Rainer Züfle looks at Germany's imminent implementation of the anti-discrimination directives.

The right to equality before the law and protection against discrimination for all persons constitutes a universal right." This is how the Council of the European Union (EU) explains one of the motives behind the passing of what are known as the Anti-Discrimination Directives.

Due to the large number of nations with different histories, the task of combating discrimination within Europe's borders - be it based on national or ethnic origin, religion or on other grounds - poses a great challenge to European socio-politics. The successful convergence of formerly independent states can only work if the internal peace is not jeopardised by the exclusion of and discrimination against certain nationalities or minorities. However, the fact that Europe has developed into a preferred destination for immigrants from non-European states demands an effective anti-discrimination policy.

The EU has been aware of this fact for many years. Legislative acts on several special subjects, such as providing equal opportunities for men and women in the workplace, came into force some time ago. However, it was not long before the need to create a general legal framework for the implementation of the principle of equal treatment in the EU was identified.

The two outline Anti-Discrimination Directives passed in June and November 2000 must be seen in this context. These were, firstly, the Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (Directive 2000/43/EC)1 and, secondly, the Directive establishing a general framework for equal treatment in employment and occupation (Directive 2000/78/EC)2.

Both Directives are what are referred to as outline directives. They set forth only various general principles and are intended to guarantee a minimum degree of protection for those affected. It is up to the member states to adopt them into their respective national legal systems. This takes into account the fact that the constitutional and/or legal systems of most member states already include provisions intended to combat discrimination against certain groups. However, in the opinion of the European Commission, there are considerable differences between the individual member states as far as the scope of application and the enforceability - as well as the possibility of claiming compensation - are concerned. This should be rectified in the future.

The Directives must be adopted in national law by 19 July 2003 (Directive 2000/43/EC) and 2 December 2003 (Directive 2000/78/EC). The differences in existing national provisions mean, however, that they will not be adopted uniformly. This article will explain the adoption process, taking Germany as an example, although the information imparted here cannot be applied indiscriminately to other countries.

At first glance, the two Directives would appear to deal with the same subject. What are the differences between them?

Directive 2000/43/EC
Directive 2000/43/EC only deals with potential discrimination on the basis of 'race' and 'ethnic origin'. Other grounds for discrimination such as age, belief, sexual orientation or similar matters are not taken into account. The Directive comprises almost all areas of life, however, and prohibits discrimination in such areas as vocational training and employment, social protection or access to and provision of services.

Race and ethnic origin should not influence relationships between citizens of the EU. The member states must ensure that those affected receive effective legal protection against impermissible discrimination. Under certain circumstances, this involves a shift in the burden of proof in favour of the injured party. The member states are expressly authorised to impose sanctions in the form of compensation to victims.

Directive 2000/78/EC
Directive 2000/78/EC, on the other hand, covers all grounds for discrimination named in Article 13 of the Treaty Establishing the European Community, with the exception of 'gender', because a special directive already exists on this subject3. The grounds in question are race, ethnic origin, religion, belief, disability, age and sexual orientation. However, this comprehensive approach is coupled with a limited area of application.

Unlike Directive 2000/43/EC, Directive 2000/78/EC only deals with access to employment and occupation, promotion and vocational training, occupational and working conditions, and membership in certain associations. The regulations provided by the authors are largely identical to those in Directive 2000/43/EC. The structure and content of the Directives are, therefore, comparable. Here, too, the member states are obliged to establish penalties for discriminatory practices. These can expressly also include the payment of compensation to victims.

There are several aspects concerning the protection against discrimination that are already included in Germany's statutory provisions. However, these are essentially only the general clauses of the Grundgesetz (German Constitution) and general civil law. Until now, the elements constituting discrimination were rarely the subject of an expressed provision. For example, there is no written prohibition of discrimination against others on grounds of race or ethnic origin. Nor are there explicit regulations on a claim to compel a party to refrain from discriminatory practices or a claim for compensation.

In response to these omissions, a special Anti-Discrimination Act, which currently exists in the form of a bill, is to be enacted to encompass all elements constituting discrimination under Article 13 of the Treaty Establishing the European Community. Thus, the comprehensive approach of Directive 2000/78/EC is to be adopted. Unlike this Directive, however, the area of employment law will first be excluded from the scope of application of the Act. A separate regulation is to be drawn up for this at a later date.

The Act will comprise all legal transactions under civil law that the EU has identified as requiring regulation. This includes the area of access to and supply of goods and services that are available to the public. In addition, it will cover working relationships, which do not constitute employment relationships in the strict sense of the term. Finally, the stipulations will also include the provision of healthcare and education under private law as well as access to professional or trade associations outside of trade unions and employers' associations.

The definition of grounds for discrimination, the distribution of the burden of proof, exceptional facts of the case, and many more factors will be dealt with according to the specifications of Directive 2000/43/EC. A claim to compel a party to refrain from discriminatory practices and a claim to remedial action will also be defined.

Where neither option is a suitable means of compensating for the discrimination suffered, the law provides for financial compensation. A case in point would be a situation in which a person is refused admission to a concert that will only be held once, on the basis of his or her ethnic origin. The law does not comment on how compensation is to be assessed in such cases. However, considerable problems can be expected to arise in this specific area.

Work on the German Anti-Discrimination Act was briefly interrupted by the close of the legislative period in September 2002. It is assumed that the legislative project will be pursued in the current legislative period in order to comply with the official deadline for adopting the Directives.

The great symbolic significance of the Anti-Discrimination Directives and the subsequent national laws is unmistakable. The statutory standardisation of certain facts is intended to anchor the concept of non-discrimination more firmly in the public mind. The German legislature expressly acknowledged this 'educational' aspect in its statement on the legislative intent of the bill.

At present, it is impossible to say whether any actual changes will ensue in practice and if so, on what scale. It is assumed that attention will initially focus on the area of employment relationships; there are few other areas of life where people are continuously subject to the influence of others in a comparable manner. The state of dependence between an employer and employee increases the likelihood of employees feeling that they are being discriminated against - whether this is justified or not. Employers will have to take greater care to ensure that they create a work environment that adheres to the principle of equal treatment. This not only concerns the way that employees treat one another but also such issues as remuneration and the selection of job applicants.

1 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 L 180 of 19/07/00, p22.

2 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, Official Journal L 303 of 2/12/00, p16.

3 Directive of European Parliament and the Council of 13 June 2002 amending the Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.

By Rainer Züfle
Rainer Züfle is a senior underwriter for the Global P&C Facultative Casualty business of GE ERC in the business unit Munich, Germany.