Monday, 25 February 2008

EU TFEU: Combating discrimination

The European Union is bound by prohibitions on discrimination and the European Community is allowed action to combat discrimination on various grounds.

The Treaty of Lisbon introduces a horizontal aim to combat discrimination on specific grounds in the policies and activities of the European Union.

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The intergovernmental conference (IGC 2007) inserted a new provision having general applicability into the Treaty of Lisbon (ToL), more precisely the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:

Article 5b TFEU (ToL), to be renumbered Article 10 TFEU

In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

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Reading is fine, but understanding is better. We set out to see the origins of this new transversal provision, by looking first at the Treaty establishing a Constitution for Europe, where Title I Provisions of general application of Part III The policies and functioning of the Union has this to offer (OJ 16.12.2004 C 310/55):

Article III-118 Constitution

In defining and implementing the policies and activities referred to in this Part, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

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We are able to see that the only difference is of an editorial nature, the substance including the specific grounds for discrimination to combat being identical in the Lisbon Treaty and the Constitution.

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If we find something in the Constitutional Treaty, there is cause to take a peek at what the European Convention proposed in the draft Treaty establishing a Constitution for Europe. Part III The policies and functioning of the Union, and its Title I Clauses of general application offer us this provision (OJ 18.7.2003 C 169/29):

Article III-3 Draft Constitution

In defining and implementing the policies and activities referred to in this Part, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

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The draft Constitution and the Constitution are identical in this respect.

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Article III-3 of the draft Constitution has been described as a new horizontal provision, which would apply to the Constitution and the Lisbon Reform Treaty, as well.

Let us see if there are any points of reference in the current treaties, the TEU and the TEC.

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One provision to check would seem to be Article 6 TEU, especially paragraph 2 with its reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms (the latest consolidated version of the current TEU and TEC being found in OJ 29.12.2006 C 321 E/1, with Article 6 TEU on page 12):

Article 6 TEU

1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

3. The Union shall respect the national identities of its Member States.

4. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.

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The European Human Rights Convention, consolidated with later amending protocols, can be found on the web pages of the Council of Europe:

http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=005&CM=7&DF=2/25/2008&CL=ENG

Our attention turns to Article 14, as amended by Protocol 11:

Article 14 – Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

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On the face of it, most of the specific grounds for prohibited discrimination seem to be shared by the European Human Rights Convention and the Lisbon Treaty, but a more thorough examination would be required to ascertain if, for instance, ‘birth or other status’ have been given the same scope by the European Court of Human Rights as ‘disability, age or sexual orientation’ enumerated in the Treaty of Lisbon.

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One of the mainstays of the common market has been the prohibition of discrimination on grounds of nationality, to be found in the existing Article 12 TEC (OJ 29.12.2006 C 321 E/48):

Article 12 TEC

Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.

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We come even closer when we take a look at the specific grounds for discrimination to combat in the current Article 13 TEC:

Article 13 TEC

1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the
Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

2. By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251.

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The grounds mentioned in Article 13 TEC and Article 5b TFEU (ToL) are identical, and more than a prohibition against discrimination the current treaty envisions active action to combat discrimination.

We are going to leave the question open for now, if the present requirement for unanimity is upheld in the Treaty of Lisbon.

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The fundamental rights of the citizens of the European Union (or universally), caused a fair amount of commotion among member states’ governments. This warrants a closer look at the Charter of Fundamental Rights and related expressions of concern.

We take note of the fact that the Charter of Fundamental Rights of the European Union includes a prohibition of discrimination, by the EU institutions and the member states when implementing EU law, on various grounds, many of them fairly familiar by now (OJ 14.12.2007 C 303/7):

Article 21 Charter
Non-discrimination

1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.

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We refer the interested reader to the Explanations relating to the Charter of Fundamental Rights (OJ 14.12.2007 C 303/24):

Explanation on Article 21 — Non-discrimination

Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article 19 of the Treaty on the Functioning of the European Union, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. In so far as this corresponds to Article 14 of the ECHR, it applies in compliance with it.

There is no contradiction or incompatibility between paragraph 1 and Article 19 of the Treaty on the Functioning of the European Union which has a different scope and purpose: Article 19 confers power on the Union to adopt legislative acts, including harmonisation of the Member States' laws and regulations, to combat certain forms of discrimination, listed exhaustively in that Article. Such legislation may cover action of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union's powers. In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article.

Paragraph 2 corresponds to the first paragraph of Article 18 of the Treaty on the Functioning of the European Union and must be applied in compliance with that Article.

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Naturally, should we be confronted with a problem pertaining to the Charter, we have to be aware of the Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, these countries wanting to evade enforceable rights (OJ 17.12.2007 C 306/154-155):

PROTOCOL
ON THE APPLICATION OF THE CHARTER OF FUNDAMENTAL
RIGHTS OF THE EUROPEAN UNION TO POLAND AND TO THE
UNITED KINGDOM

THE HIGH CONTRACTING PARTIES,

WHEREAS in Article 6 of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union;

WHEREAS the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 and Title VII of the Charter itself;

WHEREAS the aforementioned Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article;

WHEREAS the Charter contains both rights and principles;

WHEREAS the Charter contains both provisions which are civil and political in character and those which are economic and social in character;

WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles;

RECALLING the obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally;

NOTING the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter;

DESIROUS therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom;

REAFFIRMING that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter;

REAFFIRMING that this Protocol is without prejudice to the application of the Charter to other Member States;

REAFFIRMING that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Article 1

1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.

Article 2

To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.

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We have joint Declaration (number 1) concerning the Charter of Fundamental Rights of the
European Union, with one more reminder of the limited impact of the Charter (OJ 17.12.2007 C 306/247):

1. Declaration

The Charter of Fundamental Rights of the European Union, which has legally binding force, confirms the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States.

The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties.

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Citizens’ rights received special attention from two member state governments, leading to three additional declarations:

53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union

61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union

62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom

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Combating discrimination is set to be a generally applicable principle of EU action.


Ralf Grahn