Battle hots up over Commission’s bid to step up fight against discrimination

Date: 13/01/2000

Proposals drawn up by Social Affairs Commissioner Anna Diamantopolou to improve equal opportunities in Europe have thrown the issue of discrimination into sharp focus. Simon Coss considers the arguments for and against the planned measures

YOU might have thought that it would be hard to find anyone who would criticise moves to stamp out discrimination across the EU, yet the European employers' federation UNICE is doing just that.

The organisation is concerned that a package of anti-discrimination measures proposed late last year by Social Affairs Commissioner Anna Diamantopoulou was drawn up too hastily and could put additional strains on EU companies while doing little to tackle the sorts of practices it is designed to eradicate.

UNICE is still preparing its official response to the package of proposals, but staff at the organisation say it is already clear that the national groups which make up its membership are likely to have problems with Diamantopolou's plans.

The Commission's initiative is designed to give practical effect to Article 13 of the Amsterdam Treaty, which entered into force last year and, for the first time, gives the institution the right to propose EU laws to tackle discrimination.

"We feel the Commission has not really taken enough time to prepare this package or to really think about the best way to go about implementing Article 13," says UNICE social affairs expert Nicolas Gibert-Morin.

But the Commission rejects this, insisting its officials have worked long and hard to put the proposals together.

The institution had in fact carried out most of the ground work on the anti-discrimination package - a proposed directive designed to ensure equal treatment in the workplace regardless of race, age, disability, belief or sexual orientation; plans for legislation specifically designed to tackle all forms of racial discrimination; and proposals for an EU-wide anti-discrimination action programme - well before the Amsterdam Treaty entered into force last May.

By the time Diamantopolou took over the social affairs dossier from her predecessor Pádraig Flynn last autumn, the completed draft package was sitting on her desk waiting to be presented to the next available meeting of the full Commission.

The institution argues that EU-wide action is needed because anti-discrimination legislation is currently very patchy across the Union's 15 member states. It says that while some governments, notably in northern Europe, have put quite sophisticated rules on their statute books, in other countries laws are either woefully outdated or have been passed but are rarely respected.

The Social Affairs Commissioner underlined the contribution she felt the package would make to improving existing national anti-discrimination laws when she presented her plans to members of the European Parliament's citizens' rights committee early last month.

"Although all the member states have some form of protection against discrimination on some grounds, this package will require either a broadening or a deepening of the protections provided," she said.

"These proposals will bring a Community added value to existing national provisions by providing a comprehensive framework for protection against discrimination right across the European Union, including protection against harassment, positive action, remedies and proper enforcement."

The Commission insists that it produced its proposals relatively quickly after Amsterdam entered into force because it was specifically asked to do so both by MEPs and EU governments, most recently at the October summit of Union leaders in the Finnish city of Tampere.

Europe's trade unions also argue that EU-wide anti-discrimination laws are needed and the European Trade Union Confederation (ETUC) has welcomed Diamontopolou's plans.

"Every-day experience has shown that discrimination, whether on the grounds of racial or ethnic origin, sex or other reasons, is present in the workplace. The EU has an obligation to fight this problem and must call on employers to assume their responsibilities," said ETUC general secretary Emilio Gabaglio recently.

But such arguments cut little ice with UNICE. The organisation says it is particularly concerned that the elements of the planned directive on workplace discrimination which deal with disabled people and the elderly have been poorly thought through.

Gibert-Morin argues that a more effective way of ensuring a greater number of disabled and elderly people enter the EU workforce would be by using what he calls "active labour market policies". "I think that in general in these two cases you are really talking much more about labour market issues than discrimination," he says.

In the case of the elderly, Gibert-Morin suggests that reforming the Union's various laws on pension provision and retirement would go a long way to solving the problem, although whether the Union's millions of pensioners would agree with this is debatable.

When it comes to the disabled, Gibert-Morin suggests that if companies were given better incentives to take on disabled staff, then most would try to do so.

The UNICE expert did, however, welcome one aspect of the planned directive on workplace discrimination - a proposal to allow employers to take a potential worker's age into account if the needs of the job in question clearly required it.

Gibert-Morin maintains that the question of elderly and disabled people is not the only area where the Commission's thinking appears to be somewhat muddled. He also questions the logic of including specific elements dealing with harassment at work in a directive on discrimination.

"Harassment is clearly a genuine concern, but it is a totally different concept from discrimination," he argues. "There are already national laws that deal with the issue of harassment, so it seems somewhat strange for it to be included in this package."

The employers organisation also says it is concerned that the Commission is calling for the normal rules governing the burden of proof to be reversed in cases of alleged discrimination.

In general, when a person brings a complaint before a court or industrial tribunal about an employer's behaviour, he or she must provide proof that the grievance is valid. However, the Commission argues that, in future, employers who stand accused of discrimination should be obliged to prove their innocence when a charge is levelled against them.

UNICE argues that such a basic change in the legal process would unleash a flood of frivolous discrimination suits. But the Commission totally refutes this argument. It points out that the EU adopted a directive that reversed the burden of proof in sex discrimination cases in 1997 and, despite fears of a tidal wave of cases, there has not been a noticeable increase in the number of complaints brought against employers since then.

Finally, the employers' organisation says it finds it hard to understand why the Commission has proposed two Union directives which, in its view, appear to cover almost identical issues, with one calling for a general anti-racism law to be introduced across the EU and another dealing specifically with discrimination at work.

Critics suggest the Commission has deliberately proposed the two directives as a ploy to try to push Union governments into accepting its plans.

Many insiders say that some member states are unhappy with the proposed directive on workplace discrimination, but will find it difficult to oppose if they are debating it at the same time as the anti-racism plan, which deals with a generally-recognised "good cause".

EU social affairs ministers have not yet had the chance to discuss the anti-discrimination package in any depth. Diamantopolou briefed them on the main elements of the plan at their meeting last November, but it was not debated in detail. The next opportunity social affairs chiefs will have to discuss the package will be on 10 February, when they meet for informal talks in Lisbon.

However, one thing seems clear even at this early stage. At a time when governments are becoming increasingly wary about doing anything which will add to the burden on employers, swift agreement on the proposals is highly unlikely.

Major feature. Proposals drawn up by Social Affairs Commissioner Anna Diamantopoulou to improve equal opportunities in Europe have thrown the issue of discrimination into sharp focus.