Equality and Non-Discrimination and the Priorities of the Polish EU Presidency - European Integration

Equality and non-discrimination belong to the foundations on which the European Union and its Member States are based. How important these issues are for the various fields of activities shows the sheer amount of regulations in the Treaty and on the level of directives. In the current anti-discrimination legislation of the EU the greatest number of regulations concerns equal opportunities for women and men. It was not until the last twenty years that the EU has taken noticeable action against discrimination based on race, ethnic origin, age, religion, disability or sexual orientation. The first comprehensive treaty regulation that entrusted the Council of the European Union with the power to counteract discrimination on the above mentioned grounds was introduced by Article 13 of the Treaty establishing the European Community (1) , added to the Treaty as a result of amendment enforced by the Treaty of Amsterdam in 1997. The Treaty of Lisbon maintained this authority, while simultaneously strengthening the position of the European Parliament (Article 19, paragraph 1 of the Treaty on the Functioning of the European Union (2))   and, what is important, it introduced new obligations aimed at the incorporation of antidiscrimination perspective into all EU activities and policies. This is demonstrated by the Article 10 of the Treaty on the European Union, which for the first time introduced equality mainstreaming and emphasised that the EU counteracts social exclusion and discrimination, supports gender equality and recognises rights, freedoms and principles specified in the Charter of Fundamental Rights, with the same legal power as the Treaty. At the same time this article states that the Union strives to combat discrimination on the grounds of sex, race, ethnic origin, religion, belief, disability, age or sexual orientation when specifying and realising its policies and activities. This regulation does not only impose the so-called negative obligation, i.e. Member States are required to avoid and refrain from action that might discriminate or lead to discrimination on the grounds specified in the Treaty. It should also be interpreted as a positive obligation – not only active action against existing inequalities, but also preventive action minimising the risk that such inequalities would occur or remain in the future. Another regulation crucial from the perspective of human rights standards is Article 2 of the Treaty, according to which the European Union is based on values such as respect for human dignity, freedom, democracy, equality, rule of law and law obedience, including rights of minorities. It has explicitly included rights of minorities into the canons of human rights which are the basic principles for the functioning of the EU. It seems that such a regulation should be interpreted together with Article 21 of the Charter of Fundamental Rights that prohibits discrimination based on legally protected characteristics.

Priorities

Within this framework of anti-discrimination legislation and equality promotion, Poland took over the leadership in the Council of the EU on the 1st of July 2011. The six-month rotating Presidency provides the Member State holding this function with many formal and informal possibilities to influence the shape of the EU anti-discrimination legislation and to enhance its significance by means of e.g. wide promotion. A few weeks before the formal beginning of the Presidency, the Polish government presented its priorities. They include the multi-annual financial framework for the years 2014-2020, the Internal Market, Eastern Partnership, energy policy, Common Security and Defence Policy as well as the full exploitation of intellectual capital in Europe. Unfortunately, the list of priorities of the Polish Presidency does not mention equal opportunities or the fight against discrimination apart from a general statement relating to the need of providing persecuted Christians with help. This does not mean, however, that by neglecting this issue the Polish government can just ignore the necessity to implement such an important EU policy during its Presidency. The current EU agenda encompasses numerous legal acts and issues concerning measures against inequalities to be enforced.

Horizontal anti-discrimination directive

One of the tasks that the Polish Presidency should treat seriously is the project of the so-called horizontal anti-discrimination directive proposed already in 2008 during the French Presidency. It introduces the ban on discrimination based on sex, race or ethnic origin, religion or belief, disability, age or sexual orientation in the access to services and goods, education, healthcare and social security. This proposal is highly important, because it meets equality standards set by the Treaties and it puts an end to the so-called hierarchisation of protection against discrimination, which has encountered harsh criticism. The current EU legislation prohibits discrimination on the above mentioned grounds only in the sphere of employment and work, at the same time granting greater protection to those who experience racial, ethnic or gender discrimination. It has to be emphasised that the European Commission proposal had the strong support of both European NGOs acting on behalf of the discriminated and of the European Parliament, which adopted the ‘Buitenweg Report’ on 2 April 2009. A substantial majority of Member States (including Poland) supports in principle the need to implement the directives. The Polish government should, therefore, take advantage of the current favourable conditions for this initiative in Europe and convince the governments of Germany and the Czech Republic (two of the few countries opposing the legislation) to support the proposal. From the legal and social point of view, it is incomprehensible that particular social groups are still unequally protected against discrimination.

European Equality Summit

The Polish Presidency will also coincide with the European Equality Summit – the most important EU meeting devoted to equal opportunities and non-discrimination. It brings together delegations from the EU institutions, Member States’ governments, representatives of academia and civil society – NGOs, trade unions, employers’ organisations – in order to evaluate the implementation of equality standards, exchange best practices and propose new solutions. We still do not know the official programme of the Summit which is to be organised by the Polish Government Plenipotentiary for Equal Treatment. Due to the lasting economic crisis, it seems that one of the themes should be the discussion about how to prevent economic difficulties affecting in particular groups exposed to discrimination. Women, the disabled, racial or ethnic minorities and elderly people are usually the first to pay for the crisis and are the main victims of cuts.  Also, investments in equality policies, often deemed as less vital, have not rarely been drastically limited in the last years due to the financial crisis. A ‘good example’ is the case of the national offices for equal treatment required by numerous anti-discrimination directives. Offices responsible for the fight against discrimination were the first ones to fall victim to budgetary cuts, often disproportionately more often compared with other public expenditures. Latvia, Ireland, France and Bulgaria are just some of the countries that drastically reduced the budgets of these institutions, thus restricting access to specialist support for discriminated citizens.

Long-term equality strategies

Other crucial action of the Polish Presidency should be intensive promotion relating to the two newly-adopted EU long-term strategies for gender equality and for disabled people. Poland ought to send a concrete and influential signal how to implement them effectively. It is crucial for the Polish government to set a high level of expectations towards these strategies and, more importantly, to make sure that the EU institutions fulfil their obligations step by step.

There are many other important issues pertaining to the counteracting of discrimination at the European level. The work on the maternity leave directive, which regulates all kinds of childcare leave, both maternity and unpaid extended post-maternity leave, is still in progress. The directive suggests e.g. twenty weeks of maternity leave and two weeks of paternity leave secured in the EU law.

The Polish Presidency should in particular deal with the directive proposed by the European Commission regarding minimum standards for the rights, support and protection of victims. New regulations shall guarantee that victims enjoy respect; police, public prosecutors and judges are trained to treat them appropriately, while victims from the most vulnerable groups such as children, raped or disabled people are under suitable protection.

Holding the Presidency of  the Council of the European Union means real power and the disposal over measures to bring about specific solutions or at least to address concrete problems. This was demonstrated by charismatic Equality Minister Bibiana Aido during the Spanish Presidency or the great factual preparation of Deputy Prime Minister Joëlle Milquet during the Belgian Presidency. It has to be kept in mind, though, that any action for equality and non-discrimination serves its goals only when widely consulted with the European civil society.
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(1) Article13 - “Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”

(2) "Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation".


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Krzysztof Śmiszek is Director of the Polish Society of Antidiscrimination Law. Between 2008 and 2010 he acted as a lawyer in EQUINET – the European Network of Equality Bodies in Brussels.


This project has been funded with support from the European Commission.
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