The European Union Race Directive

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The European Union Race Directive

• attorney Lilla Farkas
• LLM

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Definitions

• direct discrimination
• indirect discrimination
• harassment
• instruction to discriminate
• victimisation

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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

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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

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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.

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Victimisation

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

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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

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Sanctions

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

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Enforcement

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

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Effect in domestic law

• TEC Article 249
• binding on Member States as to results to be
  achaived methods to be selected domestically

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Incorrect transposition

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

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Incorrect transposition

• TEC Article 234 - preliminary referrals
• any court may refer case to ECJ for
  interpretation of RD
• if no remedy against decision of given court,
  referral is compulsory

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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
  states failure and damage suffered

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Scope

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