EQUALITY AND DIVERSITY FORUM JUSTICE POSITIVE ACTION AND DIVERSITY LONDON, 5 SEPTEMBER 2007

1. EQUALITY AND DIVERSITY FORUMJUSTICEPOSITIVE ACTION AND DIVERSITYLONDON, 5 SEPTEMBER 2007 EU LAW AND JURISPRUDENCE OLIVIER DE SCHUTTER UNIVERSITY OF LOUVAIN AND COLLEGE OF EUROPE

2. OUTLINE The regime of positive action under EU law The uncertainties Why these uncertainties can be a problem and what are the possible ways forward Olivier De Schutter, 5 September 2007

3. THE EXISTING REGIME Case-law developed in the field of equal treatment between women and men : Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, Article 2(4) : the prohibition of discrimination on grounds of sex ‘shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities’ in the areas to which the directive applies Article 141(4) EC (ex-Article 119 EEC, as amended by the Treaty of Amsterdam (2 October 1997, in force on 1 May 1999)) : ‘With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.’ Olivier De Schutter, 5 September 2007

4. THE EXISTING REGIME Article 2(8) of Council Directive 76/207/EEC (as amended by Directive 2002/73/EC of 23 September 2002) : ‘Member States may maintain or adopt measures within the meaning of Article 141(4) of the Treaty with a view to ensuring full equality in practice between men and women’ Article 3 of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) Olivier De Schutter, 5 September 2007

5. THE EXISTING REGIME Case C-450/93, Kalanke, 17 October 1995 Equally qualified women are automatically given priority in appointments in sectors where they are under-represented (1990 Bremen Law on Equal Treatment for Men and Women in the Public Service)  An absolute and unconditional priority for appointment or promotion goes beyond promoting equal opportunities and oversteps the limits of the exception in Article 2(4) of Directive 76/207/EEC  A rule seeking to achieve equal representation of men and women in all grades and levels within a department substitutes for equality of opportunity as envisaged in Article 2(4) the result which is only to be arrived at by providing such equality of opportunity Olivier De Schutter, 5 September 2007

6. THE EXISTING REGIME Case C-409/95, Marschall, 11 Nov. 1997 priority is to be given to the promotion of female candidates unless reasons specific to an individual male candidate tilt the balance in his favour (Offnungsklausel): not disproportionate if objective assessment of all individual candidacies which will take account of all criteria specific to the individual candidates Olivier De Schutter, 5 September 2007

7. THE EXISTING REGIME Case C-158/97, Badeck, 28 March 2000 • binding targets defined in accordance with the specificities of the sectors / departments concerned and without automatic determination of the outcome, but individual examination of each candidate : not disproportionate • advancement plan for temporary posts in the academia must provide for a minimum percentage of women which is at least equal to the percentage of women among graduates, holders of higher degrees and students in each discipline : not disproportionate as using an actual fact as a quantitative criterion for giving preference to women • training places for which the State has no monopoly : not disproportionate since a) does not concern employment, but training with a view to obtaining qualifications and b) places also available in the private sector: no male candidate is definitively excluded from training • women who are qualified are guaranteed to be called to interview, in sectors in which they are under-represented: promotes equality of opportunity rather than of result Olivier De Schutter, 5 September 2007

8. THE EXISTING REGIME Case C-407/98, Abrahamsson, 6 July 2000 A candidate belonging to an under-represented sex and possessing sufficient qualifications may be chosen in preference to a candidate belonging to the opposite sex who would otherwise have been chosen, unless the difference in their respective qualifications is so great this would be contrary to the requirement of objectivity in the making of appointments : disproportionate since this entails a risk of arbitrariness Olivier De Schutter, 5 September 2007

9. THE EXISTING REGIME Case C-319/03, Serge Briheche, 30 September 2004 : Article 3(1) and Article 2(4) of Council Directive 76/207/EEC preclude a national provision which reserves the exemption from the age limit for obtaining access to public-sector employment to widows who have not remarried who are obliged to work, excluding widowers who have not remarried who are in the same situation. But see opinion of AG Poiares Maduro : It cannot be ruled out that positive measures which do not fall within the scope of Directive 76/207 could be authorised under this provision [Article 141 (4) EC]. In effect … one could argue that there is a distinction between measures aimed at reducing inequalities and measures aimed at compensating for past or existing inequalities suffered by a social group. It cannot be excluded that the reference in Article 141(4) EC to compensatory purposes is intended to provide the Member States with a broader discretion in adopting measures of positive discrimination. Such an interpretation must, however, always remain within the boundaries authorised by the general principle of equality. … Olivier De Schutter, 5 September 2007

10. THE EXISTING REGIME But see opinion of AG Poiares Maduro : …[Therefore, what Article 141(4) would add is the recognition of the idea that] the adoption of measures of a compensatory type is necessary in view of the fact that the non-discriminatory application of the current societal rules is structurally biased in favour of the members of the over-represented groups. What is believed is that measures often associated with substantive equality which compensate for the under-representation of certain groups (for example quotas, automatic preferences) are the only ones that can effectively bring about long-term equality of opportunities. Measures favouring the members of certain groups are therefore not conceived as a means to achieve equality among groups or equality of results but, instead, as an instrument to bring about effective equality of opportunities. The purpose of compensatory measures of this type becomes that of re-establishing equality of opportunities by removing the effects of discrimination and promoting long-term maximisation of equality of opportunities. Compensation refers in this case to reinstating a balance between the opportunities given by society to the members of the different groups Olivier De Schutter, 5 September 2007

11. THE EXISTING REGIME Para. 31 of the Briheche judgment : Irrespective of whether positive action which is not allowed under Article 2(4) of the Directive could perhaps be allowed under Article 141(4) EC, it is sufficient to state that the latter provision cannot permit the Member States to adopt conditions for obtaining access to public-sector employment of the kind in question in the main proceedings which prove in any event to be disproportionate to the aim pursued. Olivier De Schutter, 5 September 2007

12. THE EXISTING REGIME Positive action as an exception to the right to (formal) equality of treatment … …requiring a justification under three criteria : 1. The legitimacy of the aims pursued • The backward-looking rationale : compensating for past discrimination • The equal opportunities rationale : removing existing inequalities (‘by removing existing inequalities which affect women’s opportunities’, ‘with a view to ensuring full equality in practice’) • The forward-looking rationale : ensuring diversity (proportionate representation) 2. The adequacy of the means chosen 3. The proportionality of the means chosen • Automaticity v. Flexibility • Partial set-aside v. Complete set-aside • Permanent v. Temporary Olivier De Schutter, 5 September 2007

13. THE UNCERTAINTIES • Can the case-law developed in the field of equal treatment between women and men be transposed to the new grounds of prohibited discrimination? • Can the case-law developed in the field of equal treatment between women and men be extended beyond the sphere of employment? • What are the obstacles resulting from the rules relating to the processing of personal data and the right to respect for private life? Olivier De Schutter, 5 September 2007

14. THE UNCERTAINTIES Can the case-law developed in the field of equal treatment between women and men be transposed to the new grounds of prohibited discrimination? • Objective determination of gender (v. controversial determination of one individual’s membership in an ethnic/racial group, religion, or disability ; and sexual orientation) b) Obligatory character of positive action measures under international law (Art. 18 ICCPR, Art. 2(2) ICERD and General Recommendation 27, Discrimination against Roma (2000) of CERD, CPWD, FCNM) (comp. Case E-1/02, EFTA Surveillance Authority v. Kingdom of Norway (judgment of 24 January 2003), para. 58) Olivier De Schutter, 5 September 2007

15. THE UNCERTAINTIES U.N. Human Rights Committee, General Comment 18, Non-discrimination (Thirty-seventh session, 1989), par. 10 : …the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. (…) Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant. Olivier De Schutter, 5 September 2007

16. THE UNCERTAINTIES Convention on the Elimination of All Forms of Racial Discrimination, Article 2(2): States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved. Olivier De Schutter, 5 September 2007

17. THE UNCERTAINTIES CERD, General recommendation XXVII on discrimination against Roma (2000): States Parties should “take special measures to promote the employment of Roma in the public administration and institutions, as well as in private companies”, and “adopt and implement, whenever possible, at the central or local level, special measures in favour of Roma in public employment such as public contracting and other activities undertaken or funded by the government, or training Roma in various skills and professions” Olivier De Schutter, 5 September 2007

18. THE UNCERTAINTIES CERD, General recommendation XXIX on article 1, paragraph 1 of the Convention (Descent)(2002): recommends the adoption of “special measures in favour of descent-based groups and communities in order to ensure their enjoyment of human rights and fundamental freedoms, in particular concerning access to public functions, employment and education”, as well as to “educate the general public on the importance of affirmative action programmes to address the situation of victims of descent-based discrimination” and to take “special measures to promote the employment of members of affected communities in the public and private sectors”. Olivier De Schutter, 5 September 2007

19. THE UNCERTAINTIES Convention on the Rights of Persons with Disabilities, Article 27(1)(h) : encourages the States Parties to ‘promote the employment of persons with disabilities in the private sector through appropriate policies andmeasures, which may include affirmative action programmes, incentives and other measures’. Olivier De Schutter, 5 September 2007

20. THE UNCERTAINTIES Council of Europe Framework Convention for the Protection of National Minorities (1 February 1995, in force 1 February 1998) Article 4 1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited. 2. The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities. 3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination. Olivier De Schutter, 5 September 2007

21. THE UNCERTAINTIES Case E-1/02, EFTA Surveillance Authority v. Kingdom of Norway (judgment of 24 January 2003), para. 58 : The Defendant cannot justify the measures in question by reference to its obligations under international law. CEDAW, which has been invoked by the Defendant, was in force for Community Member States at the time when the Court of Justice of the European Communities rendered the relevant judgments concerning the Directive. Moreover, the provisions of international conventions dealing with affirmative action measures in various circumstances are clearly permissive rather than mandatory. Therefore they cannot be relied on for derogations from obligations under EEA law. Olivier De Schutter, 5 September 2007

22. THE UNCERTAINTIES Can the case-law developed in the field of equal treatment between women and men be extended beyond the sphere of employment? The baseline for allocation of jobs : qualification / merits, see Case C-158/97, Badeck, 28 March 2000: ‘As a rule, a procedure for the selection of candidates for a post involves assessment of their qualifications by reference to the requirements of the vacant post or of the duties to be performed’ (para. 46) Which baseline for educational grants, social housing, social assistance? In particular, may social cohesion / ethnic mixity or diversity form part of the legitimate objectives pursued in these fields ? Olivier De Schutter, 5 September 2007

23. THE UNCERTAINTIES What are the obstacles resulting from the rules relating to the processing of personal data and the right to respect for private life? • Limitations resulting from legislation relating to the processing of personal data : Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data • Limitations resulting from the protection of the right to respect for private life and emergence of a norm of self-identification: - Article 3(1) of the Framework Convention on the Protection of National Minorities : every person shall have the right freely to choose to be treated or not to be treated as belonging to a national minority and no disadvantage shall result from this choice - CERD General Recommendation VIII (1990): the identification of individuals as being members of a particular racial or ethnic group or groups “shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned” Olivier De Schutter, 5 September 2007

24. THE UNCERTAINTIES • Limitations resulting from legislation relating to the processing of personal data : - Positions adopted by independent experts - European Parliament (Resolution on non-discrimination and equal opportunities for all - A framework strategy (2005/2191(INI)) (rapp. T. Zdanoka) (18.5.2006) • Limitations resulting from the protection of the right to respect for private life and requirement of self-identification: A. Heringa, G. Malinverni, and J. Marko, Comments by Council of Europe experts on certain aspects of a future Bill of Rights for Northern Ireland (Strasbourg, 3 February 2004) (about proposed inclusion of Clause 3 (7) in the Draft Bill of Rights): ‘…there could well be a clash of rights, for example between the right of self-identification on the one hand and the need to ensure equality on the other’. Olivier De Schutter, 5 September 2007

25. THE PROBLEM WITH THESE UNCERTAINTIES 1. Restrictions imposed by rules relating to the protection of personal data and the right to respect for private life as a pretext in order to refuse to consider positive action schemes : opinion should be requested from the Working Party ‘Article 29’ 2. Restrictions following from the existing case-law of the European Court of Justice may have a chilling effect on the adoption of such schemes : communication from the Commission stating its views about the admissibility of positive action schemes, on the basis of a collection of existing good practices, could be considered (see, eg, post Kalanke) Olivier De Schutter, 5 September 2007

26. THE PROBLEM WITH THESE UNCERTAINTIES A potential role for Equality Bodies (and Equinet) in promoting positive action Article 13(2) of the Racial Equality Directive : role includes ‘publishing independent reports and making recommendations on any issue relating to such discrimination’ • Could include on a systematic basis reports on the impact (measured quantitatively) of antidiscrmination policies in the fields covered by the Directive and proposals about remedial actions • Could lead to requesting public or private bodies to monitor their workforce / practices and develop action plans (per analogy : Fair Employment and Treatment Order (FETO) 1998 in NI) Olivier De Schutter, 5 September 2007

27. THE PROBLEM WITH THESE UNCERTAINTIES 3. Since Article 5 of the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC) allow for positive action but do not impose the adoption of positive action schemes, national (constitutional) provisions may restrict this possibility, for instance : • Slovak Constitutional Court judgment of 18 October 2005 (incompatibility of Section 8 paragraph 8 of the Anti-discrimination Act with the Article 1 paragraph 1 (Rule of Law principle), the first sentence of Article 12 paragraph 1 (principle of equality), and Article 12 paragraph 2 (non-discrimination principle) of the Constitution of the Slovak Republic) • French Conseil constitutionnel, Decision n° 2006-533 DC of 16 March 2006 (Loi relative à l'égalité salariale entre les femmes et les hommes) Olivier De Schutter, 5 September 2007

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