Implementation of the Article 13 Directives in Dutch Equal Treatment Legislation
| Published date | 01 September 2006 |
| Date | 01 September 2006 |
| DOI | http://doi.org/10.1177/1023263X0601300303 |
| Subject Matter | Article |
13 MJ 3 (2006) 291
IMPLEMENTATION OF THE ARTICLE 13
DIRECTIVES IN DUTCH EQUAL
TREATMENT LEGISLATION
J H. G*
ABSTRACT
In the Netherlands, an elaborate legal syste m of legislative protection against di scrimination
has been in place since 1994. Partly with th e aim of implementing the Article 13 Directives,
two new statutes were added to the sy stem in 2003 (disability discrimination) and 2004
(age discrimination) and a number of amendments have been made to the exis ting legal
framework. is has resulted in a highly complex system of legislation . e complicated
di erences between the scope an d exceptions of the various legislative acts wil l be di cult
for most people to comprehend. As far a s content is concerned, ho wever, the Dutch
legislation generally seem s to comply with the requirements of the Directives and o en even
provides a higher le vel of protection. Most issues of d ebate in the Dutch implementation
process concern relatively minor points, s uch as terminology (discrimination or
“distinction”?). It is clear, however, that some elements of the Dutch legislation can be
considered to be incompatible with the Direc tives, in particular the compl ete exclusion of
religious institutions and the cl ergy from the scope of application of the ETA and the
decision to de ne the elements of harassment cumul atively instead of alternatively.
Keywords: Non-discri mination, Article 13 Directives, National implementat ion, Dutch
equal treatment legi slation, Algemene Wet Gelijke Behandeling, Terminolog y of
discrimination (discriminatie vs. ond erscheid), Material scope of equal treatment
legislation , Exception clauses
* Professor of Const itutional and Adminis trative Law, University of Leiden. Jan neke Gerards is also a
Fellow at the E.M . Meijers Institute of Lega l Studies of the Universit y of Leiden. is contribution was
written as pa rt of the Meijers research progr amme ‘Securing the r ule of law in a world of multilevel
jurisdict ion’ – subprogramme ‘Funda mental rights’.
Janneke H. Gera rds
292 13 MJ 3 (2006)
§1. I N TRODUC TION
In the Netherlands, a n elaborate system of legislative protection against discrimination
has been in place since 1994.1 At pr esent, si x di erent acts are in force, each dealing wit h
speci c grounds or speci c areas. e Equa l Opportunit ies Act (1989) protects against
gender discrimination in employment; the Equal Treatment Act (1994) prohibits
distinct ions on a number of grounds in the eld of employment and supply of goods and
services; t he Equal Treatment (Working Hours) Act (1996) and Equal Treatment
(Temporary and Permanent Employees) Act (2002) protect workers against discrim ination
based on working hours and t ype of contract; the E qual Treatment (Handicap or Chronic
Illness) Act (2003) relates to disabilit y discrimination in employment and public
transport; a nd the Equal Treatment (Age) Act (2004) relates to age discrimination in
employment.
When the Article 13 Directives were adopted in 2000,2 t he decision was made to
implement these Directives by amending the existing legal framework. Although this
might seem to be relatively easy g iven the elaborate system that was already i n place, this
has proven to be rather di cult. e need to amend t he equal treatment legi slation has
sparked intense debate on the compatibilit y of the Dutch legislative framework with the
European Direct ives, the quality of the chosen i mplementation methods and the need to
integrate the various ac ts into one single equal treatment act. Import ant issues of debate
related to terminology and de nitions (e.g. the use of the term ‘d iscriminat ion’ instead
of ‘distinct ion’), the delicate balance between equality and con icting fundamenta l
rights (such as freedom of religion) and the materia l scope of the Dutch legislation.
e Dutch system of equa l treatment legislat ion is o en considered to be quite
progressive and complete. For that reason, many member states have been c urious to
know how the Directives have been implemented into Dutch law. It is to satisfy this
curiosity, and to put the perceived qual ity of Dutch equal tre atment legislation into
perspective, that t his article wil l provide a critical overview of the most i mportant issues
relating to the D utch implementation process. 3 Such an overview might contribute to an
exchange of ‘best pract ices’ (or, i ndeed, worst practices), which may be helpful in nding
the best way to protect equal t reatment and combat discrimination.
To this end, this paper wil l start with a short discussion of the various Dutch equal
treatment acts that are present ly in force (§2). It w ill then repor t the most important
1 Prior to 1994, legisl ative protection wa s only provided to sex equ ality: in 198 0, speci c legis lation with respec t
to equal treat ment of men and women was introduced to implement EC Di rective 76/207 (see section 2.1.
below).
2 e R ace Directive (2000/43, [2000] O.J. L180/22) and the E mployment Equality Direc tive (2000/78,
[2000] O.J. L303/16).
3 For an interesting overview, see also Marianne Gijzen, The Netherlands count ry report on mea sures to
combat discrimination, Report produced for the Ne twork of Independent L egal Expe rts, Decemb er
2004, publi shed online at http://europa.eu .int/comm/employment_ social/fund amental_r ights/public/
pubst_en.ht m#legnet (last visit ed 31 December 2005).
To continue reading
Request your trial