The New Article 13 EC Treaty: A Sound Basis for European Anti-Discrimination Law?
| Published date | 01 March 1999 |
| DOI | 10.1177/1023263X9900600102 |
| Author | Mark Bell |
| Date | 01 March 1999 |
| Subject Matter | Article |
Mark Bell
The New Article 13 EC Treaty: A Sound Basis for
European Anti-Discrimination Law?
§ 1. Introduction
One of the most notable innovations i n th e 1997 Treaty of Amsterda m1 was the
insertion o f an ‘anti-discrimination amendment’, that is, a new article in the EC Treaty
to provide the Community with wide r powers to combat discriminatio n. Under the
existing Treaty, the Community has an express competence to adopt measures against
nationality discriminatio n, and an apparent competence to adopt measures against sexual
discriminatio n, at least in the fields of employment and social protection. Article 13, as
it is to b e kno wn,2 broadens the ex isting fields o f discrimination to include racial or
ethnic origin, religion or belief, disability, age or sexual orientation. However, the
precise parameters o f this new article are ambiguous, and the Commission has stated
its inte ntion to promote a ‘wide debate on the poss ible application of the non
discrimination clause’ d uring the course of 1998.3 In this context, this paper seeks to
explore several of the legal questions aris ing out o f the terms of the new article. For
example, whereas the new Article 141 (ex- 119) specifically confers a power on the
Community to adopt measures on sexual discrimination ‘in matters o f employment and
occupation’, Article 13 leaves open the question of the areas of discrimination to which
it applies. So, for example, may Article 13 for m a legal base for combating
* Researche r in Law, Eu ropean University Institute, Florence. M any thanks to Ann Dum mett, Elspeth
Guild and Pau l Skidmore, in particular. All responsibility for any errors, factual or oth erwise, of
course lies with the aut hor.
1. Europea n Union (EU), Trea ty o f Am ste rda m, (Office for the Official Publications of the European
Communities [OOPEC], 1997).
2. The Amsterdam Treaty provides f or the renumbering of all the articles of the Treat y. This pro duces
a rath er confusing scenario where the ame ndments are first listed a ccording to th eir number pr ior to
renumbering, and then later a table o f equivalence states what the article will be following entry into
force o f the T reaty. T hus, Article 13 is also Article 6a, prior to renumbering. For the purpo ses of
consistency, this paper will refer thro ughout to the new Treaty article numbers.
3. Commiss ion, ‘An ac tion plan against racism’ COM (98)183 final, 25. 03.98, at para. 2.2.2 .
6 MJ 1 (1999) 5
The Ne w Article 13 EC Treaty
discrimination in education, or in access to housing? A further question arises with
regard to the personal scope of Article 13, and in particular its application to resident
third country nationals (non-EU nationals). This is of cru cial relevance to the
effectiveness of potential measures to challenge racial and religious discrimination.
Before turning to these issues though, it is necessary to consider the context behin d the
adoption of Article 13.
§ 2. Origins of Artic le 134
For at least 4 years p rior to the European Council at Ams terdam in June 1997, there
had been a growing crescendo of voices in support o f an amendment to the Treaty to
extend the Community’s competence on anti-discrimination. On the one hand, the
guarantee of non-discrimination may be seen as part of the elaboration of the citizenship
of the Union. The chapter on citizenship inserted in the EC Treaty by virtue of the 1993
Treaty o n European Un ion (TEU) was mainly focused on political and civil right s for
Union citizens. As Catherine Barnard has pointed out, a non-discrimination amendment
forms part o f a development of the ‘social dimension o f Union citizenship’. 5 Non
discrimination also forms part o f the promotion o f free movement and the ab olition of
barriers with in the internal market. From the outset of the Community it has b een
accepted that discrimination deters individuals from exercising the r ight to free
movement. Whilst th is underpins the prohibition of discrimination based on (EU)
nationality in Articl e 12 (ex- 6), more recently there has been a realization that different
levels of protection against any kind of discrimination may undermine individuals’
willingness to m ove to another Member State. This was explicitly acknowledged in the
Commission’s White Pape r on Social Policy in 1994: ‘the Union must act to provide a
guarantee for all peo ple against the fear of discrimination if it is to make a reality of
free movement within the singl e market.’ 6
Building on these principles, an increasing number of NGOs, with the support of
European Parliament, the European Trades Union Confederation and the Economic and
Social Committee called on the Member States to amend the Treaty in the course of the
1996/7 In tergovernmental Conference. In particular, the Brussels-based Starting Line
Group campaigned for the adoption o f an anti-discrimination clause to permi t the
Community to legislate against racial and religious discrimination. Their initiative,
called th e St arti ng Po int, ultimately received the backing of almost 300 organizations
4. Fo r a fuller account, see M. Bell and L. Waddington, ‘The 1996 Intergov ernmental Conference and
the Pros pects of a Non-Discrimination Treaty Article’, 25 Ind us tria l L aw J ou rn al (199 6), 320.
5. C. Barnard, ‘The United Kingdom, the "Social C hapter” and the Amsterdam Tre aty’, 26 Ind ust ria l
Law Jou rn al (1997), 275, 280.
6. Commiss ion, ‘European Social Policy - A Way Forward for the Unio n’ COM(94) 333 final, 27.7.9 4,
Ch. VI, para. 27.
66 MJ 1 (1999)
To continue reading
Request your trial