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«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»

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However, it may be considered that there is indirect gender discrimination against female cleaners who are in the aforementioned situation (since women are the great majority of these cleaners) along with indirect discrimination on grounds of national origin (since most of the cleaners are foreigners, EU and third-country nationals) in matters of employment and social security. Harassment of these women may be considered direct gender discrimination along with direct discrimination on grounds of national origin. For female cleaners involved in trade unions, it may be considered that there is indirect gender discrimination, along with direct multiple discrimination in cases of harassment, as described above, and direct discrimination on grounds of beliefs and freedom of their expression.

More generally, these cases should be seen in the light of Paragraph 13 of the Preamble to Directive 2000/43 and Paragraph 12 of the Preamble to Directive 2000/78, in view of the objective of the gender equality directives and the directives prohibiting discrimination on other grounds. The growing presence of third-country nationals in the EU and the ensuing increasing risks of social dumping, widespread See this and further information on this particular case and on the situation in the cleaning sector on the website of the woman’s trade union, the ‘Pan-Attican Union of Women Cleaners and Household

Personnel’ (PEKOP) (Παναττική ΄Ενωση Καθαριστριών & Οικιακού Προσωπικού (ΠΕΚΟΠ):

http://pekop.formyjob.net, and in a study of the Institute of Employment (INE) of the General Confederation of Labour (GSEE) and the Confederation of Civil Servants (ADEDY): ΙΝΕ, GSΕΕ/ΑDΕDΥ, Labour Relations in the Cleaning Sector; Outcome of an Empirical Research Athens January 2009: http://www.gsee.gr/default.php, both accessed 23 February 2009.

62 Multiple Discrimination in EU Law social exclusion52 and social unrest should also be taken into account. It should thus be considered that discrimination is prohibited not only against EU nationals, but also against third-country nationals on one or more of the grounds mentioned in Article 13 EC, and that the prohibited grounds of discrimination should be interpreted in a wide, teleological way.

4. Proof and procedural problems The proof and procedural problems in multiple discrimination cases are, in principle, of the same nature as those in single-ground discrimination cases, but they may often be more serious. There are problems in respect of the burden of proof and the locus standi of organisations to pursue the claims of victims of discrimination. More particularly, the burden of proof rule was inadequately implemented by a Decree53 which merely copied it from the Burden of Proof Directive,54 although it should have been included in the Codes of Civil and Administrative Procedure;55 therefore, this rule is unknown. The only known case where the issue was raised led to a preliminary reference,56 which, however, does not seem to have encouraged other cases.

Furthermore, the rule of Directive 2002/73 requiring locus standi of trade unions and other organizations to bring individual workers’ claims before courts or other authorities was implemented by Act 3488/2006 transposing this Directive in the same ineffective way as the burden of proof rule, with the result that it is also unknown.

Moreover, Article 12(2) of Act 3488/2006, which is meant to transpose the latter rule, restricts the scope of this locus standi: it provides that organisations may initiate cases before administrative authorities and intervene before such authorities in favour of victims of discrimination, but it does not provide that organisations may bring claims of victims of discrimination before a court; they may only intervene before a court in favour of a victim after the victim him/herself has initiated a judicial procedure. The victims of discrimination are thus deprived of the support of the organisations at the stage where they need it most, since they often do not dare bring their cases to court themselves. Another inadequacy of the transposition of the locus standi rule is that Article 12(2) of Act 3488/2006 requires the ‘consent’, while Directive 2002/73 requires the ‘approval’ of the victim. According to the Greek Civil Code (Articles 236-238), the ‘consent’ must be given before the action concerned, while the ‘approval’ can be given afterwards. If a ‘consent’ is required, the recourse may be time-barred before the consent is given and the judicial protection of the victim of discrimination will not be achieved. Similar inadequacies in respect of the burden of proof and the locus standi rules appear in Act 3304/2005 transposing Directives 2000/43 and 2000/78. As a result of the above inadequacies, in spite of well-known extensive gender and multiple discrimination in practice, only few gender discrimination cases and no multiple discrimination cases have been brought, the judicial protection of victims of both single-ground and multiple-ground discrimination thus being an illusion.57 Cf. the repeated references to social inclusion and social coherence and solidarity in the Preamble of Directives 2000/43 and 2000/78.

Presidential Decree 105/2003 ‘on the adaptation of internal law to the provisions of Directive 97/80/EC’, OJ Α 96/23 April 2003.

Directive 97/80/EC, OJ L 14, 20 January 1998, p. 6.

This is what the Council of State (Supreme Administrative Court) had recommended in its Opinion 348/2003, on the legality of the draft Decree.

Case C-196/02 Nikoloudi v Organismos Tilepikoinonion Ellados (OTE) [2005] ΕCR Ι-1789.

On these problems, see Sophia Koukoulis-Spiliotopoulos ‘Greece’, in European Network of Legal

Experts in the Field of Gender Equality, European Gender Equality Law Review No. 1/2008:

Multiple Discrimination in EU Law 63

5. Description of a specific case As far as we know, the only case which was considered to be a multiplediscrimination case was the one dealt with by the Ombudsman, see under 2. In the Ombudsman’s press release (the only text available regarding the handling of this case)58 it is only mentioned that this case raised an issue of multiple discrimination, without any mention of the grounds. The Ombudsman may have considered that, since the action in question was implemented within the framework of the more general action ‘Harmonisation of Family and Professional Life’, and in particular within its axis ‘Measures of Support for the Promotion of Gender Equality in Employment’, the exclusion of third-country women constituted discrimination on grounds of family status and/or gender, all the more so as the harmonisation of family and professional life is recognized as a corollary to gender equality by the ECJ59 and the Greek Council of State (Supreme Administrative Court).60 The Ombudsman may also have considered that multiple discrimination resulted from the combination of the above ground(s) between them and with the ground of national origin.

The added value of a multiple discrimination approach, from a gender perspective, can be multiple: i) through multiple discrimination, gender discrimination can be addressed in all areas covered by the Directives that prohibit discrimination on grounds other than gender, even beyond the areas in which gender/sex is an explicitly prohibited ground of discrimination; ii) in a similar vein, positive measures in favour of women may be also taken in areas not covered by the gender directives;61 and iii) sanctions for multiple discrimination can be more severe, and therefore more effective, than sanctions for gender discrimination imposed individually (see under 2).

6. Effects of legislation and case law in practice No effects of legislation and case law can be detected in practice, as long as there is neither legislation nor case law on multiple discrimination. However, the Ombudsman’s intervention in the case that he considered to be a multiple discrimination case had very positive effects (see under 2).

7. Role of equality bodies The case that the Ombudsman considered to be a multiple discrimination case (see under 2) proved that the role of the Ombudsman in tackling multiple discrimination may be very important, all the more so as persons belonging to vulnerable and disadvantaged groups are more willing to seek support from the Ombudsman, who is http://ec.europa.eu/social/main.jsp?catId=641&langId=en, accessed 20 February 2009; Greek National Commission for Human Rights ‘Remarks on the Bill “Implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation – Harmonization of existing legislation with Directive 2006/54/EC of the European Parliament and the Council, of 5 July 2006”’: www.nchr.gr, accessed 20 February 2009.

Press Release dated 24 September 2008: http://www.synigoros.gr/allodapoi/news_archive.htm, accessed 20 February 2009; Act 3304/2005 ‘on the application of the principle of equal treatment regardless of racial or ethnic origin, religious or other beliefs, disability, age, or sexual orientation’, OJ A 16/27 January 2005.

Cases C-243/95 Hill and Stapleton v the Revenue Commissioners and the Department of Finance [1998] ECR I-3739; C-1/95 Gerster v Freistaat Bayern [1997] ECR I-5253.

Council of State judgments Nos. 1 and 2/2006, referring to the ECJ cases mentioned.

Under the Greek Constitution, positive measures in favour of women are a ‘must’ for all state authorities, in all areas, even those not falling within EC jurisdiction. See Sophia Koukoulis– Spiliotopoulos ‘Greece’ in European Network of Legal Experts in the Field of Gender Equality, European Gender Equality Law Review No. 2/2008: http://ec.europa.eu/social/main.jsp?

catId=641&langId=en 64 Multiple Discrimination in EU Law generally less formalistic than courts and other public authorities and whose intervention is free of charge.

8. Reinforcement of legal approach at EU level necessary?

At EU level, there does not seem to be an urgent need for reinforcement of the legal approach aimed at combating multiple discrimination. In particular, a new directive exclusively dealing with multiple discrimination will be of very doubtful added value, if not confusing. For the time being, it would be better to organise information for courts and other competent authorities, lawyers, trade unions and the general public, so as to raise awareness of situations where discrimination is based on more than one ground and thus bring such situations to light. Later, preferably on the occasion of the drafting of a recast directive bringing together the provisions of directives dealing with the Article 13 EC grounds, except gender/sex, an explicit, simple and clear prohibition of multiple discrimination (i.e. a prohibition of discrimination on more than one of the grounds mentioned in Article 13 EC) can be included in such a recast directive. A reference to multiple discrimination should also be made in the preamble of the new gender directives (as in the Preambles to Directives 2000/43 and 2000/78), including those relating to maternity and parental protection and those to be adopted on the basis of Article 13 EC, until a new recast gender directive is drafted.

At national level, it should be stipulated that multiple discrimination, i.e.

discrimination on more than one ground, constitutes an aggravating circumstance in criminal cases as well as in the award of moral damages (see under 2).

9. Community-law definition of multiple discrimination necessary?

When a prohibition of multiple discrimination is included in directives, as suggested

above (under 8), a simple community-law definition would be necessary (e.g.:

multiple discrimination is discrimination on more than one prohibited ground’). The concepts of ‘compound’ and ‘intersectional’ discrimination, interesting and challenging as they may be, should better be left to legal theory, as they would not seem to help in practice; they would rather risk creating confusion.

10. Available literature or research?

There does not seem to be any specific literature or research available regarding multiple discrimination.

11. Further research Further research regarding multiple discrimination is necessary at both EU and national level.

–  –  –

1. Concept of multiple discrimination in legislation Multiple discrimination, or the same phenomenon under any other name, is not explicitly prohibited by statutory legal instruments in Hungary. The total legal database of Hungary as valid in March 2009 includes only one regulatory document that mentions multiple discrimination: Parliamentary Resolution 10/2006 (16 February 2006) OGY on the National Disability Programme for the years 2007-2013 contains, in its Appendix (the description of the Programme), a fairly vague reference to disabled women or disabled people belonging to ethnic minority Multiple Discrimination in EU Law 65 groups who ‘might be exposed to multiple discrimination’. For this reason, the text adds, it is held as an important principle for the programme that the various measures shall be ‘designed on the basis of individual needs’. The little information available on the implementation of this Parliamentary Resolution, does not reveal whether and how this ‘principle’ was realized.

2. Case law Article 8 of the Hungarian Equality Act prohibits discrimination on a number of grounds. It explicitly lists 19 grounds, such as gender, ethnic origin and age. The last syllabus adds the 20th ground as ‘another situation, attribution or condition (hereinafter together: characteristics)’. This will be referred to as ‘other ground’. This ‘other ground’ has been interpreted broadly. With 20 grounds of discrimination, one would expect that cases where more than one ground are relevant occur frequently. In practice, such multiple discrimination has not been acknowledged yet. The multiplication of grounds is not acknowledged by the legal practice.

While there have been numerous cases where a claim was submitted on multiple grounds, in which sex was coupled with another ground (age and sex, family status and sex, ethnicity and sex), no decisions are known where the administrative authority’s decision or the court decision explicitly found multiple discrimination.

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