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Published online by Cambridge University Press: 27 October 2017
The new european Race Directive is one of the latest measures adopted by the Council of Ministers under its enlarged powers aimed at combating racism in the EU. This Race Directive reflects the strategic thinking of EU policy aimed at combating institutionally racist constraints on the free movement of persons within the Community. Nevertheless, this paper argues that the effectiveness of the Directive is likely to be limited. This potential impediment is premised on two factors: the textual ambivalence that surrounds the concepts of ‘race’ and ‘ethnicity’ and the scope of the instrument. In turn, these restrictions are indicative of a power struggle between the EU and nation states, a struggle that threatens to sideline the broader picture of institutional racism and how to defeat it.
1 Defined as ‘acts by the total white community against the black community’, see Carmichael, S and Hamilton, CV Black Power. The Politics of Liberation (Vintage Books 1967), 4 Google Scholar and more recently as the ‘collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.’ See SirMacpherson, William of Cluny, The Stephen Lawrence Inquiry. Report of an Inquiry (London, Stationery Office 1999) CM 4264–1Google Scholar, para 6.34.
2 Council Dir 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Official Journal 2000 L180/22.
3 The Race Directive is broadly modelled on the UK Race Relations Act 1976.
4 See O’Brien, M ‘The European Race Directive—Our plans for implementation’, European Lookout 3 (2000), 2 Google Scholar.
5 Art 14 Council Dir 2000/43/EC above n 2.
6 Dandeker, C and Mason, D ‘Diversity in the British Armed Forces: the Debate Over Ethnic Minority Representation’, Paper presented to a conference on ‘Redefining Society—Military Relations: From Vancouver to Valdistock, at the University of Birmingham, 16–18 April 1999.
7 Ibid.
8 International influence on racial discrimination has tended to come from the jurisprudence of the European Court of Human Rights in interpreting the ECHR, however, racial discrimination is not an autonomous right and the remedy relies on the willingness of member states’ governments to comply with court rulings.
9 Forbes, I and Mead, G Measure for Measure: a comparative analysis of measures to combat racial discrimination in the Member Countries of the European Community, Equal Opportunities Study Group, University of Southampton, 1992, Research Series No 1 (London, Department of Employment)Google Scholar.
10 UN Centre for Human Rights (1996) ‘Model National Legislation for the Guidance of Governments in the Enactment of Further Legislation Against Racial Discrimination’.
11 The Human Rights Act 1998, incorporating the European Convention on Human Rights is likely to have an impact in these areas.
12 See Bell, M ‘Beyond European Labour Law? Reflections on the EU Racial Equality Directive’, 8 (2002) European Law Journal 384 CrossRefGoogle Scholar. Also see Forbes & Mead, above n 9.
13 Non-EC nationals in any EC country who have been legally admitted as residents. These include all residents from outside the EC, citizens of Commonwealth countries (if they have not registered or naturalised as British citizens), British nationals but not British citizens, see Dummett, A Citizens, Minorities and Foreigners (London, CRE 1994)Google Scholar.
14 Duncan, W ‘Racism and Xenophobia in Europe’, in Barrett, G (ed) Justice and Cooperation in the European Union, (Dublin, Institute of European Affairs 1997), 183 Google Scholar. Also see European Monitoring Centre on Racism and Xenophobia, Looking Reality in the Face, Annual Report 1998, part 2, EUMC, Vienna.
15 A freedom guaranteed by Art 39 of the EC Treaty but limited to the abolition of discrimination on grounds of nationality not race or ethnicity. Commission, ‘European Social Policy—A way Forward for the Union ‘ COM (94) 333 final, 27.7.94, ch VI. Also see Case 186/97 Cowan v Tresor Public [1989] ECR 195 where the Court held that the prohibition against discrimination on the grounds of nationality extended to recipients of services.
16 For analysis of the ‘business case model’ in relation to ethnic minorities and the armed services see Dandeker and Mason, above n 6.
17 Ibid, at 3.
18 EU Anti-discrimination Policy. From Equal Opportunities Between Men and Women to Combating Racism, Working Documents, Public Liberties Series LIBE 102 EN, 3.
19 European Council Consultative Commission (1995) Final Report, Ref 6906/1/95 Rev 1 Limite RAXEN 24.
20 Ibid, 59.
21 Para 15, Resolution on the Communication from the Commission on Racism and Xenophobia and Anti-semitism, 9 May 1996 (OJ 1996 C 152/57).
22 Wench, J ‘Mechanisms of Exclusion: Ethnic Minorities and Labour Markets’ 1 (1997) Nordic Labour Journal 16, 17Google Scholar.
23 The European Parliament, Council, Representatives of member states and the Commission agreed the 1986 Declaration Against Racism and Xenophobia. A number of organisations have been actively engaged in compiling draft instruments aimed at the enhancement of the EC’s competence in dealing with racial discrimination on a Community-wide basis. These have included the CRE, the Dutch National Bureau against Racism, Belgian Centre for Equal Opportunities, Churches Commission for Migrants in Europe, the Migrants Forum and Starting Line.
24 Another amendment to the Treaties relating to racism was Art 29 EU aimed at preventing and combating racism and xenophobia in the provision on police and judicial cooperation in criminal matters.
25 It has been unsuccessfully argued that the Community already had competence in this area under the old Art 235 of the Treaty of Rome see A Dummett.
26 After consulting the European Parliament, Art 13 EC Treaty.
27 Additional grounds of discrimination in the Article included sex, religion or belief, disability, age and sexual orientation. Contrast this with the equal treatment of men and women in relation to pay for instance under Art 141, formerly Art 119. Another difficulty is the requirement that the Council act unanimously in any appropriate action. It could lead to inaction or limited action. This was a problem that the CRE hoped to avoid in its proposal in the early 1990’s that the Council act by qualified majority, see Dummett above n 13 at 12–13.
28 The extent to which this article can deal with racial discrimination wherever it may arise is questionable.
29 On 2 June 1997 the Council of Ministers adopted regulation (EU No 1035/97) to set up this centre. For a critique of the limited objectives of the Centre, see Brennan, F ‘Can the Institutions of the European Community Transcend Liberal Limitations in the Pursuit of Racial Equality?’ in Brecher, B Halliday, J and Kolinska, K Nationalism, Racism and the Liberal Order (Ashgate 1998) 108 Google Scholar.
30 Council Dir 2000/43/EC adopted on 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, above n 2. It may be useful to add that this directive was rushed through, precipitated by fears over the human rights situation in Austria due to the rise of the Far Right Freedom Party in 2000. See Douglas-Scott, S Constitutional Law of the European Union (Longman 2002) 435 Google Scholar, fn 21 and Bell, M ‘Beyond European Labour Law? Reflections on the EU Racial Equality Directive’ 8 (2002) European Law Journal 384 CrossRefGoogle Scholar, 385. As part of the package of measures, provisions to deal with discrimination on the grounds of religion were adopted through Council Dir 2000/78/EC, establishing a general framework for equal treatment in employment and occupation, Official Journal L303/16.
31 The Council of Ministers consists of representatives of each Member State at ministerial level imbued with authority to commit the government of that State.
32 Art 249 EC Treaty provides that a Dir shall be binding as to the results to be achieved.
33 Art 16 of the Race Directive above n 2.
34 Ibid.
35 Art 13, ibid.
36 Art 15, ibid.
37 Ibid.
38 For analysis of the Race Directive as a model for worldwide mechanisms to combat racial discrimination see Brennan, F The European Race Directive: A Bridge So Far? (London, Consultative Council of Jewish Organisations 2001)Google Scholar discussion paper produced for the World Conference Against Racism.
39 Art 7(1) of the Race Directive above n 2.
40 Art 2(1) (a) and (b) ibid.
41 Art 2(4) ibid.
42 Art 9, ibid.
43 Art 3(1), ibid.
44 Art 12, ibid.
45 Art 8, ibid.
46 Art 10, ibid.
47 For instance whilst Britain, the Netherlands and France have laws against discrimination, in other EC countries such protection amounts to a pittance.
48 Member states may introduce more favourable provisions, but they cannot reduce levels of protection that were already afforded by them prior to the Directive, Art 6 of the Race Directive above n 2.
49 Individuals may rely on an unimplemented directive under the doctrines of ‘direct effect’, Case 41/74 Van Duyn v Home Office [1974] ECR 1337, [1975] 1 CMLR, and ‘indirect effect’, Case 4/83 Von Colson and Kaman v Nordrhein-Westfalen [1984] ECR 1891, [1986] 2 CMLR 430.
50 Art 1 Council Dir 2000/43/EC. Joined cases C–6/90 and C–9/90 Francovich and Bonifaci v Italian State [1991] ECR I–5357.
51 As a set of beliefs or dogma that is used to justify the existence of groups, ie, natural and fixed biological criteria, inferior culture or religion, see Bowling, B and Phillips, C Racism, Crime and Justice (Pearson 2002), 21 Google Scholar.
52 A type of cleansing of the process of decision-making on behalf of the individual complainant, see McCrudden, C, Smith, DJ and Brown, C Racial Justice at Work: The Enforcement of the Race Relations Act 1976 in Employment (PSI, 1991) at 5–6 Google Scholar.
53 Art 2(2)(b) of the Race Directive above n 2.
54 See McCrudden, Smith & Brown above n 52 at 6–7.
55 See European Network Against Racism, ENAR Update on the Implementation of the Council Dir 2000/43/EC Implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin, January 2003 (based on information from ENAR 31 December 2003).
56 Source Department of Trade and Industry, Equality and Diversity, 9 June 2003, www.dit.gov.uk/er/equality. The full text can be found at http://www.dti.gov.uk/er/equality/raceregs.pdf. Candidate countries due to join the EU in May 2004 will also be expected to implement the race directive.
57 European Commission Against Racism and Intolerance. http://www.coe.int/T/E/human_rights/Ecri/1-ECRI/, European Union Monitoring Centre on Racism and Xenophobia, European Network Against Racism, ENAR Update on the Implementation of the Council Dir 2000/43/EC Implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, January 2003, http://www.enar-eu.org/en/events/racedirective/ENAR%20update%20on%20the%20implementation.pdf, ENAR Shadow Reports on the activities of Member States, http://www.enar-eu.org/en/national/, Northern Ireland Council for Ethnic Monitoring (NICEM), Submission to the OFMDFM in response to Draft Race Regulations in Implementing EU Equality Obligations in Northern Ireland, 31 March 2003, Belfast.
58 Art 2(1) of the Race Directive above n 2.
59 Art 2(3) ibid.
60 Art 2(4) ibid.
61 Which states that ‘For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin.’
62 Art 4 Genuine and determining occupational requirements. For an interesting critique of the use of Genuine Occupational Qualifications as a ground of discrimination see Pitt, G ‘Madam Butterfly and Miss Saigon: Reflections on Genuine Occupational Qualifications’ in Dine, J and Watt, B Discrimination Law. Concepts, Limitations and Justifications (London, Longman 1996) 198 Google Scholar.
63 Art 5 of Council Dir 2000/43/EC, above n 2, related to positive action.
64 Para 6 of Preamble Council Dir 2000/43/EC.
65 Fitzpatrick, P and Bergeron, JH Europe’s Other: European Law Between Modernity and Postmodernity (Ashgate 1998)Google Scholar.
66 See Gearty, CA ‘The Internal and External “Other” in the Union Legal Order: Racism, Religious Intolerance and Xenophobia’ in Alston, P (ed) The EU and Human Rights (OUP 1999), 327 Google Scholar.
67 The Race Directive, above n 2.
68 Ibid.
69 NICEM, Submission to the OFMDFM in Response to the Draft Race Regulations in Implementing EU Equality Obligations in Northern Ireland, 31 March 2003, Belfast. Also see ECRI, Second Report on Ireland, Adopted 22 June 2001, 23 April 2003 where it is reported that people generally reject the idea that a person may be Irish and black, para 55.
70 See ECRI, Second Report on Austria, 3 April 2001.
71 Hieronymus, A and Moses, M ENAR, Shadow Report 2002, Talking ‘Race’ in Germany, Institut fur Migrations-und Rassismusforschung, Hamburg, Germany April 2003, para 1.1.
72 See generally Roubani, N ENAR Shadow Report—2001, for Greece.
73 Art 2 of the Race Directive above n 2.
74 The Race Directive, above n 2, Arts 2(3) and (4) respectively.
75 Ibid, Arts 4 and 5.
76 See Dobe, K and Chhokar, S ‘Muslims, Ethnicity and the Law’ 4 (2000) International Journal of Discrimination and the Law 369 CrossRefGoogle Scholar and Poulter, S Ethnicity, Law and Human Rights, The English Experience (OUP 1998), ch 9 Google Scholar.
77 [1983] 2 AC 548.
78 [1983] 2 AC 548 at 562.
79 Unreported, Independent 27 November 1986.
80 Case No 4106/91 where it was alleged that an instruction to discriminate against Muslims fell outside the Race Relations Act because Muslims did not constitute an ethnic group because the tribunal believed that Islam was a spread of faith rather than a group of people who could trace their descent from a common geographical origin. Also see Nyazi v Ryamans, EAT, 10 May 1998 (unreported), Tariq v Young, Birmingham IT, 19 April 1989 (unreported); J H Walker Ltd v Hussain [1996] IRLR 11.
81 [1993] IRLR 284.
82 Seide v Gillette Industries Ltd [1980] IRLR 427.
83 Commission for Racial Equality v Dutton [1989] 1 All ER 306.
84 See Gearty, C A ‘The Internal and External “Other” in the Union Legal Order: Racism, Religious Intolerance and Xenophobia’ in Alston above n 66, 335–339 Google Scholar at 327, (in relation to Rastafarians and Muslims); Dobe, K and Chhokar, S ‘Muslims, Ethnicity and the Law’ 4 (2000) International Journal of Discrimination and the Law, 369 CrossRefGoogle Scholar (regarding Muslims).
85 Niessen, J and Chopin, I (eds), Anti-discrimination Legislation in EU Member States. A comparison of national anti-discrimination legislation on the grounds of racial or ethnic origin, religion or belief with the Council Directives. Austria, (Vienna, Austria, EUMC 2002)Google Scholar.
86 Art 1, para 1 of ICERD.
87 Niessen and Chopin (eds), above n 85 at 20.
88 Ibid.
89 See ZARA, Racism Report 2001. Case Reports on Racist Excesses in Structures in Austria, Vienna Austria, 2001.
90 See Brennan, F ‘Islamophobia: the Response of the Criminal Justice System’, 2003 (forthcoming).
91 Modood, T et al, Ethnic Minorities in Britain: Diversity and Disadvantage ‘The Fourth National Survey of Ethnic Minorities in Britain’ (Policy Studies Institute 1997)Google Scholar.
92 Religious discrimination is dealt with by the Framework Directive on Employment and Occupation.
93 Fredman, S Discrimination Law (OUP 2002)Google Scholar.
94 A preamble is not binding but can be persuasive.
95 European Council Consultative Commission (1995) Final Report, Ref 6906/1/95 Rev 1 Limite RAXEN 24.
96 The Race Directive above n 2.
97 Art 3(2) of the Race Directive, ibid.
98 The Commission has expressed concern that if migrants are left to fend for themselves they will continue to occupy the bottom rungs of society and the larger society will continue to be hostile, develop mechanisms of rejection and stigmatisation reinforcing the vicious circle of exclusion. See Commission of the European Communities, Policies in Immigration and the Social Integration of Migrants in the European Community, SC (90) 1813 final (internal document, 1990).
99 See Dummett, A ‘Immigration and Nationality’, in McCrudden, C and Chambers, G (eds) Individual Rights and the Law in Britain (Oxford, Clarendon Press 1994)Google Scholar where she argues that with few exceptions, international law takes for granted that each state determine its own immigration laws.
100 ‘A term used to describe non-EC nationals in an EC country who have been legally admitted as residents’, see Dummett, A, Citizens, Minorities and Foreigners (London, CRE 1994)Google Scholar.
101 See Rudiger, A (ed) A Voice of Change. European Minority Organisations in Civil Dialogue (Berlin, Regional Arbeitsstelle fur Auslanderfragen, Jugendarbeit und Schule 2001)Google Scholar.
102 See European Commission Against Racial Intolerance, http://www.coe.int/T/E/human_rights/Ecri/1-ECRI/2-Country-by-country_approach/default.asp#TopOfPage, Rudiger above n 101 and Forbes and Meade above n 9. Also see ENAR Shadow Report 2002, Racism and Race Relations in the UK and ENAR Shadow Report 2002, Talking ‘Race’ in Germany.
103 See Brennan, F ‘Racially Motivated Crime’ [1999] Criminal Law Review. 17 Google Scholar, also see ENAR Shadow Report 2002, Racism and Race Relations in the UK and ENAR Shadow Report 2002, Talking ‘Race’ in Germany.
104 Ibid.
105 Art 3(1)(a)-(h) of the Race Directive above n 2.
106 Immigrants or foreigners in Italy.
107 Guest worker or foreigner in Germany.
108 Of the vast literature in this area see Cole, P Philosophies of Exclusion. Liberal Political Theory and Immigration (Edinburgh University Press 2000)Google Scholar; Geddes, A Immigration and European Integration. Towards Fortress Europe (Manchester University Press 2000)Google Scholar; Bellamy, R and Warleigh, A (eds), Citizenship and Governance in the European Union (London, Continuum 2001)Google Scholar.
109 Italian citizenship is based on Law n 91 of 5 February 1992 where citizenship may be acquired after 10 years of residence, however, foreign nationals must swear a loyalty oath to the Republic of Italy and renounce their original citizenship. In Spain, naturalisation is obtained under the Naturalisation Act of 1990 generally after 10 years of residence, and dual nationality is only possible in certain circumstances, whereas Luxembourg does not recognise dual citizenship although it requires a residence period of 10 years. German Citizenship Law 1999 now requires an 8-year residence qualification coupled with proof of adequate linguistic skills in German, a pledge to the German constitution and renunciation of any other citizenship. Under the British Nationality Act 1981, to be a British citizen, a child born in the UK must have at least one parent who is a British citizen or ‘settled’ in the UK (ie free of conditions of stay and ordinarily resident in the UK).
110 The acquisition of nationality through bloodlines, ie parents’ nationality.
111 The acquisition of nationality through residence qualifications in a country.
112 McCrudden, C ‘Racial Discrimination’, in McCrudden, C and Chambers, G (eds), Individual Rights and the Law in Britain (Oxford, Clarendon Press 1994)Google Scholar.
113 CEC (1985a) White Paper on the Completion of the Internal Market, (COM (85)) 310 final.
114 Geddes above n 108, although this should be contrasted with the view of the European Council in 1992 that uncontrolled migration could be destabilising and lead to difficulties for the integration of third country nationals who have legally taken up residence in member states, see Declaration on principles of governing external aspects of migration policy, Edinburgh European Council Presidency Conclusions, Bulletin-EC, 12–1992, Annex 5, para I.31.
115 For instance see European Commission, Legal Instruments to Combat Racism and Xenophobia (1993).
116 See Fekete, L, ‘The Terrorism Act 2000, an interview with Gareth Pierce’ 43 No 2 (2001) Race and Class 43, at 95–103 Google Scholar.
117 Art 1A(2), of the Geneva Convention as amended by the 1967 Protocol, defines a refugee as any person who: ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to or, owing to such fear, unwilling to avail himself of the protection of that country’. See Dummett above n 99 at 350.
118Commission, ‘Communication from the Commission to the Council and the European Parliament on Immigration and Asylum Policy’ COM (94) 23, 23 February 1994.
119 Irish Times, 1 February 1999.
120 See Bell, M ‘Mainstreaming equality norms into European Union asylum law’ 26 (2001) European Law Review 23 Google Scholar.
121 See Fekete, , ‘The Emergence of Xeno-Racism’, Race and Class 43 No 2 (2001), at 39 CrossRefGoogle Scholar.
122 Ibid.
123 Sivanandan, A, Introduction to The Three Faces of British Racism: A Special Report, in Race and Class 43 No 2 (2001), at 1–5 Google Scholar.
124 Fallon, M and Weiler, P ‘ Firefighters v Stotts: Conflicting Models of Racial Justice’ (1984) Supreme Court Review 1 Google Scholar.
125 Art 7(1) of the Race Directive above n 2.
126 See McCrudden, C, Smith, D and Brown, C Racial Justice at Work, 6–7.
127 Commission, ‘European Social Policy—A way Forward for the Union ‘ COM (94) 333 final, 7July94, ch VI, para 27.
128 See more generally Bell, M ‘The New Article 13 EC Treaty: a Platform for a European Policy Against Racism?’ in Moon, G (ed) Race Discrimination. Developing and Using a New Legal Framework, (Hart 2000)Google Scholar.
129 From NGOs, the European Parliament, the European Trades Union Confederation and the Economic and Social Committee calls for the adoption of anti-racial discrimination legislation during the 1996/7 Intergovernmental conference.
130 Geddes, above n 108.
131 Burgess, M Federalism and the European Union: The Building of Europe, 1950–2000 (Routledge, 2000)CrossRefGoogle Scholar.
132 Ibid, 28–29.
133 Ibid, 31.
134 Art 6(1) of the Race Directive, above n 2.