European Monitoring Centre on Racism and Xenophobia Migrants, minorities and legislation: Documenting legal measures and remedies against discrimination in 15 Member States of the European Union Report submitted by the International Centre for Migration Policy Development (ICMPD) On behalf of the European Monitoring Centre on Racism and Xenophobia (EUMC) Principal authors: Haleh Chahrokh Wolfgang Klug Veronika Bilger December 2004 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 A great deal of additional information on the European Union is available on the Internet. It can be accessed through the Europa server (http://europa.eu.int). Cataloguing data can be found at the end of this publication. Luxembourg: Office for Official Publications of the European Communities, 2004 ISBN 92-95008-38-3 © European Communities, 2004 Printed in Luxembourg PRINTED ON WHITE CHLORINE-FREE PAPER Migrants, minorities and legislation — European Monitoring Centre on Racism and Xenophobia Foreword This study comprises a unique collection of material on anti-discrimination legislation and case law in the European Union in 2003. Referring to the year when the EU Council Directive on Racial Equality (along with the Employment Equality Directive) was due to be transposed, this study presents a comparative analysis of existing and developing legal measures and remedies against discrimination of migrants and ethnic minorities. Thus, this study focuses on how different Member States approach the implementation of the Racial Equality Directive by either adapting current legislation or establishing new separate laws. On the other hand, an overview of existing non-discrimination legislation across the EU shows up to which degree anti-discrimination, anti-racism or general equality provisions have already been part of the Member States’ constitutions or specific laws. In addition, the study also highlights exemplary court cases and complaints concerning discrimination, and finishes with selected recommendations for the EU and its Member States. Legislation — be it civil, administrative or penal law — builds the foundation of every action and policy against discrimination. In transposing the Council Directives 2000/43/EC and 2000/78/EC Member States use a variety of methods, legal provisions and legal wording. Whereas some countries’ status quo has demanded only minor amendments to comply with the Directives, it is clear that in countries lacking a history of strong anti-discrimination legislation the two Directives have induced a major positive change. I hope that this report, which also identifies existing shortcomings and areas of problems, will contribute to this encouraging process. The data for this report was compiled for the EUMC by its RAXEN National Focal Points in each of the (at the time) 15 Member States. The EUMC then invited the International Centre for Migration Policy Development in Vienna (ICMPD) to bring this material together in the form of the current report. I would like to thank the researchers at ICMPD and the National Focal Points for their contribution. Beate Winkler III Migrants, minorities and legislation — European Monitoring Centre on Racism and Xenophobia 1. Executive summary This comparative study on anti-discrimination legislation regarding migrants and minorities is based on 15 national reports by the National Focal Points (NFPs) of the EUMC RAXEN network on the situation in the EU Member States as well as on further research undertaken by the authors on the subject covering the period 2001-2003. The study takes a holistic approach to the question of discrimination and legislation, analysing the existing and currently developing legal measures and remedies against discrimination, especially within the framework of the two Council Equality Directives and their respective implementation through national legislation. Legislation (be it civil, administrative or penal law) lays the foundation of every action and policy against discrimination. The overview of anti-discrimination legislation shows that EU Member States do include anti-discrimination, anti-racism or general equality provisions in their constitutions or in their civil, administrative and penal legislations targeting to protect human rights and to fight racism and discrimination. Furthermore, all EU Member States have ratified the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD). Anti-discrimination legislation has to be seen in the broader context of aliens’ legislation, namely immigration and integration policies pursued in the different EU Member States. Differing historic developments and experiences with regard to migration issues, legal traditions and systems have influenced the particular extent of experience with anti-discrimination measures in the various EU Member States. Specific problems of comparing the existing information are the result. In addition, some data in the field of anti-discrimination legislation is consequently not available and therefore missing in a comparative perspective: In some countries the exact structure and dimension of the migrant population is not exactly known, respectively analysed, which, of course, would be an indispensable background for the elaboration of targeted policies and legislation. Equality and anti-discrimination policies have evolved in a distinctive way in the various EU Member States, often leaving little space to comparison while sometimes covering very diverse areas with a rather different focus, based on differing backgrounds, premises, definitions and concepts of immigrants and minorities. Furthermore, one has to mention the lack of official sources on complaints, lack of systematic statistics, missing relevant institutions and no systematic monitoring of cases where immigrants are discriminated against. The direct interrelation between a historically and culturally grown concept of society in general and a specific legal framework covering foreigners, minorities and anti-discrimination policies, has a strong impact on the respective implementation process of the Racial Equality Directive. This is particularly true for the chosen legalistic way to transpose the Directive, be it comprehensive anti-discrimination laws, adaptation of already existing legislation, separate laws etc. Some countries’ status quo demands only minor alterations to comply with V Migrants, minorities and legislation — European Monitoring Centre on Racism and Xenophobia the terms of the Racial Equality Directive. For other countries its implementation and integration into miscellaneous concepts means a challenge in legislation both in terms of its legal as well as its social impact. In short, the EU Member States can broadly be divided into three different groups according to their immigration history and their concepts of migrants and minority population: The first group of countries looks back on a history of relatively significant immigration from former colonial territories (France, the Netherlands, and the United Kingdom). The second group consists of those countries which systematically practised the recruitment of migrant workers (Austria, Belgium, Denmark, Germany, Luxembourg, and Sweden). The third group encompasses the so-called ‘new immigration’ countries. After having experienced long-time emigration, these countries have been subject to significant immigration only since the late 1980s (Greece, Italy, Spain and Portugal) and early 1990s (Finland and Ireland). However, some countries would obviously fit in more than one category. For those European countries with high immigration rates and a history of long-term residence of their immigrant population, two major models of anti-discrimination policies can be distinguished: Countries, mainly belonging to the first group, with a considerable minority population of various ethnic backgrounds, are often presented as being multi-ethnic/multi-cultural societies (France, the Netherlands, the United Kingdom, Sweden to a certain extent with regard to its concept of society and resulting integration policy). Over time, these countries have adopted systematic concepts of anti-discrimination policies understood primarily as racial equality issues. In terms of anti-discrimination policy towards the immigrant population, most countries included in the second (and even in the third) group use a ‘foreigner concept’ rather than a ‘minority concept’. Hence, some countries of this group have often not systematically developed a specific equality or anti-discrimination legislation over the past decades and consequently some of them like Austria and Germany relied on rather general, not adequately adapted, legal instruments. Within the first group, France, the Netherlands and the United Kingdom already in the past had had a distinctive anti-discrimination policy and a distinctive legal basis (including the judiciary) in the prosecution of racism and discrimination. The United Kingdom can build on one of the oldest traditions and experience in anti-discrimination legislation, and to some extent influenced the Racial Equality Directive. Already in 2000, the UK Government introduced a statutory duty on public authorities in Great Britain to promote racial equality. Dutch anti-discrimination legislation is primarily orientated towards equal treatment embodied in the constitution as well as in other legal provisions, theoretically covering direct as well as indirect discrimination.