campaigning against racism and xenophobia: from a...

Campaigning against racism and xenophobia: from a legislative perspective

at European level

Author : Isabelle Chopin

ENAR would like to thank the following people:

Co-edited by : Niki Kunrath, Niki Roubani and Bernadette Hétier

Translation : Katrin Romberg & Heather Stacey

Lay-out : Fikirte Mengiste, Color Impact (Brussels)

Editer : ENAR

Printed by : Color Impact (Brussels)

November 1999

ENAR, as a network and this publication, are supported bythe European Commission DG for Employment and Social Affairs.

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Table of contents

page

Preface i

Introduction 1

1. The “Starting Line” proposal 2

1.1 Background 2

1.1.1 Choice of a directive 2

1.1.2 Legal basis 3

1.2 Contents of the proposal 4

1.2.1 Combating discrimination based on religion and belief 4

1.2.2 Definition of discrimination & Scope of Application of the Starting Line 5

1.2.3 Reversal of the burden of proof 6

1.2.4 Victimisation 7

1.2.5 Role of the European Monitoring Centre 7

1.2.6 Affirmative action and quotas 7

2. Proposals of the European Commission 8

2.1 A directive aimed at combating the forms of discrimination listed in Article 13in the field of employment. 9

2.2 A directive aimed at combating discrimination based on racial or ethnic origin 10

2.3 Framework programme to combat discrimination 11

3. Opportunities provided by Article 13 13

4. The political will of the Member States 15

5. What action is possible at European level based on Article 13? 17

6. Strategy and campaign 18

6.1 Clear proposals 18

6.2 Leading a campaign at European level 19

6.2.1 Legislative procedure 19

6.2.2 European organisations 20

6.2.3 European Parliament 20

6.2.4 European Commission 20

6.2.5 Council of Ministers 20

6.3. Leading a campaign at national level 20

6.3.1 Governments 20

6.3.2 Non-governmental organisations 21

Conclusions 22

Annex:The new Starting Line proposal 24

Campaigning against racism and xenophobia

European Network Against Racism i

EPreface

The European Network Against Racism was founded in October 1998. In the brief period betweenits foundation and official installation of the secretariat in September 1999, the Network succeededin implementing a number of projects and objectives. In each Member State of the EuropeanUnion, round tables met and formed permanent national networks. The secretariat maintainsintensive correspondence with representatives of these national round tables about the measuresand projects in each of the countries involved. The Constitutional Conference debated an actionprogramme that forms the guidelines for ENAR’s information, campaigning and lobbying work.These activities aim to implement measures and legal regulations on both European and nationallevel and ultimately to ensure equality for ethnic minorities and an end to racism. In the past, muchhas been achieved through the work of European lobbying organisations. The work of the “StartingLine Group” deserves a special mention here: their intensive lobbying work ensured in theinclusion of an anti-discrimination clause in the Amsterdam Treaty.

The present document often refers to proposals drawn up by the “Starting Line Group”. As we seeit, there is no point in repeating good work which has already been done.

Although the work of the “Starting Line Group” has been a great success, it will remain largelyineffective so long as the European Council of Ministers does not decide on a Directive againstracism. Only then can corresponding legal frameworks be implemented at national level.

In 2000, the European Network Against Racism plans to carry out a campaign together with theassociated partners at national, regional and local level and with other European networks workingto prevent discrimination against disabled people, elderly, homosexuals, migrants, minorities andwomen. It is essential to provide information about what has already been achieved, about whatguidelines are currently being prepared by the European Commission and about what specificactions are necessary, in order to influence key people and organisations. This publication isintended as a tool for this, to serve as a basis for discussion and action for ENAR’s existingpartners. Other organisations are most welcome to participate in this campaign.

It is important to have united actions. We should make use of the strengths of individualorganisations and existing access routes to institutions, in order to come closer to the goal we haveset ourselves.

This publication is intended to form the start of this process and is presented to you with the aimthat we shall be able to enter into a discussion with you as soon as possible.

Vera EgenbergerDirector of ENAR

§Preface

ECampaigning against racism and xenophobia

European Network Against Racism 1

Introduction

The Treaty of Amsterdam, signed on 2 October 1997, ratified by all the countries ofthe European Union and finally came intoforce on 1 May 1999, includes an anti-discrimination clause, inserted in the FirstPillar (Community area), which enables theEuropean institutions to take measures inorder to combat discrimination based oncertain criteria. Article 13 of the Treaty ofAmsterdam reads as follows: “Withoutprejudice to the other provisions of this Treatyand within the limits of the powers conferredby it upon the Commission, the Council,acting unanimously on a proposal from theCommission and after consulting theEuropean Parliament, may take appropriateaction to combat discrimination based on sex,racial or ethnic origin, religion or belief,disability, age or sexual orientation.”

Such an anti-discrimination clause did notpreviously exist in the treaties, so Article 13gives the European institutions a significantopportunity to take “appropriate action” inorder to combat certain types ofdiscrimination. Within the framework of thefight against racism, xenophobia and anti-Semitism (to which we restrict ourselves), thismeans that Member States can propose andadopt binding measures in order to combat allforms of discrimination based on racial orethnic origin, religion or belief.

N o n - g ove rnmental organisations have been aninfluential factor in the adoption of such aclause. Long before the beginning of theI n t e rg ove rnmental Conference a number ofthem had already been campaigning for a(more or less specific) anti-discriminationclause to be inserted into the treaties. T h e i rdemands and their work in the form ofc o n s t ru c t ive lobbying have led to a gr e a t e r

awareness at European and national level ofthe necessity of action in this field. Equalr e c ognition should be given here on the wo r kc a rried out by the Consultative Commission onRacism and Xenophobia, the Reflection Group( which is known as the We s t e n d o rp Group andhad the task of stimulating discussion andputting forward recommendations before theI n t e rg ove rnmental Conference) and theEuropean Parliament. The two successivecampaigns to raise awareness of the probl e m sof racism, that of the Council of Europe andthen the European Year against Racism, we r ealso important in contributing to this increasedawareness. Although at the time of theI n t e rg ove rnmental Conference negotiations noc o u n t ry opposed the inclusion of such a clause,it is, howeve r, important to emphasise that noc o u n t ry assumed a leading role in persuadingthe other countries to adopt the clause.

Since Article 13 allows for the adoption oflegislative measures, it is useful to examine indetail both the proposal for a draft Directiveby the Starting Line Group, which bringstogether the aims of the European Networkagainst Racism, and the available informationon how the European Commission plans touse Article 13 (two proposals for Directivesand an action programme).

Article 13 offers various possibilities andtypes of actions which will be evoked belowas well as the political will of the MemberStates. Finally, since the adoption of Article 13comes as a result of a campaign ledprincipally by non-governmentalorganisations, a new campaign is necessary inorder to ensure the adoption of legislativemeasures aimed at combating racism,xenophobia and anti-Semitism.

§Introduction

Campaigning against racism and xenophobiaThe Starting Line Proposal

European Network Against Racism2

1.1 Background

The Starting Line Group is an informalnetwork of around 400 organisations in the 15Member States of the European Union, whichhas been working since the beginning of the1990s to promote the idea of a Directiveaimed at combating racism. Originally thefounding organisations were convinced of theneed to combat racism by means of bindinglegal measures including enforceablesanctions, that is by legislative means. Theywere also convinced of the necessity of actionat European level in this area. There was clearevidence that, in order to realise the set by theGroup, the only solution was theharmonisation at European level of legislationaimed at combating discrimination.

The level of protection varies considerably inthe different Member States, depending ontheir history, traditions and their judicialsystems. Consequently the Group decided toconcentrate its efforts on a proposal for a draftDirective. This is not to say that the only wayto combat racism and xenophobia is bylegislative means; information, prevention andeducation are equally necessary. Thesedifferent methods of promoting equaltreatment are complementary. The Group wasalso of the opinion that the lack of united andeffective action against racism and xenophobiaresulted in a serious and worryingdestabilisation of the process of socialintegration taking place in the Member Statesof the European Union.

1.1.1 Choice of a Directive

W hy a Directive? Because the Directive seemedto be the most certain and eff e c t ive method ofa c h i eving a harmonisation of legislation aimedat combating discrimination based on racial orethnic origin, religion or belief, which wo u l dguarantee the same degree of protection atEuropean level. The aim of a Directive on thisissue is to achieve the adoption of commoncriteria. The Directive defines the goals to bea c h i eved but allows the Member States a cert a i namount of flexibility regarding the way in wh i c ht h ey wish to incorporate it into their nationaljudicial system, taking into account the specifi csituation in each country and the relevant lega ltraditions. On the other hand, the adoption andimplementation of a Directive invo l ves theEuropean Parliament and the nationalparliaments, thereby promoting and maintainingp u blic debate on the subject. It is fundamentalthat national parliaments have a role to play inp r ovoking discussion at national level. AD i r e c t ive also allows those countries, wh i c hb e n e fit from better protection at national leve lto maintain these provisions. Fi n a l ly, theadoption of a Directive to combat racial andreligious discrimination would highlight cert a i nparallels in the Directives, which already exist toensure equal opportunities for men and wo m e n .2

This would create a precedent, which could beused during the discussion and the adoption ofsubsequent Directives based on the other form sof discrimination listed in A rticle 13.

In conclusion, it is essential that the

§1. The “Starting Line” proposal1

1Proposals for legislative measures to combat racism and to promoteequal rights in the European Union, Isabelle Chopin and JanNiessen, Starting Line Group and the Commission for RacialEquality, 1998.

2Council Directive 76/207/EEC on the implementation of theprinciple of equal treatment for men and women as regards access toemployment, vocational training and promotion, and workingconditions.

Council Directive 97/80/EC on the burden of proof in cases ofdiscrimination based on sex.

ECampaigning against racism and xenophobia The Starting Line Proposal


implementation of Article 13, by the adoptionof a Directive aimed at combating racism, takeplace before any enlargement of the Union. Ifsuch a Directive were adopted it wouldbecome part of what is known as the acquiscommunautaire which the new arrivals areobliged to integrate into their own legalsystems. The countries which will join theUnion in the near future do not necessarilyhave the same traditions in terms of humanrights in general and the protection ofminorities, nor in terms of the campaignagainst racism and xenophobia.

The first version of the “Starting Line” wasofficially launched in 1992 and wasfavourably received. In a number ofresolutions the European Parliament appealedto the Commission to use the proposal for aDirective as the basis for discussions, to putforward a draft Directive and to takeinspiration from the Starting Line for thedrafting of its own proposal.3

The aim of this proposal was to provokediscussion and to maintain a certain level ofdialogue on the subject, while ensuring that itbecomes and remains part of the politicalagenda. The Group aimed to make as muchuse as possible of existing material and toshare the experiences of other organisationsand of the various Member States.

1.1.2 Legal basis

G iven the lack of political will to use A rt i c l e

308 (form e r ly A rticle 235)4 as the legal basisof such a proposal for a Directive (on wh i c hthe Starting Line proposal was based), theS t a rting Line Group focused its work from1993 onwards on promoting an amendment tothe treaty which could act as a clear legal basisfor a Directive on this issue. This proposedamendment was known as the “Starting Po i n t ” .The Starting Point was drawn up afterconsulting the formulations traditionally usedin international conventions, such as theUnited Nations Convention on the Eliminationof all Fo rms of Racial Discrimination.5 If theS t a rting Point had been adopted as it wa si n i t i a l ly form u l a t e d, it would have prov i d e ddirect effect and would have given theEuropean institutions a clear mandate onwhich to act. A ny leg i s l a t ive measure wo u l dh ave been adopted following the co-decisionprocedure (qualified majority vo t i n g ) .

The Starting Line Group, as from 1994, beganits campaign for the adoption of a legal basisin the Treaty establishing the EuropeanCommunities (TEC), which would allow theadoption of legislative measures. Thiscampaign involved lobbying of the Europeaninstitutions, the Consultative Commission onRacism and Xenophobia6, and the ReflectionGroup and the Italian, Irish and Dutch

3European Parliament, resolution on racism and xenophobia, 2December 1993European Parliament, resolution on racism, xenophobia and anti-Semitism, 27 October 1994European Parliament, resolution on racism, xenophobia and anti-Semitism, 27 April 1995European Parliament, resolution on racism, xenophobia and anti-Semitism, 26 October 1996European Parliament, report of the Committee of civil liberties andinternal affairs on the Communication of the Commission onRacism, Xenophobia and anti-Semitism and on the proposal for aCouncil decision designating 1997 as European Year against Racism,26 April 1996.

4Article 308 (ex Article 235):If action by the Community should prove necessary to attain, in thecourse of the operation of the common market, one of the objectivesof the Community and this Treaty has not provided the necessarypowers, the Council shall, acting unanimously on a proposal from theCommission and after consulting the European Parliament, take theappropriate measures.

5International Convention on the Elimination of All Forms of RacialDiscrimination, adopted and put to signature and ratification by theGeneral Assembly of the United Nations in its resolution 2106A(XX) of 21 December 1965, came into effect 4 January 1969.

6The Consultative Commission on Racism and Xenophobia wasestablished in 1994 at the Corfu summit, following a Franco-Germaninitiative. This commission (also known by the name of its president,Jean Kahn) had the goal of defining a global strategy at EuropeanUnion level aimed at combating the acts of racist or xenophobicviolence. This Commission led to the creation of the EuropeanMonitoring Centre on Racism and Xenophobia, situated in Vienna.



presidencies responsible for the preparation of,and negotiations on, the Treaty of Amsterdam.During this campaign, the Starting Line Groupwas also active at national level. The originalmembership of the Group (400 organisations,including non-governmental organisations,quasi-governmental organisations, churches,unions, academics and experts etc.) led to thecreation of a highly effective informalnetwork. In this way it was possible toestablish and share contacts and be active inall the Member States and in many differentsectors of society (i.e. in the voluntary,political and academic sectors).

This information campaign, raising awa r e n e s sof the lack of a legal basis to take action aga i n s tracism and xenophobia at European Unionl evel and in support of the Starting Po i n tproposal, was active at European level as muchas at national, gove rnmental, institutional andn o n - g ove rnmental level, both before and afterthe 1996 Interg ove rnmental Conference. T h eyears of campaigning and constant pressurebore fruit when A rticle 13 was adopted.

The Starting Line Group then reworked itsinitial proposal and in June 1998, during theManchester conference on racism organisedby the British presidency, the new StartingLine was officially presented and was verywell received.

1.2 Contents of the proposal

In order to avoid pointless discussions aboutterminology, this new proposal followed theformulations of various Directives that hadalready been adopted, concerning the equaltreatment of men and women7 and the burdenof proof in cases of discrimination based onsex8. This terminology has already beendiscussed in great detail both at EuropeanParliament and Council level. The Member

States cannot then backtrack by reneging onthese principles which have already beenagreed, refusing victims of racism theprotection accorded to women. Moreover,concerning the implementation at nationallevel, as national parliaments have alreadybeen involved, this debate has already alsotaken place in the Member States.

1.2.1 Combating discrimination based on religion and belief

The Starting Line chose to campaign againstracial and religious discrimination, as definedby Article 13. This is mainly due to the factthat the word “racism” is interpreted andunderstood differently in the various MemberStates. In some countries anti-Semitism can beconsidered as racism while in other countries adistinction is made between the two concepts.Moreover, it is very difficult to distinguishbetween racial and religious discriminationwhich are often very closely linked. This iseven more significant today, with theincreasing prevalence of what may bedescribed as “Islamophobia”.

Different churches were consulted on thisparticular point and this soon sparked a strongopposition to the linking of the campaignsagainst racial and religious discrimination.Some churches called for the inclusion clausesexempting the principle of equal treatment.The Group approached this problem byexamining the way in which this issue hadbeen tackled in Northern Ireland (where thequestion of religious discrimination is a highlysensitive one and a serious political issue) atthe level of national legislation. In addition theGroup looked at European legislation on theequal treatment of men and women. These twosets of legislation were chosen because theyhad both allowed for a certain number ofexemptions.

In order to avoid strong opposition and in aspirit of compromise (but without being

7See Footnote 2 first line.

8See Footnote 2 second line.

ECampaigning against racism and xenophobia The Starting Line Proposal


compromised), Article 1.5 of the Starting Lineauthorises certain exemptions to the principleof equal treatment, where the determiningfactor is the consideration of racial or ethnicorigin, religion or belief. This exemptionapplies in particular to religious schools and toother religious institutions such as hospitalsand homes for the elderly, etc. The StartingLine Group is well aware that this exemptionclause will not necessarily convince all theopposing parties. Nevertheless, it was decidedon the one hand to maintain the inclusion ofreligious discrimination and on the other handto include the exemption clause. The StartingLine also encompasses “the absence orsupposed absence of any particular religion orbelief” (Article 2.4), when it refers to religionor belief.

1.2.2 Definition of discrimination and scope of application of the Starting Line

Racial and religious discrimination is definedin Article 1.1 as, “any distinction, exclusion,restriction or preference which has thepurpose or effect of nullifying or impairingthe recognition, enjoyment or exercise ofhuman rights and fundamental freedoms orparticipation in the political, economic, social,cultural, religious life or any other public fieldon grounds of racial or ethnic origin orreligion or belief”.

The scope of the Starting Line is not restrictedmerely to the field of employment, althoughthis would certainly render the task muchsimpler, since the majority of Member Stateshave statutes which cover this area at nationallevel. Racism and xenophobia are part of theeveryday lives of people who experience thissort of discrimination and it thus seemedimportant to the Starting Line Group thatprotection should be made available for themin all areas of their lives, while taking intoaccount the restrictions imposed by Article 13:“within the limits of the powers conferred byit upon the Community”. Consequently, the

Starting Line covers the following areas(Article 1.2):

• the exercise of a professional activity,whether salaried or self-employed;

• access to any job or post, dismissals andother working conditions;

• social security;• health and welfare benefits;• education;• vocational guidance and vocational

training;• housing;• provision of goods, facilities and services;• the exercise of its functions by any public

body;• participation in political, economic,

social, cultural, religious life or any otherpublic field.

The principles contained in the Starting Lineare intended to ensure the same protection forall people (European citizens and thirdcountry nationals), that is protection againstdirect or indirect discrimination. Thedefinition of direct discrimination (Article2.1) was drawn from the legislation on theequal treatment of men and women. Directdiscrimination is said to exist when “a personreceives less favourable treatment on groundsof racial or ethnic origin or religion or beliefthan other persons receive or would receive inany situation where the relevant circumstancesof those other persons are the same or notmaterially different”. The definition of indirectdiscrimination (Article 2.2) was inspired byArticle 2 of the 1997 Directive on the burdenof proof. Indirect discrimination is said toexist when “an apparently neutral provision,criterion or practice disproportionatelydisadvantages persons of particular racial orethnic origins or religion or belief” and whenit cannot be justified by objective factors.

The Member States are bound to prohibit bylegal sanction (Article 4.1):



• any discrimination of any kind mentionedin Articles 2.1, 2.2 and 2.3 practised by anynatural or legal person and group ororganisation;

• incitement or pressure to racial or religiousdiscrimination;

• the establishment or operation of anyorganisation which promotes suchincitement or pressure together with themembership of any such organisation andthe giving of aid, financial or otherwise, toany such organisation;

• any act or practice by a public authority orpublic institution of racial or religiousdiscrimination against persons, groups ofpersons or institutions;

• the financing, defence or support by anypublic authority or public institution ofracial or religious discrimination by anyperson, group or organisation.

Article 4.1 could lead to the prohibition ofcertain racist political parties or thewithdrawal of their financing. Though thisissue may be the subject of debate, theStarting Line Group decided, after lengthydiscussion, to retain these provisions, drawingon Articles 4.a, 4.b and 4.c of the UnitedNations Convention on the Elimination of allForms of Racial Discrimination.

At the same time, Articles 4.2 and 4.3 requirethe Member States to ensure that all officialsand other representatives of public authoritiesrefrain in the exercise of their functions fromany discriminatory speech or behaviour and totake any measures necessary to ensure thateducators and persons working in the massmedia are aware of the responsibility they bearin the field of education and that they behaveaccordingly.

This proposal for a Directive obliges theMember States to ensure that potential victimsmay have recourse to judicial remedy (Article4.4.a), the right to compensation for bothpecuniary and non-pecuniary damages

(Article 4.4.b), access to adequate informationon existing procedures and remedies, and theright to receive financial support in respect oflegal costs (Article 4.4.c). The plaintiff shouldbe entitled to an effective investigation andfair adjudication (Article 6.a). The partiesconcerned may also obtain all the relevantinformation on the condition that it does notinterfere with the interests of either party(Article 6.b).

In addition, organisations concerned with thedefence of human rights, and in particular withthe combating of racism and xenophobia, shallbe able to institute or support legal actions inc ivil, administrative and criminal court s( A rticle 4.4.d). Not all the Member Statesm a ke provision for organisations to bring ors u p p o rt legal actions so it is essential thatstandard legislation according this right isintroduced. The Member States will have tom a ke provision for the establishment ofappropriate conciliation procedures wh i c ha l l ow solutions to particular conflicts to befound. These procedures must in no casehinder the victim from subsequently hav i n grecourse to judicial remedies (Article 4.4.f).The Starting Line also makes provision for thee s t a blishment of appropriate bodies to receivecomplaints, to inve s t i gate these complaints andto reach conclusions on them (Article 4.4.e).

1.2.3 Reversal of the burden of proof

In the same way, the reversal of the burden ofproof might also cause problems in someMember States. During the drafting of theStarting Line Group’s Article 5, great attentionwas given to the above-mentioned 1997Directive on the burden of proof in cases ofdiscrimination based on sex. It was decided tomaintain this principle in the proposal as ithad already been adopted at European leveland should then be introduced at nationallevel. One of the reasons for many people notlodging complaints in incidences of racismand for legal proceedings often being



The Starting Line Proposal

unsuccessful is that it is often extremelydifficult for the victim to prove that he or shehas been discriminated against. In the case ofa Directive similar to the Starting Line beingadopted, the defendant (the person supposed tohave discriminated against the victim) willthen have to prove that the discrimination hasnot taken place.

1.2.4 Victimisation

Another reason for victims not comingforward to lodge a complaint is the fear ofvictimisation (or secondary discrimination).The Starting Line includes victimisation in itsdefinition of discrimination (Articles 2.3.a and2.3.b). This is a concept which does not existin all the Member States, except in regard toprotection against victimisation for tradeunionists in the event of their sufferingreprisals from their employers.

1.2.5 Role of the European Monitoring Centre

The Starting Line Group decided that theEuropean Monitoring Centre on Racism andXenophobia, which had been set up in 1997and which is located in Vienna, should beinvolved in the following ways. In Articles11.1 and 11.2 the Starting Line states that theMonitoring Centre should specify “standardcriteria for annual monitoring of theperformance by Member States of theirobligations under this Directive”.Furthermore, on the basis of the criteriaidentified by the Monitoring Centre, theMember States “shall submit annualmonitoring returns to the EuropeanMonitoring Centre”. It is not entirely clearwhether the mandate which was given to theMonitoring Centre actually authorises a role ofthis kind. However, the Starting Line Groupfelt that it was important for this body toparticipate in the implementation of theDirective and its application at national level.

The Starting Line Group judged it to benecessary to establish a system of monitoring.

It was for this reason that such a role wasgiven to the European Monitoring Centre.They also included the requirement that theMember States should submit a report to the

European Commission on the measures thatt h ey had adopted at national level (Art i c l e10.1). This would happen after a period of twoyears, to allow Member States to adapt theD i r e c t ive to their national legislation (Art i c l e9). On the basis of this report, the Commissionwill, in turn, draw up a report for the Counciland the European Parliament. While this reportis in the process of being compiled, theCommission will be able to request furt h e ri n f o rmation from the Member States and fromn o n - g ove rnmental organisations. In drawing upthe report, the Commission will also be able tom a ke suggestions and recommendations( A rticle 10).

1.2.6 Affirmative action and quotas

Many Member States fear that Article 13 mayforce them to act in a manner contrary to theirnational traditions by obliging them to adoptmeasures such as affirmative action or quotas.The Starting Line, observing the jurisprudenceof the European Court of Justice, does notauthorise quotas but does authorise affirmativeaction, without actually making it arequirement (compare Article 1.4 of theStarting Line and Article 2 of the 1976Directive on the equal treatment of men andwomen).

The Starting Line does not affect in any waymore favo u r a ble provisions which already ex i s tat national level or which are contained in ther e l evant international treaties (Article 7).

Campaigning against racism and xenophobia


The proposals of the European Commission

The question may arise as to wh e t h e r, bychoosing to propose a horizontal Directive anda more specific Directive, the EuropeanCommission might fail to follow the principlesstated in A rticle 13 itself which is a generalclause. The whole field of anti-racism is highlys e n s i t ive and depends to a great extent on thepolitical will of the Member States and thecompromises they are able to make in order tof u l fil the objectives which they have set.

The European Commission chose to proposethese Directives because of the flexibility theyallow the Member States in terms ofimplementation, as stated below. These twodirectives will be submitted to the approval ofthe Member States.

Measures in the field of employment havebeen fairly well accepted by the MemberStates. This is due in part to the fact thatlegislation aimed at combating discriminationin this field (although not necessarily all theforms of discrimination listed in Article 13)already exists at national level in the majorityof Member States. Certain reservations, oreven strong opposition, have been voicedregarding the inclusion of certain forms ofdiscrimination, such as that based on disabilityor age. In particular, the requirementsdemanded of companies to provide accesscould place a heavy financial burden on smalland medium-sized businesses. In the case ofage, the concerns are financial ones. There areage limits in all the states, especially regardingretirement pensions or the payment of certainwelfare benefits.

This horizontal Directive leaves open thepossibility for the subsequent development ofmore specific Directives relating only tocertain forms of discrimination. Thisdevelopment takes the form of a Directivewhich aims initially to combat discriminationbased on racial or ethnic origin.

While the political will to adopt such ahorizontal Directive appears to exist, does italso exist in regard to a Directive whichaddresses the problem of discrimination basedon racial or ethnic origin? As CommissionerFlynn expounded in Vienna, there is amomentum which should be utilised. Thismomentum was created by a series of events,including the Council of Europe’s “Alldifferent, all equal” campaign, the EuropeanYear Against Racism, the campaign which hasbeen led by the Starting Line Group since thebeginning of the 1990s, the various jointdeclarations of the European institutions andthe numerous resolutions of the EuropeanParliament. This level of pressure did not existfor the other forms of discrimination, apart fordiscrimination based on sex.

What do other anti-discriminationorganisations in general think about theCommission’s choice to take action in the firstplace against discrimination based on racialand ethnic origin, even though it has made anumber of assurances that it would neverprioritise or have any kind of order ofpreference among the various forms ofdiscrimination? These organisations approveof the idea of a specific Directive linked toracial or ethnic origin, as this will allow themto secure a Directive aimed at combatingdiscrimination based on sex, religion or belief,disability, age or sexual orientation, in otherareas apart from that of employment.

§2. The proposals of the European Commission9

9See discussion paper of the European Commission on the possiblecontents of the two legislative proposals to implement Article 13, andthat of a framework programme to combat discrimination.




However, they are very exacting regarding thequality of the European Commission’sproposal, since this proposal will determine toa certain extent the potential protectionavailable at European level.

There are a great number of similarities in thetwo proposals for Directives. The MemberStates will have to ensure that adequateinformation is available regarding theprovisions which they adopt, and that theappropriate procedures (providing for theapplication of sanctions which are effective,appropriate and dissuasive) exist in order toallow the victims the possibility of applyingfor compensation. All laws, regulations oradministrative provisions which contravene theprinciple of equal treatment as it is defined inthe two Directives will have to be abolished.

2.1 A Directive aimed at combating the forms of discrimination whichare listed in Article 13 in the field of employment.

The material scope of this Directive is limitedto the field of employment, but it covers allthe forms of discrimination outlined in Article13, with the exception of sex. This exceptionis justified by Article 141 of the Treaty10 andby the Directive 76/207/CEE and thesubsequent Directives which deal with theprinciple of equal opportunities for men andwomen in the field of employment.

The definitions will be drawn from theDirective 76/207/CEE and its successors andfrom the interpretation, which was given bythe European Court of Justice. Harassmentwill be considered as discrimination and theadoption or maintenance of affirmative actionat national level will be authorised. TheDirective will respect the principle ofsubsidiarity while aiming to guarantee aminimum degree of protection at Europeanlevel. The Member States having or wishing tohave more favourable measures at national

level will be free to retain these provisions orto adopt new ones.

However, the proposal will contain oneexemption. Differences in the treatment ofgroups or individuals that can be objectivelyand reasonably justified are not considered toconstitute discrimination. This will only applywhen the provision, criteria or practiceinvolved is justified and necessary in order toachieve a legitimate aim that is not connectedto discrimination. This provision is included inresponse to the concerns of some MemberStates regarding, for example, the taking intoaccount of age for the allocation of certainwelfare benefits and the calculation ofretirement pensions, etc.

The burden of proof rests with the defendant(the person who is accused of discrimination)who will have to prove that he or she has notviolated the principle of equal treatment. Theplaintiffs will be protected from victimisation

10Article 141:

1. Each Member State shall ensure that the principle of equal payfor male and female workers for equal work or work of equalvalue is applied.

2. For the purpose of this Article, “pay” means the ordinary basicor minimum wage or salary and any other consideration,whether in cash or in kind, which the workers receives directlyor indirectly, in respect of his employment, from his employer.Equal pay without discrimination based on sex means:

a) that pay for the same work at piece rates shall be calculatedon the basis of the same unit of measurement;

b) that pay for work at time rates shall be the same for thesame job.

3. The Council, acting in accordance with the procedure referred toin Article 251, and after consulting the Economic and SocialCommittee, shall adopt measures to ensure the application of theprinciple of equal opportunities and equal treatment of men andwomen in matters of employment and occupation, including theprinciple of equal pay for equal work or work of equal value.

4. With a view to ensuring full equality in practice between menand women in working life, the principle of equal treatment shallnot prevent any Member State from maintaining or adoptingmeasures providing for specific advantages in order to make iteasier for the underrepresented sex to pursue a vocationalactivity or to prevent or compensate for disadvantages inprofessional careers.

Campaign against racism and xenophobia



that can occur after a complaint. Furthermorethe Member States will have to allow groupsor organisations the opportunity to institutejudicial or administrative proceedings on thebasis of a violation of the obligations of theDirective.

The Directive will cover the following areas:

• access to employment, self-employmentand occupation, including selection criteriaand recruitment conditions and at all levelsof the professional hierarchy, includingpromotion;

• access to vocational guidance andoccupation;

• employment and working conditions,including dismissals and pay;

• membership of professional or trade-unionorganisations

2.2 A Directive aimed at combating discrimination based on racial orethnic origin

This Directive is modelled on the previous oneas regards the principles, definitions and partof its implementation.

The aim of this Directive is to put in place andto maintain a common minimum level ofprotection and to apply the principle of equaltreatment to individuals irrespective of theirracial or ethnic origin. The Member States arefree to introduce or to maintain provisionswhich are more favourable than thosecontained in the Directive. This Directive willcontain a number of definitions. Thesedefinitions, like those given by the StartingLine Group, are inspired by the definitionscontained in the two Directives of 1976 and1997 which relate to the equal treatment ofmen and women in the area of employmentand to the burden of proof in cases ofdiscrimination based on sex. The definitiongiven of discrimination will includeharassment. The Commission will not oblige

the Member States to introduce affirmativeaction but neither will it prohibit such action(as in the case of discrimination based on sex).The Member States, which have alreadyestablished affirmative action at national level,will be able to retain it and those who wish tointroduce it will be able to do so.

As in the case of the Starting Line and the1997 Directive mentioned above, the burdenof proof rests with the defendant, with theexception of criminal proceedings. As with theStarting Line, the Member States will have toensure protection from victimisation and allowgroups and organisations to institute judicialor administrative proceedings on the basis ofviolations of the obligations of the Directive.Furthermore, for countries, which do notalready have them, the Directive will providefor the establishment of independent bodieswith the task of combating racism and moregenerally for the protection of human rights.These independent national bodies will have atwofold task: on the one hand to monitor theimplementation of the new legislation andmake recommendations on its implementationand on the other hand the opportunity toreceive and deal with complaints.

The international conventions (of the UnitedNations and the Council of Europe) whichrelate to the combating of racialdiscrimination will be expressly mentioned inthe preamble. However, this proposal for aDirective aims to protect only persons orgroups of persons who experiencediscrimination based on racial or ethnic origin,even though it is sometimes very difficult todistinguish between racial and religiousdiscrimination. When the Starting Line Groupwas developing its proposal for a Directive,“Starting Line”, it also ran into this issue ofterminology. How should racism andxenophobia be defined? In some MemberStates, religious discrimination would beincluded in the term “racism”. In the UnitedKingdom, for example, the “Race Relations




Act” covers discrimination against Jews orHindus but does not offer any protection toSikhs and Muslims who represent twoimportant communities. The United Kingdomis currently in the process of remedying thissituation.

ENAR believes it to be important thatreligious discrimination is included in theEuropean Commission’s proposal for aDirective. However, in the countries wheresome churches enjoy a privileged status, theinclusion of discrimination based on religionor belief could seriously and inevitablyendanger the chances of success for thisDirective during the negotiations within theEuropean Council. Rather than drasticallydelaying the project and risking the rejectionof the proposal, ENAR will support theCommission’s proposal, if it contains theprinciples set out by the Starting Line, andwill continue to campaign for the inclusion ofthe missing principles (in particular theprohibition of incitement or pressure to racialor religious discrimination).

In accordance with Article 13 and the generalprinciples of the treaty, this Directive willrespect the limits of the Community powers aswell as the subsidiarity principle. The scope ofthis proposal has been extended in comparisonwith the previous proposal and does not applyonly to employment but also to:

• access to employment, to self-employmentand to any profession;

• access to vocational guidance and training;• working conditions, including dismissals

and pay;• membership of professional trade unions or

organisations;• social protection and social security;• welfare advantages;• education;• access to - and the supply of - goods and

services;• cultural activities and sports.

Complementary measures will also have to betaken at national level to supplement thisproposal for a Directive.

2.3 Framework programme to combat discrimination

While legislation is one of the ways ofcampaigning against discrimination, it is notthe only one. There is a great deal of work tobe done in the areas of information andeducation. This is the reason why theEuropean Commission wishes to propose aframework programme, valid for several years,which would include accompanying measuresto European Union policies in the followingareas:

• improvement of the understanding ofproblems related to discrimination throughimproved knowledge and measurements;

• improvement of the effectiveness ofpolicies and practices;

• encouragement of non-discrimination in themedia;

• improvement of the capacity of the targetactors by promoting exchange of bestpractices.

The adoption of this framework programme isof great significance to supplement theexistence and implementation of the twoDirectives.

Although the European Commission is firmlycommitted to seeing these two proposals forDirectives and the framework programmesucceed, it is important to remember that theCommission plays no role in the decision-making process. It is the European Council,that is the governments of the Member States,who will decide whether or not theseproposals will be adopted. This is why it isessential that we, as the European NetworkAgainst Racism, should maintain a certainamount of pressure at European level, butconcentrate on working at national level.

Campaign against racism and xenophobia



Although the NGO community was worriedthat the European Year Against Racism wasonly a one-off event to raise awareness, it gaverise to some very positive results. TheEuropean Commission is currently putting thefinishing touches to several proposals. It hasinitiated a process of consultation with non-governmental organisations and is keen to taketheir opinions into consideration. According tothe information available to date, the EuropeanCommission’s proposals, while they may notfully uphold the principles and measuresoutlined in the Starting Line proposal, seemnevertheless to be along the same lines.

E NAR is pleased with the way in which theEuropean Commission has proceededf o l l owing the European Year A gainst Racism in1997, the generally encouraging approach it

has used and the fact that a number of ourdemands have been retained (such as ther eversal of the burden of proof). Howeve r,religious discrimination was only taken intoconsideration in the proposal for a horizontalD i r e c t ive concerning employment. We feel thatthis approach is not entirely satisfa c t o ry, give nthat in some countries religious discriminationwill still be covered by the term “racism”. T h i swill lead to inequality in the treatment ofpeople living within the European Union.C o n s e q u e n t ly, we will have to persist in oure ff o rts to ensure that people who arediscriminated against on the basis of theirreligion or their beliefs are protected equally inall the Member States and in all the diff e r e n taspects of their eve ry d ay life. This protection isn ow possible, thanks to A rticle 13.

Campaigning against racism and xenophobia Opportunities provided by Article 13


From its formulation it is clear that Article 13is a clause based on political compromise. Infact, Article 13 has no direct effect (directeffect is the possibility for citizens to invokeCommunity rules directly from nationalinstances), requires unanimity and is restrictedin its scope to Community powers, that is theareas which are set out in the Treatyestablishing the European Communities asareas in which the Community can act.

Opinion concerning the scope of article 13 isdivided. We are convinced that by amendingthe Treaty in order to include Article 13,giving the European institutions the power toadopt measures aimed at combatingdiscrimination, the Community powers havede facto been extended. With the inclusion ofArticle 13 in the TEC, new opportunities andpowers have thus been conferred on theEuropean Community. However, someMember States (such as Germany) take acompletely different approach and are of theopinion that Article 13 does not confer anynew powers and that its application is strictlylimited to the existing powers of the TEC. Theofficial translation of Article 13 runs the riskof necessitating a more exhaustive legalclarification of this issue: while the Frenchand German versions use the word“competencies”, the English version uses theword “powers”.

The Member States are very insistent thatArticle 13 only means that the Europeaninstitutions are able to take action and that itdoes not impose any obligations to actwhatsoever. Furthermore, any action takenmust comply with Article 512, whichestablishes the principle of subsidiarity. Anumber of Member States take refuge in thisprinciple of dividing up the powers (European

and national), conferred by the treaty at theheart of the European Union. The Europeaninstitutions can only act, according to theprinciple of subsidiarity, when action atnational level is insufficient or when it fails toachieve the necessary level of effectiveness.

However, Article 13 concerns both citizens ofthe European Union and third countrynationals, if the latter are discriminated againston the basis of their racial or ethnic origin,their religion or beliefs. Notwithstanding this,some Portuguese officials are of the opinionthat the rights enjoyed by citizens of theEuropean Union should only be accordedgradually to third country nationals.

The implementation of Article 13 is viewed bysenior civil servants in some Member States asprimarily dependent on the political will of theMember States to act in this area, rather thanbeing a purely legal matter. It is important toremember that it was this strong political willwhich was missing during the negotiations onthe Treaty of Amsterdam. The use of Article13 as a legal basis for European legislationmay well be postponed by Member States, onthe pretext of awaiting a clearer justification

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§3. Opportunities provided by Article 1311

11The information contained in points 3, 4 and 5 is based on thedocument, “Article 13: a new challenge for European institutions”,Migration Policy Group, 1999.

12Article 5 of the Treaty establishing the European Community:

"The Community shall act within the limits of the powers conferredupon it by this Treaty and the objectives assigned to it therein. Inareas which do not fall within its exclusive competence, theCommunity shall take action, in accordance with the principle ofsubsidiarity, only if and insofar as the objectives of the proposedaction cannot be sufficiently achieved by the Member States and cantherefore, by reason of the scale or effects of the proposed action, bebetter achieved by the Community.

Any action by the Community shall not go beyond what is necessaryto achieve the objectives of this Treaty”.

Campaigning against racism and xenophobiaOpportunities provided by Article 13


of the nature of Community powers and theprinciple of subsidiarity by the Europeaninstitutions. Thus, the Member States arewaiting for the European Commission toprovide an interpretation as well as adefinition of the Community powers regardingthis matter.

In some countries, the question of the penalchapter has been widely raised. These MemberStates are doubtful about the feasibility ofthese prohibitions being included in alllegislation based on Article 13. Prohibitionalways implies criminal sanctions and thepenal chapter is not part of the Communitypowers. According to these Member States,Article 13 can only lead to the adoption ofmeasures which are of a purely civil andpreventative nature. Even though it is notentirely clear whether criminal sanctionswould be authorised in the First Pillar, we areof the opinion that they would nevertheless

not fall completely outside the Communitypowers. A discussion is currently in progressregarding the subject of competition, as it isgoverned by Articles 81 and 82 of the Treaty(previously Articles 85 and 86), which is alsodependent on the First Pillar (Communitypowers). If it transpires that no criminalsanctions are possible in the community area,then the following solution might beconceivable: the development of guidelineswhich are non-binding but to which thenational courts of justice would have to refer.

However, in the majority of countries, thegovernments categorically refuse to see theimplementation of Article 13 as an obligationto adopt affirmative action measures.

Nevertheless, it is quite clear that the will tomake use of Article 13 as well as the necessityof adopting European measures is understoodvery differently by the 15 Member States ofthe European Union.

Campaigning against racism and xenophobia The political will of the Member States


With the adoption of Article 13, while all theMember States were pleased for such a clauseto be inserted into the treaty, some of themexpressed reservations about the urgency of itsimplementation or admitted to having an orderof preference regarding which grounds ofdiscrimination should be protected first. TheMember States have fallen back on the “maytake action” from the European Commissionwhich is in no way an obligation, and on therespect of the principle of subsidiarity.

In addition, some Member States areconcerned about the increase in the number ofinstruments aimed at combatingdiscrimination, given the existence ofinternational agreements. They are notconvinced of the absolute necessity of newregulations at European level. In contrast,other Member States are surprised by thereluctance of some governments to adoptmeasures at European level, given theexistence of these international legalagreements (such as the United NationsInternational Convention on the Elimination ofAll Forms of Racial Discrimination). Thesestates recognise that these internationalagreements are not always respected or areapplied incorrectly.

The same rationale applies to the countrieswhich already have legislation aimed atcombating racism or racial and/or religiousdiscrimination at national level. Some statesdo not wish to see binding measures adoptedat European level, since legislative measuresalready exist at national level. Other statesrecognise that their own legislation may nolonger be appropriate, may be wrongly appliedor may even be rarely used. In some MemberStates where there are no national measures,some governments hope, by means of a

European measure, to be able to benefit fromthe experience of other countries. However,other governments use their own lack ofnational legislation and, again, the existence ofinternational legal instruments to justify theiropposition.

The use of the instruments which wereestablished as part of the Third Pillar (jointactions concerning the fight againstinternational crime, of which racism is a part)is invoked by some Member States as apossible alternative to measures adopted onthe basis of Article 13. Article 2913 of theTreaty on European Union identifies the needfor, and necessity of, reinforcing co-operationbetween the Member States and recognisesracism as a criminal act or offence. This is asignificant step forward. We are of the opinionthat while the joint actions existing in theThird Pillar are important and should beapplied, they are nevertheless not sufficientand that a binding measure, such as theDirective, at community level is essential inorder to guarantee the same level of protectionin each of the 15 Member States. Racism isnot only a criminal act but is also, above all,an issue of social behaviour.

The Member States question the financialcosts of implementing Article 13, especially interms of welfare benefits.

A large majority of Member States wouldprefer that Article 13 be used in a sectoral

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§4. The political will of the Member States

13Article 29 of the Treaty on European Union (previous Article K.1):“Without prejudice to the powers of the European Community, theUnion’s objective shall be to provide citizens with a high level ofsafety within an area of freedom, security and justice by developingcommon action among the Member States in the fields of police andjudicial co-operation in criminal matters and by preventing andcombating racism and xenophobia...”.

Campaigning against racism and xenophobiaThe political will of the Member States


manner (that is according to form ofdiscrimination and not as a whole). Althoughthe various Member States each have theirown priorities, the campaign against racismseems to be able to achieve consensus. Ahorizontal measure in the field of employmentseems, a priori, to meet with the approval ofthe Member States because the majority ofstates already have similar measures atnational level. However, reservations havebeen voiced regarding some forms ofdiscrimination. The Member States fear thatthe necessity of unanimity might slow downthe decision-making process and lower thelevel of protection. In fact, the Member States

have high demands relating to the quality ofthe measure (superior to existing nationallegislation) as well as to its application. Theyalso have great expectations of theinterpretation of the European Court ofJustice.

In addition, the Member States have highexpectations of the European Commission interms of definition and interpretation, but theyalso expect to be consulted and that a fullsurvey of existing measures at national levelbe undertaken. This consultation, which hasalready begun, includes non-governmentalorganisations and social partners as well as theMember States.

Campaigning against racism and xenophobiaWhat action is possible at European level

based on Article 13?


There are various measures aimed atcombating racism and xenophobia which canbe adopted on the basis of Article 13,including regulations, Directives,recommendations, green papers and actionplans. It is clear that we are campaigning forthe adoption of a binding measure. The onlybinding instruments are regulations orDirectives.

Regulations, which become part of nationallegislation, do not allow the Member Statesany flexibility and so do not seem to us to bethe most appropriate instrument. This is firstand foremost because numerous compromisesare necessary in order to succeed in theadoption of a regulation and this risks adramatic lowering of the level of protectionwhich we wish to see applied in all theMember States of the Union. At the sametime, by denying the direct effect of Article13, the Member States have implicitly rejectedthe possibility of a regulation.

During the closing ceremony for the EuropeanYear Against Racism in Luxembourg inDecember 1997, Commissioner Flynn,

responsible for Social Affairs, announced hisintention of proposing a Directive aimed atcombating racism. A year later, in Vienna, hegave precise details of the measures which theCommission intended to propose for theimplementation of Article 13:

• a framework Directive dealing on a generalbasis with all grounds of discrimination inemployment;

• a Directive dealing specifically with thefight against discrimination based on racialor ethnic origin;

• a programme of action aimed at reinforcingco-operation between the Member Statesand civil society, based on partnership andnetworking, as well as the sharing of bestpractices.

These proposals are still in the developmentstage. Some details, regarding the content ofthe various proposals, have been given by theEuropean Commission through variousconsultation processes with government

representatives, social partners, and non-governmental organisations (for details seepoint 2).

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§5. What action is possible at European levelbased on Article 13?

Campaigning against racism and xenophobiaStrategy and campaign


A genuine co-ordinated campaign must existfrom this point onwards, even though theEuropean Commission’s proposals have notyet been made public and the date of theirofficial release is still uncertain (November1999 to January 2000). From now on theEuropean Network Against Racism mustposition itself as a valuable interlocutor bothat European level and at national level, in thegovernmental and non-governmental sectors.In Point III of our action programme,“Lobbying and campaigning”, it is written thatwe “should not only direct the policies of theEuropean Union” but also “try to influence thedecision-making process and lead Europeancampaigns in the following areas”, followedby a list of areas in which we have a role toplay. The following points are those which aredirectly linked to the European Commission’sproposals for directives:

• anti-discrimination legislation and theestablishment of supervisory mechanismsto secure the full implementation ofexisting and future legislation;

• the elimination of all aspects of structuraland institutional racism;

• measures to bring about equality of accessto services, decision-making structures,labour-markets, education, housing andleisure;

• preventive and educational measures tocombat racism, xenophobia, anti-Semitismand Islamophobia;

• ensure that the European Union adoptsadequate equality measures in itslegislation (regulations, directives etc.) sothat they do not have a discriminatory orracist effect;

• the introduction of positive action measuresacross all European Union institutions to

ensure adequate representation andparticipation by those directly affected byracism. This should take place at all levelsand in all arenas, for example the politicalmachinery, employment and servicedelivery. Ensure effective monitoringmechanisms are put in place to secure theimplementation of these measures.

In order to optimise the realisation of theseobjectives, concerted action is very important.It is necessary to be constructive and clear andto have precise proposals. It is essential toencourage debate and then to make sure thatthis debate remains in the political agenda. Itis well known that the various Member Statesdo not share the same conceptions of the fightagainst racism or the same level ofunderstanding regarding the means ofimplementing it.

6.1 Clear proposals

The proposals must be acceptable and well-worked out so as to fulfil the criteria laid outby non-governmental organisations. However,in order to be considered at the level of theEuropean institutions and governments, theymust be sufficiently realistic. Essentially, theymust constitute a compromise between thevarious organisations in the various countries.

For some years now, the governments in mostof the Member States have realised that thenon-governmental organisations are able toformulate good proposals and provide aninteresting analysis of the situation. At thesame time, the non-governmentalorganisations are increasingly working on aEuropean level and have partners in otherMember States. This enables them to developa much more global view of the issues than

§6. Strategy and campaign

Campaigning against racism and xenophobia Strategy and campaign


that of some governments who concentrate ontheir own national level.

Furthermore, it is absolutely essential to beable to explain our proposals and to be able tojustify each aspect in relation to our objectivesand to the current political and legislativesituation.

In order to fulfil these criteria, it is imperativeto have consulted with other organisations inother countries and also with academic expertsin the field who have wide-rangingexperiences to contribute. This was done inthe Starting Line Group and was probably oneof the reasons for its success. At the time thatthe Directive was being developed, a numberof organisations were consulted. It is veryimportant not to lose contact with thesegrassroots organisations which describe invery concrete terms the problems which theyencounter on the ground. It is essential to takethese problems into consideration during thedrafting process in order to provide solutions.

It is also very useful, indeed imperative, toconsult with other players in civil society, suchas trade unions and social partners, who canbring their expertise and experience infighting against discrimination in theworkplace. Churches should also be involvedwith this work (not forgetting that religiousintolerance can itself be a form of racism). Ashas been explained above, the contacts whichwere made by the Starting Line Group withvarious churches has been very beneficial,since they revealed the very strong oppositionfrom some churches to the idea of associatingthe fight against discrimination based onreligion or beliefs with the fight againstdiscrimination based on racial or ethnic origintogether in one Directive. This opposition hascompelled the members of the Group to find acompromise which all parties findsatisfactory, by drawing on the experience ofother countries.

In the case of the “Starting Line” proposal,this consultation process has already takenplace and the proposal has been drawn up andofficially presented. The aim of the processhere is to achieve the objectives which wehave set, that is the adoption of a Directive (orof two Directives) aimed at ensuring equaltreatment. However, it is important to be awarethat a text is rarely perfect and that its primaryaim is to serve as the basis for discussion. Infact, it is easier to start discussion with aconcrete proposal. As has been discussedabove, several of the points included in the“Starting Line” have been taken up by theEuropean Commission in its own proposals,which proves the effectiveness of genuinedialogue.

6.2 Leading a campaign at European level

Leading a campaign at European level meansestablishing contacts and initiating dialoguewith the various European institutions.

6.2.1 The legislative procedure

The consultation procedure which will beemployed for the adoption of all legislationbased on Article 13 will develop as follows:

• the Commission presents a legislativeproposal,

• the European Parliament must express anopinion on the proposal. The opinion of theParliament takes the form of a resolution,including amendments;

• the Council of Ministers can accept orreject the Commission’s proposal as well asthe Parliament’s amendments. In no case isthe Council obliged to adopt theamendments of the Parliament or to followits recommendations. However, the Councilis obliged to wait for the EuropeanParliament to have expressed its opinion inorder to make a decision on theCommission’s proposal. The Council makesits decision on the basis of unanimity.

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Campaigning against racism and xenophobiaStrategy and campaign


6.2.2 The European organisations

Organisations exist at European level which,while their principle aim may not be thecampaign against racism, nevertheless includeit in their action programme. It is important toestablish contact with these organisations, inorder to study the potential for joint actions. Itis also important to establish relationshipswith other lobbies (for example, the women’slobby, the disabled lobby, the homosexuallobby, etc.), to study the two differentEuropean Commission proposals. The firstproposal concerns all forms of discriminationand the second may potentially be able toserve as an example for subsequent Directivesaimed at ensuring equality of treatment inspheres other than that of racial or ethnicorigin.

6.2.3 The European Parliament

It is relatively simple to establish contact withthe Member of the European Parliament(MEP) who represents the constituency inwhich organisations associated with ENARare located. Meeting an MEP is anopportunity not only to present the proposal,but also to demonstrate that non-governmentalorganisations, and particularly the members ofthe Network, follow closely the developmentslinked to the European initiatives in the sphereof the campaign against racism. The newMembers of the European Parliament areunlikely to be familiar with the subject andwill need the information we can provide.However, it is useful to check on whichparliamentary committee they sit.

It is also important to contact the differentparliamentary committees concerned, as wellas the various political groups. Someorganisations are based a long way away fromBrussels and do not have the opportunity to gothere. In this case, contacts may still beestablished by post or by telephone.

The European Parliament has always shown

great support for the fight against racism andconstitutes a real ally that it is important tokeep informed.

6.2.4 The European Commission

As for the European Parliament, it is useful tokeep the Commission informed of our variousprojects, of our discussions on the subject andto meet or contact the various responsiblepeople. The aim is to provoke debate and tokeep this debate open. In recent years, theEuropean Commission has demonstrated aclear will to act in the sphere of the campaignagainst racism and xenophobia and hasinitiated a process of consultation anddiscussion with non-governmentalorganisations, which is important to continue.

6.2.5 The Council of Ministers

To work at the level of the Council ofMinisters is effectively to work at nationallevel, since it is those ministers at the heart ofthe Council who have the power to makedecisions.

6.3 Leading a campaign at national level

6.3.1 The governments

In order to do this it is essential to meet andconvince national governments, since we needthem in order to succeed in combating racism,xenophobia and anti-Semitism in an effectivemanner. The governments are a target whichwe must reach in order to be able to considerthem either as allies, or partners with whom itis possible to work and communicate. Thus itis necessary to make contact with the variousministries concerned with Article 13(depending on the country, this may be theMinistry of European Affairs, Ministry ofJustice, Ministry of Social Affairs, Ministry ofEmployment, Ministry of Home Affairs, etc.).In order to be able to target the campaignbetter, it is useful to know their positions andmotivation. In this way it is possible to

Campaigning against racism and xenophobia Strategy and campaign


identify and locate the potential support fromwhich we might benefit and to be aware ofparticular points which might give rise toproblems.

6.3.2 Non-governmental organisations

The national organisations must also beinvolved in the processes of information,consultation and action. The dissemination of

information is important because somenational organisations do not always have themeans to keep themselves informed aboutEuropean policies and they sometimesexperience difficulty in appreciating theimportance of working at national level, inorder to be able to reach the European level.At national level it is also essential to ensurethat a single voice is heard and to lead unitedaction.

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Campaigning against racism and xenophobiaConclusions


The inclusion of an anti-discrimination clause(Article 13) in the treaty is a big step forwardbecause it is the indispensable legal basis toenable action against racism and xenophobiaat European level. The insertion of this clauseis the result of years of effort, concreteconstructive work and concerted action fromthe NGOs. But the actual formulation of thisclause leaves its eventual application up to thediscretion of the Member States as anymeasure based on Article 13 requiresunanimity. If no compromise or agreementbetween the Member States is reached, article13 could remain unused. ENAR will do itsbest to ensure that this does not come to pass.

Because the two proposals for a directive andthe programme of action will be the firstmeasures to be adopted on the basis of Article13, it is essential that the level of protection tobe accorded is high and guarantees the samerights to everyone.

The texts of these proposals have not yet beenpublished. ENAR has been working on thebasis of the discussion paper published by theEuropean Commission and differentinterviews with civil servants of theDirectorate General Employment and SocialAffairs responsible until now for the fightagainst racism. Apparently, the DGEmployment and Social Affairs will no longerbe the only Directorate involved in the fightagainst racism, as the DG Justice and HomeAffairs will have been nominated co-author ofthese proposals. The NGOs need to know towhom they should refer to and who isresponsible for these proposals.

Concerning the proposal for a directive aimedat fighting racial and ethnic discrimination, tobe presented in the near future, ENAR feels

nevertheless that some reservations should beexpressed. Even though the content of thisdirective includes a certain number ofprinciples and definitions as enumerated in theStarting Line proposal, other equallyimportant principles have been excluded. Forinstance, what is the status of the fight againstdiscrimination based on religion and belief?We are very much aware of the element ofcompromise present in such a proposal asexpressed above in point 1.2.a, but certainpoints and principles remain to be defined andspecified. Why has institutional (andsometimes institutionalised) racism not beenincluded in the proposal of the EuropeanCommission ?

It is fundamental that the text of a directiveaimed at fighting racial and ethnicdiscrimination defines and includesdiscriminatory acts or practices exercised bypublic authorities. In this context it isabsolutely necessary to mention obligations aswell as responsibilities of public institutionsand services. What reprehensible acts aregoing to be included in these proposals ? It isof primary importance to define the crimeswhich could lead to a sanction. Therecognition of incitation or pressure aimed atracial or ethnic origin as a characterised crimewhich could be sanctioned is the keystone ofthe fight against racial and ethnicdiscrimination. Otherwise how will it bepossible to sanction or even to prohibit, forexample (as recommended by the StartingLine Group), the establishment or activities oforganisations encouraging discrimination ?

It is undeniable that today the working tools ofracist organisations include, among othermeans, written propaganda (revisionist orother literature, tracts, memoranda etc.), music

§Conclusions

Campaigning against racism and xenophobia Conclusions


(extremist groups popular among the youngergeneration) and internet (specialised Websites,games, networks etc.). It is essential to be ableto fight against such acts or practices that aretoo often neglected under cover of the respectof freedom of expression.

It would be unacceptable for certain principlesnot to be included in the EuropeanCommission’s proposal. Although ENAR isnecessarily in a waiting position with regard tothe different proposals from the EuropeanCommission, we will scrutinise the content ofthe proposal for the directive fighting racial

and ethnic discrimination with utmostattention, to ensure that the right not to bediscriminated against becomes a complete partof fundamental rights of the European Unionand that the implementation of these rights(after adoption of this directive) is carried outin a satisfactory way in the 15 Member States.

More than ever today, it is necessary tocontinue to work together to intensifylobbying both at national and European levelto further the fight against racism, conditionsine qua non to achieve real equal treatment.

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During the printing of the publication, the European Commission released the pack age of the

t wo directives and the action plan. T h ey are available at ENAR upon re q u e s t .

The New Starting Line Proposal

To the European Parlament, Council & Commission and Member States of the European Community

for aDraft Council Directive concerning

the Elimination of Racial and Religious Discrimination

(Text prepared by the Starting Line Group)

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The Starting Line A New Proposal


UK

The Council of the European Economic Community, having regard to the Treaty establishing theEuropean Community and in particular Article 13 thereof;

Having regard to the proposal from the Commission,Having regard to the opinion of the European Parliament,Having regard to the opinion of the Economic and Social Committee,

Whereas the Member States, in the preamble to the Single European Act, declared theirdetermination to work together to promote democracy on the basis of the fundamental rightsrecognised in the constitutions and laws of the Member States, in the European Convention for theProtection of Human Rights and Fundamental Freedoms and the European Social Charter, notablyfreedom, equality and social justice, and acknowledged the responsibility incumbent upon Europeto manifest in every regard the principles of democracy, the rule of law and human rightsobligations to which they have adhered;

Whereas the European Convention on the protection of Human Rights and Fundamental Freedomssafeguards such rights as freedom of expression, it also recognises the limits on such rights “as areprescribed by law and are necessary in a democratic society, in the interests of national security,territorial integrity or public safety, for the prevention of disorder and crime, for the protection ofhealth and morals, and for the protection of the reputation or rights of others (…)"1;

Whereas the Presidents of the Parliament and the Council, the Representatives of the MemberStates meeting within the Council and the President of the Commission signed on 11 June 1986 theDeclaration against Racism and Xenophobia2, affirming their resolve to protect the individualityand dignity of every member of society;

Whereas the European Council at Maastricht in December 1991 asked Ministers and theCommission to increase their efforts to combat discrimination and xenophobia, and to strengthenthe legal protection for third country nationals present on the territory of Member States3;

Whereas the European Council at Edinburgh in December 19924 reaffirmed its conviction thatvigorous and effective measures must be taken, throughout Europe, to combat racist attacks boththrough education and legislation, and to implement fully policies for integrating legal immigrants.

Whereas the Council of Ministers, in its Resolution of October 19955 on the fight against racismand xenophobia in the fields of employment and social affairs called for fighting all forms oflabour discrimination against workers legally resident in each Member State and promoting equalopportunities for the groups most vulnerable to discrimination, in particular women, young peopleand children;

Whereas the European Council at Corfu in June 19946 proposed to develop a global strategy at theEuropean Union level aimed at combatting acts of racist and xenophobic violence, and constituted

1Article 10-2 ECHR2OJ C 158, 25.6.19863Bulletin of the EU, December 19914Bulletin of the EU, December 19925OJ C 296,5.10.19956Bulletin of the EU, June 1994

The Starting LineA New Proposal


the Consultative Commission on Racism and Xenophobia;

Whereas the Consultative Commission on Racism and Xenophobia proposed, in its final report7, toamend the Treaty establishing the European Community so as to empower the European Union’sinstitutions to act against discrimination based on race, ethnic origin or religion, and recommendedthe establishment of a European Monitoring Centre;

Whereas the European Council at Florence in June 19968, determined to combat racism andxenophobia with utmost resolve, decided to establish the European Monitoring Centre;

Whereas the Council of Ministers, in its Resolution of July 1996 on the European Year againstRacism9, decided to encourage reflection and discussion on the measures required to combatracism, xenophobia and anti-Semitism in Europe;

Whereas discrimination between human beings on grounds of race, colour or ethnic origin is anobstacle to friendly and peaceful relations, and is capable of disturbing the peace and security ofpersons living side by side in the European Union;

Whereas the elimination of all forms of racial discrimination, whether direct or indirect, and ofattitudes and behaviour inspired by racism and xenophobia require the adoption of strict standardsand measures of control, to be applied by national, regional and local authorities;

Considering that it is the primary responsibility of the mass media and of education in eliminatingsocial prejudices among young people and in public opinion generally and in the promotion ofharmonious relations between different groups, particularly in avoiding sensationalist treatment ofthe differences which from time to time create opposition between these groups;

Whereas, these diverse groups cannot coexist successfully without the equal enjoyment andexercise of human rights and fundamental freedoms; whereas none should be marginalised or leftout of account, and whereas all should benefit equally from measures, including positive action, tobe adopted within the framework of an effective equal opportunities policy;

has adopted this Directive:

Article 1

1. In this Directive racial and religious discrimination shall mean any distinction, exclusion,restriction or preference which has the purpose or the effect of nullifying or impairing therecognition, enjoyment or exercise of human rights and fundamental freedoms or participationin the political, economic, social, cultural, religious life or any other public field on grounds ofracial or ethnic origin or religion or belief.

2. In this Directive the term “equal treatment” shall mean there shall be no discriminationwhatsoever, direct or indirect, based on racial or ethnic origin, or religion or belief in particular

7Raxen 6871/1/968Bulletin of the EU, June 19969OJ C 237,15.8.1996

EThe Starting Line A New Proposal


in the following areas:

• the exercise of a professional activity, whether salaried or self-employed;• access to any job or post, dismissals and other working conditions;• social security;• health and welfare benefits;• education;• vocational guidance and vocational training;• housing;• provision of goods, facilities and services;• the exercise of its functions by any public body;• participation in political, economic, social, cultural, religious life or any other public

field.

This principle is hereinafter referred to as “the principle of equal treatment”.

3. The purpose of this Directive is to put into effect in the Member States the principle of equaltreatment.

4. This Directive shall be without prejudice to national laws, regulations and administrativeprovisions favouring certain disadvantaged groups defined by racial or ethnic origin or religionor belief with the aim of removing existing inequalities affecting them or promoting effectiveequality of opportunity between members of society.

a) This Directive shall be without prejudice to the right of Member States to exclude from itsfield of application any occupational activities, (and where appropriate the training leadingthereto) and any other activities for which by virtue of their nature or the context in whichthey are carried out the racial or ethnic origin or religion or belief of the person is anessential determining factor.

b) Member States shall periodically assess any such exclusions in order to decide, in the light ofsocial or other developments, whether there is justification for maintaining the exclusionsconcerned. They shall notify the Commission of the results of this assessment.

Article 2

1. For the purposes of the following provisions direct discrimination exists where in respect of anyof the areas in Article 1(2) a person receives less favourable treatment on grounds of racial orethnic origin or religion or belief than other persons receive or would receive in any situationwhere the relevant circumstances of those other persons are the same or not materially different.

2. For the purposes of the following provisions indirect discrimination exists where in respect ofany of the areas in Article 1(2) an apparently neutral provision, criterion or practicedisproportionately disadvantages persons of particular racial or ethnic origins or religion orbelief, unless that provision, criterion or practice is appropriate and necessary and can bejustified by objective factors unrelated to race, ethnic origin or religion or belief.

3. a) For the purposes of the following provisions discrimination shall include victimisation.

b) Victimisation occurs where in respect of any of the areas in Article 1(2) a person or group of



persons is subject to any detriment by reason of that person or group of persons beinginvolved in or suspected of being involved in making a complaint or assisting a complaintalleging racial or religious discrimination, provided the allegation was not false and wasmade in good faith.

4. In this Directive any reference to a person’s religion or belief includes reference to his supposedreligion or belief and to the absence or supposed absence of any particular religion or belief

Article 3

1. Member States shall take the measures necessary to ensure that laws, regulations andadministrative provisions and practices relating to the areas listed in Article 1(2), shall confirmto the principle of equal treatment defined in that Article.

2. The obligation to comply with Article 1(2) to ensure the principle of equal treatment is a duty ofMember States, owed to any person who may be adversely affected by a contravention of thatArticle, and any breach of the duty is actionable accordingly.

Article 4

1. Member States shall take the necessary measures, in conformity with their legal systems, toprohibit by legal sanction

a) any discrimination of the kind mentioned in Article 2(1), 2(2) and 2(3) practised by anynatural or legal person and group or organisation;

b) incitement or pressure to racial or religious discrimination;

c) the establishment or operation of any organisation which promotes such incitement orpressure together with membership of any such organisation and the giving of aid, financialor otherwise to any such organisation.

d) any act or practice by a public authority or public institution of racial or religiousdiscrimination against persons, groups of persons or institutions;

e) the financing, defence or support by any public authority or public institution of racial orreligious discrimination by any person, group or organisation.

2. Member States shall ensure, by means of information and training and where need arises byappropriate sanctions that all officials and other representatives of the public authorities at everylevel abstain in the exercise of their functions from any racially or religiously discriminatoryspeech or behaviour.

3. Member States shall take the necessary measures to ensure that educators and persons workingin the mass media are aware that they bear responsibility for an educational role in combatingracial and religious discrimination, and that they behave accordingly.

4. Member States shall ensure that:

a) their legal systems provide appropriate and effective measures whereby all persons whoconsider themselves to haven been wronged by failure to apply to them the principle of equaltreatment as set out in this Directive may have recourse to a judicial remedy, in accordance



with the most effective national procedures, after possible recourse to other competentauthorities where appropriate;

b) any judicial remedy in respect of a complaint of racial or religious discrimination shallinclude adequate compensation for both pecuniary and non-pecuniary damages; there shallbe no limitations on the ability of the court or other competent authority to awardcompensation or such other remedy as is provided for by national law;

c) an effective judicial remedy shall enable persons who consider themselves wronged to defendtheir rights; the State shall provide for adequate information on procedures and remedies andshall provide support in respect of legal costs in accordance with the most favourableprovisions of national law;

d) organisations concerned with the defence of human rights and in particular with thecombatting of racism and xenophobia shall be able to institute or support legal actions incivil, administrative and criminal courts enforcing the rights granted under this Directive andprovisions in national law granting protection against racial and religious discrimination inareas mentioned in Article 1(2);

e) In each Member State appropriate bodies shall be established to which complaints of anyactivities which are contrary to the principle of equal treatment as set out in Article 1(2) maybe submitted; such bodies shall be required to investigate all complaints made to them andshall be granted all necessary powers to investigate any complaint. such bodies shall reachconclusions on all complaints, which conclusions shall be public, save that where appropriatethe body may exclude from any public document information enabling identification of acomplainant.

f) Appropriate conciliation procedures are made available which are capable of resolvingdifficulties between various individuals; such conciliation procedures shall not be mandatory;this shall be without prejudice to the right of the complainant to have recourse to judicialremedies in accordance with Article 4 (4)(a).

Article 5

Member States shall take such measures as are necessary, in accordance with their national judicialsystems, to ensure that, when persons who consider themselves wronged, because discrimination ofthe kind referred to in Article 2(1) 2(2) or 2(3) has occurred, establish, before a court or othercompetent authority, facts from which may be presumed that there has been direct or indirectdiscrimination, it shall be for the respondent to prove that no such discrimination has occurred. Theplaintiff shall benefit from any doubt that may remain.

Article 6

Member States shall introduce into their national legal systems such measures as are necessary toensure that:

a) the courts and other competent authorities may give such directions as are necessary for aneffective investigation and fair adjudication of any complaint relating to racial or religious



discrimination;

b) the parties concerned each have all the relevant information in the possession of the other partyor which may reasonably be assumed to be in its possession and which is necessary for them toexercise their rights. Parties shall not be required to disclose information the disclosure of whichwould substantially damage their interests in connection with matters other than the litigationconcerned.

Article 7

The provisions of the present Directive do not affect national legislation or applicable internationaltreaties granting more favorable guarantees against racial or religious discrimination.

Article 8

Member States shall ensure that the provisions adopted pursuant to this Directive together with therelevant provisions already in force, are brought to the attention of the public by all appropriatemeans.

Article 9

1. Member States shall adopt the laws, regulations and administrative provisions necessary tocomply with this Directive no later than two years after the adoption of the Directive. They shallforthwith inform the Commission thereof

2. When Member States adopt the provisions referred to in paragraph 1, such provisions shallcontain a reference to this Directive or be accompanied by such reference on the occasion oftheir official publication. The methods of making such a reference shall be laid down by theMember States.

3. Member States shall communicate to the Commission the texts of the provisions of national lawalready adopted or being adopted in the field governed by this Directive.

Article 10

1. Member States undertake to submit to the Commission a report on the legislative, judicial,administrative or other measures which they have adopted and which give effect to theprovisions of this Directive to enable the Commission to draw up a report for the Council andthe European Parliament:

a) within one year following the expiration of the period of two years provided for in Article9(1); and

b) thereafter every two years.

2. To assist the Commission in drawing up the report for the purposes of paragraph 1, theCommission may request further information from Member States and may receive information



from non-governmental organisations.

3. In drawing up the report for the purposes of paragraph 1, the Commission may makesuggestions and general recommendations based on the examination of the reports andinformation received from Member States.

Article 11

1. Within one year after the adoption of this Directive the European Monitoring Centre shallspecify standard criteria for annual monitoring of the performance by Member States of theirobligations under this Directive;

2. Member States shall submit annual monitoring returns based on the specified criteria to theEuropean Monitoring Centre, the first to be submitted one year after the expiration of the periodof two years provided for in Article 9(1).

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