The EU Race Directive: Time for Change?
| Author | Erica Howard |
| Date | 01 March 2007 |
| DOI | 10.1177/135822910700800403 |
| Published date | 01 March 2007 |
International
Journal
of
Discrimination
and
the
Law,
2007,
Vol.
8,
pp.
237-261
1358-2291/2007
$10
©
2007
A B
Academic
Publishers.
Printed
in
Great
Britain
THE
EU
RACE
DIRECTIVE:
TIME
FOR
CHANGE?
ERICA HOWARD
Queen
Mary
University
of
London,
UK
ABSTRACT
The
European Union
(EU)
Directive
against
racial
and
ethnic origin
discrimina-
tion
has
been
criticized
for
a number of
reasons.
The
main
ones
are,
firstly,
that
it
places
racial
and
ethnic
origin
at
the
top of
the
hierarchy of discrimination
grounds
in
the
EU
and that it
does
not
cover
discrimination
on
the
grounds of
religion
or
belief;
secondly,
that
its
main
aim
appears
to
be
to
establish
formal
equality or equal treatment rather than a
more
substantive
form
of
equality;
and,
thirdly, that it
gives
only
limited
protection
to
third country nationals
(nationals of non-EU
Member
States).
In
this
paper a number of
changes
to
the
Directive
are
suggested
in
order
to
make
it
into a
more
effective
tool
in
the
fight
against
racism
and
racial
and
ethnic
origin
discrimination.
INTRODUCTION
In
June
2000,
the
EU
adopted
the
Race
Directive,
1 a Directive
against
discrimination
on
the
grounds
of
racial
or
ethnic
origin.
It
was
the
first legislative
measure
taken
by
the
EU
in
the
fight
against
racism
and
racial discrimination.
In
the
same
year,
the
EU
also
adopted
a Directive
against
discrimination
on
the
grounds
of
religion
or
belief, disability, age
and
sexual
orientation
2
and
an
Action
Pro-
gramme
to
combat
discrimination.
3
These
measures
were all
taken
on
the
basis
of
Article
13
EC,
which
was
inserted
in
the
EC
Treaty
by
the
Treaty
of
Amsterdam
of
1997
and
provided
the
competence
for
the
EU
to
adopt
legislation
against
discrimination
on
the
grounds
of
sex, racial
or
ethnic
origin, religion
or
belief, disability, age
and
sexual
orientation.
Nationality
discrimination
was
already
prohib-
ited
by
Article
12
EC,
while
discrimination
on
the
ground
of
sex
has
been
prohibited
in
a
number
of
Directives
adopted
since 1975.4
The
main
Directive
against
sex
discrimination,
the
Equal
Treatment
Directive,
was
amended
in
20025
to
bring
it
more
in
line
with
the
2000
Directives.
In
2004,
the
EU
adopted
a Directive
to
extend
the
protec-
tion
against
sex
discrimination
to
the
access
to
and
the
supply
of
goods
and
services.6
Together,
these Directives
provide
protection
238
against discrimination
on
all the
grounds
of
Article
13
EC. However,
the protection against discrimination is
not
the same for the different
grounds
of
discrimination.
In
this paper, a
number
of
changes,
to
be
made
to
the
Race
Directive, are
proposed
in
order
to
make
it
into
a
more
effective
tool
to
combat
racism
and
racial
and
ethnic origin discrimination
in the
EU.
Changes will only be suggested in relation
to
the
Race Directive and,
due
to
limitations
of
space,
not
in relation
to
the
other
Equality Directives,
although
many
of
the
proposed
changes
could
also be
made
in the same way
to
those
other
Direc-
tives. This is based
on
the
opinion
that
all
four
Directives,
and
possible future Directives
adopted
on
the basis
of
Article
13
EC,
should, wherever possible,
contain
the same definitions, provisions
and
exceptions
and
unnecessary differences in wording
should
be
avoided, as this would only create confusion
and
make
interpreta-
tion
more
difficult.
The
first
part
of
the
paper
contains
an
overview
of
the
differ-
ences in protection provided by the different Equality
Directives-
the
Equal
Treatment,
Race,
Framework,
Gender
Amendment
and
Goods
and
Services Directives -because this provides the context
in
which the Race Directive
must
be placed: the
Equal
Treatment
Directive
and
the case law
of
the
ECJ
in relation
to
sex discrimina-
tion
have influenced the Race
and
Framework
Directives, which,
in
their
turn,
have influenced the
Gender
Amendment
and
the
Goods
and
Service Directives. After the overview, the
major
points
of
criticism directed
at
the Race Directive will be discussed
and
this is followed
by
suggestions
on
how
to
improve the Directive
in
light
of
these.
The
changes suggested are inspired
by
and
based
on
inter-
national
measures against racial discrimination like the Inter-
national
Convention
on
the Elimination
of
All
Forms
of
Racial
Discrimination
(ICERD)
and
General
Recommendation
No.
7
of
the
European
Commission against Racism
and
Intolerance
(ECRI),
7 a
body
of
the Council
of
Europe
specifically
appointed
to
deal
with
racism
and
racial discrimination.
In
this Recommenda-
tion,
ECRI
recommends
that
the
Member
States
of
the Council
of
Europe
enact
legislation against racism
and
racial discrimination
and
gives key
components
of
such legislation. As all 25
Member
States
of
the
EU
have signed
and
ratified
the
ICERD
and
are
Members
of
the
Council
of
Europe, it
appears
logical
to
look
at
these instruments for guidance.
Two
points
relating
to
the
character
of
the
Race Directive need
to
be
kept
in
mind
in this discussion: firstly,
it
is a
EU
measure,
and
as
such
it
needs
to
conform
to
the
principles
of
subsidiarity
and
propor-
tionality laid
down
in Article 5 EC. According
to
Recital 28
of
the
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