by Viviane Reding
Over the years it has become clear that the challenges associated with integration, migration and cultural diversity will not disappear on their own. Instead, we have seen increasing reference to the need for positive action measures to combat discrimination.
But what exactly are positive action measures? A recent study undertaken for the European Commission in 2009 found that there was wide-spread confusion and inconsistency in the terminologies used to describe positive measures across the EU, North America and South Africa. In order to establish greater clarity, the study produced a new legal definition of positive action measures as 'proportionate measures undertaken with the purpose of achieving full and effective equality in practice for members of groups that are socially or economically disadvantaged, or otherwise face the consequences of past or present discrimination or disadvantage’ 1.
In order to ensure real and effective equality, these measures will need to take into account the different starting points in different countries – different contexts will require different focuses and some countries have further to go than others.
Nonetheless, positive action measures do more than just apply non-discrimination principles. They also aim to actively support and/or compensate disadvantaged groups.
In some cases it may be necessary for specific groups to receive additional support and be treated more favourably for a specific purpose 2. In the Netherlands for example, researchers from ethnic minorities can access a specific grant scheme 3. In other countries, quota systems are frequently used to support the employment of people with disabilities.
Positive action measures can be based on legislation, schemes or programmes – whether public or private, and at regional, national or supranational level.
EU legal framework: a long tradition
Within the European Union, the legal framework for positive action in the Member States has been established by a number of directives, as well as by related case law from the European Court of Justice (ECJ).
EU law for many years only addressed positive action in relation to sex discrimination 4. It was in this context that the ECJ ruled that the aim of positive action measures is 'to achieve substantive, rather than formal, equality by reducing de facto inequalities which may arise in society and, thus, in accordance with Article 141(4) EC 5 , to prevent or compensate for disadvantages in the professional career of persons belonging to the under-represented sex' 6.
As part of this reasoning the ECJ has developed a set of criteria to assess the legality of positive action measures: they must be based on clear unambiguous criteria, address specific career inequalities and help women to conduct their life on a more equal footing with men 7. So, for instance, a law allowing women to receive a pension at an earlier date than men would not be considered to be a positive action measure as it does not address the occupational difficulties encountered by women during their careers 8.
In 1997, the Amsterdam Treaty pushed the equality agenda forward and provided a legal basis 9 at EU level for adopting non-discrimination measures based on grounds ot
her than sex, namely racial or ethnic origin, religion, belief, disability, age or sexual orientation. This has given rise to several new directives which in turn refer to positive action.
These legal provisions include Article 5 of the Racial Equality Directive (2000/43/EC) and Article 7 of the Employment Framework Directive (2000/78/EC). Following their adoption, Member States can (but are not obliged to) adopt positive action measures to prevent or compensate for disadvantages linked to discriminatory treatment. EU legislation now allows for the possibility of adopting positive action measures, although it does not establish an obligation to adopt them.
Nevertheless, although it has not yet ruled on any positive action measures under these directives, it is expected that the ECJ will assess Member States' positive action measures according to the principle of proportionality. This requires that derogations from the principle of equality are appropriate and necessary in order to achieve their aim and that the principle of equality be reconciled, as far as possible, with the requirements of the aim pursued 10. The need for a reasonable justification is therefore included in those rules.
Positive action in practice
In January 2007, a Eurobarometer study illustrated that the majority of Europeans are in favour of adopting more measures to provide equal opportunities for all. Indeed, 87% of survey respondents were in favour of measures supporting people with disabilities and 84% in favour of measures for older people.
Public support for the use of positive action measures is a central element in addressing the challenges faced by groups and communities that have historically been disadvantaged or discriminated against.
To date, Member States have developed a huge variety of policies on positive action – some use "soft" measures like raising awareness of equality issues, while others tackle the under-representation of certain groups in more determined ways, with targeted recruitment and/or the use of quotas.
The Danish government, for example, believes that public administration staff should reflect the labour market in general – as such, 4% of staff should be immigrants from western countries or their descendants.
Similarly, in the UK, one hospital encourages people from ethnic minority backgrounds to take up a range of internships in order for them to gain confidence and skills. The aim is for participants to remain employed after the internships have ended.
In Austria, the city of Vienna's housing department has established a scheme to address intercultural conflict among residents of the city's public housing. The city now employs a group of intercultural mediators who work in mixed teams to provide support that is easy to access and acceptable for as many as people possible 11 .
Furthermore, several Member States have implemented new measures to help migrants and ethnic minority groups to access employment. The European Commission High Level Advisory Group of experts on the social integration of ethnic minorities identified no less than 14 barriers preventing the access of ethnic minorities to the labour market.
European Commission support for positive action
Identical treatment may result in formal equality, but it is not enough to bring about equality in practice. In its 2008 Communication on 'non-discrimination and equal opportunities: a renewed commitment' (COM(2008)420), the European Commission recognised the rapidly growing importance attributed to the role of positive action in redressing the lack of equality in societies.
The Commission has established permanent dialogue with the Member States to broaden and deepen our understanding of what positive action can do for European citizens, as well as to encourage its use, in particular in the areas of access to education, employment, housing and health care. In October 2010 the Commission will be holding a seminar to exchange good practices on policies supporting access to and progress in employment of people from ethnic minorities.
Moreover, the Commission is continuously seeking to improve knowledge of the concept of positive action, as well as its practical implementation in Europe. The Commission also actively monitors and compares experience with non-EU countries which have an established tradition of positive action: such as Canada, the United States and South Africa. Indeed, a recent study has shown a general agreement that positive action contributes to tackling discrimination against particular groups within society. There is however considerable variation in the level of familiarity with and understanding of the concept.
Effective positive action requires access to good quality data – both in order to target measures accurately and in order to politically justify positive action measures to the electorate. However, this can be difficult for many Member States which, for historical reasons, consider it unacceptable to collect data on race, ethnicity, religion, belief or sexual orientation.
The Commission recognises this dilemma and has published a European Handbook on equality data and a study on how to measure progress made in combating discrimination and promoting equality to encourage Member States to collect and compile the necessary data without compromising individual human rights or data protection rules.
In addition to working with national authorities to develop policies on positive action, the Commission works in close cooperation with enterprises. Business has a key role to play in tackling discrimination in the labour market and promoting diversity in the workforce. Over the past few years, the Commission has been actively raising awareness among companies that recruiting a diverse workforce is not simply about respecting anti-discrimination rules; it is also about improving their economic performance.
In 2010, the Commission launched a new project under the 'Business Case for Diversity' agenda, which aims to establish a platform for EU-level exchange between organisations promoting and implementing national diversity charters. The Commission is also conducting a feasibility study with businesses to look at the potential development of a European diversity award and diversity benchmark data.
The European Union is founded on the shared principles of liberty, democracy, respect for human rights and fundamental freedoms. Common to all European societies is a fundamental recognition that every individual is of equal worth and should have fair access to the opportunities of life. Discrimination undermines these shared values.
Positive action measures are an important legal and policy tool to address situations of unfairness and disadvantage.
Nonetheless, I recognise that, for positive action measures to work effectively and to be accepted by society as a whole there must be consensus that the measures and policies being put forward are reasonable, justifiable and necessary.
In addition, it is essential to involve the groups targeted by the measures in their design, planning, implementation and evaluation – it is not enough to implement policies for people, it must be done with them.
Effective measures will also require that we overcome barriers to positive action, such as a lack of awareness of its benefits and the inconsistent use of the legal framework.
I know that some national authorities remain reticent in implementing positive action measures. However, I also know that most are very aware that, while identical treatment of people may result in equality in a formal sense, it is not enough to bring about real equality. And ultimately that is what we are all striving for.
1 See the definition proposed in the study ordered by the European Commission : "International perspectives on positive action measures, A comparative analysis in the European Union, Canada, the United States and South Africa," January 2009, page 24.
2 See: "Equal rights versus special rights, Minority protection and the prohibition of discrimination", Kristin Henrad for the European Network of Legal Experts in Non-Discrimination, 2007, page 13.
3 See 'A comparative analysis in the European Union, Canada', cited above, page 57 and other examples.
4 See the Report: "Putting Equality into Practice: what role for positive action?", March 2007.
5 Now Article 157 of the Treaty on the Functioning of the European Union (TFEU).
6 Case C-407/98, Abrahamsson, paragraph 48.
7 See for more details: "Beyond formal Equality - Positive Action under Directives 2000/43/EC and 2000/78/EC", Marc de Vos, 2007, page19.
8 Case Griesmar, C-366/99.
9 Article 13 of the EC Treaty, now Article 19 of the TFEU.
10 Case C-476/99, Lommers, paragraph 39.
11More examples here.
Dr. Viviane Reding is serving as European Commissioner for Justice, Fundamental Rights and Citizenship and EU-Commission's Vice President. Before starting a professional career as a journalist, she obtained a doctorate in human sciences at the Sorbonne.