Seminar and Workshop on Advanced Issues in Law and Policy of the European Union, nafta and the wto

14 Selected Issues

Most of this article has been devoted to consideration of the procedural and institutional reforms or innovations which would be required in order to sustain and drive a more coherent, comprehensive and effective human rights policy on the part of the EU. The principal exception concerns certain aspects of external policy which have been considered in greater depth. In the section that follows, brief consideration is given to some of the key concerns that have arisen in the course of the broader examination of EU policy in relation to a few selected issues of concern. It must be emphasized, however, that this listing is highly selective and does not necessarily reflect the overall importance of the issues selected or the lesser importance of issues not dealt with here, such as racism and xenophobia, which are clearly of particular importance in the current climate. In relation to those and many other issues, the reader is advised to consult the specialist studies that have been drawn up and are published elsewhere.¹⁰⁹ Moreover, even those studies are by no means comprehensive and many areas of importance remain to be dealt with in other contexts.

A European Citizenship¹¹⁰

Currently, the limited number of rights mentioned in the Citizenship chapter (Part Two of the TEC) are not sufficient to meet the gravity of the concept of European Citizenship. We focus here on just two dimensions of that issue – freedom of movement and transparency.

1 Free Movement

Free movement is among the most visible privileges which are attached to European citizenship. The implementation of this right is still far from complete. In order to promote awareness of existing rights, the current piecemeal legislation on free movement and accompanying rights should be replaced by a common framework on the ‘legal status of European citizens and their families’, in which differentiation between ‘privileged’ (economically active) and ‘non-privileged’ European citizens should be kept to a minimum. Further, the institutions of the Union should complete the measures proposed by the Commission on 1 July 1998 in response to the March 1997 ‘Report of the High Level Panel on Free Movement of People’, chaired by Simone Veil, and continue to examine other measures in response to the more than 80 recommendations made by the Panel.

2 Transparency

Transparency affects the quality of citizens as political beings. Without effective transparency, political responsibility, political control and the true exercise of political rights and duties are all inhibited or impaired. In order to achieve the necessary degree of transparency, the Community’s enhanced freedom of information policy, reflected in Article 255 TEC, is not sufficient in itself. This aspect is developed further below.¹¹¹

B Equality and Non-discrimination

The Community’s commitment to the principle of non-discrimination and the promotion of equality is long-standing and increasingly deep-rooted. The principle of equality is a fundamental principle of Community law, which binds not only the Community in all of its activities but also the Member States in relation to all of their activities which fall within the scope of Community law. The inclusion of Article 13 in the TEC following Amsterdam, which provides for measures ‘to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’, provides the occasion for sustained reflection on the most effective means by which to achieve its objectives. In the longer term, consideration should be given to the reinforcement of this provision through the addition of a general equal treatment provision in Article 3 of the TEC which would go beyond gender to cover all of the prohibited grounds of discrimination.

In the medium term, consideration should be given to the adoption of a Directive covering non-discrimination and equal treatment in relation to all of the grounds mentioned in Article 13. Such a Directive could be based on Articles 13 and 137 (working conditions) and, if necessary, Article 308 TEC.¹¹² The aim would be to mirror the provisions of the existing Directive 76/207 on gender, but with additional provisions designed to ban harassment in the workplace along with the provision of an accompanying right to an effective remedy, and to require employers to monitor the composition of the workforce in terms of gender, race and disability to establish a workplace equal opportunities policy.

In seeking to mainstream these policies, the Commission Directorate-General with responsibility for human rights could either supplement or replace the existing inter-service groups dealing with issues such as disability and race.

In relation to sex equality, consideration should also be given to adoption by the Community of the Council of Europe’s notion of ‘parity democracy’ in relation to the fair representation of women in the workplace and to the adoption of provisions to make the equal pay principle effective, especially after the Amsterdam Treaty’s amendment to Article 141.

Discrimination based on sexual orientation continues to be widespread and should be more systematically addressed through a Commission action plan and the development of a draft directive on equal treatment.¹¹³

Protection of the rights of members of minority groups should also become a more prominent focus of the Union’s policies, both internally and externally.

EU policy towards persons with disabilities should reflect a human rights-based approach which aims to eliminate barriers to full participation and equal opportunities within society. In this respect, the move away from an approach which aims to eliminate discrimination towards an active approach which promotes measures to support participation and equal opportunities is especially important. This is also one of the areas in which appropriate policies must be pursued within mainstream policy-making across a very wide range of issues and not simply confined to those areas of direct and obvious concern to persons with disabilities.¹¹⁴