Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation - Montesquieu Instituut

 

COUNCIL OFBrussels, 31 August 2009

THE EUROPEAN UNION

12792/09

Interinstitutional File:

2008/0140 (CNS)

SOC 478 JAI 544 MI 307

NOTE from :

The Presidency

to : The Working Party on Social Questions

on : 7 September 2009

No. prev. doc. : 12096/09 SOC 449 JAI 485 MI 276

No. Cion prop. : 11531/09 SOC 411 JAI 368 MI 246 Subject :

Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation

Delegations will find attached a set of Presidency drafting suggestions concerning the above

proposal.

ANNEX

Proposal for a

COUNCIL DIRECTIVE

on implementing the principle of equal treatment between persons irrespective of religion or

belief, disability, age or sexual orientation

(9) Therefore, legislation should prohibit discrimination based on religion or belief, disability,

age or sexual orientation in a range of areas outside the labour market, including social

protection, education and access to and supply of goods and services, including housing.

Services should be taken to be those within the meaning of Article 50 of the EC Treaty. [...]

...

(11) Deleted.

...

(12a) (new) In [...] accordance with the judgment of the Court of Justice [...] in Case C-303/061,

[...] it is [...] appropriate to provide explicitly for protection from discrimination by

(14a) Differences in treatment in connection with age [...] may be permitted under certain

circumstances if they are objectively and reasonably justified by a legitimate aim and the

means of achieving that aim are appropriate and necessary. Such differences of treatment may

include, for example, special age conditions regarding access to certain goods or services such

as alcoholic drinks, arms, or driving licences.

(15) Actuarial and risk factors related to disability and to age are used in the provision of

insurance, banking and other financial services. These should not be regarded as constituting

discrimination where service providers have shown, by relevant actuarial principles,

accurate statistical data or medical knowledge, that such factors are determining factors for

the assessment of risk. [...]

(16) Deleted.

(17) While prohibiting discrimination, it is important to respect other fundamental rights and

freedoms, including the protection of private and family life and transactions carried out in

that context, the freedom of religion, [...] the freedom of association, the freedom of

expression and the freedom of the press. Therefore the simple expression of a personal

opinion or the display of religious symbols or messages should be presumed as not

constituting harassment.

by the State, or by private parties in so far as the provision of those benefits by the latter is

funded by the State. In this context, the Directive applies with regard to [...] pecuniary

benefits, [...] benefits in kind and services, irrespective of whether the schemes involved are

contributory or non-contributory. The abovementioned schemes include, for example, access

to the branches of social security defined by Regulation 883/2004/EC on the coordination of

social security systems1, as well as [...] schemes providing for benefits granted for reasons

related to the lack of financial resources or risk of social exclusion.

(17c) (new) In the context of the free movement of workers, the Court of Justice has defined the

concept of "social advantages" as covering all rights or benefits which, whether or not linked

to a contract of employment, are generally granted to national workers primarily because of

their objective status as workers or by virtue of the mere fact of their residence on the national

territory and whose extension to workers who are nationals of other Member States therefore

seems likely to facilitate the mobility of the latter workers within the Community. This

Directive does not cover rights and benefits derived from a contract of employment, such as

remuneration, which are covered by Directive 2000/78/EC. However, access to social

protection as such is covered by the present Directive. In this context, for the purposes of this

Directive, in accordance with its objective of providing a comprehensive protection from

discrimination, the concept of social advantages covers any rights or benefits which can

facilitate the social integration of a person, other than those derived from a contract of

employment or from a social protection scheme.

(17f) (new) [...] The exclusive competence of Member States with regard to [...] the

organisation of [...] their social protection systems [...] includes decisions on the setting up,

financing and management of such [...] systems and related institutions as well as on [...]

the substance and delivery of benefits and health services and the conditions of

eligibility. In particular Member States retain the possibility to reserve certain [...] benefits or

services to certain age groups or persons with disabilities. Moreover, this Directive is

without prejudice to the powers of the Member States to organise their social protection

systems in such a way as to guarantee their sustainability.

(17g) (new) [...] The exclusive competence [...] of Member States with regard to [...] the

content of teaching or activities and the organisation of national educational systems,

including the provision of special needs education, [...] includes the setting up and

management of educational institutions, the development of curricula and other educational

activities and the definition of examination processes. In particular Member States retain the

possibility to set age limits for certain education activities. However, there may be no

discrimination in the access to educational activities, including the admission to and

participation in classes or programmes and the evaluation of students' performance [...].

(17h) (new) This Directive does not apply to matters covered by family law including marital status

and adoption, and laws on reproductive rights. It is also without prejudice to the secular nature

of the State, state institutions or bodies, or education. [...]

Article 2

Concept of discrimination

• 1. 

  For the purposes of this Directive, the "principle of equal treatment" shall mean that there

shall be no direct or indirect discrimination on any of the grounds referred to in Article 1.

• 2. 

  For the purposes of paragraph 1, the following definitions apply:

(a) direct discrimination shall be taken to occur where one person is treated less favourably

than another is, has been or would be treated in a comparable situation, on any of the

grounds referred to in Article 1;

(b) indirect discrimination shall be taken to occur where an apparently neutral provision,

criterion or practice would put persons of a particular religion or belief, a particular

disability, a particular age, or a particular sexual orientation at a particular disadvantage

compared with other persons, unless that provision, criterion or practice is objectively

justified by a legitimate aim and the means of achieving that aim are appropriate and

necessary.

• 3. 

  Harassment shall be deemed to be a form of discrimination within the meaning of

paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1

takes place with the purpose or effect of violating the dignity of a person and of creating an

• 5. 

  Denial of reasonable accommodation in a particular case as provided for by Article 4 (1)(a) of

the present Directive as regards persons with disabilities shall be deemed to be discrimination

within the meaning of paragraph 1.

• 6. 

  Notwithstanding paragraph 2, [...] differences of treatment on grounds of age [...] shall not

constitute discrimination, if [...] they are objectively and reasonably justified by a legitimate

aim, and if the means of achieving that aim are appropriate and necessary. In this context

Member States may specify aims which can be considered to be legitimate.

Such differences of treatment may include the fixing of a specific age for access to social

protection, including social security and healthcare; social advantages; education; and certain

goods or services which are available to the public.

6a. (new) Notwithstanding paragraph 2, differences of treatment of persons with a disability

shall not constitute discrimination, if they are aimed at protecting their health and safety

and if the means of achieving that aim are appropriate and necessary.

• 7. 

  Notwithstanding paragraph 2, in the provision of financial services, [...] proportionate

differences in treatment where, for the product in question, the use of age or disability is a

determining factor in the assessment of risk based on relevant actuarial principles, accurate

statistical data or medical knowledge shall not be considered discrimination for the

purposes of this Directive.

(a) Social protection, including social security and healthcare;

(b) Social advantages;

(c) Education;

(d) and the supply of, goods and other services which are available to the public, including

housing.

Subparagraph (d) shall apply to individuals only insofar as they are performing a professional

or commercial activity defined in accordance with national laws and practice.

• 2. 

  This Directive does not alter the division of competences between the European Community

and the Member States. In particular it does not apply to:

(a) matters covered by family law, including marital status and adoption, and laws on

reproductive rights;

(b) the organisation of [...] Member States' social [...] protection systems, including

decisions on the setting up, financing and management of such systems and related

institutions as well as on the substance and delivery of benefits and services and

the conditions of eligibility;

• 4. 

  This Directive is without prejudice to national legislation ensuring the secular nature of the

State, State institutions or bodies, or education, or concerning the status and activities of

churches and other organisations based on religion or belief. [...]

• 5. 

  This Directive does not cover differences of treatment based on nationality and is without

prejudice to provisions and conditions relating to the entry into and residence of third-country

nationals and stateless persons in the territory of Member States, and to any treatment which

arises from the legal status of the third-country nationals and stateless persons concerned.

Article 5

Positive action

• 1. 

  With a view to ensuring full equality in practice, the principle of equal treatment shall not

prevent any Member State from maintaining or adopting specific measures to prevent or

compensate for disadvantages linked to religion or belief, disability, age, or sexual

orientation.

• 2. 

  (new) The principle of equal treatment shall be without prejudice to the right of Member

States to maintain or adopt more favourable provisions for persons of a [...] given age or for

persons with disabilities as regards conditions for access to social protection, including social

security and healthcare; social advantages; education; and certain goods or services which are

available to the public, in order to promote their economic, cultural or social integration.