Article 13 EC: the European Kommissions proposal for a horizontal employment directive.
As a result of the Treaty of Amsterdam , the amended EC Treaty now contains a general provision dealing with discrimination, Article 13 in the Treaty’s re-numbered version (former Article 6a EC). The provision gives the Community the competence to adopt measures to combat discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. In November 1999, the European Commission presented a “proposal for a Council directive establishing a general framework directive for equal treatment in employment and occupation” accompanied by two additional proposals concerning an anti-racism directive and Community Action Programme to combat discrimination, 2001-2006. Naturally, Article 13 already heralded a shift away from the focus on nationality and sexual discrimination, which previously characterised EU social law. The terms of the new treaty article indicate a more horizontal approach - where different grounds of discrimination are dealt with by common measures. This is reflected in the Commission's explanatory memorandum to the proposed directive establishing a general framework for equal treatment in employment and occupation: “the scope of the present proposal covers all of the discriminatory grounds referred to in Article 13 except sex and does not rank them in any way. This absence of a qualitative hierarchy among the discriminatory grounds is of particular importance in cases of multiple discrimination” (COM (1999) 565, p. 6). In brief, the proposed general framework directive on equal treatment in employment essentially seeks to extend further the existing protection in EU law against sex and nationality discrimination. Therefore, discrimination on the grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation is forbidden. Employment is defined widely; it includes all types of vocational training, self-employment and participation in employee/employer organisations (Article 3). The proposal moves significantly beyond the 1976 Equal Treatment Directive , however, in its express prohibition of direct and indirect discrimination, and the inclusion of harassment within the definition of unlawful discrimination (Article 2). There is provision for positive action measures (Article 6), as well as allowance for a shift in the burden of proof in action to enforce the equal treatment principle (Article 9). Member States are under an obligation to establish “adequate sanctions” for a breach of the directive, and in particular such sanctions must be “effective, proportionate and dissuasive” (Article 14). One might expect that the proposal for the “horizontal” directive would take a non-hierarchical approach and not distinguished between the various named grounds. However, in spite of the Commission's claims to the contrary, an examination of the proposal reveals that four of the seven covered grounds receive special attention m the text, and that articles provide for a specific extensions or limitations of the proposed directive with regard to these grounds. These grounds are the following: disability in Article 2(4), religion and belief m Article 4(2) and age in Article 5.
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