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European Anti-Discrimination Law Review Issue No. 5 | July 2007 European Anti-Discrimination Law Review In this Issue: Articles on Discrimination by Association, Legal Standing, ECRI’s view on Challenges for the Non-discrimination Directives and UN Convention on Disability | ECJ and ECtHR Case Law Updates | National Legal Developments | European Policy Update THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE NON-DISCRIMINATION FIELD An initiative of the EU European Anti-discrimination Law Review No. 5 - 2007 Lia | 1986 Legal Review prepared by the European Network of Legal Experts in the non-discrimination field (on the grounds of Race or Ethnic Origin, Age, Disability, Religion or Belief and Sexual Orientation) The contents of this publication do not necessarily reflect the opinion or position of the European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities This publication has been commissioned by the European Commission under the framework of the European Community Action Programme to combat discrimination (2001-2006). This programme was established to support the effective implementation of new EU anti-discrimination legislation. The six-year Programme targets all stakeholders who can help shape the development of appropriate and effective anti-discrimination legislation and policies, across the EU-25, EFTA and EU candidate countries. The Action Programme has three main objectives. These are: 1. To improve the understanding of issues related to discrimination 2. To develop the capacity to tackle discrimination effectively 3. To promote the values underlying the fight against discrimination For more information see: http://europa.eu.int/comm/employment_social/fundamental_rights/index_en.htm Editorial Board: Christine Bell Mark Bell Isabelle Chopin (Executive Editor) Fiona Palmer (Managing Editor) Sandra Fredman Mark Freedland Christopher McCrudden Jan Niessen Gerard Quinn Lisa Waddington Production: human european consultancy Migration Policy Group Hooghiemstraplein 155 Rue Belliard 205, box 1 3514 AZ Utrecht 1040 Brussels The Netherlands Belgium www.humanconsultancy.com www.migpolgroup.com The executive editor can be contacted at [email protected] To receive a free copy by post you can send an email to: [email protected] © Photography and design: Ruben Timman / www.nowords.nl The information contained in this fifth issue of the review reflects, as far as possible, the state of affairs on 15 January 2007 ISBN 2-930399-40-6 Country information in this Review has been provided by: Dieter Schindlauer (Austria), Olivier de Schutter (Belgium), Nikos Trimikliniotis (Cyprus), Pavla Boucková (Czech Republic), Niels-Erik Hansen (Denmark), Vadim Poleshchuk (Estonia), Timo Makkonen (Finland), Sophie Latraverse (France), Matthias Mahlmann (Germany), Yannis Ktistakis (Greece), András Kádár (Hungary), Shivaun Quinlivan (Ireland), Alessandro Simoni (Italy), Gita Feldhune (Latvia), Edita Ziobiene (Lithuania), François Moyse (Luxembourg),Tonio Ellul (Malta), Rikki Holtmaat (Netherlands), Monika Mazar-Rafal (Poland), Manuel Malheiros (Portugal), Zuzana Dlugosova (Slovakia), Maja Katarina Tratar (Slovenia), Lorenzo Cachón (Spain), Ann Numhauser-Henning (Sweden), Colm O'Cinneide (United Kingdom). 7 Introduction 9 Making anti-discrimination law work: An Update from the European Network of Legal Contents Experts in the Non-discrimination Field Jan Niessen and Piet Leunis 13 Protection for Family and Friends: Addressing Discrimination by Association Lisa Waddington 23 Legal Standing,The Practical Experience of a Hungarian Organisation Bea Bodrogi 31 The Challenges ahead for European anti-discrimination legislation: an ECRI perspective Giancarlo Cardinale 41 The New UN Convention on the Rights of Persons with Disabilities Gerard Quinn 45 EU Policy and Legislative Process Update 51 European Court of Justice Case Law Update 54 Council of Europe Update 57 News from the EU Member States 58 Austria 58 Belgium 62 Cyprus 65 Czech Republic 65 Denmark 68 Estonia 68 Finland 71 France 74 Germany 77 Hungary 80 Ireland 81 Italy 82 Latvia 83 Lithuania 85 Luxembourg 86 Malta 86 Netherlands 91 Poland 92 Portugal 95 Slovakia 96 Spain 97 Sweden 97 United Kingdom Marinka | 2000 Jeff | 1981 Introduction This is the fifth issue of the bi-annual European Anti-discrimination Law Review, prepared by the European Network of Legal Experts in the non- discrimination field. The review provides an overview of the developments in European anti-discrimination law and policy in the six months prior to publication (the information reflects, as far as possible, the state of affairs on 15 January 2007). In this fifth issue, Jan Niessen and Piet Leunis, the Directors of the Network give a short update on the latest activities of the Network. Giancarlo Cardinale, Lawyer at the Council of Europe’s European Commission against Racism and Intolerance (ECRI) Secretariat presents the ECRI’s perspective on the challenges ahead for European Anti-discrimination legislation; Lisa Waddington, European Disability Forum Chair in European Disability Law at Maastricht University and disability ground co-ordinator of the European Network of Legal Experts in the Non-Discrimination Field, addresses the issue of whether protection of discrimination by association is covered under the anti-discrimination directives, a question which is currently the subject of a preliminary reference before the European Court of Justice (see ECJ Update); and Bea Bodrogi, a lawyer at The Legal Defence Bureau for National and Ethnic Minorities (NEKI) in Hungary considers the implementation of the anti-discrimination directive’s provisions on legal standing and makes an initial assessment as to their effectiveness. In addition, you can find the usual updates on legal and policy developments at the European level in the regular sections on EU policy, European Court of Justice Case Law and European Court of Human Rights Case law which include important complaints that have been brought before the European Committee of Social Rights. At the national level, the latest developments in non-discrimination law in the countries that make up the European Union, can be found in the section on News from the Member States. These four sections have been prepared and written by the Migration Policy Group (Isabelle Chopin and Fiona Palmer) on the basis of the information provided by the national experts and their own research in the European sections. 7 Meet ordinary people in this Review, facing discrimination Making anti-discrimination law work: An update from the European Network of Legal Experts in the non-discrimination field. Jan Niessen and Piet Leunis The members of the Network met in Brussels in February to look back at three years of hard work.Three years ago three networks of independent legal experts on discrimination on the grounds of race and religion, disability and sexual orientation were merged into one network which together with the new ground of age covered five grounds of discrimination. The network reported on the transposition of the Racial Equality Directive (2000/43) and Employment Equality Directive (2000/78), produced national reports1 and thematic reports, provided legal expertise to the European Commission and launched the European Anti-Discrimination Law Review. Another activity of the network is the organisation of legal seminars. The second was organised with the European Commission and dealt with the transposition of the Directives. It took place in Brussels on the 13 February 2007.The seminar brought together officials from Member States and the Commission, representatives from equality bodies, national organisations and of various European networks working against discrimination on the different grounds with members of the Network. At the seminar it was noticed that while the transposition of the Directives has led to many positive changes in the anti-discrimination laws of most Member States, there remained some formidable challenges to be tackled. For example gaps remain in the transposition of the material scope provisions to both the public and private sectors. As far as racial and ethnic discrimination is concerned there remain difficulties to be overcome in areas outside employment (particularly in access to services and housing) and question marks around the scope of exceptions in the areas of discrimination on the grounds of age, sexual orientation and religion and belief.2 Clearly, there is still scope for legal assistance to the Commission and Member States to solve technical and legal problems of complex issues of anti-discrimination law. The seminar demonstrated that the implementation of the Directives requires a range of mechanisms and strategies, including voluntary compliance, proactive engagement and enforcement. Governments, specialised agencies, social partners and civil society organisations all have their (distinctive) roles to play. Litigation is an important tool and the Network noticed that this tool is increasingly being used. The number of preliminary references to the European Court of Justice has steadily increased; in the area of age discrimination one decision has been rendered and four cases are pending, in the area of disability legislation one decision has been handed- down and one is awaited.The first reference relating to sexual orientation discrimination is also before the Court. 1 The national reports presently being updated are available at: http://ec.europa.eu/employment_social/fundamental_rights/public/pubst_en.htm .The updated reports will be made
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