Luxembourg, 02/10/2008 (Agence Europe) - The French presidency will be looking at how to make progress on the new draft directive on the updated social agenda for implementing the principle of equal treatment, regardless of religion, beliefs, disability, age or sexual orientation, outside the sphere of employment (social protection, health care, education and access to goods and services).
The orientation debate among competent ministers on 27 September to 2 October in Luxembourg demonstrated that although member states unanimously support the ambitious goals of the proposals, most of the delegations have fears about strict respect of the subsidiarity principle in areas of national competency, such as social protection, training/education and health, as well as doubts about the relevance of the field of application and the proposal's legal basis (Article 13 of the treaty). Many of them also requested closer examination of the adaptation of the European text to the UN Convention on rights of people with disabilities. The major demand, however, raised many times, involves clarification of the terminology and many concepts (particularly in Article 4 on the non-discriminatory treatment of persons with disabilities). A majority of delegations consider that the text as it stands, does not offer any of the required legal security, except for conferring the European Court of Justice with the responsibility of interpreting the provisions on a case by case basis. Apart from the United Kingdom, Denmark and Spain, which are particularly supportive of this very broad draft directive, all the other delegations said that they would prefer (like Sweden) to be able to reserve their point of view while awaiting clarification. The Czech Republic, which will be taking over from France at the presidency of the Council, was overtly hostile to a legislation that had been rejected by both the Senate and government. Germany, whose misgivings are known, expressed itself in more measured tones and repeated many times that its position has not changed since the Chantilly informal Council.
Xavier Bertrand, the French minister for employment and solidarity, who chaired the debate, was not, disheartened, however. Bertrand said that, “this rich and very delicate debate” had a globally positive tone, “given the difficulty of the subject” and even though some of the delegations were very critical they are encouraged to continue. Mr Bertrand said that, “I learned that we had to go faster and further with regard to the request for clarification and legal security”. The opinion of the Council's legal service, expected out in October, for the field of application and legal basis of the proposal, is expected to be crucial in this sense.
Bertrand said that problems regarding structuring national and Community legislation, as identified by Germany and the Czech Republic were listened to, as was the determination of certain delegations that past experience be taken into account and the demand made by Austria, Portugal and Belgium, that specific attention be paid to disability. “The presidency will continue its work to improve the text. We want a clear road map. The equality summit in Paris (29-30 September) demonstrated very high expectations from NGOs, social partners and people”, concluded Mr Bertrand, convinced that, “Europe of the 21st century has to be a Europe free of discrimination”. Vladimir Spidla, the European Commissioner for employment, social affairs and equal opportunities said that the fight against discrimination was, “a fundamental and founding value of the EU and its European social model”. He considers that the problem of subsidiarity had been settled by the previous directives on employment discrimination. In response to those who wanted clarification about the “reasonable or appropriate” modifications (in relation to accessibility for the disabled in some establishments), the Commission provided assurances that, “these terms also exist in these directives and infringement procedures are not likely to end with litigation on the notion of what is reasonable”.
The Commissioner said that in a modern society, security, a good law and jurisprudence and the draft directive constituted good law.
During the debate, Erwin Buchinger, the Austrian minister said that for people with disabilities, a more ambitious proposal would be better, “we need a sectoral directive” on the model Austrian legal model, which coverers questions of access, rights and services.
The question of access to private undertakings' services, according to him, deserved to be looked at because people with disabilities “cannot be excluded from medical insurance”.
The Czech minister, Petre Necas, insisted on the need to think about the principles of proportionality and subsidiarity by asking some sensible questions: “What fundamental reasons do we have for adopting this directive?”; “Can these objectives be attained nationally?” The Czech Republic thinks that additional use of competencies under Article 13 of the treaty would sweep Article 5 on subsidiarity under the carpet and lead to disputes. He affirmed that “we have to avoid adopting another European legislation but we have to continue discussions on the disabled. All member states are part of the United Nations Convention on the rights of the disabled and member states are capable of ensuring equal treatment as part of fundamental rights”.
John Dali, the Maltese minister, said that this proposal deserved appropriate planning and a long period of cultural acclimatisation. He affirmed that “although we support this goal, we believe that the text is premature as it poses the problem of interpretation and member states still don't have enough experience”. This explains the need for an awareness campaign to prepare Maltese society for the social consequences and to extend the directive implementation deadline - “two years is too short”.
The German minister, Ursula von der Leyen, said that “at the informal meeting in Chantilly we said that the German government was proactively fighting against discrimination, and equal opportunities was a leitmotiv for all. We also said that the new directive had to be seen with scepticism”. According to von der Leyen, the questions of federal and regional governments involve the legal basis and structuring between European and national legislation, which had so far not received any response. She asserted that the Council's legal service's opinion will therefore be welcome but they also needed a Commission impact study. She added that given that the implementation of anti-discrimination legislation is too recent in some member states to allow for sufficient jurisprudence and statistics, and that existing European legislation has not been correctly transposed (infringement procedures testify to this) “significant legal uncertainty remains” and Germany's position has not changed.
Piet Hein Donner, the Dutch minister, said that nobody could oppose a proposal that aims to better define European values, “but legislation only makes sense if it prevents every case having to go to the courts. This directive brings more questions than answers and the text is not acceptable as it stands”