Race Discrimination and the European Union Anno 1996: From Rhetoric to Legal Remedy?
| Date | 01 June 1996 |
| Author | Deirdre Curtin,Mark Geurts |
| Published date | 01 June 1996 |
| DOI | 10.1177/092405199601400203 |
| Subject Matter | Article |
Race Discrimination and the European Union Anno 1996:
From Rhetoric to Legal Remedy?
Deirdre Curtin
and
Mark Geurts"
Abstract
The question
of
the legal competence
of
the EU to adopt binding measures to assist in
combatting racial discrimination has traditionally not received much attention. The Treaty
on European Union does not include a general prohibition
of
discrimination but only
of
(pay related) sex discrimination. Moreover, the Treaty provision outlawing discrimination
on grounds
of
nationality has generally been interpreted as limited to discrimination
between nationals
of
the Member States. For the rest,
if
anything, the Treaty provisions
actually reinforce unequal treatment between the legal situation
of
migrants with the
nationality
of
a Member State and 'third country nationals' (in particular the free
movement
of
persons provisions and the definition
of
European Union citizenship, as
introduced by the Maastricht Treaty). This not only risksfeeding xenophobia, it is also an
unacceptable starting-point to combat the disgraceful manifestations
of
racism in the
territory
of
the Member States
of
the European
Union.
It is significant that in the run up
to the Inter-Governmental Conference to amend the terms
of
the Treaty, a widely made
proposal is to include a prohibition on discrimination on grounds inter alia
of
race and
ethnic origin. A tandem proposal is to provide equal treatment for established third
country nationals in certain respects. This article examines both the current situation
(possible judicial and legislative approaches) as well as the desirable Treaty amendments.
Introduction
There is nothing obvious or preordained when raising the issue
of
race discrimination in
the context
of
the legal landscape
of
the European Union. In many ways until recently it
was like, to paraphrase Pablo Neruda, entering a transparent house through its walls and
hanging up pictures in the air. Or so it might have seemed on a superficial examination
of
the subject. The general thinking in the European Union has been that efforts should
focus on the role which other international organisations could play with regard to the
combatting
of
racial discrimination in Europe (and in particular efforts by the United
Nations, the Council
of
Europe and the ongoing work in the framework
of
the OSCE).
After all, unlike (pay related) sex discrimination there is no specific Treaty provision on
the subject and no secondary legislation either.1The Commission
of
the EC has
categorically reaffirmed its conviction that the Treaty contains no possible legal basis for
regulating the issue at the Union level; it therefore has no competence to issue a draft
Deirdre Curtin is Professor of the Law of International Organisations, Europa Institute, Utrecht University
and a member of the Standing Committee of Experts on International Immigration, Refugee and Criminal
Law. Mark Geurts formerly worked at the Europa Institute, Utrecht University; currently he is working at
De Brauw Blackstone Westbroek, The Hague.
The only provision in secondary legislation which contains a reference to a prohibition
of
race discrimination,
is Article 22
of
Council Directive 89/5521EC
of
3 October 1989 on the coordination of certain provisions
laid down by law, regulation or administrative action in Member States concerning the pursuit
of
television
broadcasting activities (OJ L298, 17 October 1989, p. 23).
Netherlands Quarterly
of
Human Rights, Vol. 14/2, 147·171, 1996.
©The Netherlands Institute
of
Human Rights (81M). Printed in the Netherlands.
147
NQHR
2/1996
proposal which would attempt to do SO.2 The only related Treaty provision concerns the
outlawing
of
discrimination on grounds
of
nationality and that has generally been
interpreted as limited to discrimination between nationals
of
the Member States.
But superficial examination generally misses hidden recesses. The European Union
house (or temple as it is more grandiously referred to) is not as bare or as transparent (in
Neruda's
sense) as might appear from an initial inventory. In an attempt to inject some
momentum for change, various attempts have recently been made to argue that the EU
does in fact currently possess competence to adopt measures which would assist in
combatting racial discrimination' and even that the European Parliament should
commence infringement proceedings against the Commission for failing in its putative
duty to propose relevant draft legislation." Such attempts are premised on the basis that
the existing Treaty contains several provisions which could potentially serve as a legal
basis (separately or jointly) for (limited) secondary legislation, assuming
of
course that the
requisite political will is present.
To date, no serious attempt has been made by the decision-makers to adopt binding EC
legal norms capable
of
effective enforcement at the national level. But the rhetoric
of
the
governing elite is long established and prolific. The 1986 Joint Declaration against Racism
and Xenophobia signed by the European Parliament, the Commission and the Council as
well as the representatives
of
the Member States in Council, and annexed to the Single
European Act, contains an undertaking to protect all individuals without discrimination on
grounds
of
nationality, race or religion;' it has never been given any legislative follow-up.
The Community Social Charter
of
1989 in its Preamble contains an explicit reference to
See the Commission's White Paper on a European Social Policy, paragraph 25, at p. 30, Doc. COM(94) 333,
27 July 1994.However, the Commission is committed, for the time being, and pending the Intergovernmental
Conference
of
1996, to propose non-discrimination clauses in Community instruments, to be decided on a
case by case basis. See Communicationfrom the Commission on Racism, Xenophobia
and
Anti-semitism and
Proposal
for
aCouncil Decision designating 1997 as European Year against Racism, 8 December 1995,
COM (95) 653, at p. 17. The Commission has already included its first such clausein its proposal aimed at
transposing the framework agreement on parental leave signed on 14 December 1995 in Brussels by the
European social partners under the Maastricht Social Protocol into a Council directive. See Agence Europe,
No. 6657, I February 1996, at p. 7. The Commission's proposal designating 1997 as European Year against
Racism has not yet been adopted by the Council. On the wider pan-European level, similar initiatives have
also been taken. For example, the Council of Europe has just completed its European Youth Campaign
against Racism, Xenophobia, anti-Semitism and Intolerance.
See Richard Plender in an Opinion
of
13 October 1992 for the Working Party on Race Relations in Europe,
jointly established by the Bar Council and the Law Society of England and Wales. See also the 'Starting
Line Proposal', April 1993, (unpublished). The Starting Line Group consists of the Churches' Committee
for Migrants in Europe, the British Commission for Racial Equality, the Dutch 'Landelijk Bureau
Racismebestrijding' and the
German'
Auslanderbeauftragte des Senats von Berlin'. The 'Starting Point
amendments' are supported by the Law Society and the General Council of the Bar of England and Wales
(18 January I 995/JG/an). See also Elsbeht Guild, Proposal
for
Action Against Racism by the European
Parliament, Churches' Committee for Migrants in Europe, 4 July 1994, (unpublished), p. 6.
See Guild, supra note 3, at p. 9.
The 1986 Joint Declaration against Racism and Xenophobia signed by the European Parliament, the
Commission and the Council as well as the representatives of the Member States in Council, OJ C 158/1,
25 June 1986. This Declaration carne into existence partly as a result of the report of the Committee of
Inquiry on the Rise of Racism and Fascism in Europe
of
the European Parliament
of
25 November 1985;
Rapporteur: Dimitrios Evrigenis, PE Doc. A2-160/85. Seealso the second report of the Committee oflnquiry
of 23 July 1990; Rapporteur G. Ford, PE Doc. A3-0195/90.
148
To continue reading
Request your trial