4. Race discrimination policy in the European Community

RITORNA AL SOMMARIO



In Europe it is noteworthy that, although the policy of equal treatment for women has proved to be rather successful, is has not to date been extended to race discrimination issues (1). Indeed, the very fact that the guarantee of freedom of movement, and all deriving rights, are directed only to EC nationals, seems to be a source of discrimination against people seeking to settle in Europe (2): the idea of "fortress Europe", open internally but tightly closed to the outside environment, is not only an economic reality, it is also a social attitude. The obstacles to this process may be partly technical, due to the lack of a strong legal basis for developing a complete equal treatment programme (3). The original structure of the Rome treaty considered social policy matters only insofar as they related to other Community aims, especially the working of the internal market. This attitude has changed over the last ten years, and some new provisions have been added in order to further European social policy: for example, the Single European Act provides in article 118A that measures in the fields of the health and security of workers require a qualified majority vote and the use of the co-operation procedure; the Maastricht Treaty has added further articles on education and the training of young people (articles 126 and 127), and an agreement on social policy has been annexed to the Treaty. These changes show that social policy is gradually achieving the status of an independent aim, although one closely related to other economic purposes, similarly to other Community policies like consumer protection, environmental protection and education.

Some Community legal instruments deal explicitly with race discrimination. At the most general level, article 6 EC (previously art. 7 EEC, amended by the Maastricht Treaty) prohibits any discrimination on the ground of nationality, without distinguishing between EC national and non-EC nationals. The European Court has developed a conspicuous amount of case-law that defines rights pertaining to the freedom of movement as fundamental (4); nevertheless, it must be noted that the Court recognizes those rights only for Community citizens (5). Moreover, the application of article 6 is limited to persons of different nationality, and it is useless in tackling discrimination against people belonging to an ethnic minority but who have acquired a Community nationality, as it is the case of many people from the former European colonies.

Two declarations annexed to the Single European Act concern third-country nationals: one, pertinent to articles 13-19 (concerning the internal market), confirms the member states' power to regulate, among other issues, immigration from third countries; another, in the form of a political declaration, recognises the Community's power to regulate the entry, movement and residence of nationals of third countries, with the co-operation of member states. Although their legal effects are not completely clear, these declarations signal a willingness to address the problem. In 1985 the Commission adopted a decision concerning the procedure for prior notification of and consultation on migrant policies in respect of non-Community states (6), but several states challenged its validity before the ECJ (7). The Court ruled that migration policies fell within the scope of article 118, but the Commission had exceeded its powers in including other related subjects (like cultural integration) and in providing not only for co-operation, but also for the results to be achieved by it.

The Community Social Charter affirms in its preamble that every form of discrimination, including race discrimination, must be combated in order to ensure equal treatment, and that member states must ensure that workers from non-member countries receive treatment comparable to that of national workers. There are several soft law instruments related to this topic, like some communiqués issued by Heads of States meetings and European Council resolutions. In 1976 the Commission established an Action Programme for Migrant Workers, which aimed to create a common policy in fields like employment, social security and education, but the results of this plan were rather meagre (8). The European Parliament has been active in promoting human rights in general, concluding in 1977 an inter-institutional declaration on human rights, and setting up a Committee of Inquiry to examine the problems raised by the resurgence of fascism and racism in Europe, which resulted in 1986 in a Resolution condemning racism and xenophobia. This was followed in 1990 by a Council Resolution on the same subject, which underlined the need for member states to ratify international conventions on racism (9), and empowered the Commission to undertake comparative assessment of the anti-racist laws of the member states.

Recently new grounds for regulating immigration have been brought by the new pillar introduced by the Maastricht Treaty concerning co-operation in justice and internal matters (10).

This brief overview shows that we are still far from reaching a comprehensive community race discrimination policy. Nevertheless, these are signs of growing awareness of the issues and problems involved, and of greater willingness of the states to devise new solutions (11). Although sex discrimination provides a suitable model on which to base the search for principles and mechanisms (12), the most recent developments in this field, as we shall see, may signal a halt in the process: the emphasis on formal equality, and the limited admissibility of affirmative actions for redressing discrimination are indicative of a reviring trend that may jeopardise some of the most significant developments of the last two decades.



Footnotes


(1) E. Szyszczak, "Race Discrimination : The Limits of Market Equality?", in B. Hepple, E. Szyszczak (eds.), Discrimination: The Limits of Law, London, 1992.
(2) K. Hailbronner, J. Polakiewicz, "Non-EC Nationals in the European Community: The Need for A Coordinated Approach", (1992) 3 Duke J. Comp. & Int'l L. p. 49 ff.
(3) Equal treatment and social policy measures have been hitherto based on articles 117, 119, 100 and 235 EEC.
(4) These decisions combine the use of article 7 (now article 6 EC), prohibiting discrimination, with article 48, which provides freedom of movement for workers.
(5) In Demirel v. Stadt Schwabisch Gmund, C-12/86 [1989] 1 CMLR421, a Turkish citizen tried to avoid deportation from Germany by relying on the free movement provisions of the association agreement between the EEC and Turkey. The Court denied direct effect to the agreement, and refused to apply the European Convention on Human Rights and Fundamental Freedoms.
(6) Decision 85/381/EEC. The decision was based on article 118 concerning the Commission's powers to promote co-operation among member states in the social field.
(7) Joined cases 281/85, 283-85/85, 287/85 [1988] 1 CMLR 11.
(8) S. Council directive on the education of migrant workers' children, 77/486/EEC. A draft directive on illegal immigration was also proposed, but failed to receive the necessary consensus.
(9) Particularly the U.N. International Convention on the Protection of Rights of all Migrant Workers and Members of Their Families, signed in December 1990; s. Bosniak, "Human Rights, State Sovreignty and the Protection of Undocumented Migrants under the International Migrant Workers under the International Migrant Workers Convention", (1991) 25 Int'l Migration Rev.737.
(10) Title VI, artt. K-K.9; art. K.1 lists, among the sectors relevant to attaining the freedom of movement of persons, immigration policy for citizens of third countries (art. K.1. 3 lett. a-c).
(11) S. Peers, "Towards equality: Actual and potential rights of third-country nationals in the European Union", (1996) 33 CML Rev., 7-50
(12) Sex discrimination law has provided the model for race discrimination legislation even in the legal systems of member states, as in the case of the United Kingdom, where the Race Relations Act 1976 was modelled on the Sex Discrimination Act 1975; s. B. Hepple, "Have Twenty-five Years of the Race Relations Acts in Britain Been a Failure", in B. Hepple, E. Szyszczak (eds.), Discrimination: The Limits of Law, (London, 1992).