope in a recital.
Am.  19
Recital 12 c (new)
 Introduces a new recital:
"(12c) Discrimination is understood to include denial of medical treatment on the grounds of age alone." Reject – no added value, as this situation is clearly covered by the Directive
Am.  20
Recital 12 d (new)
 Introduces a new recital:
 "(12d) Discrimination on the grounds of disability includes discrimination on the grounds that a person is accompanied by or assisted by a recognised guide dog or assistance dog which has been trained in accordance with either the International Guide Dog Federation or Assistance Dogs International standards." Reject – no added value, it is a clear form of discrimination
Am.  21
Recital 12 e (new)
 Explanation of the term "effective non-discriminatory access" Accept
This reference can clarify what is included in the concept of effective non-discriminatory access.
Am.  22
Recital 12 f (new)
 Introduces a new recital:
 "(12f) An alteration is fundamental with regard to Article 4 if it alters the goods or services or the nature of the trade, profession or business to the extent that the provider of the goods or services is effectively providing a completely different kind of goods or services." Accept in substance the definition of "fundamental alteration" (even if the wording may be reviewed).

Am.  23
Recital 13
 Adds reference in bold to multiple discrimination (see also amendment 10 and 37):
"(13) This Directive also takes into account multiple discrimination. As discrimination can occur on two or more of the grounds listed in Articles 12 and 13 of the EC Treaty, in implementing the principle of equal treatment, the Community should, in accordance with Articles 3(2) and 13 of the EC Treaty, aim to eliminate inequalities relating to sex, race or ethnic origin, disability, sexual orientation, religion or belief, or age or a combination of these, and to promote equality, whatever combination of characteristics relating to  the above-mentioned factors a person may have. Effective legal procedures should be available to deal with situations of multiple discrimination. In particular national legal procedures should ensure that a complainant can raise all aspects of a multiple-discrimination claim in a single procedure."
  Accept partly

Accept to widen the reference to the EC Treaty obligation of "gender mainstreaming" by taking into account all forms of multiple discrimination.

Reject however the reference to Article 12 (prohibition of discrimination on grounds of nationality), which should be deleted, since this would create problems with the legal basis of the proposal (Article 13).

Reject also the two last sentences of this amendment.
Am.  24
Recital 14 a (new)
 Reference to justified differences in treatment on grounds of age and disability Accept in substance
Differences of treatment of young or older people and people with disabilities can be objectively justified, in particular if they set more favourable conditions.
The wording might need to be changed.

Am.  25
Recital 15
 Restricts the exception for financial services Accept in substance – reservations on drafting
See amendment 44
Am.  26
Recital 15 a (new)
 States that the award of contract is subject to the principle of equal treatment  Reject –
The award of a public contract does not seem to be a service within the meaning of this Directive. Therefore, this amendment may be seen as extending the material scope of the Directive, which is can not be done in a recital.
This amendment was presented by Richard Howitt, Michael Cashman, Claude Moraes and is partially based on recital 2 of the procurement directive 2004/18/EC on the coordination of procedures for the award of public contracts.

Am.  27
Recital 16
 Clarify exception for private transactions Accept in substance
See amendment 49
Am.  28
Recital 17
 Reference to freedom of the press

 


Reference to the division of competences between the EU and its Member States, which replaces reference to the fact that the Directive is without prejudice of national laws on marital status – see also amendment 50


Deletion of the reference to the secular nature of the State Accept
Freedom of the press is a form of the freedom of expression and might need to be taken into consideration when assessing a case of possible harassment. See also amendment 39

Accept in substance
Such a reference in the recitals – even though it should be self-evident – can help to clarify the scope of the Directive. However, the precise wording might need to be revisited. For example: the reference to health law (which seems to be related to the reference in the Commission proposal to reproductive rights) may be too vague.

Reject
This reference should be reinserted, possibly in another recital (e.g. recital 19).
Am.  29
Recital 18
 Specifies that the possibility to make differences of treatment in the access to educational institutions based on religion or belief is conditioned to the fact that they "are necessary and proportionate and do not infringe the right to education".  Accept
Am.  30
Recital 19
 Splitting of the recital on churches and disability into two Accept
The splitting of the recitals will simplify the reading of the Directive.
Am.  31
Recital 19 a (new) 

With regard to disability: definition of "disproportionate burden"

And reference to historical buildings Accept partially

Reject - the proposed definition of disproportionate burden does not contribute to more legal clarity.

Accept – First two sentences may be helpful. And a reference to the protection of buildings of historical or architectural value can be accepted (but this does not concern reasonable accommodation, which does not require structural changes to buildings).
Am.  32
Recital 21
 Introduces changes in recital 21(in bold):
"(21) The prohibition of discrimination should be without prejudice to the maintenance or adoption by Member States of measures intended to prevent or compensate for disadvantages suffered by persons of a particular religion or belief, disability, age or sexual orientation, or having a combination of characteristics relating to these specific factors, and persons associated with them. This prohibition may be accompanied by measures designed to promote equal treatment and equal opportunities which take account of the gender dimension and affirmative actions aimed at meeting the special needs of persons or categories of persons who, because of their characteristics, require structures, services and assistance not required by others. Such measures shall be accompanied by the establishment of independent organisations of persons of a particular religion or belief, disability, age or sexual orientation where their main object is the promotion of the special needs of those persons." Accept partially – Reject obligation to establish independent organisations of persons with certain characteristics
Am.  33
Recital 23
 Introduces changes in recital 23 (in bold):
"(23) Persons who have been subject to direct and indirect discrimination, multiple discrimination or discrimination by association, based on religion or belief, disability, age, sexual orientation or gender should have adequate means of legal protection. To provide a more effective level of protection, associations, organisations and other legal entities should be empowered to engage in proceedings, including on behalf of or in support of any victim, without prejudice to national rules of procedure concerning representation and defence before the courts."
 Accept partially in substance – reservations on place

Other recitals already mention discrimination by association, multiple discrimination and sex (recital 13, amendment 23)
Am.  34
Recital 25
 Introduces changes in recital 25 (in bold):
"(25) The effective implementation of the principle of equal treatment requires adequate judicial protection against victimisation. Effective judicial protection of individual rights must be accompanied by active promotion of non discrimination and equal opportunities." Reject –. It is not appropriate to create a duty to "active promotion of non discrimination and equal opportunities" in a recital.
Am.  35
Recital 26
 Adds to recital 26 a reference to the fact that
"Commission and Member States should take steps to ensure that the provisions laid down in this Directive and those already in force in this sector are brought to the notice of the public" Accept in substance – The Commission is already doing work on dissemination of EU equality  legislation
Am.  36
Recital 31 a (new)
 Introduces a new recital :
"(31a) In interpreting the meaning of the grounds of discrimination, international and European human rights instruments should be taken into account by courts and tribunals, including the recommendations and case-law of their supervisory organs, such as the European Court of Human Rights." Accept in substance – international law has to be taken into account, but without prejudice to the power of the European Court of Justice to interpret EU law
Am.  37
Article 1
 Introduce "multiple discrimination" in the scope of the Directive, including on the grounds of sex, race and nationality – see also amendment 10
 Accept partially in substance, accept recognition of the importance of multiple discrimination but in recital 13 (amendment 23); but not on the grounds of nationality, no legal basis 
Am.  38
Art.2 § 2
 Introduce "multiple discrimination" based on the grounds of religion, age, disability and sexual orientation in the definition of direct discrimination

Introduce "discrimination by association" in the definition of indirect discrimination Accept in substance
accept recognition of the importance of multiple discrimination in recital 13 (amendment 23);


Reject
Discrimination by association (in line with the European Court of Justice's judgment in the case Coleman, C-303/06), or based on assumption, should be limited to direct discrimination and harassment.
Am.  39
Art.2 § 3
 Introduces changes to the definition of harassment – refers to the freedom of speech and mentions that the concept of harassment may be defined by national laws and practices Reject
No need for this reference to freedom of speech/expression, since article 2(8) already protects it.
The reference to the definition of national laws and practice of the concept of harassment may not make sense from a legal point of view. It is contradictory to give an EU-level definition and then refer to national laws and practices.
Am.  40
Art.1 § 4
 Develops definition of prohibition of instruction to discriminate  Reject –it is the discriminatory content that is important for the prohibition, the relationship is important for the responsibility and sanction
Am.  41
Art.2 § 4 a (new)
 Includes discrimination based on assumption and by association Accept partially – substantially, both can be considered as discrimination "on the grounds of" – but they should only concern direct discrimination and harassment, not indirect discrimination
Am.  42
Art.2 § 5
 Introduce "discrimination by association" in the concept of denial of reasonable accommodation Accept partially in substance
This inclusion is in line with the spirit of the Coleman judgment.
But what is important is that persons associated with a person with disabilities be protected to the extent and because this protection is necessary to provide reasonable accommodation to the person with disabilities.

Am.  43
Art.2 § 6
 Reference to justified differences in treatment on grounds of age Accept partly in substance
The requirement of an "objective and reasonable" justification by a legitimate aim is in line with general concepts of anti-discrimination law (e.g. indirect discrimination) can therefore be accepted.

In line with amendment 24, "disability" may be added as a ground on which differences of treatment may be made.

However, reject the addition of "proportionate" and "effective", since it is redundant.

Am.  44
Art.2 § 7
 Limit the scope of the exception for financial services and ensure transparency for consumers. Accept in substance – reservations on drafting
The Commission can accept that a certain level of transparency needs to be guaranteed by the service provider. The suggestion to have data made available upon request might represent a good compromise.

Some other concerns ("determining factor" instead of "key factor", reference to "medical knowledge/data") can also be accepted.

However, the service providers should not need to demonstrate significantly higher risks, but rather apply proportionate differences in treatment.
 
Am.  45
Art.2 § 8
 Add the requirement of proportionality to the exception for public security measures Accept in substance
This exception to the principle of the Directive (as all others) should be subject to the requirement of proportionality.
Am.  46
Art.2 § 8 a (new)
 "Right to privacy is a means of combating discrimination"  Reject – meaning not clear
Am.  47
Art.3 § 1 point d
 Clarify the inclusion of transport within the scope Reject
Transport is already covered by this Directive as "services". There is no need to clarify this.
Am.  48
Art.3 § 1 point d a (new) Includes affiliation in associations, their activities and their services in scope of Directive  Reject – services are already included, not coherent with other Directives and could be seen as being against the freedom of association
Am.  49
Art.3 § 1
subpara 2 Clarify exception for private transactions – see amendment 27  Accept in substance
The suggestion by the EP to exclude private transactions from the scope of the Directive is very similar to the proposal made by the Commission. However, we do not see the need to change our proposal.
Am.  50
Art.3 § 2
 Reference to the division of competences between the EU and its Member States Accept substance – but in a recital
Such a clarification (which should be self-evident) has no place in the body of a Directive. This reference should figure in a recital only. See also amendment 28
Am.  51
Art.3 § 3
 Reference to the rights of  a person with disability to education

 

 

 

 

Clarification of the exception for religious educational institutions Accept partly
The notion of the right of persons with disabilities to education without discrimination can be accepted and is underlying the Directive proposal.

However, the wording of the amendment does not clarify matters. Furthermore the competences of the Member States, including in the provision of special needs education, needs to be respected.


Accept partly
The notion that differences in access to educational institutions must not justify discrimination on any other ground than religion and are subject to the availability of other educational institutions can be accepted.

However, the wording of the amendment would have to be improved.

Am.  52
Art.3 § 4
 Limit the scope of the exception for activities of churches depending on whether they fall within EU competence Accept in substance, reservations on drafting
The notion that not all activities of churches and religious organisations are excluded from the scope of the Directive (e.g. commercial activities or those carrying out public social security functions) can be accepted.
However, the second sentence appears self-evident and unnecessary.
Moreover, it is not clear whether the distinction as to whether activities fall within EU competence or not solves the problem or just leaves it open.
Am.  53
Art.3 § 5
 Adds that :
"Discrimination on the grounds of religion or belief, disability, age or sexual orientation which is presented as a difference in treatment based on nationality shall be treated as discrimination within the meaning of Article 1." Accept substance but reject wording
The Directive in principle applies to all persons, including nationals of third countries. Therefore, if the concerned discriminatory behaviour is truly based on the grounds covered by the Directive, in principle such behaviour is prohibited. However, the Directive does not to cover differences of treatment based on nationality and derived from immigration law.
The wording may introduce an element of confusion, notably since it does not clarify how courts should interpret "presented as".
Am.  54
Art.3 § 5 a (new)
 Adds a new recital:
"5a. This Directive is without prejudice to the right of publishers to refuse advertisements from individuals, parties and organisations that do not share their democratic values, and from individuals, parties or organisations that do not share the political orientation on which the newspaper in question is founded." Reject

Freedom of press is important, but in any case it is clear that the Directive does not cover differences based on political opinion
Am.  55
Art.4 § 1
 Reference to definition of disability in the UN Convention

 


Reference to persons with chronic diseases

 


 Accept in substance
A reference to this definition in a recital should be sufficient.
– See also amendment 17
But the UN Convention does not include the reference to "environmental or attitudinal".

Reject
This is covered neither by the Directive's legal base, nor by the ECJ's jurisprudence on the concept of disability (Case C-13/05, Chacon Navas, judgment of 11 July 2006).
Most persons with chronic diseases may be already covered by the UN Convention and its open definition of disability. However, the important point is not to establish whether a person has a chronic disease, but whether that disease hinders the person's "full and effective participation in society on an equal basis with others", as mentioned by the UN Convention.
Am.  56
Art.4 § 1 point a
 Definition of the duties with regard to persons with disabilities Reject
The long list of services is redundant as all of them are covered in any case. It does not improve the readability of the proposal. It could also be included in a recital.
The reference to "practice, policy or procedure" does not seem to add anything in substance.
Am.  57
Art.4 § 1 point b
 Definition of "effective non-discriminatory access" Accept partly

Accept the first 2 phrases – they help to clarify.
The definition of "effective non-discriminatory access" as: "identification and elimination of obstacles and barriers and the prevention of new obstacles and barriers …" can be accepted, as this is broadly in line with the UN Convention.
The definition of reasonable accommodation in the last phrase (also in the line of the UN Convention) is also acceptable.

Reject, however, the confusion between the concepts of "effective non-discriminatory access" and "reasonable accommodation" and the duty to provide a "meaningful alternative". It cannot be accepted.
Reject also the deletion of the obligation to provide reasonable accommodation, which was included in the Commission's proposal.
Am.  58
Art.4 § 2
 Definition of "disproportionate burden" and "fundamental alteration" Accept partly

Reject the indications regarding "disproportionate burden", as they provide less legal certainty than the text of the Commission proposal (which contains important criteria). 

The reference to Directive 2000/78 and the UN convention is better placed in a recital, as suggested by the Commission's proposal.

Accept in substance the definition of "fundamental alteration" (even if the wording may be reviewed).

Accept in substance the exception for buildings of historical or architectural value (but this does not concern reasonable accommodation, which does not require structural changes to buildings).

Am.  59
Art.4 § 2 a (new)
 Additional period for adaptations to existing infrastructure

See also amendment 77  Accept in substance
The idea of progressive implementation is already discussed in Council - Transitional periods for existing buildings and infrastructure make sense, due to the high costs involved, and can therefore be accepted.

Reservations on drafting, including on the reporting duties of Member States, they may depend on the content and the scope of the material obligations to be defined by the Council. 'biannual' reporting should presumably read 'biennial'
Am.  60
Art.4 § 3
 
Introduces changes (in bold):
"3. This Directive shall be without prejudice to the provisions of Community law or national rules covering the accessibility of particular goods or services. However, wherever possible, EU institutions and Member States shall take measures to encourage providers of goods and services, in particular manufactured goods, to design accessible solutions, for instance through public procurement practices. Accessible products and services are those designed so that they may be used by all users." 
Accept in substance – reject place

It is a political statement, better in recital at most.
Am.  61
Art.5
 Introduces changes (in bold) to article 5 on positive action :
"With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures or from allowing these measures to be taken by the public, private or voluntary sectors to prevent or compensate for disadvantages linked to religion or belief, disability, age, or sexual orientation." Accept – not indispensable, but useful clarification
Am.  62
Art.7 § 1
 States that procedures to redress discrimination have to be available "in practice"  Accept
Am.  63
Art.7 § 2
 Deletes provision allowing NGO's to engage in procedures to defend victims' rights, with their approval  Reject
The role of NGOs is fundamental to put law into practice, their intervention can only exist with the approval of the plaintiff.
This deletion is not coherent with other Directives.
It also contradicts amendment 33, which includes the reference to the right of NGO's to engage in equality proceedings.
Am.  64
Art.7 § 3 a (new)
 Adds a new provision:
"3a. Member States shall introduce in their national legal systems such measures as are necessary to ensure real and effective compensation or reparation, as the Member States determine, for the loss and damage sustained by a person injured as a result of discrimination within the meaning of this Directive, in a way which is dissuasive and proportionate to the damage suffered."
 Accept in substance, reservations on wording and place:  sanctions are dealt with in Article 14.
Am.  65
Art.8 § 2
 Deletes "of evidence" in paragraph 2 of Article 8, on the sharing of the burden of proof. The proposal of the Commission provides that
"Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs." Reject – not necessary: while Article 8 concerns evidence, and Article 6 already provides that "Member States may introduce or maintain provisions which are more favourable to the
protection of the principle of equal treatment than those laid down in this Directive."
Am.  66
Art.9 a (new)
 Inclusion of duty of Member States to actively promote equality on the grounds covered  Accept importance of mainstreaming , but Reject place
A reference to mainstreaming could be put in a recital  
Am.  67
Art.10
 Adds Internet to the appropriate means that Member States shall use to ensure that the provisions adopted pursuant to this Directive are brought to the attention of the persons concerned. Accept
Am.  68
Art.11
 Adds certain organisation to the NGO's that Member States should encourage dialogue with. Accept substance – reservations on wording
Religious organisations are included in NGOs, but wording can be improved (repetitive)
Am.  69
Art.12 § 1
 Changes (in bold) the provision on equality bodies :
"1. Member States shall designate an independent functioning and adequately funded body or bodies for the promotion of equal treatment of all persons irrespective of their religion or belief, disability, age, or sexual orientation. Member States shall ensure that the body or bodies have competence in the fields covered by this Directive and the fields of employment and occupation under Directive 2000/78/EC. These bodies may form part of agencies charged at national level with the defence of the rights under other Community acts including Directives 2000/43/EC, 2000/78/EC and 2004/113/EC."
 Accept in substance,
precise drafting may need to be revisited
Am.  70
Art.12 § 2 indent -1 (new)
 Adds one competence to the list of competences of equality bodies:
"- facilitating administrative or legal proceedings concerning discrimination where the victim is resident in a Member State other than that of the respondent, by contacting the equivalent organisation or organisations in the Member State of the respondent," Reject – may create problems of competence, if there are already other national institutions responsible for doing the same

Am.  71
Art.12 § 2 indent -1a (new)
 Adds one competence to the list of competences of equality bodies:
"- ensuring access by the complainant to legal aid in accordance with Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes, where appropriate," Reject – the Directive provides already for a special mechanism for this purpose. According to its Article 14(1) Member States shall designate the authority or authorities competent to send and receive applications for legal aid. Moreover, according to Article 18, these competent national authorities shall cooperate to provide the public with information on the various systems of legal aid, in particular via the European Judicial Network.
Am.  72
Art.12 § 2 indent 2
 Changes (in bold) the text of one of the competences of equality bodies:
"- monitoring and conducting independent surveys concerning discrimination, including on the application of anti-discrimination law,"
 Accept
Am.  73
Art.12 § 2 indent 3 a (new)
 Adds one competence to the list of competences of equality bodies:
"- cooperating and exchanging information with the Fundamental Rights Agency and with other corresponding EU bodies." Accept
Am.  74
Art.12 § 2 a (new)
 Adds the following new provision on equality bodies:
"2a. Member States shall provide these bodies with sufficient resources to enable them to carry out their duties in an effective and accessible manner."
 Accept
Am.  75
Art.13
point a
 Makes the following change (in bold) to Article 13 on compliance:
"a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are immediately abolished;" Reject – not necessary, the immediate abolition is required by the transposition of the Directive as such
Am.  76
Art.14
 Adds to the provision of sanctions the obligation that the latter "result in the cessation of the discriminatory conduct and the removal of its effects." Accept – it is a useful interpretation of the concept of effective and dissuasive sanctions
Am.  77
Art.15 § 2
 Additional period for adaptations to existing infrastructure
- See also amendment 59  Accept in substance
The idea of progressive implementation is already discussed in Council - Transitional periods for existing buildings and infrastructure make sense, due to the high costs involved, and can therefore be accepted.

Reservations on drafting, including on the reporting duties of Member States, they may depend on the content and the scope of the material obligations to be defined by the Council.
Am.  78
Art.16 § 1
 Deletion of the obligation of equality bodies to communicate information on the transposition of the Directive for the Commission's report on it  
Reject
National Equality bodies have important information to provide
Am.  79
Art.16  § 1 a (new)
 Adds a new provision :
"1a. No later than ** years after the entry into force of this Directive, a comprehensive Community legal framework relating to non-discrimination must be brought into force in the form of a single Directive consolidating and thus replacing all existing Directives based on Article 13 of the EC Treaty, including this Directive. The new directive shall provide for an equal level of protection for each ground for discrimination." 
Reject the inclusion of this provision in the Directive
The Commission shares the concern of ensuring the coherence of EC anti-discrimination law. This Directive intends to ensure an identical level of protection for the grounds covered as compared with race and ethnic origin.
However, the suggested provision is not one that can be transposed/implemented as such by an individual Member State and, therefore, has no place in a directive.
In any case, the Commission can examine that merger of existing equality laws in its first report on the implementation of this draft Directive.
Am.  80
Art.16 § 2
 The report on the implementation of the Directive should include also
- include also a review of practices on Article 2(7)
- and contain information on multiple discrimination.  Reject – this is not necessary
The Commission is engaging now a dialogue with the insurance industry and has ordered a study on the use of age and disability in this sector, therefore information will be available earlier than in the report.
Accept – the request for the report to contain information on multiple discrimination.

 


 

Selected examples of
Amendments
rejected by the LIBE Committee
which could eventually be re-tabled for plenary
(the number of the amendments refers to those voted in the LIBE Committee)


Am. 130

Article 1
 
Introduces new grounds of prohibited discrimination (in bold):

"This Directive lays down a framework for combating discrimination on the grounds of religion or belief, disability,
non-contagious chronic disorders,
HIV/AIDS, age, sexual orientation, income or appurtenance to a social class, with a view to putting into effect in the Member States the principle of equal treatment other than in the field of employment and occupation." 
Reject

No legal basis to adopt measures on these grounds by the European Union. Article 13 does not mention these grounds.

Am. 132

Article 1
 Deletes (in track changes) belief from the list of grounds of discrimination covered :

"This Directive lays down a framework for combating discrimination on the grounds of religion, disability, age, or sexual orientation, with a view to putting into effect in the Member States the principle of equal treatment other than in the field of employment and occupation." 
Reject

The concern of the MEP's who proposed this amendment seems to be that the prohibition of discrimination on this ground could be misused by extremists groups. This seems to be based on the German translation of the word "belief" into "Weltanschauung" (a world view).
However, belief should be understood as the counterpart of religion and should not be interpreted as to include political opinion.
Am. 164
Art.2, para 5a (new)
 Introduces the following new paragraph:
"5a. The behaviour of a person or organisation that does not respect the principles laid down in this Directive shall not be deemed to be a form of discrimination within the meaning of paragraph 1 where such behaviour is motivated by an ethos based on religion or beliefs." 
Reject

The drafting of this paragraph is not very clear or is too wide.

The underlying concern is already dealt with by Article 2(8) of the Commission's proposal, which provides that :
"8. This Directive shall be without prejudice to general measures laid down in national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and the protection of the rights and freedoms of others."
Am. 190

Art.3,
para 1,point c
 
Deletes education from the material scope of the Directive  
Reject

It is important to ensure equality in education.

In any case, according to the proposal, the Directive is without prejudice to Member States competences concerning the content of teaching, and the organisation of their educational systems (Article 3, para 3).

Am. 215
Art.3, para 2a (new)
 Introduces a new provision:
" 2a. This directive is without prejudice to
Member States' competences concerning the introduction or continuation of policies to promote the institution of the
family as traditionally understood." 
Reject
Drafting too vague.
The MEPs who proposed the amendment state that it is tabled in the light of the decision of the European Court of Human Rights of 20 April 2008 in the Burden vs UK case. The Court considered that the applicants, as co-habiting sisters, cannot be compared from the perspective of Article 14 of the ECHR to a married or Civil Partnership Act couple for the purposes of
paying tax on inherited property (reduced for married couples and couples on a partnership).
This amendment extrapolates a case decided in specific circumstances into a wider and unjustified rule.

Am. 216
Art.3, para 2a (new)
 Introduces a new provision:
"2a. This Directive applies also in relation to national laws on marital, family and civil status and sexual and reproductive health and rights." 
Reject

These issues are outside the scope of EU competence.

According to the European Court of Justice in the judgment of 1st April 2008 in case Maruko, civil status is a matter which falls within the competence of the Member States and Community law does not detract from that competence (paragraph 59).