The Starting Line and the promotion of EU anti-discrimination legislation
The role of policy oriented research
by Jan Niessen
Introduction
In 2000, the European Union adopted two legislative measures in the field of equal treatment and anti-discrimination, namely the 'Council Directive implementing the principle of equal treatment between persons irrespective of ethnic and racial origin' and the 'Council Directive establishing a general framework for employment equality'. The two Directives, together with the Action Programme, are EU responses to persistent discrimination and outbreaks of racist violence across the European Union.
Civil society has long pressed for the adoption of European measures against racism. Among the organisations that played an important role in the policy debates is the Starting Line Group, a coalition of a wide variety of non-governmental actors active in the field of anti-discrimination. The Starting Line Group believed that debate among and between representatives of all sectors of society - public, private, and business - would promote the adoption of effective European anti-discrimination policies, and that the production of substantive and comparative policy research would stimulate a well-informed policy debate.
This paper looks back at the process leading to the adoption of European legal measures against racial discrimination and the role policy oriented research has played. It looks briefly ahead to the coming years when these instruments shall be incorporated into the laws of the current and future EU Member States. The activities undertaken to adopt European anti-discrimination legislation are described from the perspective of the Starting Line Group. This may in no way be interpreted as claiming that the Starting Line Group is the sole or most important player in the European policy-making fields. Such a claim cannot be substantiated by any scientific research. Research could, however, highlight and measure the importance of the Starting Line Group for the formation of European anti-discrimination policies and how the various stakeholders can work effectively and successfully together.
The launch of the Starting Line
The re-launch of the common market in the mid-eighties also moved social issues up on the European policy agenda. Among these issues were equal treatment and anti-discrimination. In 1984, the European Parliament established the Parliamentary Committee of Inquiry into the Rise of Fascism and Racism, leading to the adoption of the Evrigenis Report in 1986. In the same year the European Parliament, the Council of Ministers and the European Commission adopted the Joint Declaration against Racism and Xenophobia. In 1991 a second report on the issue was published by the European Parliament (the Ford Report).
The Ford report was based on research undertaken by a number of organisations, including the Brussels-based Migration News Sheet (providing country by country information on expressions of racial discrimination) and the London-based Searchlight (providing information on extremist right-wing organisations). The well-researched report showed that there were very active racist organisations at work in Europe, many of them working together transnationally, that there were many expressions of racial discrimination requiring different approaches to eliminate them, and that there was no Member State free from this disease. On the basis of this research a series of policy recommendations were made.
Both the Evrigenis Report and the Ford report, but not the Joint Declaration, called for the adoption of European legislative measures. The Council of Ministers and the European Commission were of the opinion that the European Treaties did not provide a legal basis for the European institutions to act on racial discrimination, a conditio sine qua non for any action at the Community level. The European Parliament and its Rapporteurs maintained that whether or not the European institutions are competent to take legal and other measures was more a matter of political will than of a strict interpretation of the European Treaties. The Rapporteurs and later the Starting Line Group referred to article 235 (now article 308) of the EC Treaty which could very well provide the necessary basis to act on racial discrimination. This article states that where the Treaties do not provide the legal basis for action, actions may be taken as long as they are necessary for the attainment, in the course of the operation of the common market, of one of the objectives of the Community, and by unanimous vote. Apparently, not all Member States, nor the European Commission, considered the fight against racial discrimination to be one of the objectives of the European Community.
The Evrigenis and Ford report were well received by the NGO community. In 1991, a few European NGOs started consultations leading to clear recommendations for the development of a European strategy, including the adoption of a Community legal instrument to eliminate all forms of racial discrimination. This group of organisations, composed of NGOs, church-based organisations and semi-official organisations, took the matter further and began drafting its own proposal for Community anti-discrimination legislation. The drafters included activists, lawyers, academics and a former official of the European Commission. The product of their work became known as the Starting Line. The drafters felt that it was important to base the proposal on Community commitments to human rights and the Community's overall goal of the promotion of the internal market and the free movement of persons. As to the former, the wording of the Starting Line was borrowed from international human rights instruments to which all Member States were parties. As to the latter, the drafters maintained that the different levels of protection against racial and ethnic discrimination in the Member States could easily infringe upon the rights of citizens to move freely within the Community. In many Member States no anti-discrimination legislation was in place and some of them were not even considering adopting such legislation. A European measure would, however, oblige them.
In terms of the type of legal measure, the drafters preferred a Directive. A Directive defines the goals to be achieved, but leaves considerable room to the Member States to incorporate these goals into national law. A Directive sets minimum standards allowing Member States not only to connect these standards with national traditions, law and practices, but also to go beyond these standards and offer more protection than the minimum standards require. Translating European measures into national law would engage national parliaments and all stakeholders in an ongoing debate on anti-discrimination policies. These factors would all enhance the effectiveness of anti-discrimination legislation. The drafting group carefully studied existing Community legislation against gender discrimination and used it in its design for a proposal for a Directive against racial discrimination.
Developing one's own legislative proposals has a number of advantages. First, they can focus the debate on clearly defined issues. Such proposals force and/or maintain issues on the European agenda, or they can serve as a reference document on the basis of which official proposals are judged. Second, NGO proposals may better respond to the needs of immigrants and minorities than those proposed by the European Commission. The Commission's proposals, while often close to those of NGOs in the initial stages of the drafting process, usually change during the negotiations between the European Commission and the Council of Ministers. It is in the Commission's interest to put forth proposals that are likely to win the support of the Council of Ministers and to avoid that too many of their legislative proposals are rejected. Third, NGO proposals show how concerns of immigrants and minorities can be translated into European measures and may inspire policy-makers to include essential elements in their own proposals.
The campaign
The group of drafters transformed itself into the Starting Line Group and launched a campaign to rally the support for the Starting Line of national and international NGOs (eventually, some 400 organisations supported the Starting Line), national governments (which showed little interest) and European institutions. The European Parliament supported the Starting Line in many of its Resolutions on racism in Europe and the European Commission began slowly to take an interest in the emerging Starting Line coalition.
A few interesting and comparative studies were published by independent academics, the European Commission, the European Parliament and the Council of Europe. The Starting Line Group was in some instances consulted by researchers preparing these reports, or members of the Starting Line Group were themselves involved in the production of these reports.
All these reports showed that racism, never totally eliminated in Europe, resurfaced at a time when European societies were becoming increasingly more diverse as a result of post-war immigration. The reports also made the case for concerted action against racism, including the adoption of legislative measures, and laid the foundation for future action by both governmental and non-governmental actors. Some of the reports asked for European measures.
Politically speaking, the Starting Line campaign was not getting anywhere in the early nineties. The Council of Ministers and the European Commission kept on claiming that the European institutions were lacking the powers to act on racial discrimination. Therefore the Starting Line Group drafted a proposal for a new article to be included in the EC Treaties which would provide such powers. This proposal was called the Starting Point. The Starting Line campaign turned into a Starting Point campaign a year before the 1996/7 Intergovernmental Conference opened.
Breakthrough
In response to increased ethnic tensions and violent outbreaks of racism across Europe, the Council of Europe created in 1993 the European Commission against Racism and Intolerance (ECRI). After some time, ECRI would produce excellent policy papers and commissioned comparative research on anti-discrimination legislation (see note 13). The following year, the European Union established the Consultative Commission on Racism and Xenophobia, which after initially rejecting to call for European legal measures against racism made it one of its main recommendations in its 1996 final report. In the same year the final decision was taken to designate 1997 as the European Year against Racism. The European year offered immense opportunities to increase the support for a European strategy against racism (including the adoption of legal measures against racism). At the same time the Intergovernmental Conference (IGC) discussed proposals for Treaty changes, one of them being a proposal for the inclusion of an anti-discrimination clause. The Starting Line Group closely monitored the IGC, among others with academics, and informed a wide public about the discussions on the anti-discrimination clause. Clearly, racism was now firmly on the European agenda.
Engaging more stakeholders
In 1997, it began to become very likely that the European institutions would take appropriate action against racial discrimination. It was felt necessary, in anticipation of possible resistance against future European legal measures against racism, to engage more stakeholders in the debate. Special attention was given to the position of employers, who together with the trade unions carry much weight in the Brussels corridors of power. Employers' organisations could very well oppose anti-discrimination legislation out of fear of the introduction of a European type of affirmative action, which in Europe is wrongly equalled with a quota system. In addition, employers could also try and play off against each other legislative measures and voluntary action by the social partners, clearly preferring voluntary action above legislation.
The Migration Policy Group linked its work with the private sector with that of the Starting Line and carefully studied North American anti-discrimination policies. A Transatlantic Dialogue was organised which attempted to clarify Canadian and US policies and practices for a European (private sector) audience. An important conclusion of this research project was that legislation and voluntary action are complimentary strategies. There would be no effective voluntary action by employers when there is not a legislative framework, whereas legislation without voluntary action would probably settle for a legalist and minimalist approach to combating racism.
The Amsterdam Treaty
The 1996/97 Intergovernmental Conference lead to the adoption of the Amsterdam Treaty. The Treaty, which amended the European Treaties, was adopted in June 1997 and it could only enter into force after ratification by all fifteen Member States. The Treaty provided the European institutions with significant powers to act on racial discrimination. First, article 13 TEC empowers the institutions to take appropriate action to combat discrimination on the basis of sex, racial or ethnic origin, religion and belief, disability, age or sexual orientation. The Starting Line Group deplored the fact that nationality was not included as a ground of discrimination. Second, Title IV of the EC-Treaty contains various articles providing a legal basis for measures to promote the equal treatment of third-country nationals with EU nationals. Article 137 (4) provides a legal basis for action concerning employment conditions for third-country nationals legally residing in the Member States.
The European debates on the combat against discrimination and racism were now wide open and the Starting Line Group undertook a number of activities in an attempt to focus the debates on the design and adoption of concrete legislative measures as soon as the Treaty would enter into force.
First, the Starting Line Group revised its proposal for a Directive in the light of the Amsterdam Treaty. Since nationality was not included in article 13, the new Starting Line included only discrimination on the basis of race and ethnicity and religion and belief. More than was the case with the old Starting Line, the wording of the new Starting Line was very similar to European legislation against gender discrimination, in particular with regard to the principles of direct and indirect discrimination and the shift of the burden of proof. Two additional but separate proposals were made to address the issue of equal treatment of so-called third-country nationals (legally residing nationals of non-member states). The proposals were official presented at the UK Presidency Conference on Combating Racism (Manchester, 1998). The European Parliament called upon the European Commission to take the Starting Line into account while drafting its own proposals.
Second, in the course of 1998, the Starting Line Group held a series of interviews with officials of all fifteen Member States. The interviews took stock of the political will among the Member States to support future legislative initiatives and, at the same time, made senior policy makers aware of the anti-discrimination clause in the new Treaty.
Third, anticipating the adoption of a legal instrument, MPG initiated a project that would entail substantive research. The project was carried out by MPG in co-operation with the European Monitoring Centre against Racism and Xenophobia. The research compares the requirements under the Starting Line and the proposal for a Racial Equality Directive with existing legislation in the fifteen member states. The research would clearly describe what the individual Member States must do in order to comply with the (proposal for) a Racial Equality Directive. Such research would be of great use to both governmental and non-governmental actors. Once the proposal for a Racial Equality Directive would be adopted it must be translated into the laws of the Member States. The research would make clear what adaptations of national law were to be made.
Fourth, MPG joined an initiative of the Immigration Law Practitioners' Association and launched the so-called Amsterdam Proposals, a series of six legislative proposals in the field of asylum and immigration. At least three of these proposals pertain to equal treatment of third-country nationals, namely the proposals on family reunion, residence rights and border control, and were in part an elaboration of the Starting Line Group's proposals on third-country nationals. The Amsterdam Proposals came out of a series of consultations, which included many academics.
The adoption of the Directive
The European Commission started officially to draft legislation as soon as the Amsterdam Treaty entered into force (1 May 1999) and presented its first proposals in the same year. Within one and a half years two legislative measures and an action programme were adopted. One of them is the Council Directive implementing the principle of equal treatment between persons irrespective of ethnic and racial origin (or the Racial Equality Directive). This Directive prohibits both direct and indirect discrimination, as well as harassment, victimisation and instruction to discrimination. The material scope of the Directive includes access to employment and employment and working conditions, all kinds of vocational training, membership in professional organisations, social protection including health, social advantages, education and access to goods and services which are available to the public, including housing. The Race Directive allows positive action. The Directive obliges member states to ensure judicial and/or administrative procedures for the enforcement of the obligations under the Directive and allows non-governmental actors to start legal action in cases of discrimination. The burden of proof is more equally divided between a victim of racism and the perpetrator.
Incorporation into the national laws of the Member States
The Racial Equality Directive must be incorporated into the national laws of the member states before July 2003. This process requires the active involvement of the EU Commission, the European Parliament and European non-governmental actors on the one hand and, on the other, national parliaments and non-governmental actors. In order to assist governmental and non-governmental actors, the above mentioned research can be of great value (see note 19).
The incorporation process offers the opportunity for NGOs to press governments to go further than the Racial Equality Directive. As the Directive states, there is nothing that prevents the member states from legislating higher levels of protection against racism. The Directive is clearly a compromise. There will be member states wanting to go further on various clauses. Therefore, MPG commissioned a paper comparing the Starting Line proposal with the Racial Equality Directive. This paper will clearly indicate on what clauses national legislation must be strengthened compared with what is required under the Racial Equality Directive.
Looking further ahead, MPG is exploring the possibilities of linking research initiatives to undertake explorative and comparative research on how racial discrimination can be measured. Such research could be highly relevant for the implementation of the Racial Equality Directive once it has been incorporated into the national laws of the Member States. The Directive introduced the principles of indirect discrimination and the shift of the burden of proof. The effective implementation of these principles require the development of monitoring and measurement systems which are not only based on ethnic monitoring (which in many Member States is not acceptable).
Furthermore, a few organisations have launched a project that also addresses the issue of the necessary adaptations of national legislation of the European countries that want to enter the European Union. Part of this project will be the production of substantive research comparing the so-called acquis communautaire with existing legislation in the fields of anti-discrimination and equal treatment.
Some concluding remarks
Reluctantly Europe has come to the conclusion that persistent racism demands, also at the European level, robust legislative and other measures to combat it. The recently adopted Directives are a promising start.
Research played and is still playing a very important role in the policy debates. Research was and still is strategically used to raise awareness and to formulate legislative proposals. The stakeholders in the debate, whether they were official institutions or non-governmental organisations, used existing research, commissioned new research or undertook research themselves.
The experience of the Starting Line shows that a coalition of a wide variety of non-governmental actors can stimulate a well-informed policy debate. Scientific institutes may be inclined, for financial reasons, to look first at governments as a client and a sponsor. The Starting Line experience shows that non-governmental actors need scientifically based information (but can seldom pay for it or not as good as governments) and can make effective use of it. This may encourage governments and scientific institutes to include non-governmental organisations in the defining and financing of policy oriented research.
