“Principle of Equality” to overrule fundamental freedoms of citizens

The European Union is about to set a milestone in anti-discrimination legislation – by widening the scope to all sectors of life, including the private one. A new horizontal principle to prohibit discrimination on various grounds, including sexual orientation, shall be established. The proposed new “Equal Treatment Directive”, which is currently being negotiated, would seriously imperil fundamental aspects of freedom of European citizens. The principles of freedom of contract and the freedom to live according to one’s personal moral views are in danger of being superseded by a newly developed concept of ‘equality’. It would undermine freedom and self determination for all Europeans and subject the private life of citizens to legal uncertainty and the control of bureaucrats. It is about governmental control of social behavior of citizens. These tendencies begin to give the impression of long-passed totalitarian ideas and constitute an unprecedented attack on citizens’ rights.

There is need for immediate action! Write a letter, an email, make a phone call! You will find concrete recommendations of action at the end of this report.

Here are the most critical reasons why we need to oppose this Directive:

1. Because the directive establishes a very problematic and subjective definition of “discrimination”

2. Because it interferes in an unprecedented manner with citizens’ freedom and rights

3. Because it distorts the concepts of ‘justice’ and ‘equality’

4. Because it will lead to legal uncertainty

5. Because, through a reversal of the burden of proof, it encourages frivolous litigation

6. Because it leads to the creation of new bureaucracy and institutionalized public control (Art. 12)

7. Because it intertwines different subject matters that are better dealt with separately

WHAT IS THE EQUAL TREATMENT DIRECTIVE?

The Council of the EU is currently negotiating a new anti-discrimination directive, the so called Equal Treatment Directive (ETD). The proposal has been published in July 2008 by the European Commission under the title: “Proposal for a Council Directive on implementing the principle for equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (COM (2008) 426)” and would widen the scope of ‘anti-discrimination policy’ in an unprecedented manner. While the four existing anti-discrimination directives establish the principle of Equal Treatment in carefully defined areas (such as employment), the ETD aims to impose governmental control over the social and economic behavior of citizens in the widest possible sense. It would affect both the public and the private sector in the fields of social protection, education, access to and supply of goods and services, including housing. The Directive seeks to establish an ill-conceived concept of “equal treatment” as a horizontal principle governing the relationships between all and everyone thus interfering with the right of self determination of all citizens.

WHY SHOULD WE OPPOSE THE ETD?

(1) Because the directive establishes a very problematic and subjective definition of “discrimination” (Art. 2)

Discrimination is defined as treating a person “less favourably” compared to another, because he or she belongs to one or more of the mentioned groups: disability, age, religion or belief, sexual orientation. Throughout the entire text of the directive, “less favorable treatment” refers to a subjective perception of offense or the violation of one’s dignity. There are no objective criteria given in order to define which behavior is deemed to be discriminatory and which is not. Anybody can claim to having been treated in a “less favorable” or “offensive” way, in large part subjective states, which could be automatically conceded as being true.

Direct discrimination shall be taken to occur where a person is treated “less favorably than another”. Indirect discrimination shall be taken to occur where a rule or a practice which seems neutral, has a disadvantageous impact upon a person or group of persons having a specific characteristic. The intention to discriminate is explicitly not relevant. With such a definition, a major part of associations could be found guilty of indirect discrimination, for example a sports club who excludes wheelchair users, a Christian association choosing to hire the Christian rather than the atheist, a catholic adoption agency conveying children only to heterosexual couples.

Some exceptions are made in the Directive, such as the right of Member States to define the content of teaching in schools, or differences in treatment on the ground of age. However, each of the exceptions leads to a clash of rights with the principle of non-discrimination, the very core concept of the Directive. The reliability of these exceptions is therefore more than uncertain.

Freedom of Expression and freedom of conscience are key civil rights. The European Union should protect these basic rights from an alleged right not to be “offended” or a “freedom from hearing criticism” or a freedom from “hurt feelings”.

(2) Because it interferes in an unprecedented manner with citizens’ freedom and rights

It is a generally accepted principle that the State belongs to all citizens and must therefore treat all citizens equally. The state, however, has no right to interfere with the private decisions of its citizens as long as they are within the confines of the lawful. Indeed, the fact that we have the right to freely choose, without being held accountable by anyone, with whom we maintain or break off personal relationships, or with whom we do – or decline doing – business, is the very cornerstone of our personal freedom and self-determination: only by virtue of this so-called ‘private autonomy’ are we able to live our lives as we ourselves see fit.

The proposed Directive abolishes this freedom to a large extent and replaces it through a legal straitjacket. Under the Directive, everyone would be obliged – in case of complaints - to provide justification for decisions such as why he provides a service to Mr. A (and not to Mrs. B), why he sells a good to Mrs. C (and not to Mr. D), why he thinks about Mr. E differently than about Mr. F. Each of these decisions, which until now everybody can make as he pleases, would henceforward be subject to legal challenges, and could be reversed by, a law court or administrative body.

(3) Because it distorts the concepts of ‘justice’ and ‘equality’

For more than two millennia, the legal systems of all European countries have been based on a common understanding of justice. Justice has traditionally been understood as the ‘intention to give ‘everyone his due’ (suum cuique tribuere). But what is due to Mr. A is not necessarily due to Mr.B. For example, what sense does it make to say that there should be ‘equal treatment’ for persons with disabilities? The equal dignity of these persons is not in dispute – but if they were ‘equal’ to non-disabled persons, they would not be ‘disabled’. There clearly is a difference between disabled and non-disabled persons: it is that disabled persons lack some of the physical or mental capacities that would be required for them to lead ‘normal’ lives. There even is a difference between diversely disabled persons: A blind person does not need the same kind of support as a person sitting in a wheel-chair. It follows that, rather than asserting ‘equality’, a policy for disabled persons should acknowledge their disabilities and provide for adequate solutions. A directive on the rights of disabled persons should not provide ‘equal treatment’, but rather special attention and care.

By its very definition, ‘justice’ requires to treat equal situations equally, unequal situations unequally, and all situations appropriately. But equal treatment presupposes comparison, and the outcome of each comparison depends on the criterion on which it is based. Through the stereotyped ‘grounds of discrimination’ it puts forward, the draft Directive arbitrarily privileges some criteria, which often may prove inadequate, over other, more appropriate ones. In so doing, it distorts the concept of ‘equality’ instead of promoting it. For example, the Directive aims to prohibit any difference in treatment of a heterosexual or a homosexual or ’queer’ couple on the grounds that all forms of lifestyle are ‘equal’. But while they may be ‘equal’ with regard to some aspects, an important difference remains: two persons of different sex by nature can bear children (and have the responsibility to care for them), whereas two persons of the same sex cannot. The Directive, in assuming the equality of all sorts of couples, arbitrarily refers to ‘emotion’ as the sole criterion for equality, and discards the fundamental purpose of a sexual relationship, i.e. the possibility of procreation. Such a distorted concept of ‘equality’ leads to injustice, not to justice.

(4) Because it will lead to legal uncertainty

To a very large extent, the Directive makes use of novel and unclear concepts. The experience with already existing ‘anti-discrimination’ measures shows that these concepts, which at times refer even to completely subjective sentiments, perceptions and states of mind, lead to dangerous legal uncertainties: nobody can ever be sure not to be found guilty of infringing the law.

The draft Directive defines as discriminatory - and therefore unlawful - ‘harassment’, a behavior that has “the purpose or the effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment” (Art. 2.3). But Mr. A cannot know what Mr. B perceives to be intimidating, hostile, humiliating, or offensive. The question of whether something constitutes harassment therefore largely depends on the subjective perception of the ‘victim’, not on any verifiable and objective criteria.

Similarly, in the proposed directive ‘discrimination is defined as a situation in which a person is treated ‘less favorably’ than other persons (Art. 2.2a). This again gives leeway to highly subjective assessments.

The Directive is thus drafted in a way that everybody could be found guilty of ‘discrimination’ at any time. But it must be expected that it will not be applied uniformly, but in a selective manner. The creation of general legal uncertainty that puts everybody under threat of legal persecution, and the subsequent selective application of such laws are unacceptable in a Europe that calls itself free and democratic.

(5) Because, through a reversal of the burden of proof, it encourages frivolous litigation:

The risk created by the unclear and vague legal drafting is further exacerbated by the reversal of the burden of the proof: whoever is accused of ‘discrimination’ must prove his innocence, whereas any person claiming to have been a victim of discrimination is automatically presumed to be one. The reversal of proof puts the defendant into a trap from which there is no escape: it is impossible for him to disprove that something has had the effect of ‘intimidating’, or ‘offending’ the victim (because that solely depends on the victim’s subjective perception). At the same time, it is also hardly possible for the defendant to disprove the Directive’s legal assumption that he acted the way he did solely out of a prejudice against the plaintiff’s religion, belief, disability or sexual orientation.

(6) Because it leads to the creation of new bureaucracy and institutionalized public control (Art. 12)

The directive would require member states to establish new bodies for the “promotion of equal treatment”. These bodies shall provide “independent assistance to victims of discrimination in pursuing their complaints” and conduct surveys concerning discrimination. These bodies shall mount legal challenge in the names of the victims, including the absorption of costs. The creation of these new bodies costs a lot of money in times where governments all over Europe are seriously constrained to reduce their public spending.

Art 7.2 of the proposed directive allows associations, organizations or other legal entities to act on behalf of the compliant in any judicial of administrative procedure. Any NGO, who has the necessary financial power, could henceforth accuse alleged offenders and appear in court as compliant although the presumed discriminatory behavior is not directly related to them. This possibility of litigating at no cost and no risk will, in conjunction with the reversal of the burden of proof, further encourage frivolous litigation.

(7) Because it mixes up different subjects that are better dealt with separately

The four ‘suspect grounds of discrimination in the proposed Directive are too different from each other to be covered by a single legislative measure.

People with disabilities, elderly people, young people: these are three different groups that, each in its own way, need specific attention and care. But the specific needs of each group are different.

The role that different “religions or beliefs” should play in society is in itself a complex and difficult issue. It is undeniable that different philosophical convictions lead to different patterns of social behavior, and that not all of them contribute to the common good. The legal order of a pluralistic society must therefore strike a fair balance between the common good and personal freedom. The right of faith-based communities to freely organize their activities, or to religious parents to educate their children according to their moral values, is an important part of this.

Finally, “sexual orientation” is one of the most controversial issues in the directive, due to very different views in different quarters of society. It clearly is inappropriate to dismiss the legitimate moral views of an important part of society as ‘discriminatory’. In this way, the draft Directive attempts to give the LGBT movement a ‘free ride’, allowing them to hijack the concern for the needs of disabled people to promote the highly controversial LGBT agenda. The agenda is nothing else than promoting the ‘equality’ of sexual orientations. Wikipedia, for instance, lists 80 different sexual orientations. Equality of all sexual orientations would mean equality for bestiality, inzest, necrophilia, exhibitionism, voyeurism, sadism, masochism, intergenerative sexuality etc.

The only way out of all of this is a withdrawal of the Directive by the European Commission. Especially the two issues, which are completely unrelated to each other, disability and sexual orientation, should be dissociated. A single-ground directive must exclusively deal with the needs of disabled persons. But never, an EU Directive should violate the freedom of its citizens to think, to speak and to act according to their conscience.

PROCEDURE

The ETD, which would be a fifth EU directive prohibiting discrimination, can only become law if member states agree unanimously to it in the Council of the EU (Art. 19 (1) TFEU). The procedure (“consent procedure”) requires a consultation of the European Parliament before voting on the proposal in the Council. This consultation resulted in a vote in favor of the proposal on April 2, 2009 putting forward a report that further radicalized the already ill-conceived draft of the European Commission. The draft Directive is currently being negotiated in the Council of the EU where it has to be voted unanimously, which means that every national government has to approve it in order for it to become an EU directive. Currently, Germany is taking the position of fundamentally opposing the ETD. But the Council continues discussing the proposal. That there is only one single country opposing the Directive is a very weak and dangerous situation. Other countries urgently need to take the position of officially opposing the Directive. It is urgent, because Germany can change its mind or find a compromise and approve it at any time.

HERE IS WHAT YOU CAN DO:

We need you to express your great concern about this Directive! Freedom is at stake and it needs YOUR contribution. Your letter, email or phone call will have an impact and make a difference! Write a letter or an email in which you express your concern

• to Commissioner Viviane Reding for Justice, Fundamental Rights, Citizenship: Viviane Reding European Commission Vice-President in charge of Justice, Fundamental Rights and Citizenship BE-1049 Brussels Belgium Email: viviane.reding@ec.europa.eu Phone: +32 2 298 12 30

• to Fernando Pereira, Deputy Head of the Unit for Equality, Action against Discrimination, Legal Questions (responsible for the drafting of the Directive in the European Commission)

Email: fernando.pereira(at)ec.europa.eu

Phone: +32 2 29-61047

Write a letter of support to German Minister Kristina Schröder, who is representing Germany in the Council of the EU regarding the ETD:

Abgeordnetenbüro Platz der Republik 1

11011 Berlin

Germany

Email: kristina.schroeder(at)bundestag.de

Phone: +49 030 - 227 749 85