The word ‘racism’ originally referred to a theory that certain races are superior to others. Today, we understand ‘racism’ to mean an ideology and behaviour justifying domination, segregation and violence aimed towards groups and individuals identified on the basis of biological or ethnic criteria. Racism is manifested in hate speech, acts of brutality and various forms of discrimination and humiliation. Anti-Semitism clearly comes under the banner of racism, as does anti-ziganism. In Europe, attitudes of systematic hostility towards populations from elsewhere in the world, particularly migrants from the Asian and African continents, are part of racism. Colonialism, albeit motivated by economic and geopolitical ambitions, was couched in justifications of white supremacy, openly or otherwise, supposedly bringing with it the benefits of civilisation.
Not all discrimination is necessarily based on race, but one of the most commonly used methods to confer effectiveness on the concept of racism is discrimination. According to article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, which entered into force in 1969, the term “racial discrimination” means ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’.
European integration, which is rooted in opposition to the values of a regime based on the methodical destruction of other races, is by definition fundamentally anti-racist. It was the Council of Europe that was the first to express this, to the European Human Rights Convention and the Framework Convention for the Protection of National Minorities. In 1993, it set up its own European Commission against Racism and Intolerance (ECRI), which carries out monitoring work, in collaboration with civil society organisations; it has adopted some 15 targeted recommendations, for instance on combating racism and intolerance against Roma and gypsies (1998 and 2011), Jews (2004), migrants (2016) and in policing (2007). There is extensive case-law of the European Court of Human Rights.
The Europe of the Communities has expressed particular concern for minorities, particularly the Roma, in its social and training programmes. However, its first important legal act did not come about until 1996, with common action to ensure legal cooperation over infringements based on racist and xenophobic behaviour. The Parliament has adopted many resolutions. With its adoption of the Treaty of Amsterdam, the Council of the EU was explicitly mandated to legislate (unanimously) against discrimination based, amongst other things, on race or ethnic origin.
Directive 2000/43/EC of the Council on the implementation of the principle of equal treatment between persons irrespective of racial or ethnic origin was adopted on 29 June 2000. This text aimed to combat any direct (including bullying) or indirect discrimination; its scope of application was geared towards the professional dimension (access to employment, working conditions, vocational training, social protection, etc.), education and ‘access to and supply of goods and services which are available to the public, including housing’ (see EUROPE 7732/11). Concerning this, the most recent Commission report on the application of this directive (January 2014) added the following clarification: ‘The Directive applies to both public and private sectors, but certain actions by member states (e.g. police) may entail exercise of public authority without any element of provision of “service” within the meaning given to that concept in the Treaties and the case-law of the CJEU’ (p. 13).
The implementation of this directive was delayed by problems with transposition; it continued to be hard to evaluate, for want of comparable statistics and differences between the national quality bodies. The Commission’s next report, recently announced by Commissioner Dalli, is eagerly awaited (see EUROPE 12516/11).
Directive 2000/43/EC was usefully fleshed out by framework decision 2008/913/JHA of the Council of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, which replaced the 1996 act (see EUROPE 9794/16). One of the merits of this text was to clarify the deliberate acts that are punishable by law: public incitement to violence or hatred directed against a group of persons or a member of such a group, defined by reference to race, colour, religion, descent or national or ethnic origin; the commission of such an act by public dissemination or distribution of tracts, pictures or other material; publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes. (To be continued))
Renaud Denuit