«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»
The same applies at EU level, with the advantage that experiences from other Member States may provide better material.
References – Three Acts of 10 May 2007, http://www.juridat.be (in French and Dutch).
– Statement of Purposes of the bill of a Discrimination in General Act, www.lachambre.be or www.dekamer.be
1. Concept of multiple discrimination in legislation Multiple discrimination is defined in the supplementary provisions of the Protection against Discrimination Act (PADA): ‘(…) 11. “Multiple discrimination” shall mean discrimination on the grounds of more than one of the characteristics under Article 4(1).’ It is also mentioned in Article 11 of PADA:
‘Article 11 … (2) State authorities, public bodies and local governments shall undertake priority measures due to the provisions of Article 7(1), subparagraphs 12 and 13 (currently pp. 13 and 14), to provide equal opportunities for individuals who are victims of multiple discrimination.’ Subsequently, the protection from multiple discrimination is defined within the scope
of two types of situation:
– educational and training measures ensuring balanced inclusion of women and men, as far as such measures are necessary; and – specific measures for the benefit of disadvantaged individuals or groups of people on the grounds under Article 4(1) targeted at providing equal opportunities, as far as such measures are necessary.
There is no explicit prohibition in the general provisions of the law. Article 11 can be assessed as very unclear and difficult to implement. In addition, the limitation of the measures against multiple discrimination in the situations mentioned does not guarantee protection in cases where sex discrimination is involved.
2. Case law Two cases can be mentioned so far as having been decided under more than one ground of discrimination, gender discrimination included. Although they do not represent sufficiently typical multiple discrimination cases, they are mentioned as C. Bayart, S. Sottiaux and S. Van Drooghenbroek (ed.), De nieuwe federale antidiscriminatiewetten – Les nouvelles lois fédérales luttant contre la discrimination, Bruges, die Keure, 2008.
‘Gronden van discriminatie – De Wenselijkheid van open en gesloten opsommingen’, pp. 156-161.
Multiple Discrimination in EU Law 33 such in the Compilation of case law of the court under the Law on Protection against Discrimination (publication of the Commission for Protection against Discrimination – 2008).
Since these court decisions were rendered relatively early after the adoption of the PADA (in the period 2003-2005), the different grounds were not addressed separately and the gender aspects were not identified clearly enough.
The first decision of the Supreme Administrative Court is on a case of gender and age discrimination (administrative file 4402/2005). A disabled woman complained of multiple discrimination based on age and gender by a regulatory act which granted a special type of wheelchairs for disabled people to men up to 65 but to women only up to 60 years old. As a result of the discrimination identified, the respective provision was repealed/abolished by the court.
The second decision of the Supreme Administrative Court, under administrative file 5063/2003, is based on gender and personal status. A female university student complained that she was discriminated against as a woman and mother due to the ban for accumulation of a university student grant and payment of family benefits for pregnancy, giving birth and childcare under the Law on Family Assistance for Children. The court found that the grant and the benefits were due on different grounds and that, subsequently, the claimant was discriminated against, and repealed the respective provision of the governmental decree regulating student grants.
This case is very interesting, as it introduces for the first time in such a procedure the arguments for discrimination based on sex under CEDAW. In fact, the court accepts the claimant’s argument regarding discrimination of women in the field of education, contrary to CEDAW which requires equality of women and men in the allocation of grants and other assistance for students.
There are no indications that the identification of multiple discrimination played a role, apart from the abolishment of the provisions challenged, in the allocation of compensation to the victims.
3. Any cases where gender-related discrimination is overlooked?
Despite the fact that the Commission for Protection against Discrimination has a special subdivision, a five-member panel specialized in multiple discrimination cases, so far it has not been very efficient in identifying multiple discrimination cases based, among other grounds, on gender.
As an illustration of this trend, it is worth noting that in the period 2006-2007 the Commission had to deal with cases related to the prohibition to wear headscarves by Muslim students in schools in South Bulgaria. The decision of the Commission, which raised strong debate in society, was that the prohibition of headscarves in schools where there is a requirement for wearing special uniforms does not constitute discrimination. The Ministry of Education and Science was instructed to adopt special regulations for wearing ‘religious symbols’ in schools.
Although the prohibition affected only female students, the Commission missed the opportunity to also consider the gender aspects of this problem.
4. Proof and procedural problems No specific problems exist in this respect. It is simply a new issue that needs time to develop.
34 Multiple Discrimination in EU Law
5. Description of a specific case The second case of multiple discrimination described under 2 above is quite interesting due to its reference to CEDAW. It was presented in more detail above. It is indicative of the court’s ability to identify multiple discrimination despite the fact that the case is from 2003 and that no consistent case law existed at that time.
6. Effects of legislation and case law in practice More general surveys on discrimination based on the six main grounds (these are the notorious grounds of the Year for Equal Opportunities for All (YEOA): sex, disability, age, race and ethnicity, sexual orientation, religion or belief) were conducted in Bulgaria in 2007 during the YEOA. The survey conducted by ‘Scala’, the Agency for the Commission for Protection against Discrimination, covers multiple discrimination but does not deal with gender discrimination together with other grounds.
7. Role of equality bodies The Commission for Protection against Discrimination has the competence to ensure protection from multiple discrimination but, as mentioned above, this has not been sufficiently used. According to Article 50 p. 2 of the PADA, the Commission has the competence to initiate cases, also for the cases of multiple discrimination.
In addition to this, the Commission has the competence to conduct independent surveys and to issue publications and recommendations on all aspects of discrimination (Article 47 PADA).
8. Reinforcement of legal approach at EU level necessary?
Yes, there is a need for reinforcement of the legal approach at EU and national level.
At national level, the provisions in Chapter One ‘General provisions’ of the PADA on the need to tackle multiple discrimination should be more concrete, instead of the vague mention of ‘measures’ or ‘all necessary measures’. The concept being very new for Bulgarian legislation, the respective national and local bodies will have difficulties in implementing such measures.
Furthermore, the protection against multiple discrimination should be tackled more specifically in a future law on gender equality in Bulgaria.
Possible changes in EU legislation in the direction of reinforcement and more concrete measures for protection against multiple discrimination would justify the need for the mentioned changes at national level.
9. Community-law definition of multiple discrimination necessary?
Yes, a Community-law definition will have a positive influence on the protection against gender-related multiple discrimination.
10. Available literature or research?
No such literature is available.
11. Further research Yes, research on multiple discrimination is necessary. Some legal questions to be
addressed are the following:
– Does gender-related multiple discrimination exist as a concept in current legislation and what types of such discrimination occur most frequently?
1. Concept of multiple discrimination in legislation The legal system of Cyprus guarantees the necessary legal protection to persons claiming to be victims of any kind of discrimination and provides for effective remedies/recourses (administrative and judicial). The fundamental rights and liberties of citizens and the remedies provided for their effective implementation are defined in the Constitution of Cyprus, which incorporates and in some instances expands upon the rights and liberties safeguarded by the European Convention for the Protection of Human Rights and Fundamental Freedoms.
All these rights are guaranteed to all persons without making any distinction or differentiation between citizens and non-citizens of the Republic, or between citizens of the Republic who belong to the Greek and Turkish Communities and without any distinction or differentiation on grounds of community or religion or nationality, or on other grounds.
Article 28.18 of the Constitution gives all persons the right of equality before the law, the administration and justice, and of equal protection and treatment thereby.
Article 28.29 gives all persons the right to enjoy the said rights and liberties without any direct or indirect discrimination on the grounds of the person’s ‘community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class or on any ground whatsoever, unless there is express provision to the contrary in the Constitution’.
Article 610 of the Constitution provides that no law or decision of the House of Representatives and no act or decision of any organ, authority or person in the Republic exercising executive power or administrative functions, shall discriminate against any person.
Article 3511 of the Constitution imposes on the legislative, the executive and the judiciary a duty to secure, within the limits of their respective competence, the efficient application of the provisions of the Constitution setting out the fundamental rights and liberties.
Article 28(1) 1. ‘All persons are equal before the law, the administration and justice and are entitled to equal protection thereof and treatment thereby.’ Article 28(1) 2. ‘Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in this Constitution’.
Article 6 ‘Subject to the express provisions of this Constitution no law or decision of the House of Representatives or of any of the Communal Chambers, and no act or decision of any organ, authority or person in the Republic exercising executive power or administrative functions, shall discriminate against any of the two Communities or any person as a person or by virtue of being a member of a Community’.
Article 35 ‘The legislative executive and judicial authorities of the Republic shall be bound to secure, within the limits of their respective competence, the efficient application of the provisions of this Part’.
36 Multiple Discrimination in EU Law Section 2 of Article 17912 prohibits that the legislative, administrative and executive authorities of the Republic enact any laws or issue acts or decisions which are in any way repugnant to or inconsistent with any of the provisions of the Constitution, including the human rights provisions thereof.
Cyprus has ratified or signed most international conventions and/or protocols in the field of human rights, including civil, political, economic, social and cultural rights and rights in the field of protection and respect of minorities and combating discrimination.
Following the ratification of the United Nations Convention on the Elimination of All Forms of Racial Discrimination, by Ratification Law No. 12/67, Cyprus amended the said Ratification Law in 1992 (by Law No. 11/92) so as to create a number of criminal offences relating to discrimination (Article 2A of the Law).13 This law was also amended in 1995 and 1999 by Laws Nos 6(III)/95 and 28(III)/99.
Cyprus has enacted four laws that entered into force on the date of its accession to the EU (1 May 2004): the law amending the existing disability law,14 the law transposing (roughly) the Employment Directive,15 the law transposing (roughly) the Race Directive16 and the law appointing the Ombudsman as the specialized body (hereinafter ‘the equality body’) empowered to investigate complaints of discrimination under all three of the aforesaid laws and beyond.17 Article 179(2) ‘No law or decision of the House of Representatives or of any of the Communal Chambers and no act or decision of any organ, authority or person in the Republic exercising executive power or any administrative function shall in any way be repugnant to, or inconsistent with, any of the provisions of this Constitution’.
‘Article 2A - Offences (1) Any person who in public either orally or through the press or by means of any document or picture or by any other means, incites acts which are likely to cause discrimination, hatred or violence against any person or group of persons on account of their racial or ethnic origin or their religion is guilty of an offence and is liable to imprisonment not exceeding two years or to a fine not exceeding one thousand pounds or to both sentences.
(2) Any person who establishes or participates in any organization which promotes organized propaganda or activities of any form aiming at racial discrimination is guilty of an offence and is liable to the punishments provided for in subsection (1).