Abstrakt

The concept of discrimination on the labour market is currently widely debated by the labour law scholars. Therefore, there is a need to address the issue of discrimination in the labour market within the context of EU legal framework. The purpose of this article is to present existing anti-discrimination Directives and their practical application as well as case studies which help to identify gaps between existing rights and their enforcement. The procedural techniques for victims of discrimination. The EU legal framework The topic concerning procedural techniques for the victims of discrimination is nowadays widely debated by European labour law scholars. The growing importance of this topic is related to the critique of traditional anti-discrimination legislation. This criticism is based on the assumption that the procedural provisions provided by the sophisticated framework of anti-discrimination Acts across the EU Member States have failed to grant an effective access to justice for victims of discrimination. Empirical studies show that inequalities based on race, religion, sex and disability persist in the labour market. It is widely recognized that one of the main reasons for the persistence of these inequalities is the weakness of the traditional judicial enforcement regime, through individual complaints. The volume of litigation is still relatively low in this field because many individuals considering themselves victims of discrimination are reluctant to claim their rights and initiate a lawsuit because of the high financial and emotional costs which such procedures entail, or simply because of a lack of familiarity with the complex discrimination law and of the low level of awareness on the substance of discrimination and the available legal remedies. This is especially true for disputes concerning discrimination where the person’s weakness is double because it derives not only from the fact that the employer is typically superior to him – and for this his power should therefore be restricted – but also because of the belonging to a discriminated group. However, even if the crisis has revealed the inefficiency of EU instruments in protecting most disadvantaged groups and promoting equality, it would be wrong and excessive to qualify the anti-discrimination law only as a „paper tiger” also in view of the fact that it is up to the Member States to ensure that EU procedural rules are adequately transposed and provide for adequate techniques for promoting equality. In order to make the access to justice for the victims of discriminations effective for the last fifteen years the EU legislator has been trying to question the traditional approach and has introduced a large variety of specific procedural rules that complement individual judicial enforcement of EU discrimination law. The existing anti-discrimination directives not only provide for a number of important procedural guarantees whose aim is to facilitate individual litigation – such as the special allocation of the burden of proof, but also entrust collective and/or public interest bodies dedicated to the assistance of victims of discrimination with the important task of engaging in court proceedings if they demonstrate a legitimate interest [see Dir 2000/43/EC, 2000/78/EC, followed by Dir 2002/73/EC, 2004/113/EC and 2006/54/EC (recast)]. Therefore, an important feature of the EU equality law is its emphasis on a move away from the focus on an individualized enforcement: the Directives provide for that Member States shall ensure, on the one hand, that judicial and/or administrative procedures for the enforcement are available to all persons who consider themselves wronged because the principle of equal treatment failed to apply to them, but, on the other hand, that a standing to engage in court proceedings (on behalf of or in support of the complainant) is granted to organizations with a legitimate interest in enforcing the Directive (see §§ infra). The standing of these organizations is understood to be an important step towards the goal to enhance the effectiveness of judicial enforcement, even if the European Court of Justice, in the more recent judgments, did not give a clear answer to some particular conceptual and enforcement issues, so as to explain what is required for proper implementation (see infra). In the same view, EU law requires Member States to establish national equality bodies with a mandate to promote equality, even if restricted to the field of discrimination based on race and ethnic origin (Art. 13 Dir 2000/43) and gender discrimination (Art. 12, 2004/113 and Art. 20, 2006/54). It is worth underlining that the wording of Directives does not expressly contemplate that Member States have to grant legal standing to bring a complaint of discrimination to these bodies. They only shall ensure that the competences of these bodies include „independent assistance to victims of discrimination in pursuing their complaints about discrimination, conducting independent surveys concerning discrimination, publishing independent reports and making recommendations on any issue relating to such discrimination”. The EU legislator pointed out that this body should be able to exercise the powers given to it in an „independent” way, but a large scope in defining its structure (for example its form and composition), and in determining the procedures for the exercise of its powers is left to national legislators in the view of the variety of existing rules in the Member States. With respect to the issues mentioned before, it is interesting to analyze in depth the EU anti-discrimination law in the world of work through a close reading of some ECJ judgments. The focus will be on aspects related to locus standi, that are of fundamental importance for the understanding of the effectiveness of substantive guarantees.