6.4. Enforcement of non-discrimination law – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

Key points

  • Anti-discrimination law can be enforced by initiating civil, administrative or criminal proceedings against the alleged discriminator.
  • Applicable sanctions must be effective, proportionate and dissuasive; however, Member States are free to choose between different adequate measures.

Anti-discrimination laws can be enforced through civil, administrative or criminal proceedings. In civil proceedings the victim of discrimination can obtain reparation whereas the aim of criminal proceedings is the criminal punishment of discriminators.

Under EU law, the non-discrimination directives require the Member States to establish judicial and/or administrative procedures allowing individuals to enforce their rights under the directives.[701] Moreover, it is provided that the sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive.[702] The CJEU stressed on several occasions the need of effective sanctions, which is an important tool to deter and sanction cases of discrimination. The severity of sanctions must be commensurate to the gravity of the breaches. However, the directive does not prescribe a specific sanction; it leaves the Member States free to choose between the different solutions suitable for achieving its objective.[703] Nevertheless, if a Member State chooses to penalise discrimination the award of compensation, it must be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation to ensure that it is effective and that it has a deterrent effect.

The applicable sanctions must be effective, proportionate and dissuasive, even in cases when there is no identifiable victim.[704] This means that the EU approach to remedies goes beyond traditional, individual-rights-based legal approach.

In some cases, it is considered that the adequate legal protection against discrimination requires criminal measures.

Example: In Asociaţia Accept v. Consiliul Naţional pentru Combaterea Dis- criminării[705] (discussed in Sections 4.1, 5.3 and 6.1), concerning discriminatory comments made by a patron of a football club, the CJEU held that that a purely symbolic sanction cannot be regarded as compatible with the requirement of effective, proportionate and dissuasive sanctions. It was however for the national court to establish whether in the circumstances of the case, the written warning fulfilled the criteria. The CJEU also stressed that each remedy available under national provisions in cases of discrimination should individ- ually fulfil the criteria of effectiveness, proportionality and dissuasiveness.

Example: In María Auxiliadora Arjona Camacho v. Securitas Seguridad España, SA,[706] the national proceedings concern the award of punitive damages to Ms Arjona Camacho following her dismissal constituting discrimination on grounds of sex. The CJEU held that the compensation has to cover in full the loss and damage sustained. However, damages which go beyond full compensation for the loss and damage are allowed but not required under the Equal Treatment Directive.

Under the ECHR, States are required to enable applicants to obtain adequate and sufficient enforcement of domestic court decisions. Accordingly, failure to enforce a judgment may amount to a violation of the ECHR.

Example: In García Mateos v. Spain,[707] the applicant’s request for a reduction in her working time to look after her son was refused. The Spanish Constitutional Court confirmed that the applicant was discriminated against on grounds of sex and remitted the case to the Employment Tribunal, which again dismissed the applicant’s case. Subsequently, the Constitutional Court found that its previous judgment had not been properly enforced, and declared null and void the second judgment delivered by the Employment Tribunal. It decided, however, that there was no need to remit the case to the lower court as in the meantime the applicant’s son had reached the age of six and the new judgment would be pointless. Moreover, it noted that an award of compensation was not provided for in relevant national legislation. The ECtHR stressed that in spite of two judgments in the applicant’s favour, the domestic court had not provided redress and found a violation of Article 6 (1) in conjunction with Article 14 of the Convention.

Example: In Hulea v. Romania,[708] the applicant was refused parental leave. The Constitutional Court held that the legislative provision in question infringed the principles of non-discrimination on grounds of sex but refused to grant him compensation. The ECtHR found that there had been a violation of Article 14 in conjunction with Article 8 of the ECHR, as the courts had not advanced sufficient reasons for its decision not to award compensation.

Similarly, failure to enforce a judgment delivered by the ECtHR finding a violation of the ECHR may amount to a new violation of Convention.

Example: In Sidabras and Others v. Lithuania,[709] the three applicants complained about Lithuania’s failure to repeal legislation banning former KGB employees from working in certain spheres of the private sector, despite previous ECtHR judgments in their favour.[710] In respect of the third applicant, the ECtHR noted that the domestic courts had acknowledged that his dismissal had been contrary to the Convention and explicitly stated that while the KGB Act remained in force, the question of reinstating him might not be favourably resolved. In light of that statement and lack of reasoning, the state had not convincingly demonstrated that the domestic courts’ reference to the KGB Act had not been the decisive factor forming the legal basis on which the third applicant’s claim for reinstatement had been rejected. As such, there had been a violation of Article 14 in conjunction with Article 8. In contrast, the ECtHR found that the first and second applicants had not plausibly demonstrated that they were discriminated against after the ECtHR’s judgments in their previous case. The first applicant was unemployed for justified reasons, specifically because he lacked the necessary qualifications, whereas the second applicant never attempted to obtain other private sector jobs.

Furthermore, in the context of the right to life and freedom from torture, inhuman or degrading treatment or punishment, Articles 2 and 3 of the ECHR also create a duty of the state to effectively investigate allegations of ill treatment, which includes also allegations that the ill treatment was itself discriminatory, being motivated for example by racism.[711] This is discussed in Section 2.6 on hate crime.

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701. Employment Equality Directive, Art. 9 (1); Gender Equality Directive (recast), Art. 17 (1); Gender Goods and Services Directive, Art. 8 (1); Racial Equality Directive, Art. 7 (1).

702. Employment Equality Directive, Art. 17; Racial Equality Directive, Art. 15.

703. CJEU, Case 14/83, Sabine von Colson and Elisabeth Kamann v. Land Nordrhein-Westfalen, 9 April 1984.

704. CJEU, C-81/12, Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării, 25 April 2013, para. 36; CJEU, C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, 10 July 2008, paras. 23-25.

705. CJEU, C-81/12, Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării, 25 April 2013.

706. CJEU, C-407/14, María Auxiliadora Arjona Camacho v. Securitas Seguridad España, SA, 17 December 2015.

707. ECtHR, García Mateos v. Spain, No. 38285/09, 19 February 2013.

708. ECtHR, Hulea v. Romania, No. 33411/05, 2 October 2012.

709. ECtHR, Sidabras and Others v. Lithuania, Nos. 50421/08 and 56213/08, 23 June 2015.

710. ECtHR Sidabras and Džiautas v. Lithuania, Nos. 55480/00 and 59330/00, 27 July 2004 and ECtHR, Rainys and Gasparavičius v. Lithuania, Nos. 70665/01 and 74345/01, 7 April 2005.

711. ECtHR, Turan Cakir v. Belgium, No. 44256/06, 10 March 2009.

Contents

6. Procedural issues in non-discrimination law

6.1. Shifting the burden of proof

6.2. Circumstances irrelevant for the finding of discrimination

6.3. Role of statistics and other data

6.4. Enforcement of non-discrimination law

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