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A Comparative Analysis of Non-Discrimination Law in Europe 2017

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A Comparative Analysis of Non-Discrimination Law in Europe 2017 European network of legal experts in gender equality and non-discrimination A comparative analysis of non-discrimination law in Europe 2017 Justice and Consumers EUROPEAN COMMISSION Directorate-General for Justice and Consumers Directorate D — Gender equality Unit JUST/D2 European Commission B-1049 Brussels EUROPEAN COMMISSION A comparative analysis of non-discrimination law in Europe 2017 The 28 EU Member States, the Former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Montenegro, Norway, Serbia and Turkey compared Prepared by Isabelle Chopin and Catharina Germaine for the European network of legal experts in gender equality and non-discrimination November 2017 Based on information current on 1 January 2017 Directorate-General for Justice and Consumers 2017 The authors would like to thank and acknowledge Judit Tanczos, Legal Policy Analyst at the Migration Policy Group, for her dedication, expertise and support in the drafting of this comparative analysis. Europe Direct is a service to help you find answers to your questions about the European Union. Freephone number (*): 00 800 6 7 8 9 10 11 (*) The information given is free, as are most calls (though some operators, phone boxes or hotels may charge you). LEGAL NOTICE This document has been prepared for the European Commission however it reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein. More information on the European Union is available on the Internet (http://www.europa.eu). Luxembourg: Publications Office of the European Union, 2017 ISBN 978-92-79-75353-4 Doi:10.2838/52129 Catalogue number DS-05-17-172-EN-N © European Union, 2017 Contents PREFACE 7 INTRODUCTION 8 1 PROTECTED GROUNDS OF DISCRIMINATION 9 1.1 Introduction to the transposition of the anti-discrimination directives 9 1.2 Grounds of discrimination 10 1.2.1 Racial or ethnic origin 14 1.2.2 Religion or belief 16 1.2.3 Disability 21 1.2.4 Sexual orientation 32 1.2.5 Age 34 1.3 Assumed and associated discrimination 39 1.4 Multiple and intersectional discrimination 41 2 DEFINITIONS AND SCOPE 43 2.1 Forms of discrimination 43 2.1.1 Direct discrimination 43 2.1.2 Indirect discrimination 47 2.1.3 Harassment 51 2.1.4 Instructions to discriminate 55 2.2 Scope of discrimination 58 2.2.1 Personal scope 58 2.2.2 Material scope 60 3 EXCEPTIONS TO THE PRINCIPLE OF NON-DISCRIMINATION AND POSITIVE ACTION 73 3.1 Genuine and determining occupational requirements 73 3.2 Armed forces and other specific occupations 74 3.3 Nationality 75 3.4 Family benefits 77 3.5 Public security, public order, criminal offences, protection of health and protection of the rights and freedoms of others 78 3.6 Other exceptions 78 3.7 Positive action 79 4 ACCESS TO JUSTICE AND EFFECTIVE ENFORCEMENT 84 4.1 Judicial and administrative procedures 84 4.1.1 Available procedures 84 4.1.2 Specific procedures in the public sector 86 4.1.3 Obstacles to effective access to justice 86 4.2 Legal standing and associations 88 4.2.1 Entities which may engage in procedures 89 4.2.2 To engage ‘on behalf of’ 90 4.2.3 Collective redress 95 4.3 Burden of proof 97 4.4 Victimisation 100 4.5 Sanctions and remedies 103 5 EQUALITY BODIES 108 5.1 Grounds covered 109 5.2 Competencies of equality bodies 115 6 IMPLEMENTATION AND COMPLIANCE 121 6.1 Dissemination of information and social and civil dialogue 121 6.1.1 Dissemination of information and awareness-raising 121 3 6.1.2 Social and civil dialogue 122 6.2 Ensuring compliance 125 7 CONCLUSION 128 ANNEXES 131 Annex 1. Main national specific anti-discrimination legislation 132 Annex 2. Signature/ratification of international convention 143 Annex 3. National specialised bodies 145 4 Members of the European network of legal experts in gender equality and non-discrimination Management team General coordinator Marcel Zwamborn Human European Consultancy Specialist coordinator Susanne Burri Utrecht University gender equality law Acting specialist coordinator Alexandra Timmer Utrecht University gender equality law Specialist coordinator Isabelle Chopin Migration Policy Group non-discrimination law Project management Ivette Groenendijk Human European Consultancy assistants Michelle Troost-Termeer Human European Consultancy Gender equality Franka van Hoof Utrecht University assistant and research editor Non-discrimination Catharina Germaine Migration Policy Group assistant and research editor Senior experts Senior expert on racial or ethnic origin Lilla Farkas Senior expert on age Mark Freedland Senior expert on EU and human rights law Christopher McCrudden Senior expert on social security Frans Pennings Senior expert on religion or belief Isabelle Rorive Senior expert on gender equality law Linda Senden Senior expert on sexual orientation Krzysztof Smiszek Senior expert on EU law, sex, gender identity and gender Christa Tobler expression in relation to trans and intersex people Senior expert on disability Lisa Waddington 5 National experts Non-discrimination Gender Austria Dieter Schindlauer Martina Thomasberger Belgium Emmanuelle Bribosia Jean Jacqmain Bulgaria Margarita Ilieva Genoveva Tisheva Croatia Ines Bojic Nada Bodiroga-Vukobrat Cyprus Corina Demetriou Evangelia Lia Efstratiou-Georgiades Czech Republic David Zahumenský Kristina Koldinská Denmark Pia Justesen Stine Jørgensen Estonia Vadim Poleshchuk Anu Laas Finland Rainer Hiltunen Kevät Nousiainen FYR of Macedonia Biljana Kotevska Mirjana Najcevska France Sophie Latraverse Sylvaine Laulom Germany Matthias Mahlmann Ulrike Lembke Greece Athanasios Theodoridis Sophia Koukoulis-Spiliotopoulos Hungary Andras Kadar Beáta Nacsa Iceland Gudrun D. Gudmundsdottir Herdís Thorgeirsdóttir Ireland Judy Walsh Frances Meenan Italy Chiara Favilli Simonetta Renga Latvia Anhelita Kamenska Kristīne Dupate Liechtenstein Wilfried Marxer Nicole Mathé Lithuania Gediminas Andriukaitis Tomas Davulis Luxembourg Tania Hoffmann Anik Raskin Malta Tonio Ellul Romina Bartolo Montenegro Nenad Koprivica Ivana Jelic Netherlands Titia Loenen Marlies Vegter Norway Else Leona McClimans Helga Aune Poland Lukasz Bojarski Eleonora Zielinska Portugal Ana Maria Guerra Martins Maria do Rosário Palma Ramalho Romania Romanita Iordache lustina Ionescu Serbia Ivana Krstic Ivana Krstic Slovakia Vanda Durbáková Zuzana Magurová Slovenia Neža Kogovšek Šalamon Tanja Koderman Sever Spain Lorenzo Cachón María-Amparo Ballester-Pastor Sweden Per Norberg Jenny Julen Votinius Turkey Dilek Kurban Nurhan Süral United Kingdom Lucy Vickers Grace James 6 Preface Seventeen years ago, a major and unprecedented evolutionary change occurred in the European Union with the adoption in 2000 of two pieces of EU legislation in the field of anti-discrimination: the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC). The transposition and implementation of these legal provisions into the national legal systems of the 28 Member States is described in a series of annually updated country reports produced by the European network of legal experts in gender equality and non-discrimination. In addition, the network also includes candidate countries (the Former Yugoslav Republic of Macedonia, Montenegro, Serbia and Turkey) and the EEA countries (Iceland, Liechtenstein and Norway). The European network of legal experts in gender equality and non-discrimination was created in 2014, through a call for tenders from the European Commission to create a new single network following the work completed by the European network of legal experts in the non-discrimination field (managed by the Migration Policy Group and Human European Consultancy) and the European network of legal experts in the field of gender equality (managed by Utrecht University). This new network is managed by the Human European Consultancy, the Migration Policy Group and Utrecht University. The network reports annually on the national legislation of these countries compared with the anti-discrimination standards set by the EU. The national reports are written by independent national experts in each country covered by the network. The information is provided in response to questions set out in a template format that closely follows the provisions of the two directives, although the countries included in the network do not all have the same compliance obligations. The 35 reports cover national law, the establishment of enforcement mechanisms, jurisprudence and the adoption of other measures. They contain information current as of 1 January 2017.*1As such, they are a valuable source of information on national anti-discrimination law and can be found on the network’s website at: www.equalitylaw.eu. This comparative analysis, drafted by Isabelle Chopin and Catharina Germaine (Migration Policy Group), compares and analyses the information set out in the 2017 country reports in a format mirroring that of the country reports themselves and draws some conclusions from the information contained in them. Isabelle Chopin (Migration Policy Group) Marcel Zwamborn (Human European Consultancy) Brussels – Utrecht * Where major changes in legislation have been adopted at national level after the cut-off date of 1 January 2017, they have been included and this has been indicated accordingly. 7 A comparative analysis of non-discrimination law in Europe – 2017 Introduction The objective of this report is to compare and contrast anti-discrimination law in the 28 EU Member States, four EU candidate countries (namely the Former Yugoslav Republic of Macedonia, Montenegro,
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