EWLA

EWLA's response to the Commission's Green Paper on Equality and Non-discrimination in an Enlarged European Union

Resolution


30 August 2004: Response to the Commission’s Green Paper on Equality and Non-discrimination in an Enlarged European Union

EWLA welcomes the Commission’s Green Paper on equality and non-discrimination in an enlarged European Union and is pleased to be able to comment on it.

PRELIMINARY REMARKS
I. Fundamental Principles and Rights and their Implementation
? Recalling its contributions to the work of the European Convention and the IGC 2003-2004, as well as its positions on the amendment of Directive 76/207 and the drafting of a gender equality Directive based on Art. 13 TEC, EWLA wishes to underline the following:

• Gender equality – a fundamental principle and a fundamental right under international and EU law, which forms part of EU foundations – constitutes a “task”, an “aim” and a horizontal objective of the EU in all its activities by virtue of the Treaty (Arts. 2 and 3(2) TEC). In accordance with these Treaty provisions, it has been proclaimed as a strategic social and economic goal of the EU (Lisbon strategy, European Social Agenda);

• The elimination of gender “inequalities” and the “promotion” of gender equality in all fields is imposed by the Treaty (Art. 3(2) TEC) as a positive obligation on the EC. Therefore, all EC/EU institutions in exercising their respective powers (e.g. proposing or enacting legislation in any field, interpreting or implementing such legislation or monitoring its implementation by Member States) are required “actively to promote” gender equality . Moreover, all other primary and secondary EC law provisions, including those of Arts. 13 and 141 TEC and the gender equality directives, must be read and applied in the light of Arts. 2 and 3(2) TEC .

• The concept of “inequalities”, whose elimination the Treaty demands, is different in nature and wider in scope than the concept of gender “discrimination”. Gender inequalities are de facto situations; they affect mainly women, owing to “prejudices and stereotypes concerning their role and capacities” , which have infiltrated social and economic structures, and they are often multiple. They subsist even after gender discrimination in legislation is eradicated, i.e. after formal equality has been achieved. Thus, for the elimination of inequalities and the promotion of gender equality, as required by the Treaty, the eradication of gender discrimination does not suffice. This is increasingly realized at international, EU and national level.

• By requiring the “promotion” of gender equality and the elimination of gender “inequalities”, the Treaty demands substantive gender equality, which cannot be attained without positive action, in particular in favour of women , as stressed by EU institutions, including the ECJ ;

• There is thus a considerable acquis communautaire regarding gender equality, which was also used as a source of inspiration for several provisions of the two Art. 13 directives (2000/43 and 2000/48). However, as EC/EU institutions are deploring it, the progress towards effective gender equality is still slow. This, inter alia, endangers the achievement of the Lisbon economic and social goals . Therefore, this acquis must be maintained in full and further strengthened, in pursuance of substantive gender equality, the more so as women, the main victims of inequalities, are neither a group nor a minority, but one of the two forms of the human being and more than half the population.

• Reflecting this acquis, the Treaty Establishing a Constitution for Europe includes gender equality among EU values (Art. 2), proclaims it as a fundamental EU objective (Art. 3) and retains the TEC gender equality provisions, in particular those of Arts. 3(2) and 141 TEC (Arts. III-116, III-214), while the Charter of Fundamental Rights incorporated in the above Treaty proclaims gender equality in all fields as a fundamental principle and a fundamental right (Art. 23 of the original Charter, Art.II-83 of the above Treaty).

? Consequently:
• EWLA agrees that the principles of equality, in particular gender equality, and non-discrimination are at the heart of the European Social Model and that European legislation has significantly raised the level of the guarantee of equality and protection against inequalities and discrimination across the EU and acted as a catalyst for the development of a more coherent, rights-based approach to equality and non-discrimination.

• EWLA believes that European legislation has had a strong impact on the level of protection in the EU against inequalities and discrimination. However, it is clear that inequalities remain and need to be dealt with.

II. Gender Equality Issues and the Lisbon Strategy
Regarding more particularly the Lisbon strategy, EWLA wishes to draw attention to some gender related issues:

The Lisbon strategy is a response to the challenges of globalisation and the emerging of a diversity of forms of participation in the economic world. This affects the autonomy of women in Europe as subjects of economy in manifold ways.

a) Equal access to capital - Ratings – Basel II impacts: monitoring and reporting as “soft instruments” of “gender controlling”.
According to several statements of the Commission, an increasing number of women shall be involved as entrepreneurs on the European market. It is repeatedly remarked in the official documents, that economic potential lies idle because the specific skills and potential of women as entrepreneurs are not fully tapped. (e.g. Benchmarking Enterprise Policy - SEC(2003) 1278 final, chap. IV.2)
This implies equal access to capital, funds and assets. There are serious complaints about discrimination against female entrepreneurs regarding access to capital. To EWLA, equal and autonomous participation in economy resp. in the internal market, implies monitoring and reporting on the relevant developments in the financial services and financial sector. This includes the forthcoming adoption and consequent enforcement of the Art. 13 regulation – Com 2003 657 final.
Especially important for EWLA are the implications and impacts of the Basel II treaty. This treaty is relevant in several respects:
i) Credits for sme’s – modifications affect especially female entrepreneurs. It is necessary to monitor the effects of the new stipulations on the national level to guarantee equal competition throughout the internal market.
ii) It must be made sure that the ratings do not directly or indirectly discriminate against enterprises with a human resource policy that integrates the elderly, young women or disabled persons.
iii) There should be communication about how best practice in non-discriminating in respect of human resource management and its benefits for the corporations can become part not only of their public relations but also of ratings and the capital market value of the corporations.

b) CSR – ethical investment: Therefore the DG should communicate with relevant institutional investors and rating agencies and assess what the role of (“ethical”) investment can be and what the recent experiences with these instruments are (e.g. the united Global Unifem Fund or similar funds in the US). The results of these assessments should be integrated in the current discussion about the European development of the Corporate Social Responsibility Policy and should influence the instruments in discussion. EWLA would appreciate a sequel to the Malta Conference of April 2004, which has already delved into the matter.

c) Corporate Governance: Improve instruments to abolish discrimination against women at the very top of management: Communicate the Finnish recommendations for listed companies which recommend the proportionate composition of directors board according to sex.

d) Positive action: As a result of economic crises and of globalisation many traditional instruments of positive action in companies have lost their effectiveness. This is a threat to already ensured achievements in gender equality. There should be an assessment and evaluation of new instruments of positive actions. Especially successful even in difficult sectors are mentoring projects. Experience shows best results, when the mentoring projects are part of personnel development strategies in enterprises and of “official” top-down human resources-development policies. Experience should be systematically communicated – this could become part of the annual report.
e) Against the background of the liberalisation/privatisation effects of the Lisbon strategy sectoral assessments could become very important as “soft instruments” for anti-discrimination and equal opportunity policy. This may apply to health care systems – it certainly applies to the public safety and security issues. During the last years there has been a rapid change in this sector of services, and privatisation has led to a change in the sector. This change has not yet led to more transparency in employment and enterprises of this highly sensitive economic sector. Besides, this is a growing sector of services and a interesting European market with immense public relevance, where women still do not play a role, neither in middle, nor in top management. Moreover, although the public security sector has been a matter of equal opportunities policies for years, there are still few results in the high ranks of administration/ in the top management of the police for example. These specific objective and subjective conditions lead EWLA to propose, to focus on the sector of “public and private services of security” in respect of anti-discrimination policy and equality law.

ANNEX

QUESTIONNAIRE
1. MEETING THE CHALLENGES OF ENLARGEMENT
How important do you think that it will be for the EU to reinforce its efforts to combat discrimination on grounds of racial or ethnic origin, religion or belief, disability, age and sexual orientation following enlargement?
Very important.

Addition: EWLA also considers that substantive gender equality should be reinforced.

2. IMPLEMENTING THE PRINCIPLE OF NON-DISCRIMINATION IN LAW AND IN PRACTICE
What impact do you think that European legislation has had on the level of protection in the EU against discrimination on grounds of racial or ethnic origin, religion or belief, disability, age and sexual orientation?
Limited impact (the two Art. 13 directives do not seem to have been adequately implemented by the “old” Member States; the Commission has initiated infringement proceedings against six of them).

What do you consider to be the main remaining obstacles to the effective implementation of European anti-discrimination legislation?
• Lack of information/awareness about rights and obligations under anti-discrimination legislation
• Continued existence of discriminatory attitudes and behaviour
• Difficulties experienced by victims of discrimination in accessing law courts or tribunals (cost of litigation, evidence)
Addition: the same obstacles remain regarding gender discrimination, plus the high level of female unemployment.

Do you consider that there are serious problems which are not currently covered by European anti-discrimination legislation?
• Regarding discrimination on grounds other than sex: No (EWLA considers that there are mainly problems of implementation)
• Regarding gender equality: Yes. (The Art. 13 gender equality directive on access to goods and services must be adopted, as amended by the EP. More areas, at least those covered by the race directive, should be covered by EU gender equality legislation).

• The following tools would be effective in addressing these problems, regarding both gender equality and discrimination on grounds other than sex:

- Awareness-raising
- Further legislation
- Positive action

Should the EU stimulate debate on additional grounds of discrimination covered by the Charter?
- Social origin
- Language
- Political or other opinio (this is covered by Art. 13, under “belief”).
Note: In its contributions to the European Convention, EWLA insisted that Art. 13 TEC be brought in line with Art. 21 of the Charter. This was not achieved. However, the prohibition of discrimination on any ground, beyond those mentioned in Art. 13 TEC, is a binding acquis by virtue of the ECHR and the Covenant on Civil and Political Rights and Art. 53 of the Charter (Art. II-113 of the Treaty establishing a Constitution for Europe).

3. IMPROVING DATA COLLECTION, MONITORING AND ANALYSIS

How important do you think the collection of data is to the development of effective policies to promote equality and tackle discrimination?
Very important

Do you agree that the EU should cooperate with national authorities and other stakeholders in order to explore possible ways of collecting data related to discrimination and the integration of disadvantaged groups?
Strongly agree.

4. MAKING FULL USE OF EU FUNDING
Areas which should be a priority for EU funding:
• Analysis and monitoring of the impact of anti-discrimination legislation
• Information and awareness raising activities
• Training on diversity and discrimination
Thematic areas on which future activities should concentrate:
• Employment and the workplace
• The business case for diversity
• Discrimination outside of the employment field (education, social security, health care, access to goods and services, housing)

5. REINFORCING COOPERATION WITH STAKEHOLDERS
• European-level networks of NGOs
• Judges and legal practicioners
• Other (social partners)
6. ENSURING COMPLEMENTARITY WITH OTHER AREAS OF EU POLICY
Which of the following instruments do you feel could be used in a more effective way to support EU’s efforts to tackle discrimination?
• European employment strategy
• Corporate social responsibility
• Education, training and youth
Do you agree that efforts to tackle sex discrimination in the EU should be linked more closely to efforts to tackle discrimination on grounds of racial or ethnic origin, religion or belief, age, disability and sexual orientation?
• Agree as regards multiple discrimination only; it should not be forgotten that women, the main victims of gender inequalities, are neither a group nor a minority (supra under I)

Do you agree that it remains necessary to tackle specifically sex discrimination and the promotion of gender mainstreaming?
• Strongly agree
Addition: there is also a need to tackle gender inequalities and promote gender equality (supra under I).

? Last, but not least: It should be recalled that the objectives of gender equality are both social and economic, and that the economic objectives are secondary to the social ones .