Roma rights workshop in Italy: new developments in Anti-Discrimination Law
10 April 2001
James A. Goldston1
I will today discuss some of the implications of new pan-European norms in the field of racial discrimination. My primary focus will be on the European Union “Race Equality Directive”, but I will touch briefly as well on the new Protocol No. 12 to the European Convention on Human Rights and on the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
II. EU Race Equality Directive: the elements
In late June 2000, the Council of the European Union adopted Directive 2000/43/EC, “implementing the principle of equal treatment between persons irrespective of racial or ethnic origin” (the “Race Equality Directive” or “Directive”).2 The product of a ten year campaign by a broad network of non-governmental organisations, the Race Equality Directive was given renewed political impetus by the electoral developments in Austria in the winter of 1999-2000, which, in the view of some, prompted a number of EU member governments to offer tangible evidence of their commitment to combating racism.
The Directive presents Europe with an historic opportunity to make a lasting contribution to the struggle for racial equality. Within three years, all EU member states must adopt the laws, regulations and administrative provisions necessary to implement its principles. The EU has made clear that the Directive “is part of the acquis communautaire”3 and that “adoption of the Community acquis in the area of equality is a sine qua non for accession since it is essentially a question of human rights….”4 Among the Directive’s most significant features are the following:
A. The scope of discrimination
1) Racial or ethnic origin
The Directive requires that domestic legislation combat discrimination on grounds of “racial or ethnic origin” (Art. 2(1)).5
2) Direct and indirect discrimination
Domestic legislation must prohibit both “direct” and “indirect” discrimination (Art. 2). For the purposes of the Directive, “direct discrimination” is defined as having occurred “where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin.” (Art. 2(2)(a)). An example might be an employment office which, as a matter of policy, refuses to accept Romani job applicants, or a housing office which by intention and design assigns Roma to sub-standard housing.
“Indirect discrimination” occurs “where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” (Art. 2(2)(b)). Examples might be a department store which states that no persons with long skirts may enter the store, or a government office which prohibits entry by persons with covered heads. These rules, though neutral on their face as to ethnicity, in fact may disproportionately disadvantage members of certain minority groups who have a tendency to wear long skirts or head scarves.
By including “indirect” discrimination within its ambit, the Directive reaches a broad swath of discriminatory policies and actions which, though not motivated by overt and readily provable racial hatred, nonetheless “disadvantage” members of racial or ethnic minority groups. In so doing, it goes beyond the current, more limited conceptions contained in, for example, the case law of the European Court of Human Rights and the United States Supreme Court.6
3) Harassment, instruction/incitement, and victimisation
In addition to the foregoing requirements, domestic legislation should also prohibit harassment (harassment occurs “when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment,” Art. 2(3)); instruction or incitement to discrimination and violence (Art. 2(4); see also ICERD, Arts. 4(a), 4(c)); and victimisation (i.e., “adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing the principle” or non-discrimination, Art. 9).
B. Public/private actors
The Directive applies to “both the public and private sectors, including public bodies.” (Art. 3(1)). This distinguishes the Directive from the existing and proposed anti-discrimination provisions of the European Convention on Human Rights, which do not as clearly apply to discrimination by private parties. (See infra).
C. The fields in which discrimination is prohibited
The Directive mandates that domestic legislation prohibit discrimination in the following fields:
- conditions for access to employment (Art. 3(1)(a));
- vocational training and retraining (Art. 3(1)(b));
- employment and working conditions, including dismissals and pay (Art. 3(1)(c));
- social security (Art. 3(1)(e));
- healthcare (Art. 3(1)(e));
- social advantages (i.e., concessionary travel on public transport, reduced prices for access to cultural or other events, subsidised meals in schools for children of low income families) (Art. 3(1)(f));7
- education (Art. 3(1)(g));
- access to and supply of goods and services which are available to the public (Art. 3(1)(h));
- housing (Art. 3(1)(h)).
Notably, the Directive does not address non-discrimination in the administration of justice or in assuring protection of security of the person (see ICERD, Arts. 5(a), 5(b); ECHR, Arts. 6, 13, 14; or in political participation including the rights to vote and hold public office (ICERD, Art. 5(c); ECHR, Art. 14 and Protocol 1, Art. 3).
D. Positive action
The Directive leaves open the possibility for States to adopt “specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.” (Art. 5). Roma have historically suffered discrimination in housing, education, employment and other fields. This measure makes it possible for governments to employ a range of devices to achieve more adequate representation. These could include employment recruitment efforts targeted at historically underrepresented minority groups, as well as hiring codes and educational admissions criteria which make clear that diversity at the workplace is in itself a desired goal. While a rule guaranteeing “absolute and unconditional priority” for certain groups is not permissible, the European Court of Justice has approved an affirmative action policy providing that, where two applicants are equally qualified, historically underrepresented applicants should be given preference, unless reasons specific to another applicant tilt the balance.8
E. Legal remedies
The Directive mandates the establishment of “judicial and/or administrative procedures” to implement its provisions (Art. 7(1)), and authorizes “associations, organisations or other legal entities” to engage in seeking legal remedies on behalf of victims who so approve. (Art. 7(2)).
F. Burden of proof/evidence
The Directive makes it practically feasible for many victims to prove the discrimination they have suffered in two principal ways. First, the Directive shifts the burden of persuasion in civil cases by requiring that, once a prima facie case of discrimination has been established, “it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.” (Art. 8). Second, the Directive provides that indirect discrimination may be “established by any means, including on the basis of statistical evidence.” (Directive Preamble, para. 15). As a practical matter, statistical evidence may often be the best or only way of proving indirect discrimination – i.e., of showing that an apparently neutral provision puts members of a minority group at a particular disadvantage “compared with other persons.”
G. Enforcement bodies
The Directive requires that States “designate a body or bodies for the promotion of equal treatment,” capable of “providing independent assistance to victims of discrimination in pursuing their complaints,” “conducting independent surveys concerning discrimination”, and “publishing independent reports and making recommendations.” (Art. 13). The Directive thus opens the way to the establishment of effective enforcement bodies capable of taking legal action to secure equal treatment.
The Directive makes clear that “effective, proportionate and dissuasive” sanctions must be imposed for violation of national anti-discrimination norms, and that such sanctions “may comprise the payment of compensation to the victim.” (Art. 15). 9In its jurisprudence concerning analogous gender discrimination provisions, the European Court of Justice has made clear that any sanction provided by the national legal system must be such as to “guarantee real and effective judicial protection” and must “have a real deterrent effect” on the discriminating entity.10
I. The problem of nationality
Notwithstanding the major step forward that the Directive represents, there is one looming weakness: the express exception for “difference of treatment based on nationality.” (Art. 3(2)). Thus, Article 3(2) provides that the Directive “is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.” This is a loophole in the Directive potentially large enough to drive a truck through. Some governments might be tempted to seize on this provision to justify discrimination against third-country nationals in housing, education, and employment. But in many EU member states third country nationals are the principal objects of racial and ethnic discrimination. Thus, broadly to interpret this provision so as to justify any and all discrimination against third-country nationals would effectively gut the Directive. Anti-discrimination advocates will have to argue — and I think there is a basis for doing so — that this cannot have been the intention of the Council, particularly insofar as the Preamble to the Directive notes, at para. 13, that the “prohibition of discrimination should also apply to nationals of third countries.” Rather, courts must be asked to construe this provision to apply narrowly to the field of immigration, where states have traditionally been accorded broad authority to distinguish on grounds of citizenship. Such an interpretation would be consistent with the International Convention on the Elimination of All Forms of Racial Discrimination.11
III. EU Race Equality Directive — relevance to anti-discrimination lawyers
How is the Race Equality Directive relevant to Italian lawyers and anti-discrimination advocates” There are several ways. First, the anti-discrimination community must insure that the Directive is timely and adequately transposed into domestic legislation. Second, the resulting Italian legislation must be effectively implemented and enforced. Thirdly, lawyers can go into court and seek to enforce the new norms. And finally, they must contribute to public education about the new norms and capacitation of persons in and out of government to make use of them.
A. Transposition into domestic legislation
The Race Equality Directive must be transposed into Italian law by July 19, 2003. Hence, it is now imperative for NGOs and the legal community to ensure that the requisite legislation is adopted and that a government body is created with the funding and capacity to fulfill the specified functions. It may well be that changes in Italian law are required to conform with the Directive:
1. Comprehensive anti-discrimination legislation
A recent report of the European Commission against Racism and Intolerance concluded that, “In Italy there is no general legislation to counter racial or ethnic discrimination.”12 Apart from 1993 amendments to the Criminal Code (which address the dissemination of racist speech and racially-motivated violence), Italian law affords “little ammunition against racial discrimination or other outward forms of intolerance.”13
Since the publication of that report, immigration legislation adopted in 1998 appears to provide limited protection against racial discrimination.14 However, the scope of the protection afforded therein is unclear. Among other ambiguities, the inclusion of racial discrimination provisions in a law primarily addressing “immigration” and “foreigners” raises questions as to whether such provisions apply to citizens as well, notwithstanding the apparent assurance of Art. 43, para. 3 that they do.
In any event, Italy should adopt comprehensive legislation which stands on its own — not as a sub-part of legislation which is directed to immigrants — which makes clear that prohibition of racial discrimination is a fundamental principle of law applicable in all spheres of public life to all persons — citizens, immigrants and others.
2. Burden of proof
Does Italian legislation make clear that, once a prima facie case of racial discrimination is established, the burden shifts to the defendant to establish that the challenged action or law had a reasonable and objective justification and was not racially motivated”
3. Indirect and direct discrimination
Does Italian law make clear that the principle of equal treatment is violated by either direct or indirect discrimination” This is crucial to anti-discrimination advocates. Much discrimination is neither clearly intended nor advertised openly. Hence, proving discrimination is often a matter of showing that, whatever the intent of the relevant party, members of one or more minority groups have suffered adverse effects not similarly borne by others. It is thus imperative that the law provide for, and that lawyers and judges be familiar with, the principle of indirect discrimination.
4. Scope of application
Does Italian anti-discrimination law apply, not only to discrimination in the field of employment, but also to education, to housing, and to access to goods and services including restaurants, shops, bars, etc.”
5. Enforcement bodies
The Directive requires that States “designate a body or bodies for the promotion of equal treatment,” capable of “providing independent assistance to victims of discrimination in pursuing their complaints,” “conducting independent surveys concerning discrimination”, and “publishing independent reports and making recommendations.” Does Italy have such a governmental body with those functions” The European Roma Rights Center has reported that the only governmental entity that has been established to address issues relating to Roma and other minorities is the Office for National Minorities and Border Problems within the Ministry of the Interior, which does not perform the specified functions.15 Inter-governmental monitoring bodies have called for the establishment of “a specialised body or a special branch of a general human rights commission, with wide-ranging power and responsibility in this area.”16
6. Positive action
Does Italian law make clear that positive action is permissible and is to be encouraged as a matter of policy with regard to those minority groups, including the Roma, who have suffered systematic discrimination” And how is positive action applied in Italy”
7. Sanctions and remedies
Does Italian law clearly provide for effective penalties for breach, including payment of compensation to victims, does it establish judicial and administrative procedures for review, and does it authorize NGOs and other associations to pursue legal remedies on behalf of victims”
B. Implementation of the law
Even once Italy undertakes the necessary legislative changes to conform with the Race Equality Directive, it must ensure effective implementation and enforcement. This is a requirement that applies both to the Government and to the private bar.
On either score, evidence of implementation of existing anti-discrimination measures is not encouraging. First, there is little indication that the Government has undertaken any substantial public education effort to ensure that the anti-discrimination laws which do exist do not lie dormant. In its report of March 1999, the United Nations Committee on the Elimination of Racial Discrimination (CERD) expressed concern at the failure of the Government to date to publicize the anti-discrimination norms, and “the apparent lack of appropriate training for law enforcement officials and other public officials regarding the provisions of the Convention [on the Elimination of All Forms of Racial Discrimination].” Indeed, in its appearances before the CERD, Italian government delegations have exhibited a disturbing reluctance to even acknowledge the depth of the problem. Thus, in 1995, delegation representatives stated: “Italian society did not breed sentiments of a racist nature. […] Incidents that could be classified as incidents of “racism” normally fell into different categories. […] The fact of attacking or beating non-Europeans usually had little to do with racial discrimination. In most cases, the behaviour originated in a compelling urge to give reign to the most violent instincts.”17 Moreover, Italian law enforcement has been ineffective to date in responding to violence against Roma. The relatively well-developed criminal legislation prohibiting racially-motivated violence has suffered from what ECRI discreetly characterized as “problems with implementation.”18
Second, the reports of international monitoring bodies suggest that, to date, lawyers in Italy have not been as active as they could have been in the field of race discrimination. Thus, ECRI has noted that, notwithstanding the Italian Constitutional provision securing equality (Article 3), “there is no relevant case-law on the subject of racism.”19 And too, ECRI has reported that “there appears to be no case-law” concerning the anti-discrimination provisions of the labour law, Section 15(2) of Act No. 300 of 1970.20 Thus, the anti-discrimination law which currently exists would seem to be underused.
One major contribution which Italian lawyers can make to the effectiveness of both existing and new anti-discrimination law at national and EU levels is to seek application of legal norms in court.
The Directive is relevant to anti-discrimination litigation in Italy in at least two ways. First, as of the date of implementation, the Directive almost certainly will confer directly effective rights upon individuals — rights which may be enforced in national courts. Thus, if by July 2003, Italy has not modified its domestic legislation in order to incorporate all provisions of the Directive, victims of racial discrimination who seek to apply one or more of the Directive’s provisions — for example, whether indirect discrimination applies in Italy, or whether the reversal of the burden of proof applies — may go to an Italian court to try to enforce the provision directly. The national court will almost certainly refer this question to the European Court of Justice in Luxembourg. The provision of the Directive at issue will be found to have “direct effect” if and only if a) it is clear and precise; b) it is unconditional; and c) the time limit for implementation of the Directive has expired.
The Directive can be directly applied against a governmental entity, but not against a private party. Nonetheless, the European Court of Justice has previously defined “government” or “state” quite broadly, including decentralized authorities, state-owned companies, and private employers who perform public functions.
Let us look at one example of how this works in practice, in a case from the United Kingdom. Ms Helen Marshall, an English woman, worked at the public health authority. English law at the time required that, as a woman, Ms Marshall retire from employment at the age of 62. Had she been a man, the law would have permitted Ms Marshall to work until she was 65. Ms Marshall sued in an English court, alleging sex discrimination. The Industrial Tribunal dismissed her complaint, citing the applicable English law, which prohibited sex discrimination in employment but did not explicitly address discrimination on the ground of sex “in relation to death or retirement.” Ms Marshall appealed to the Employment Appeal Tribunal, which found that her dismissal violated the principal of equal treatment under the EU Equal Treatment Directive (76/207), which guarantees equal treatment of men and women in all areas related to employment. Nonetheless, the Tribunal decided that no remedy was warranted, because the provisions of the Equal Treatment Directive were not directly effective — they did not confer rights directly upon individuals. A persistent woman, Ms Marshall appealed again, to the English Court of Appeal, which referred the matter to the European Court of Justice in Luxembourg. The Court of Justice ruled that Ms Marshall’s dismissal was contrary to the Equal Treatment Directive, and furthermore, that the provisions of the Directive did have direct effect on all state institutions, including the public health authority. Accordingly, the Court of Justice held, Ms Marshall was entitled to have British courts enforce the provisions of the Directive against the British government.21
A big victory. And not just for Ms Marshall. As a result of the Court of Justice decision, the UK amended its own sex discrimination legislation to comply with the terms of the Equal Treatment Directive so as to transpose its EU obligation into domestic law.
And still, Ms Marshall fought on — to get compensation. The British courts had calculated the amount of Ms Marshall’s loss as 19,000 pounds, but domestic law imposed a maximum of 6250 pounds compensation. Ms Marshall went back to court, arguing that the domestic limit conflicted with that section of the Equal Treatment Directive which obliges Member States to enable individuals to pursue claims of discrimination by judicial process. (As noted above, an identical provision is included at Art. 7(1) of the Race Equality Directive). The Court of Justice ruled that this provision too had direct effect, and that, where member states have chosen to make compensation available, it had to adequately and fully reflect the loss suffered.22 As a result, Ms Marshall received the full amount of compensation plus interest. And once again, not only Ms Marshall benefited. In response to the judgment of the Court of Justice, the UK government amended its own legislation to comply with the ruling.
The Marshall case shows clearly the power of litigation to apply a directive in domestic courts. Indeed, it is arguable that litigators need not wait until 2003 to make the Directive relevant. Article 10 of the Amsterdam Treaty makes clear that national courts have an obligation to interpret any relevant national legislation in conformity with the provisions of a Directive.23 And some have suggested that from the moment of a directive’s adoption — i.e., July 2000 in the case of the Race Equality Directive — domestic courts may look to it for guidance in interpreting national legislation.24 This obligation applies to the interpretation even of domestic legislation which preceded the adoption of the Directive, so long as it deals with a similar matter.25 At a minimum, litigants who seek to bring discrimination claims prior to 2003 risk no harm in bringing to the court’s attention the Directive’s provisions.
So, for example, the race discrimination provisions of Italy’s immigration legislation, adopted in 1998,26 might well be sufficiently related to the Directive that they could be interpreted by courts today in conformity therewith. Employing those provisions, lawyers might argue that the squalid conditions of some of the camps into which Roma have been effectively segregated constitute racial discrimination in access to housing and public services, and thus violate the national legislation, as interpreted in light of the Race Equality Directive. Moreover, the reversal of the burden of proof, indirect discrimination and other concepts contained in the Directive would logically apply to cases in national courts involving Italy’s own legislation. And, unlike the “direct effect” in national courts of the Directive itself, which applies only to state bodies, the Italian courts’ obligation to interpret relevant national legislation in conformity with the Directive applies to discrimination by both public and private parties. Hence, whether the camps were owned and run by the state or by private companies contracted by the state ought not matter.
D. Training and capacitation
Notwithstanding the major step forward the Directive represents, anti-discrimination advocates must act to ensure its effective implementation in EU member states. While the EU will no doubt invest resources toward this end, it will need help from the bar and the non-governmental community in highlighting the significance of this initiative, and the nature of the legal and institutional changes required thereby; as well as in capacitating lawyers, other advocates and government officials to make use of this new legal tool in their anti-discrimination work. Absent sustained input by rights advocates, the Directive’s potential to transform anti-discrimination law may not be fully realised.
To this end, bar associations, universities, and NGOs might consider undertaking trainings of selected target audiences — including judges, lawyers, anti-discrimination advocates and selected government officials — to introduce the Directive and its key principles; to offer and draw upon successful examples of anti-discrimination enforcement in other contexts which might serve as foundations for national implementation of the Directive; and to impart particular skills to maximise the Directive’s impact, including litigation, judicial interpretation and public advocacy.
IV. Protocol No. 12
The EU Race Equality Directive is the most important and far-reaching development in the field of European discrimination law in recent times. But it is not the only one. A second significant development providing opportunities for enhanced action in the field of racism and discrimination was the adoption in late June by the Committee of Ministers of the Council of Europe of Protocol No. 12 to the European Convention on Human Rights (“Protocol No. 12” or “the Protocol”), broadening the scope of the Convention’s Article 14 on non-discrimination, which presently prohibits discrimination only in the enjoyment of the rights already enshrined in the Convention. Unlike the Race Equality Directive, however, this Protocol enters into force only after ten states have ratified it. On November 4 of this year, the Protocol was formally opened for signature, and Italy was one of 25 Council of Europe states to sign it. Italian rights advocates will now have to work for ratification.
I will not discuss Protocol No. 12 at length. Nonetheless, I wish to briefly highlight some of the principal differences between the Protocol and the Directive.
A. In some respects, Protocol No. 12 offers protection beyond that in the Race Equality Directive:
- As noted above, the Directive expressly “does not cover difference of treatment based on nationality.” (Art. 3(2)). Protocol No. 12, like the existing Article 14 of the European Convention, prohibits discrimination on grounds of national origin, thus potentially offering protection to third country nationals who may fall through the Directive’s net.
- Even with respect to discrimination on the ground of race, Protocol No. 12 applies to a broader range of activities than the Directive. The Directive is limited in scope to the areas of European Community competence — principally rights in the economic and social sphere — i.e., education, employment, housing, social security. By contrast, Protocol No. 12 prohibits discrimination with regard to “any right set forth by law.” It thus covers not only those fields addressed by the Directive, but also discrimination with respect to political and civil rights — i.e., the right to vote, the right to a fair trial, the right not to be subjected to inhuman or degrading treatment — which are not clearly embraced by the Directive.
B. In other respects, the protection of Protocol No. 12 is more limited than that in the Race Equality Directive:
- The notion of positive action may well be narrower in Protocol No. 12 than in the Directive. Thus, the preamble to Protocol No. 12 says that “the principle of non-discrimination does not prevent States Parties from taking measures in order to promote full and effective equality, provided that there is an objective and reasonable justification for those measures.”27 In the Directive, the notion of “Positive Action” is contained in the main text. And unlike Protocol No. 12, the Directive does not expressly require an objective and reasonable justification. Rather, it says “the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.”
- Unlike the Directive, Protocol No. 12 does not expressly provide for the concept of indirect discrimination. Although the question has not been conclusively decided, the European Court of Human Rights has implied that such indirect discrimination may not amount to a violation of Article 14, the existing, accessory non-discrimination standard.28
- The application of Protocol No. 12 to discrimination by private parties is more limited than is the analogous reach of the Directive. Thus, whereas the Directive expressly states that it applies to “all persons, as regards both the public and private sectors,” Protocol No. 12 reflects the narrower focus more generally of the European Convention on Human Rights. Thus, on the one hand, Article 1(2) of the Protocol provides that no one shall be discriminated against by “any public authority,” suggesting that the protection of the Protocol is limited to government actions. However, taking its cue from Article 1 of the Convention, Article 1(1) of the Protocol states, “The enjoyment of any right set forth by law shall be secured without discrimination,” implying that governments have an affirmative obligation to secure non-discrimination. It is conceivable that this obligation to “secure” the enjoyment of a right without discrimination might extend to discrimination by private parties. The Explanatory Report to the Protocol provides some guidance, but no definitive resolution to this question. Thus, the Report notes, “On the one hand … [t]he Article is not intended to impose a general positive obligation on the Parties to take measures to prevent or remedy all instances of discrimination in relations between private persons.”29 “On the other hand, it cannot be totally excluded that the duty to ‘secure’ under the first paragraph of Article 1 might entail positive obligations.”30 One example might be “a clear lacuna in domestic law protection from discrimination”31 — i.e., if no legislation at all addressed discrimination in, say, housing. “Nonetheless, the extent of any positive obligations flowing from Article 1 is likely to be limited.”32
So Protocol No. 12 offers both advantages and disadvantages when compared with the Race Equality Directive, and both should be taken into consideration when litigating in the field of racial discrimination. Of course, the Protocol is not yet in force. But that should not prevent lawyers from referring to its standards in courts of law. After all, the Council of Europe — the supreme human rights organ in Europe — has adopted Protocol No. 12. And too, 25 governments — including Italy’s — have signed it and thus indicated an intention to ratify. Domestic courts will have a hard time explaining why legal standards and protections endorsed by the Council of Europe and 25 governments should not be enjoyed by the victims of discrimination.
V. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
One other international remedy I do not want to overlook — Article 14 of the United Nations Race Discrimination Convention (ICERD). Italy has ratified the ICERD and has declared under Article 14 that it recognizes the jurisdiction of the Committee on the Elimination of Racial Discrimination (CERD) to entertain individual complaints alleging Italy’s breach of the Convention. The Convention clearly defines racial discrimination and requires states parties to take affirmative measures to combat it.
The Race Discrimination Convention defines discrimination broadly to include both direct and indirect discrimination.33 It prohibits discrimination in a wide range of fields. Perhaps significantly, for Roma in Italy, Article 3 of the Convention expressly obliges “States Parties” to “prevent, prohibit and eradicate all practices” of “racial segregation.” In its Concluding Observations of March 1999, the CERD condemned the “physical segregation of the Roma community” in “camps outside major Italian cities.” Pursuant to Article 14, individuals or groups of individuals alleging violation of the Convention may file a communication with the Committee seeking redress, after first exhausting all domestic remedies. Communications must be filed within six months of the final domestic decision in the case. To date, the Committee procedure has been under-utilized.
- James Goldston is Deputy Director, Open Society Institute, and Senior Counsel, European Roma Rights Center. The following is an edited text of remarks presented to a workshop on Roma rights litigation in Italy, convened in Florence, November 30-December 2, 2000, by the ERRC and the Florence-based organisation Association for the Defence of Minority Rights.
- The Directive was published 19 July 2000 in the Official Journal of the European Communities.
- European Parliament Resolution on the Enlargement of the European Union (COM(1999) 500 — C5-0341/2000 — 2000/2171 (COS)) (4 October, 2000), para. 68.
- Id., para. 121. The Parliament went on to urge that “policy measures be taken to combat discrimination on the grounds of racial or ethnic origin, both in the EU and the CEECs;” and to note that “the non-discrimination clause Article 13 EC belongs to the acquis communautaire and that legislation derived from this article must be fully implemented in both the EU and the CEECs.” Id. See also Communication of the European Commission on measures to counter racism in the candidate countries (COM(1999)256 final dated May 26, 1999) (“Any legislation to combat discrimination will of course form a part of the Community acquis, and as such, the candidate countries will be required to implement equivalent provisions before accession. This will make a substantial contribution to increasing the protection afforded to the victims of discrimination in the candidate countries”).
- Unless otherwise specified, citations to textual provisions refer to the Race Equality Directive. For the purposes of this analysis, the terms “racial origin” and “ethnic origin” are considered synonymous, as are “racial discrimination” and “ethnic discrimination”. This follows from Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, which provides: “… the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights an fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
- See Abdulaziz, Cabales, and Balkandali v. UK, Eur. Ct. H.R., A-94 (1985), para. 85 (finding no violation of Article 14 on grounds of race discrimination notwithstanding disproportionate racial effect resulting from application of immigration rules to married partners of legal residents, where a) the rules at issue contained an instruction to immigration officers not to discriminate on grounds of race, b) there was no invidious purpose to discriminate on grounds of race, and c) the fact that the rules applied more often to “coloured” than white people was “not a sufficient reason to consider them as racist in character; it is an effect which derives not from the content of the 1980 Rules but from the fact that, among those wishing to immigrate, some ethnic groups outnumbered others”). Some observers find in another decision of the Court the suggestion that indirect discrimination may be encompassed by Article 14. See Belgian Linguistic case, Eur. Ct. H. R., A-6 (1968), p. 34 (existence of a “reasonable and objective justification” for a challenged distinction “must be assessed in relation to the aim and effects of the measure under consideration”) (emphasis added); Harris, O’Boyle, et al., Law of the European Convention on Human Rights (1995), p. 478 (“there is more to be done to establish whether indirect discrimination is effectively excluded by Article 14”). For U.S. Supreme Court jurisprudence, see, e.g., Washington v. Davis, 426 U.S. 229 (1976) (absent proof of a racially discriminatory purpose, law or official practice does not violate U.S. Constitution’s “equal protection” clause “solely because it has a racially disproportionate impact”); McCleskey v. Kemp, 481 U.S. 279 (1987) (discriminatory impact in administration of capital punishment, absent proof of discriminatory intent, did not violate the Constitution’s guarantee of equal protection; “‘discriminatory purpose’ … implies more than intent as volition or intent as awareness of consequences. It implies that the decision-maker … selected or reaffirmed a particular course of action at least in part ‘because of’, not merely ‘in spite of’, its adverse effects upon an identifiable group”).
- European Commission, Proposal for a Council Directive, 25 November 1999, COM(1999) 566 final, p.7.
- Hellmut Marschall v. Land Nordrhein Westfalen (1997), Case C-409/95, All ER (EC).
- See ICERD, Art. 6 (mandating “effective protection and remedies” in court against discrimination, as well as “just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination”).
- Marshall v. Southampton and South West Hampshire Area Health Authority (No. 2), Case C-271/91 (1993), ECR I-4367, para. 24; Dekker v. Stichting voor Jong Volwassenen (VJW) Plus, Case C-177/88 (1990), I-ECR 3941, para. 23; Von Colson and Kamman v. Nordrhein-Westfalen, Case 14/83 (1984) ECR 1891, para. 23.
- See ICERD, Art.1(3) (“Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality”).
- Council of Europe, European Commission against Racism and Intolerance (ECRI), “Legal Measures to combat racism and intolerance in the member States of the Council of Europe” (1998) (hereafter “Legal Measures”), p.261.
- Ibid., p.263.
- Legislative Decree No. 286 (“Testo unico delle disposizioni concenenti la disciplina dell’immigrazione e norme sulla condizione dello straniero”), formerly Law No. 40 of 6 March, 1998, cited in “Written Comments of the European Roma Rights Center Concerning Italy for Consideration by the United Nations Committee on the Elimination of Racial Discrimination at its 54th Session, 8-9 March, 1999” (1999), n. 4. See Arts. 43 and 44.
- “Written Comments of the European Roma Rights Center Concerning Italy for Consideration by the United Nations Committee on the Elimination of Racial Discrimination at its 54th Session, 8-9 March, 1999” (1999), p.4.
- Council of Europe, European Commission against Racism and Intolerance, “ECRI’s country-by-country approach” (1998), p.34. See also Concluding Observations of the [United Nations] Committee on the Elimination of Racial Discrimination: Italy, 7 April, 1999, CERD/C/304/Add.68, para. 19 (calling for “the establishment of a national human rights commission to address” minority issues and racial discrimination).
- United Nations Committee on the Elimination of Racial Discrimination, Summary record of the 1075th meeting: Italy”, CERD/C/SR.1075, 6 March, 1995, para. 18.
- European Commission against Racism and Intolerance, “ECRI’s country-by-country approach”, p.34.
- ECRI, “Legal Measures”, p.263, cited in “Written Comments of the European Roma Rights Center Concerning Italy for Consideration by the United Nations Committee on the Elimination of Racial Discrimination at its 54th Session, 8-9 March, 1999” (1999), n.13.
- See ECRI, “ECRI’s country-by-country approach,” p.34.
- Marshall v. Southampton and South West Hampshire Area Health Authority (No. 1), Case 152/84 (1986) ECR 723.
- Marshall v. Southampton and South West Hampshire Area Health Authority (No. 2), Case C-271/91 (1993), ECR I-4367.
- Von Colson and Kamman v. Nordrhein-Westfalen, Case 14/83 (1984) ECR 1891. The Court in Kolpinghuis (para. 32) stated that, since the national court was not bound to be guided by the non-implemented directive in this case, it was irrelevant whether the period prescribed for implementation had expired. However, in a case where a national court ought to be guided in its interpretation of national law by a non-implemented directive, it would seem likely, given that the Member States have discretion to choose the manner of implementation before the expiry of the period, that it would not be so obliged (although it might perhaps be permitted) before the end of that period…. However, if an implementing measure is passed before the expiry of the time limit, but does not implement the directive properly, it may be that the national court should be guided in its interpretation of that measure by the directive it was intended to implement.”
- See P. Craig and G. de Burca, EU Law: Text, Cases and Materials (1998), p. 204 (n.77) (suggesting that, where a national “implementing measure is passed before the expiry of the time limit [for implementation of an EU Directive], but does not implement the directive properly, it may be that the national court should be guided in its interpretation of that measure by the directive it was intended to implement.”. Cf. Kolpinghuis Nijmegen BV, Case 80/86 (1987) ECR 3969.
- Marleasing SA v. La Commercial Internacional de Alimentacion SA (1992).
- Legislative Decree No. 286, formerly Law No. 40 of 6 March, 1998, Arts. 43, 44.
- Emphasis supplied.
- See supra note 6.
- Explanatory Report, para. 25.
- Id., para. 26.
- Id., para. 27.
- As noted above, Article 1(1) of ICERD defines “racial discrimination” to include “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” (Emphasis supplied).