Download European Expansion and Institutional Racism

1
‘EU Enlargement, the Race Equality Directive and the Internal Market.’
Fernne Brennan©
Lecturer in Law, University of Essex
2005
Brief Synopsis
The EU Community is set to widen1 economically, socially and politically from its current
membership of 15 Member States to 25 since 13 countries have applied to join as new
members and 10 are set to join on 1st May 2004.2 These applicants “the acceding countries” of
Central and Eastern Europe will be expected to take both the benefits and the burdens of
membership of the EU.3 Benefits would include access to wider markets in the provision of
labour, goods, services and capital. In turn these economies will need to open up their
markets4 and in their wake ensure that their internal markets are not stratified along racial or
ethnic lines. Any European state applicant for admission to the EU must respect fundamental
principles. The principles of liberty, democracy, respect for human rights.5 One method that
will be employed by the EU to assess commitment to its obligations is to judge whether or not
This will represent the 5th enlargement in the EU’s history. In the 1950’s it consisted of six
countries and has grown to its current 15.
2 That is Cyprus, Poland, Slovenia, Hungary, Latvia, Malta, Czech Republic, Estonia,
Lithuania and Slovakia, Bulgaria and Romania are looking to join in 2007. The position of
Turkey is unclear. The Commission will present the financial package for Bulgaria and
Romania's accession to the EU on 10 February 2004, Enlargement Commissioner Günter
Verheugen said on 27 January. The package will specify the total financial support to be
made available by the EU to the two negotiating candidates between 2007 and 2013. To date,
Sofia has closed 26 of its 31 negotiation chapters with the Commission, while Bucharest has
provisionally closed of 22 of the 31. The next annual Commission reports on the two
countries' progress toward EU membership are due out in the autumn of 2004’ see
EurActiv.com 28 01.2004.’ Macedonia is likely to make a formal bid for membership on 26
February 2004, see EurActiv, 2 February 2004. Croatia made a formal bid to join in February
2003 see EurActiv, 21 February, 2003.
3 Walsh has argued that enlargement will not necessarily reap benefits for the Central and
Eastern European states. It is argued that on almost every criteria any benefits are
outweighed by the costs. Since economic integration is largely complete there will be no
‘…floodgates to new trade flows with Eastern Europe.’ Free trade has already been secured
by a number of bilateral contracts that were agreed to in the last decade of the last century.
4
Although it may be argued that these markets are already liberalised, see
http://www.iod.com/intershoproot/eCS/Store/en/
images/IOD_Images/pdf/EUEnlargement.pdf June 2003.
5 See amendments introduced by the Treaty of Amsterdam to Arts O[49] and F(1){6(1)} TEU.
1
2
the acceding countries are in compliance with EU legal obligations aimed at the eradication of
racial discrimination through the application of the Race Equality Directive (RED).6 Article 6 of
the Treaty of European Union is based on the ‘principles of liberty, democracy, respect for
human rights and fundamental freedoms’ guaranteed by the European Convention on Human
Rights.7 In the European context these principles relate to ‘…access to and provision of goods
and services, to respect the protection of private and family life and transactions carried out in
this context.’8 ‘When it joins the Community,9 the new Member State must also accept all
existing Community law, Acquis Communautaire.’10 The Treaty of Accession 2003 was signed
in Athens on 16 April of that year. Particular provisions include Articles 53 and 54 (relating to
directives and decisions).11
The integration of the Aquis Communautaire into the national law of these acceding countries
will include evidence that they are fostering the conditions for a ‘socially inclusive labour
market’12 through laws and administrative provisions aimed at the eradication of ‘discrimination
6
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin, Official Journal 2000 L180/22.
7
Directive 2000/43/EC recital 2.
Directive 2000/43/EC recital 4.
9 Agreement between the 10 applicant countries and the EU was reached in December 2002.
Three more applicants are in negotiation with the EU. Bulgaria and Romania may join in
2007. Turkey has acquired recognition but remains short in its arrangements regarding the
protection of minorities – there may be accession discussions during 2004, see generally
EurActiv.
10 Walsh suggests that the adoption of the ‘…entire acquis communautaire - 80,000 pages of
EU rules and regulations. For the most enterprising states, EU membership will actually make
them less competitive –not more.’ He argues that the adoption of the acquis communautaire
has been a ‘bitter pill to swallow’ for many entrepreneurs.
11 Upon accession, the new Member States shall be considered as being addressees of
directives and decisions within the meaning of Article 249 of the EC Treaty and of Article 161
of the Euratom Treaty, provided that those directives and decisions have been addressed to
all the present Member States. Except with regard to directives and decisions which enter into
force pursuant to Article 254(1) and 254(2) of the EC Treaty, the new Member States shall be
considered as having received notification of such directives and decisions upon accession.
Article 54, the new Member States shall put into effect the measures necessary for them to
comply, from the date of accession, with the provisions of directives and decisions within the
meaning of Article 249 of the EC Treaty.
8
12
Directive 2000/43/EC recital 8.
3
against groups such as ethnic minorities.’13 Law in this area is important to breakdown those
forces that would undermine the E U’s long term goals of ‘…the attainment of a high level of
employment and social protection, the raising of the standard of living and quality of life,
economic and social cohesion and solidarity.’14 It is said that one of the difficulties with the
Eastern bloc is its failure to foster tolerant societies. Intolerance is likely to have an impact on
liberal notions of democracy, particularly where participation of individuals in areas beyond the
labour market is also determined by questions of racial or ethnic origin. Since the EU holds the
notion of the principle of equal treatment at its core it will be concerned to see that the acceding
countries strive ’In implementing the principle of equal treatment irrespective of racial or ethnic
origin, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate
inequalities, and to promote equality between men and women, especially since women are
often the victims of multiple discrimination.’15
One of the important measures then in bringing the acceding countries into line with the EU
ideal of equal participation in the Community is the Race Equality Directive (RED). However, in
considering the extent to which these countries fall with in or outside the terms of compliance of
this instrument one may pause for a moment to ask, how appropriate a tool is the Race
Equality Directive in tackling
institutional discrimination?
It is argued that institutional
discrimination is a major factor that impacts on racial and ethnic minorities and women within
these groups. In using the RED to measure compliance of the acceding countries, how doe the
RED itself measure up?
13
Directive 2000/43/EC recital 8.
Directive 2000/43/EC recital 9. Walsh argues that the wholesale adoption of EU law by the
acceding countries, the Aquis Communautaire might be perceived cynically as a ‘the acquis
as a cynical move by the powerful leaders of the current EU to protect their own markets from
more competitive neighbours. In Poland, for example, the cost of conforming with EU
environmental standards is estimated at around 40 billion – a sum equivalent to the Polish
Government’s total annual budget - over a transitional period that ends in 2015.
14
15
RED recital 14.
4
In order to eradicate racism in general in the member states the EU has brought forth
measures such as the European Council Directive 2000/43/EC (Race Equality Directive). The
new Race Equality Directive (RED) is one of the latest measures adopted by the Council of
Ministers under its enlarged powers aimed at combating racism in the EU. The RED reflects
the strategic thinking of EU policy aimed at combating institutionally racist 16 constraints on the
free movement of persons within the Community.
The question is to what extent will this
measure afford the level of human rights protection of minorities in the acceding countries
necessary to combat institutional racism?17 It is argued that the premise that the RED is
adequate is itself questionable since it assumes much and offers very little by way of remedy.
Introduction
The EU Community is set to widen18 economically, socially and politically from its current
membership of 15 Member States to 25 since 13 countries have applied to join as new
16
Defined as 'acts by the total white community against the black community', see
Carmichael, S. and Hamilton, C.V. Black Power. The Politics of Liberation (Vintage Books,
1967), 4 and more recently as the “collective failure of an organisation to provide an
appropriate and professional service to people because of their colour, culture, or ethnic
origin. It can be seen or detected in processes, attitudes and behaviour which amount to
discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping
which disadvantage minority ethnic people.' See Sir William Macpherson of Cluny, The
Stephen Lawrence Inquiry. Report of an Inquiry (London, Stationery Office, 1999) CM 42641, para. 6.34.
17‘’With the entry into force of the new Article 13 of the EC Treaty, introduced by the Treaty of
Amsterdam, the Community has the power to combat discrimination on a wider range of
grounds than ever before - sex, racial and ethnic origin, religion and belief, disability, age and
sexual orientation - and in areas both in and outside of employment. The Community's
legislative framework now includes Directive 2000/43/EC prohibiting racial and ethnic
discrimination in employment, education, social security and healthcare, access to goods and
services and housing and Directive 2000/78/EC prohibiting discrimination in employment on
grounds of religion and belief, disability, age and sexual orientation. A Community Action
Programme has been defined in order to promote the study of discrimination and exchanges
of experience and good practice between the Member States.’ See EUROPA Enlargement,
December 2002, chapter 13 Economic and Social Policy.
18 This will represent the 5th enlargement in the EU’s history. In the 1950’s it consisted of six
countries and has grown to its current 15.
5
members and 10 are set to join on 1st May 2004.19 These applicants “the acceding countries” of
Central and Eastern Europe will be expected to take both the benefits and the burdens of
membership of the EU.20 The potential benefits would include access to wider markets in the
provision of labour, goods, services and capital. In turn these economies will be required to
open up their economies21 and in their wake ensure that their internal markets are not stratified
along racial or ethnic lines. Any European state applicant for admission to the EU must respect
fundamental principles. The principles of liberty, democracy, respect for human rights.22
Article 6 of the Treaty of European Union is based on the ‘principles of liberty, democracy,
respect for human rights and fundamental freedoms’ guaranteed by the European Convention
on Human Rights.23 In the European context these principles relate to ‘…access to and
provision of goods and services, to respect the protection of private and family life and
transactions carried out in this context.’24 ‘When it joins the Community,25 the new Member
19
That is Cyprus, Poland, Slovenia, Hungary, Latvia, Malta, Czech Republic, Estonia,
Lithuania and Slovakia, Bulgaria and Romania are looking to join in 2007. The position of
Turkey is unclear. The Commission will present the financial package for Bulgaria and
Romania's accession to the EU on 10 February 2004, Enlargement Commissioner Günter
Verheugen said on 27 January. The package will specify the total financial support to be
made available by the EU to the two negotiating candidates between 2007 and 2013. To date,
Sofia has closed 26 of its 31 negotiation chapters with the Commission, while Bucharest has
provisionally closed of 22 of the 31. The next annual Commission reports on the two
countries' progress toward EU membership are due out in the autumn of 2004’ see
EurActiv.com 28 01.2004.’ Macedonia is likely to make a formal bid for membership on 26
February 2004, see EurActiv, 2 February 2004. Croatia made a formal bid to join in February
2003 see EurActiv, 21 February, 2003
20 Walsh has argued that enlargement will not necessarily reap benefits for the Central and
Eastern European states. It is argued that on almost every criteria any benefits are
outweighed by the costs. Since economic integration is largely complete there will be no
‘…floodgates to new trade flows with Eastern Europe.’ Free trade has already been secured
by a number of bilateral contracts that were agreed to in the last decade of the last century,
seehttp://www.iod.com/intershoproot/eCS/Store/en/
images/IOD_Images/pdf/EUEnlargement.pdf June 2003.
21
Walsh argues that these markets are already liberalised.
See amendments introduced by the Treaty of Amsterdam to Arts O[49] and F(1){6(1)} TEU.
23 Directive 2000/43/EC recital 2.
24 Directive 2000/43/EC recital 4.
25 Agreement between the 10 applicant countries and the EU was reached in December
2002. Three more applicants are in negotiation with the EU. Bulgaria and Romania may join
in 2007. Turkey has acquired recognition but remains short in its arrangements regarding the
protection of minorities – there may be accession discussions during 2004, see generally
EurActiv.
22
6
State must also accept all existing Community law, Acquis Communautaire.’26 The Treaty of
Accession 2003 was signed in Athens on 16 April of that year. Particular provision include
Articles 53 and 54 (relating to directives and decisions).27
The integration of the Aquis Communautaire into the national law of these acceding countries
will include evidence that they are fostering the conditions for a ‘socially inclusive labour
market’28 through laws and administrative provisions aimed at the eradication of ‘discrimination
against groups such as ethnic minorities.’29 Law in this area is important to breakdown those
forces that would undermine the E U’s long term goals of ‘…the attainment of a high level of
employment and social protection, the raising of the standard of living and quality of life,
economic and social cohesion and solidarity.’30 It is said that one of the difficulties with the
Eastern bloc is its failure to foster tolerant societies. Intolerance is likely to have an impact on
liberal notions of democracy, particularly where participation of individuals in areas beyond the
labour market is also determined by questions of racial or ethnic origin. Since the EU holds the
notion of the principle of equal treatment at its core it will be concerned to see that the acceding
Walsh, supra, suggests that the adoption of the ‘…entire acquis communautaire - 80,000
pages of EU rules and regulations. For the most enterprising states, EU membership will
actually make them less competitive –not more.’ He argues that the adoption of the acquis
communautaire has been a ‘bitter pill to swallow’ for many entrepreneurs.
27 Upon accession, the new Member States shall be considered as being addressees of
directives and
decisions within the meaning of Article 249 of the EC Treaty and of Article 161 of the Euratom
Treaty, provided that those directives and decisions have been addressed to all the present
Member States. Except with regard to directives and decisions which enter into force
pursuant to Article 254(1) and 254(2) of the EC Treaty, the new Member States shall be
considered as having received notification of such directives and decisions upon accession.
ARTICLE 54 The new Member States shall put into effect the measures necessary for them
to comply, from the date of accession, with the provisions of directives and decisions within
the meaning of Article 249 of the EC Treaty.
26
28
Directive 2000/43/EC recital 8.
Directive 2000/43/EC recital 8.
30 Directive 2000/43/EC recital 9. Walsh argues that the wholesale adoption of EU law by the
acceding countries, the Aquis Communautaire might be perceived cynically as a ‘the acquis
as a cynical move by the powerful leaders of the current EU to protect their own markets from
more competitive neighbours. In Poland, for example, the cost of conforming with EU
environmental standards is estimated at around 40 billion – a sum equivalent to the Polish
Government’s total annual budget - over a transitional period that ends in 2015’
29
7
countries strive ’In implementing the principle of equal treatment irrespective of racial or ethnic
origin, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate
inequalities, and to promote equality between men and women, especially since women are
often the victims of multiple discrimination.’31
One of the important measures then in bringing the acceding countries into line with the EU
ideal of equal participation in the Community is the Race Equality Directive. One method that
will be employed by the EU as a way of assessing the countries commitment to these
obligations is to judge whether or not the acceding countries legislative and administrative
arrangements are in compliance with EU legal obligations aimed at the eradication of racial
discrimination. The instrument that will provide this lynch-pin is the Race Equality Directive
(RED).32 However, in considering the extent to which these countries fall with in or outside the
terms of compliance of this instrument one may pause for a moment to ask, how appropriate a
tool is
the Race Equality Directive in encouraging these states to tackle institutional
discrimination? It is argued that institutional discrimination is a major factor that impacts on
racial and ethnic minorities and women within these groups. In using the RED to measure
compliance of the acceding countries, how doe so RED itself measure up?
In order to eradicate racism in general in the member states the EU has brought forth
measures such as the European Council Directive 2000/43/EC (Race Equality Directive). The
new Race Equality Directive (RED)is one of the latest measures adopted by the Council of
Ministers under its enlarged powers aimed at combating racism in the EU. The RED reflects
31Race
Equality Directive, Recital 14.
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin, Official Journal 2000
L180/22.
32
8
the strategic thinking of EU policy aimed at combating institutionally racist 33 constraints on the
free movement of persons within the Community.
The question is to what extent will this
measure afford the level of human rights protection of minorities in the acceding countries
necessary to combat institutional racism?34 It is argued that the premise that the RED is
adequate is itself questionable since it assumes much and does not offer a sufficient legal
mechanism for dealing with institutional racism.
Background to Race Directive
European Council Directive 2000/43/EC35 (Race Directive) was adopted by the Council of
Ministers on 29th June 2000 and will come into effect on the 19 th July 2003 in Member States.
The Race Directive36 is a landmark in the evolution of EU policy on race discrimination, since it
is the first time that a legal duty has been placed on Member States to provide a 'common
33
Defined as 'acts by the total white community against the black community', see
Carmichael, S. and Hamilton, C.V. Black Power. The Politics of Liberation (Vintage Books,
1967), 4 and more recently as the “collective failure of an organisation to provide an
appropriate and professional service to people because of their colour, culture, or ethnic
origin. It can be seen or detected in processes, attitudes and behaviour which amount to
discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping
which disadvantage minority ethnic people.' See Sir William Macpherson of Cluny, The
Stephen Lawrence Inquiry. Report of an Inquiry (London, Stationery Office, 1999) CM 42641, para. 6.34.
34‘’With the entry into force of the new Article 13 of the EC Treaty, introduced by the Treaty of
Amsterdam, the Community has the power to combat discrimination on a wider range of
grounds than ever before - sex, racial and ethnic origin, religion and belief, disability, age and
sexual orientation - and in areas both in and outside of employment.The Community's
legislative framework now includes Directive 2000/43/EC prohibiting racial and ethnic
discrimination in employment, education, social security and healthcare, access to goods and
services and housing and Directive 2000/78/EC prohibiting discrimination in employment on
grounds of religion and belief, disability, age and sexual orientation. A Community Action
Programme has been defined in order to promote the study of discrimination and exchanges
of experience and good practice between the Member States.’ See EUROPA Enlargement,
December 2002., chapter 13 Economic and Social Policy.
35 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin, Official Journal 2000
L180/22
36 The Race Directive is broadly modelled on the UK Race Relations Act 1976.
9
minimum level of legal protection from discrimination in public and private sectors.'37 Its
objective is to provide a foundational, common framework for Member States to put into place
anti-race discrimination measures by requiring the abolition of any laws, regulations or
administrative provisions contrary to the principle of equal treatment.38 The Race Directive can
be seen as an equal opportunities measure that addresses two related problems – market and
social integration. Market integration can be understood as requiring the dismantling of racially
and ethnically determined barriers to the marketplace. The business case for removing these
barriers concern questions about ‘effective service delivery, concerns with the public image of
an organisation…and issues surrounding recruitment and retention’.39 Social integration raises
questions of equity that resonate beyond the market.40 The obligations imposed by the Race
Directive concern both market and social integration. Successful implementation should mean
that no person41 is prevented from pursuing economic and social opportunities because of
discrimination against them based on racial grounds.
Background to Acceding Countries
Post the fall of the Berlin wall in 1989 saw the development of political cooperation and
improved trade relations between the EU and Central and Eastern European countries. Clearly
there were advantages for the EU in the long run. Expanded territories within which to promote
business and secure political stability for the EU itself. Investment in the Eastern European
37
See O'Brien, M. "The European Race Directive - Our plans for implementation", European
Lookout 3 (2000), 2.
38 Article 14 Council Directive 2000/43/EC above n 2.
39 Dandeker, C. and Mason, D. "Diversity in the British Armed Forces: the Debate Over Ethnic
Minority Representation", Paper presented to a conference on ‘Redefining Society –Military
Relations: From Vancouver to Valdistock, at the University of Birmingham, 16-18 April 1999.
40 Ibid.
41 Race Directive applies to human and legal persons see
10
countries with financial packages such as that Phare Programme,42 that has helped to prepare
the economies of these countries prior to enlargement. in the early 1990’s the question of
whether the acceding countries would be able to meet the conditions for membership of the EU
took a positive step with the meeting of the Copenhagen European Council. The Copenhagen
Council decided that provided these countries met the criteria for membership accession could
take place.43 The ‘Copenhagen Criteria’ consisted of the following:
stability of institutions guaranteeing democracy, the rule of law, human rights and
respect for and protection of minorities;

the existence of a functioning market economy as well as the capacity to cope with
competitive pressure and market forces within the Union;

the ability to take on the obligations of membership including adherence to the
aims of political, economic & monetary union. 44
42
The Phare programme is one of the three pre-accession instruments financed by the
European Communities to assist the applicant countries of central Europe in their
preparations for joining the European Union. Originally created to assist Poland and Hungary
in 1989, today the Phare programme encompasses the 10 candidate countries of central and
eastern Europe, Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland,
Slovakia, Slovenia and Romania helping them through a period of massive economic
restructuring and political change. The other 3 candidates, Cyprus, Malta and Turkey benefit
from separate pre-accession funding. Until 2000 the countries of the Western Balkans
(Albania, Bosnia & Herzegovina and The Former Yugoslav Republic of Macedonia) were also
beneficiaries of Phare. However, as of 2001 the CARDS programme (Community Assistance
to Reconstruction, Development and Stability in the Balkans) has provided financial
assistance to the Western Balkans. Following the 1993 Copenhagen Council’s invitation to
central European countries to apply for membership, Phare support was reoriented, including
a marked expansion in support to infrastructure investment. However, Phare’s total "preaccession" focus was put in place only in 1997 in response to the Luxembourg European
Council’s launching of the present enlargement process. Phare funds now focus entirely on
the pre-accession priorities highlighted in each country’s Accession Partnership. Civil
servants from member states are now seconded through "twinning" to assist their
counterparts in preparing for accession. Lastly, Phare’s management was integrated into
applicant country government structures through the creation of the National Fund and a
limited
number
of
implementing
agencies,
see
EUROPA,
Enlargement
http://europa.eu.int/comm/enlargement/pas/phare/intro.htm#11
43 See EurActiv history
44 Ibid.
11
In October 2002 the European Commission made a number of recommendations to the
Council in relation to application for membership of the acceding countries. These were
favourable to applications for membership in that the Republics of Cyprus, the Czech Republic,
Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia would be
able to fulfil the Copenhagen, be in a position to sign the Accession Treaty in Spring 2003 and
be ready for membership in 2004. At the time of writing the situation as regards ethnic
minorities and the position adopted by the accession countries is that represented by the table
that follows.
12
Table Representing Position of Acceding and Candidate Countries
Applied for membership
Bulgaria
Ethnic Minorities
Domestic legislation on racial
Transposition of Race Equality
equality
Directive
Turks 9.4%, Roma 3.4%. 13%
Constitution
prohibits
Islam
discrimination in any field on
incorporates
grounds of race, national origin,
Directive, goes beyond EU law,
ethnic appurtuance, personal
e.g., legal standing to NGO’s
and public status. Discrimination
and collective action for victims.
prohibited through international
With
law, domestic law applies to
September 2002. Recent draft
various
within Parliament – Protection
fields.
Law
not
comprehensive.
Prohibition of Discrimination Bill
Against
Race
Equality
Parliament
since
Discrimination
Bill,
reduced level of protection and
enforcement,
no
prohibitions
discrimination,
measures,
specific
against
no
positive
weakens
Commissions powers, powers of
independent body and judicial
protection.45
Cyprus
20% Turkish Cypriot
Information relates to Republic
Race Equality Directive not
of
transposed. Legislation Drafting
Cyprus.
provisions,
45
Constitutional
e.g.,
Article
28
committee set up to work on
Cyprus Constitution “all persons
transposition.
are equal before the law”.
legislation to be introduced.
International
Adoption and incorporation of
and
European
New piece of
M. IlIeva, Report on Measures to Combat Discrimination in the 13 Candidate Countries
(VT/2002/47), Country Report Bulgaria (Netherlands, MEDE, 2003).
13
treaties ratified in relation to
Directive into domestic law
discrimination.
pending.46
Lacks detailed
measures.
Czech Republic
3% Slovak, Polish, German,
Broad provisions in Constitution
Two
Roma and Hungarian
and Charter of Fundamental
‘general framework’ model using
Rights
General Draft Law on Equal
and
Freedoms
on
models
discrimination. Charter indirectly
Treatment
applicable.
against
envisaged
and
–
Protection
Discrimination
or
‘diffusive’ model’ that would
preserve and amend existing
laws.
Latter
inadequate
is
seen
because
as
existing
laws not sufficiently extensive.47
Estonia
Russians25.6%,
Ukranians
No specific anti-discrimination
Draft law on Equality should
2.1%, Bellorussians 1.2%, Finns
legislation. Article 12 Estonian
implement
0.9% others 2.3%.
Constitution general prohibition
Directive, if so would be valid
on discrimination. Principle of
from 1 January 2004.48
Race
Equality
non-discrimination incorporated
into
the
Law
Autonomy
of
on
Cultural
the
National
Minority, and other provisions.
Penal provisions on crimes
against
humanity,
genocide,
violation of equality, incitement
to racial hatred, signed Protocol
to Convention on Cybercrime re
criminalisation of racist and
xenophobic conduct.
Hungary
Officially
recognised
Ratified all international treaties
Government
registered minorities – Germans,
regarding
discrimination.
focuses on comprehensive anti-
Gypsies,
Constitution
prohibits
discrimination law. Draft Bill
Anti-
should adopt anti-discrimination
Croats,
and
Slovaks,
Romanians, Bulgarians, Greeks,
46
discrimination.
programme
N. Trimikliniotis, Report on Measures to Combat Discrimination in the 13 Candidate
Countries (VT/2002/47), Country Report Cyprus (Netherlands, Mede, May 2003). Report
does not cover the territory of Cyprus under Turkish occupation since 1974.
47 B. Bukovska and P. Bouckova, Report on Measures to Combat Discrimination in the 13
Candidate Countries (VT/2002/47), Country Report Czech Republic (Netherlands, Mede, May
2003).
48 V. Poleshchuck, Report on Measures to Combat Discrimination in the 13 Candidate
Countries (VT/2002/47), Country Report Estonia (Netherlands, Mede, May 2003).
14
Polish,
Armenian,
Ruthens,
Serbs, Ukranian.
discrimination clauses in various
law that would cover more
measures. Penal Code prohibits
grounds than the Race Equality
violence against national, ethnic,
Directive.49
racial or religious groups.
Latvia
Russian origin 29.2%, other
Article 92 Latvian Constitution
Labour Law 17 drafted to take
origins- Belarussian, Ukranian,
general
account
Polish, Lithuanian, others.
discrimination
prohibition
.
No
on
of
single
Directive.50
under
Draft
Race
Equality
on
Equal
comprehensive law.
Lithuania
Polish origin 6.7%, Russian
Legal
obligations
origin 6.3%.
international treaties, Lithuanian
Opportunities
Constitution equal treatment on
Parliament
racial
First Reading February 2003,
grounds,
national,
language, origin.
Law
presented
November
to
2002,
draft approved by Government
May 2003.51
Malta
10,358 resident foreigners.
Article
45
Maltese
Arabs,52
Constitution1964,
European
Constitution provides general
protection.
Various
other
Convention Act 1987 through
provisions exit that appear to
which Article 14 ECHR can be
conform to the Race Directive.53
invoked, Article 82A Criminal
Code criminalises incitement to
racial hatred, international and
national and other legislative
measures
guarantee
the
principle of non-discrimination
on grounds of race./ minority.
However,
national measures
inadequate to cover types of
49
A. Kadar and L. Farkas, Report on Measures to Combat Discrimination in the 13 Candidate
Countries (VT/2002/47), Country Report Hungary (Netherlands, Mede, May 2003).
50 G. Feldhune, Report on Measures to Combat Discrimination in the 13 Candidate Countries
(VT/2002/47), Country Report Latvia (Netherlands, Mede, May 2003). At the time of writing
the Latvian government had resigned (5 February 2004, see EurActiv, 6/02/2004) so it is
difficult to gauge how this might impact on the implementation of the Race Equality Directive.
51 T. Baranovos, Report on Measures to Combat Discrimination in the 13 Candidate Countries
(VT/2002/47), Country Report Lithuania (Netherlands, Mede, May 2003).
52 See http://www.mic.org.mt/EUINFO/qeua/Q&A96.htm Reports from the United Nations and
Committee for the Elimination of Racial Discrimination, Concluding Observations of the
Committee on the Elimination of Racial Discrimination: Malta, 19/04/2000,
CERD/C/304/Add.94 focus on racism and racial discrimination in Malta but the breakdown of
ethnic groups affected is difficult to ascertain.
53 T. Ellul, Report on Measures to Combat Discrimination in the 13 Candidate Countries
(VT/2002/47), Country Report Malta (Netherlands, Mede, May 2003).
15
racial discrimination and indirect
racial discrimination.
Poland
13 national or ethnic
1997
Constitution
of
minorities recognised.
Republic of Poland contains
amendment to Labour Law Code
right to equal treatment and
to take account of Race Equality
general
Directive.54
prohibition
on
discrimination.
Diffuse
model.
Planned
Ratified
international
Signatory
the
conventions.
to
discrimination
many
anti-
international
agreements. Anti-discrimination
clauses in many laws.
Romania
Several national, linguistic and
Constitution of Romania has
Diffusive approach with several
religious minorities. Hungarian
explicit
anti-discrimination
pieces of legislation that deal
6.6%, Roma 2.4%, Ukrainian
provisions on race, nationality
with the areas of the Race
o.3%, German 0.3%, other 1%.
ethnic origin, language, religion.
Equality Directive.
Ordinance
on
are Ordinance 137/2000 on
Preventing and Punishing all
Preventing and Punishing All
Forms of Discrimination which
Forms
prohibits and sanctions any
sanctions
discrimination based on race,
based
nationality, ethnic appurtenance,
ethnic appurtenance, language,
language, religion. Ratified most
social
international
Emergency
human
rights
protection.
comprehensive
137/2000
documents
and
on
of
Examples
Discrimination
any
on
–
discrimination
race,
nationality,
status,
religion.
Ordinance
No
minority
31/2002 (forbids organisations
Law
is
and symbols of racist nature),
on
Race
Law on Health Social Insurance
Equality.
No.
145
of
1997
(non-
discriminatory right to medical
services)55 Penal provisions.
Slovakia
Hungarian 9.7%, Roma 1.7%,
General constitutional provisions
Preparing a draft law “anti-
Czech 0.8%, Ruthenian 0.4%,
that guarantee basic rights
discrimination
law”
that
is
54
E. Zienkiewicz and M. Mazur-Rafal, Report on Measures to Combat Discrimination in the
13 Candidate Countries (VT/2002/47), Country Report Poland (Netherlands, Mede, May
2003).
55
R. Weber, Report on Measures to Combat Discrimination in the 13 Candidate Countries
(VT/2002/47), Country Report Romania (Netherlands, Mede, May 2003).
16
Ukranian 0.2%,, German 0.1%,
regardless of race, skin colour,
expected to
cover all the
Polish 0.04%.
language, religion, faith, national
grounds in the Race Equality
or ethnic origin. Articles of
Directive.56
constitution not independent but
accessory rights.
No specific
provisions on discrimination.
Slovenia
0.11%
0.32%
Constitutional guarantees on
Diffusive system with some
Roma
equality,
regarding
areas of the Race Equality
people, 1.98% Serbs, 1.81%
equality re criminal charges.
Directive covered but not all.
Croats, and other. 57
Signatory to several international
There are moves to secure
treaties regarding human rights.
compliance.58
Hungarians,
Italian,
0.17%
Articles
Penal Code prohibits violation of
equality, stirring up of racial,
ethnic, religious hatred, strife or
intolerance.
Turkey
Includes
Caucasians,
Kurds,59
Lazs,
Article 10 Constitution provision
No proposals based directive on
Arabs,
Greeks,
for equal treatment and outlaws
the Race Equality Directive.61
Armenians, Jews, Assyrians.60
discrimination based on colour,
language, race. Ratified several
international
conventions.
Labour Code on discrimination.
Discrimination law weak.
Sources62
56
J. Hrubala, Report on Measures to Combat Discrimination in the 13 Candidate Countries
(VT/2002/47), Country Report Slovakia (Netherlands, Mede, May 2003).
57
European Commission, Directorate General for Social Affairs, Unit D.4, Equality, Diversity
and Enlargement, Reports on Measures to Combat Discrimination in Acceding and Candidate
Countries, September 2003.
58 M. OGRADI, G. PELICON, M. PILIH, Z. ŠUÆUR, N. TADIÆ, Report on Measures to
Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Slovenia
(Netherlands, Mede, May 2003).
59
Amnesty International Annual Report 2003, Central and Eastern Europe Summaries.
European Commission, Directorate General for Social Affairs, Unit D.4, Equality, Diversity
and Enlargement, Reports on Measures to Combat Discrimination in Acceding and Candidate
Countries, September 2003.
61 L. Korkut, Report on Measures to Combat Discrimination in the 13 Candidate Countries
(VT/2002/47), Country Report Turkey (Netherlands, Mede, May 2003).
60
62
EUROPA European Enlargement at http://europa.eu.int/comm/enlargement/candidate.htm
see also T. Ellul, Report on Measures to Combat Discrimination in the 13 Candidate
Countries, (VT/2002/47) Country Report, Malta, May 2003, MEDE European Consultancy
(Netherlands) and Migration Policy Group (Belguim) and see Equality, Diversity and
17
Issues
The Race Equality Directive is a tool developed to combat racial and ethnic discrimination in
the current as well as new member states of the EU. In so doing it is envisaged that the
implementation of this measure will provide for a liberalisation of the internal market 63 so that
workers are not recruited for employment on the basis of racial or ethnic origin, but rather that
such selection is based on merit. This move should provide one of the elements necessary to
ensure that Article 39 (ex Article 48) EC Treaty on the free movement or workers is
guaranteed, not only in theory but also in practice.64
According to A European Commission statement:“The racial equality directive, adopted by EU governments in 2000, prohibits
discrimination against people on the grounds of racial or ethnic origin. The rules cover
a wide range of areas where unfair treatment might occur, including access to jobs,
working conditions, rates of pay and the rights and benefits linked to a job. In addition,
Enlargement. Report on Measures to Combat Discrimination in Acceding and Candidate
Countries, Fundamental Rights and Anti-discrimination, European Commission, Directorate
General for Employment and Social Affairs, Unit D.4, September 2003.
63 It has been argued by Walsh that the markets of the acceding and candidate states have
already been liberalised.
64 There are transitional issues regarding this guarantee since there are concerns that free
movement will encourage migratory flows from the accession countries that might have a
negative impact on the labour markets of current member states (in particular Austria and
Germany). Similar concerns were expressed in relation to Greece and later concerning the
application of Spain and Portugal. Transitional arrangements were applied in 1981 and 1986
respectively. Studies suggest that fear of large migratory flows are unlikely, although there
may be an impact on the border regions of some member states in the magnitude of 1% and
8% over time. To avoid a ‘blanket response’ to this issue a strategy based on flexibility has
been suggested with several options, see European Commission, Free Movement of Workers
in the Context of Enlargement, Information Note, 6 March 2001. However, reports indicate
that the current member states will respond in an illiberal way to enlargement through fears
that this will open the door to migratory flows. Britain is likely to introduce ‘Transitional rules
on the free movement of citizens’, Sweden is considering two-year restrictions, whilst
Germany and Austria are likely to use the 7 year period permitted under EU measures. The
Netherlands and Ireland have adopted a more liberal approach. Netherlands is likely to allow
22,000 in the first year, whilst Ireland has imposed no restrictions, arguing that a transitional
period is not necessary. See EurActiv 05/02/2004.
18
they also include access to education and training, social security benefits and health
care and access to and supply of goods and services which are available to the public,
including housing. In all countries, governments also have to designate a body to
provide practical and independent support and guidance to victims of racial
discrimination. This means creating a body to perform this role if one does not already
exist.
New Member States must also transpose the provisions of the Directive into national
law before joining the Union.”65
The recognition of the de-stabilizing effect on the internal market of ‘unfair treatment’ driven by
racism is clearly acknowledge throughout the race awareness campaigns, the action
programme66 and the work of the European agencies seized with the responsibility for
developing policies and programmes to combat racism.67 The Race Equality Directive may be
said to represent in legislative form a measure whose aim is to use the arm of the law to
complement and give strength and direction to agencies and reassurance to vulnerable
communities that their concerns are taken seriously. This is because all persons are entitled to
respect for human rights and fundamental freedom, the right to equality before the law and
protection against discrimination. These principles apply in the context of the provision of
goods and services, and respect and protection of private and family life. Furthermore, the
65
See European Commission, Press Release, IP/03/1047, Brussels, 18 July, 2003. The new
Member States are the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta,
Poland, Slovakia, Slovenia.
66Council Decision 2000/750/EC establishing a Community action programme to combat
discrimination (2001 to 2006) (27/11/00)
67 see EUMC, ECRI, ENAR also see 96/443/JHA: Joint Action adopted by the Council on the
basis of Article K.3 of the Treaty on European Union, concerning action to combat racism and
xenophobia (15/07/96)
19
European Community recognises that any realistic attempt to build an ‘…ever closer union
among the peoples of Europe’68 must go hand in hand its stated concern that
‘…the development of democratic and tolerant societies which allow the participation of all
persons irrespective of racial or ethnic origin, [requires] specific action in the field of
discrimination based on racial or ethnic origin [that] should go beyond access to employed and
self employed activities and cover areas such as education, social protection including social
security and healthcare, social advantages and access to and supply of goods and services.’69
However, what is striking about the instrument that is to be used to deal with this matter is that
the fundamental concepts of ‘race’ and ‘ethnicity’ are not defined. The closest reference to the
meaning of these terms appear in Recital 6 of the Preamble.70 Here the European Union
states that it ‘rejects theories which attempt to ‘determine the existence of separate human
races.’71 Given this stance it is somewhat surprising that a provision should be created that is
unlikely to counter this tendency that has become ingrained practice in several of the acceding
member states.
Race
The decision of a Czech court in relation to a case concerning an alleged ‘racially motivated’
attack may serve as an example of the difficulties that may be encountered at national level
where there is no European wide definition of terms such as race. In the District Court in
Hradec Králové72 the court allowed the defence to raise the question of whether a racially
motivated offence had occurred where the alleged victim of the offence, a person described as
68
Council Directive 2000/43/EC, Recital 1.
Council Directive 2000/43/EC, Recital 12.
70 Council Directive 2000/43/EC.
71 Council Directive 2000/43/EC, Recital 6.
72 20 November 1996, the Decision No. 3T 196/96.
69
20
of Roma origin, was stated to be of the same racial group as the perpetrator – described as
Indo-European. The court held:- “It is necessary to distinguish between three large racial
groups: Indo-European, Negro-Australian and Mongolian ;while the citizens of the Roma origin
belong to the same group as the citizens of the Czech national origin as they are
the representatives of the same Indo-European race. Therefore, it is not possible to prosecute
[those violent crimes] as racially motivated because they had been committed by perpetrators
who are of the same race [as the victim]”.73
How much weight to give to this decision in uncertain since the decision was one at first
instance, nevertheless, the reasoning of the court may have serious implications for people
who, because they are perceived of in negative terms, and treated accordingly are unable to
rely on the law of the land to protect them. The approach adopted by the court may be termed
institutionally racist in that it indicates the ‘collective failure of an organisation to provide an
appropriate and professional service because of their….ethnic origin….’74 In this case that
organisation is the criminal justice system. The ‘unwitting prejudice’75 may be said to exist
because ‘racist stereotyping’76 has operated to the disadvantage of a member of the ethnic
minority community. In this case the racial stereotyping of the victim and the perpetrator meant
that the crime itself was not termed a racially aggravated one.77
On the other hand the
approach adopted by the British legal system in the area of racially motivated crimes courts
73
See B. Bukovska and P. Bouckova, Report on Measures to Combat Discrimination in the
13 Candidate Countries (VT/2002/47), Country Report Czech Republic (Netherlands, Mede,
May 2003). 1 The relevant Law 200/1990 of the Coll., the Law on Misdemeanours (zákon o
přestupcích).
74
Macpherson para. 6.34.
Macpherson para. 6.34.
76 Macpherson para. 6.34.
75
77
For a criticism of the use of racially aggravated crimes deal with social tension see F.
Brennan, “Racially Motivated Crimes: The Response of the Criminal Justice System’ Crim. L.
R. 1999.
21
does not appear to provide a better result. The approach of the Czech court was quite different
to that taken by the British courts.78 In White79 and the earlier case of Pal.80 The Defendant in
White was successfully convicted of a racially aggravated crime contrary to section 4(1) of the
Public Order Act and section 31 of the CDA 1998. His submission on appeal was that the use
of the words “African bitch” should not suffice for a racially aggravated offence because both he
and the victim were of the same racial group, i.e., African, and, furthermore, he contended that
the provisions were not intended to operate within racial groups but between such groups. The
earlier case of Pal opened up the possibility of using the measures concerning racially
aggravated crimes ‘intra-racially’. In that case the defendant, an Asian, was convicted of
racially aggravated common assault when he called an Asian caretaker “a white man’s arse
licker” and a “brown English man.” It can be argued that these cases represent another
example, albeit in reverse, of institutional racism at work in the criminal justice system, in that
rather than use racially aggravated crimes to protect ethnic minority groups, the legislation has
been used against them.
A related problem is whether racism is recognised at all. Under Polish law for instance, both
statute and case law do not provide a definition of race.81 If the concept of race is not
recognised in the ordinary or legal language how can a victim of such discrimination raise a
valid claim under the arrangements designed to transpose the directive? The position of Malta
provides an instance where the question of racism appears to be generally denied on the
surface on the basis of a public belief that there are no separate races. However, this
assumption has to be questioned. First of all Article 45 (3) of the Constitution of Malta includes
78
See F. Brennan, Islamophobia, Journal of Civil Liberties 2004, forthcoming.
R v White [2001] 1 WLR CA 1352.
80 DPP v Pal [2000] Divisional Court LTL.
81 See E. Zienkiewicz and M. Mazur-Rafal, Report on Measures to Combat Discrimination in
the 13 Candidate Countries (VT/2002/47), Country Report Poland (Netherlands, Mede, May
2003).
79
22
the terms ‘race’ and ‘colour’ in its definition of discrimination.82 Furthermore, under the
Ombudsman Act of 1995 a person who has ‘…been subjected to discriminatory treatment
(particularly on the basis of racial or ethnic origin) at the hands of the Government of
Malta….can ....request the Ombudsman to investigate…’83 A further consideration is that there
exits penal provision that prohibit incitement to racial hatred ‘…against a group of persons in
Malta defined by reference to colour, race, nationality (including citizenship) or ethnic or
national origins.’84
The ECRI recently published a report in which the position of vulnerable groups was
presented.85 Vulnerable groups were defined as people who were of Arabic origin or black
people from Africa. Discrimination experienced by these groups was manifested in general
prejudice and stereotypes, in particular regarding the issue of “criminality”. 86 The ECRI
reported that:-
Article 45 (3) In this article, the expression “discriminatory” means affording different
treatment to different persons attributable wholly or mainly to their respective descriptions by
race, place of origin, political opinions, colour, creed or sex whereby persons of one such
description are subjected to disadvantages12 or restrictions to which persons of another
such description are not made subject or are accorded privileges or advantages which are
not accorded to persons of another such description.
82
83
Act XXI of 1995. Chapter 385 of the Laws of Malta. See article 22.See REPORT ON
MEASURES TO COMBAT DISCRIMINATION IN THE 13 CANDIDATE COUNTRIES
(VT/2002/47) COUNTRY REPORT MALTA MAY 2003 Tonio Ellul MEDE European
Consultancy.
This provision in the Criminal Code is ‘numbered Article 82A (1) provides that any person
who uses any threatening, abusive or insulting words or behaviour, or displays any written or
printed material which is threatening, abusive or insulting, or otherwise conducts himself in
such a manner, with intent thereby to stir up racial hatred or where racial hatred is likely,
having regard to all the circumstances, to be stirred up shall, on conviction, be liable to
imprisonment for a term of six to eighteen months.’
84
85
See CRI (2002) 22 Second report on Malta. adopted on 14 December 2001 and made
public on 23 July 2002.
86 See CRI (2002) 22 Second report on Malta. adopted on 14 December 2001 and made
public on 23 July 2002, para. 25.
23
‘The widely-accepted view within Malta is that problems of racism and discrimination are not
really prevalent in the country, and that Maltese society is particularly tolerant. This tolerance is
attributed to the mixed cultural heritage and historical position of Malta at the crossroads of
European and Arabic societies and to its modern situation as a tourist destination. However,
some sources have commented that although racism in Malta is not generally of the ideological
or violent sort, there does exist in the popular feeling quite significant levels of prejudice and, in
some cases, hostility, towards certain groups of foreigners, including immigrants and especially
persons of Arabic origin and black persons of African origin. These stereotypes and prejudices
appear to be based on the belief that such persons have come to Malta for illegal purposes
such as drug trafficking or to transit to other European countries, or as illegal immigrants who
will take employment away from Maltese workers. Such prejudices find their expression in
discrimination in certain areas of life (see paragraphs 22 and 23 above) and also in attitudes
among the general public, where negative assumptions and perceptions concerning certain
minority groups appear to be rather commonplace. Such attitudes are in some cases reflected
in the media, while it has also been reported that political debate around issues such as asylum
has at times been conducted in somewhat negative tones.’87
Such ‘popular feeling’ clearly needs to be challenged in a sensitive way – one that does not
create, but rather seeks to resolve, conflict. However, how is this to be done when the law
itself offers no real guidance on the meaning of terms such as ‘race’?
Another grey area is where disadvantaged minorities are recognised in some form but it is
unclear whether they constitute a racial group. For instance, in Estonia, the plight of Russian-
87
See CRI (2002) 22 Second report on Malta. adopted on 14 December 2001 and made
public on 23 July 2002, para. 30.
24
speaking minorities has been raised in a recent report.88 It has been argued that whilst
outward hostility is rare, there are more subtle ways in which discrimination tends to manifest
itself against those who use Russian as their language of communication. Russian-speaking
minorities are under-represented in many spheres of life. Problems such as unemployment
have a disproportionate impact on these groups and is likely to deteriorate.89 Additionally, there
is concern that the number of people who fall into this category is unknown because of the lack
of official statistics in existence, thus the extent of the problem of discrimination is not really
known.
This conundrum will not be resolved by with the Race Equality Directive since it is silent on the
meaning of race. What approach should the courts take? Should ‘the courts read legislative
intent ‘literally’ or take a more ‘purposive’ approach? Which ever approach is adopted – to
what extent would this give effect to the concern of the EU that the Race Equality Directive
must be implemented by Member States in a way that should be ‘…effective, proportionate
and dissuasive…’90 remains unclear.
Ethnicity
The term ethnicity is also one that is not defined in the Race Equality Directive. This raises
similar questions as that raised by the term race – who has locus standi to bring a claim of
racial discrimination based on ethnicity? This question will primarily rely on the transitional
arrangements used to implement the Race Equality Directive however in several of the
acceding countries this term is not defined. For instance the legislation in the Czech Republic
does not incorporate a definition of ethnic origin and it has been suggested that there is a
88
SeeCRI (2002) 1 Second report on Estonia Adopted on 22 June 2001 and made public on
23 April 2002.
89 SeeCRI (2002) 1 Second report on Estonia Adopted on 22 June 2001 and made public on
23 April 2002, para. 58-60.
90 Article 15 of Council Directive 2000/43/EC.
25
desire to operate with some kind of definition.91 A definition may provide some way by which to
measure whether institutional racism might flourish in the context of access to jobs, good and
services, and grounds for challenge under EU law. In Hungary there is a plethora of terms
used to describe an ethnic group, these include ‘ belonging to an ethnic group (etnikai
csoporthoz való tartozás), ethnic affiliation (etnikai hovatartozás)and ethnic origin (etnikai
származás)’.92 Does a person who is discriminated against on the basis of ethnic affiliation
constitute an ethnic group for the purposes of the Race Equality Directive?
Further
complications arise in the context of ethnicity and religion.
Historically, the Eastern European states have been a complex mix of minority groups where,
under the Ottoman millet system populations were classified by reference to religion and not
ethnicity. This raises issues for how a group is to be defined since religion and ethnicity tend to
be conflated.93 Some complaints have been brought about by recognised ‘religious groups’.
Maronites have complained about their designation merely as a religious group; they consider
themselves also as “a specific ethnic group”. 94
91
See B. Bukovska and P. Bouckova, Report on Measures to Combat Discrimination in the
13 Candidate Countries (VT/2002/47), Country Report Czech Republic (Netherlands, Mede,
May 2003).
92 See A. Kadar and L. Farkas, Report on Measures to Combat Discrimination in the 13
Candidate Countries (VT/2002/47), Country Report Hungary (Netherlands, Mede, May 2003).
93
MINORITIES OF SOUTHEAST EUROPE: INCLUSION AND EXCLUSION , Christopher J
Walker, from Report Minority Rights Group International.
Furthermore, the Latin group is not satisfied with the term “Latin” as it does not properly
reflect their Roman Catholic religious identity (see Opinion on Cyprus by the Advisory
Committee on the Framework Convention for the Protection of National Minorities 2001)38.
This was adopted by the Committee of Ministers (Council of Europe 2002). Another issue,
primarily relating to religious freedom, highlighted by international reports is that of reservist
conscientious objectors(see Amnesty International Press Release 2002, Human Rights
Without Frontiers 2003) see N.Trimikliniotis, Report on Measures to Combat Discrimination in
94
26
Added to this difficulty is the failure of states to give recognition to the claims of minority
groups that they should be recognised.
For instance, in Greece and in Bulgaria the
Macedonians are not recognised by the state as a separate group.95 With such a problem, how
if at all are they to acquire the right to bring a case or raise issue on matters of racial
discrimination? Another group who experience great difficulties in this area are the Roma. They
are probably the group who are most likely to face the worst forms of discrimination across
sectors, yet are likely to be the group least able to bring a claim of racial or ethnic
discrimination. Institutional blindness in this regard is unlikely to be improved by the vagueness
of this term in the Race Equality Directive.
Jurisprudence in the Western European states, such as Britain may only be of limited use in
the area of whether or not a group constitutes an ethnic group. The British Model in terms of
anti-race discrimination legislation is important because it was used as the basis for the Race
Equality Directive. Many of the ideas are influenced by the British Race Relations Act 1976.
Ideas such as an independent monitoring body and the very concept of discrimination are
some such examples. Thus one might expect that the courts of the acceding states may well
look to Britain to provide guidance on the issue of ethnicity. Whilst it might be argued that
Britain currently holds an extensive list, the court’s decisions in relation to this term has raised
disquiet.
The seminal English case on the question of whether a person aggrieved on the basis of racial
discrimination, could bring a case under the Race Relations Act 1976 (RRA) on the basis of
the 13 Candidate Countries (VT/2002/47), Country Report Cyprus (Netherlands, Mede, May
2003).
95 Minorities of Southeast Europe: Inclusion and Exclusion, Christopher J Walker, from Report
Minority Rights Group International who argues that there are deep prejudices both in the
general population and central organs of the state.
27
membership of an ethnic group is Mandla (Sewa Singh) v Dowell Lee and Others.96 In this
case the House of Lords held that for the purposes of the Race Relations Act 1976 (RRA), an
ethnic group is one principally defined by reference to a long shared history and a cultural
tradition of its own.97The leading judgement of Lord Fraser was influenced to a large extent by
the approach adopted by the New Zealand courts in King-Ansell v Police.98 There the courts
had to interpret the statutory provisions dealing with racial discrimination and started with
dictionary definitions as key to understanding. Several English cases where the question of
ethnicity has been raised have been based on the Mandla ruling. The application of the ruling
has resulted in anomalies since there are those who by virtue of the essential criteria – a long
shared history and a cultural tradition of their own – fall within, and those who fall outside.
Thus This definition has been criticised as being overly restrictive since certain groups are
unable to take advantage of it in order to seek legal redress under the Act in cases of
discrimination. Thus in Cooper v British Rail,99 CRE v Precision Manufacturing Services Ltd100
and Dawkins v Department of the Environment101 the courts have consistently decided that
certain groups such as Muslims and Rastafarians are not ethnic groups. By contrast, groups
such as Jews102 and Gypsies103 have been afforded the benefit of the Mandla definition
enabling them to seek legal redress under the RRA. Given the racism that Rastafarians 104 and
96
[1983] 2 AC 548.
[1983] 2 AC 548 at 562.
98 [1976] 2 NZLR 531.
99 Unreported, Independent 27 Nov 1986.
100 Case No.4106/91 where it was alleged that an instruction to discriminate against Muslims
fell outside the Race Relations Act because Muslims did not constitute an ethnic group
because the tribunal believed that Islam was a spread of faith rather than a group of people
who could trace their descent from a common geographical origin. Also see Nyazi v
Ryamans, EAT, 10 May 1998 (unreported), Tariq v Young, Birmingham IT, 19 Apr 1989
(unreported); J H Walker Ltd v Hussain [1996] IRLR 11.
101 [1993} IRLR 284.
102 Seide v Gillette Industries Ltd [1980] IRLR 427.
103 Commission for Racial Equality v Dutton [1989] 1 All ER 306.
104 For instance the recent English judicial inquiry into the death of David ‘Rocky’ Bennett, a
Rastafarian who died in mental health custody while being physically restrained by personnel.
The inquiry headed by retired high court judge Sir John Blofeld found institutional racism in
the way that Rocky Bennet had been medically treated, negligence in the way he had been
97
28
Muslims face commentators have argued that it is illogical not to extend anti-racist legislation to
them.105 In Poland the provisions of Polish law do not define the concepts of national/ethnic
minorities and there have been problems in the courts in defining a national minority. 106 Such
issues have arisen where the refusal of the right to vote has been challenged by groups such
as the Silesian National People’s Association.107 Furthermore, under Polish case law there is
no definition of the concepts of race or religion.108 For Latvia there is no real discourse on the
issue of race. There are ethnic and linguistic differences. The latter raises an issue because
the official language is Latvian. Certain posts require knowledge of this official language
thereby there is the potential for discrimination based on ethnic/language divide.109 In Portugal
several ethnic minorities are often discriminated in the internal market for jobs, good and
services on the basis of cultural factors. African ethnic minorities are particularly vulnerable
because they are subject to 'latent racism'. However, an evaluation of the legal jurisprudence
restrained and more generally racism in the delivery of mental health services, see The
Guardian, 6 February 2004.
105 See Gearty, C. A. "The Internal and External 'Other' in the Union Legal Order: Racism,
Religious Intolerance and Xenophobia" in Alston above n 66 , 335-339 at 327, (in relation to
Rastafarians and Muslims); Dobe, K. and Chhokar, S. "Muslims, Ethnicity and the Law" 4
(2000) International Journal of Discrimination and the Law, 369 (regarding Muslims).
106 Beginning in 1989, successive Sejms have worked on a Bill on National and Ethnic
Minorities containing a suitable definition. Bearing in mind the history of work on successive
versions of the bill, it is difficult to assess its realistic chances of being passed in the current
parliamentary term. See E. Zienkiewicz and M. Mazur-Rafal, Report on Measures to Combat
Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Poland
(Netherlands, Mede, May 2003).
107
The problem of defining a national minority has appeared in the judgements of the
common courts in relation to the refusal to register an Association with the name “Silesian
National People’s Association.” Despite the successful registration of the association in the
first instance, following an appeal of the decision and an appeal in cassation, the attempt at
registration of an association representing the “Silesian nation” was rejected, based on the
argument that the freedom to choose a nationality may be applied only to objectively existing
nations, i.e. those formed through a historical process.41 In its verdict of 20 December 2001,
the European Court of Human Rights in Strasbourg unanimously affirmed that the denial of
registration of the Association did not violate art. 11 of the Convention.See E. Zienkiewicz and
M. Mazur-Rafal, Report on Measures to Combat Discrimination in the 13 Candidate Countries
(VT/2002/47), Country Report Poland (Netherlands, Mede, May 2003).
108
109
Ibid.
Ibid.
29
related to this area suggests a lacuna.110 Discrimination is not dealt with by reference to
'ethnicity' rather issues are framed in terms of 'working' and 'living' conditions. This means that
who is within and who without these parameters, in terms of ethnic groups, is difficult to
decipher. Without a working definition of what an ethnic group might be, it is difficult to assess
to what extent the transposition arrangements will effectively deal with discrimination against
ethnic groups. By way of contrast, Austrian legal jurisprudence is familiar with the term 'ethnic
origin'. This is dealt with through the Austrian Constitution's equality clause and takes its
language from the International Convention on Elimination of all Forms of Racial Discrimination
(ICERD): any distinction, exclusion, restriction or preference based on…ethnic origin….111
However, there is no definition of what is meant by ethnic origin. This means that the potential
exists for certain groups to be excluded and thus not afforded protection from racial
discrimination. An added complication in the Austrian context is the existence of 'special
measures' for protected national minorities. Some groups of national minorities in Austria are
so defined under the Volksgruppengesetz (National Minorities Act). This defines 'a national
minority as one that comprises groups of Austrian citizens with a non-German mother tongue
and a common autonomous cultural heritage who have their residence and home in a part of
the Austrian Federal territory.'112 Whilst anyone can affiliate to an ethnic group,113 given the
prevalence of skin colour' racism in Austria114 it seems highly unlikely that Austrian born
Africans or Muslims could do so in the context of how national minorities are defined. The
Race Directive might have been better served in terms of its desire to protect people from
ethnic discrimination had it provided a way of dealing with the issue raised here.
110
Niessen, J. and Chopin, I. (eds.), Anti-discrimination Legislation in EU Member States. A
comparison of national anti-discrimination legislation on the grounds of racial or ethnic origin,
religion or belief with the Council Directives. Austria, (Vienna, Austria, EUMC, 2002).
111 Article 1, para 1 of ICERD.
112 Niessen and Chopin (eds.), ibid., at 20.
113 Ibid.
114 See ZARA, Racism Report 2001. Case Reports on Racist Excesses in Structures in
Austria, Vienna Austria, 2001.
30
In English legal jurisprudence the question of whether or not a person is a member of an ethnic
group has become problematic because of the problem for those left out. 115 Anthropologists
and Sociologists explain that the term ethnicity is necessarily complex, shaped as it is by ‘…a
process of internal definition and external labelling. That is, people who share the same ethnic
origin define themselves as 'us' and are categorised as 'them' by people outside the group.’ 116
In the context of law the categorisation of a group as an ethnic group by reference to external
criteria is clearly problematic. Few in the legislature or the judiciary are necessarily informed of
the meaning of ethnicity, yet they are able to create measures that frame the way in which the
law gives credence to the claims by groups that they are ethnic groups, or not as the case may
be. This is problematic because the criteria developed may be limiting in its scope and effect.
Thus to state that an ethnic group is one with a long shared history and a cultural tradition of its
own, raises the question –why is this the essential criteria? Scholars argue that the focus on
‘culture’ for instance, should be taken with caution because this ‘…focus on the internal
constitution and history of separate groups and emphasise the importance of shared
115
See Dobe, K. and Chhokar, S. "Muslims, Ethnicity and the Law" 4 (2000) International
Journal of Discrimination and the Law 369 and Poulter, S. Ethnicity, Law and Human Rights.
The English Experience (OUP, 1998), chapter 9.
116 See ERACE – a Web Forum on race discrimination issues, under the auspices of the
Human Rights and Equal Opportunities Commission, Australia, where reference is made to
the following literature on this subject:-John E. Zucchi, 'Cultural Constructs or Organic
Evolution? Italian Immigrant Settlements in Ontario' in Julius Molinaro & Maddalena Kuitunen
(eds) The Luminous Mosaic; Italian Cultural Organizations in Ontario, Editions Soleil, Toronto,
1991. See also Kay Anderson, Vancouver's Chinatown: racial discourse in Canada 18751980, McGill-Queen's Studies in Ethnic History, Montreal, 1991.
31
fundamental cultural values (which may become manifest in overt signals such as dress and
language)…’117 tends to produce essentialist ideas that are not necessarily borne out in an
objective manner.118
Such focus produces a ‘check-list’ of cultural essentials’119 as a
fundamental measure which presumes that ethnicity is something which is ‘fixed’. It could be
argued that the use of an essence as determinative of a group, albeit for legitimate purpose
creates anomalies and thus has a tendency to contradict the notion of equality of treatment –
the corner stone of EU anti-race discrimination.
Furthermore, the use of essentials or
essences is surely contrary to EU policy stated in the preamble to the Race Equality Directive
where specific reference is made to the fact that ‘The European Union rejects theories which
attempt to determine the existence of separate human races. The use of the term "racial origin"
in this Directive does not imply an acceptance of such theories.’120 Since, the term ‘ethnicity’ is
often taken to be a derivate of ‘race’, it can be argued that the approach adopted by courts
such as the English courts to the definition of ethnic group in the context of anti-race
discrimination law is problematic. Moreover, given the fact that this type of definition does not
cover all ethnic minority groups, the spectre of institutional racism is surely called into play.
There is an apparent failure to provide a service to people based on race or ethnicity. This
failure will not be resolved with the RED in the way it is currently framed since this inherent
ambiguity is likely to present a gap for the acceding countries that a coach and horses could
ride through. It has been argued that the focus on culture has been rejected by an approach
that stresses’…primary focus is the set of rules that govern inter-ethnic social encounters that
allow for the persistence of cultural differences. From this perspective, ethnic groups are what
117
See Gill Bottomley, From Another Place: migration and the politics of culture, Sydney:
Cambridge University Press, Sydney, 1992. See also Richard Jenkins, Rethinking Ethnicity:
Arguments and Explorations, Sage Publications, London, 1997.
118 See ERACE – a Web Forum on race discrimination issues, under the auspices of the
Human Rights and Equal Opportunities Commission, Australia, Anthropological and
Sociological Approaches.
119 Ibid.
120 Recital 6 Council Directive 2000/43/EC.
32
people believe or think them to be; cultural differences mark 'group-ness', 121they do not cause
it or indelibly characterise ethnic identity; and ethnic identification arises out of and by
interaction between groups.’122 It is suggested that the ‘down up’, rather than ‘top down’
analysis is to be preferred and one that should be encouraged in the development of
jurisprudence concerning the application of laws dealing with the Race Equality Directive.
Religion
Directive 2000/78/EC
Recent events in relation to 'September 11' have brought to the fore the question of 'cultural
racism'.123 It has been argued that racism cannot be understood as based only on colour,124
nor can the racism experienced by Muslims be side-stepped by construing the victimisation
process as one based on religion – or indeed ethnicity.125 There are developing sets of
'cultural racisms' that use cultural difference to denigrate or 'demand cultural assimilation from
groups who also suffer colour racism.'126 The Directive fails to provide a mechanism whereby
this problem is both understood and dealt with in terms of national anti-discrimination
legislation. It is argued that the issues raised in this section demonstrate the 'fractured'
121
My emphasis.
Frederik Barth (ed) Ethnic Groups and Boundaries: The Social Organisation of Cultural
Difference, Universiteforlaget, Oslo, 1969.
123 See Brennan, F. 'Islamophobia: the Response of the Criminal Justice System', 2003
(forthcoming).
124 Modood, T. et al., Ethnic Minorities in Britain: Diversity and Disadvantage 'The Fourth
National Survey of Ethnic Minorities in Britain' (Policy Studies Institute, 1997).
125 Religious discrimination is dealt with by the Framework Directive on Employment and
Occupation.
126 Fredman, S. Discrimination Law (OUP, 2002).
122
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approach to the prohibition of racial discrimination at national level, using the Race Directive as
a device to combat racism. Whilst well meaning, such a strategy indicates that the Directive
reflects a failure to provide a service to a significant proportion of people of the EC. This failure
indicates the process of institutional racism because this blinkered approach tends to impact on
people on the basis of ethnicity.
Armenians, Jews and Assyrians…’127 a troubling difficulty is that ‘…ethnic minorities are
statistically invisible in official documents....’ So who are ‘they’ and ‘who’ decides who they are?
This is bound to cause problems that the Race Equality Directive with its ambiguous language
and with the nature of the instrument, is unlikely to resolve.
Conclusion
The entry of the accession countries into the legislative ambit of EU race discrimination law is
likely to present an interesting and different challenge to that which was probably envisaged by
the authors of the Race Equality Directive. Issues such as that of culture and language, the
rights of national minorities, and the mesh of religion and ethnicity are likely to test the legal
imagination. The concept of the right of the individual and its understanding and acceptance in
these future Member States as one that ‘trumps’ most rights is possibly going to be a key
factor in how institutions are asked to transform the way in which they recognise those
practices that might lead to institutional racism.
127
Equality, Diversity and Enlargement. Report on Measures to Combat Discrimination in
Acceding and Candidate Countries, Fundamental Rights and Anti-discrimination, European
Commission, Directorate General for Employment and Social Affairs, Unit D.4, September
2003.
34