European Expansion and Institutional Racism



‘EU Enlargement, the Race Equality Directive and the Internal Market.’

Fernne Brennan©

Lecturer in Law, University of Essex

2005

Brief Synopsis

The EU Community is set to widen[1] economically, socially and politically from its current membership of 15 Member States to 25 since 13 countries have applied to join as new members and 10 are set to join on 1st May 2004.[2] These applicants “the acceding countries” of Central and Eastern Europe will be expected to take both the benefits and the burdens of membership of the EU.[3] Benefits would include access to wider markets in the provision of labour, goods, services and capital. In turn these economies will need to open up their markets[4] and in their wake ensure that their internal markets are not stratified along racial or ethnic lines. Any European state applicant for admission to the EU must respect fundamental principles. The principles of liberty, democracy, respect for human rights.[5] One method that will be employed by the EU to assess commitment to its obligations is to judge whether or not the acceding countries are in compliance with EU legal obligations aimed at the eradication of racial discrimination through the application of the Race Equality Directive (RED).[6] Article 6 of the Treaty of European Union is based on the ‘principles of liberty, democracy, respect for human rights and fundamental freedoms’ guaranteed by the European Convention on Human Rights.[7] In the European context these principles relate to ‘…access to and provision of goods and services, to respect the protection of private and family life and transactions carried out in this context.’[8] ‘When it joins the Community,[9] the new Member State must also accept all existing Community law, Acquis Communautaire.’[10] The Treaty of Accession 2003 was signed in Athens on 16 April of that year. Particular provisions include Articles 53 and 54 (relating to directives and decisions).[11]

The integration of the Aquis Communautaire into the national law of these acceding countries will include evidence that they are fostering the conditions for a ‘socially inclusive labour market’[12] through laws and administrative provisions aimed at the eradication of ‘discrimination against groups such as ethnic minorities.’[13] Law in this area is important to breakdown those forces that would undermine the E U’s long term goals of ‘…the attainment of a high level of employment and social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity.’[14] It is said that one of the difficulties with the Eastern bloc is its failure to foster tolerant societies. Intolerance is likely to have an impact on liberal notions of democracy, particularly where participation of individuals in areas beyond the labour market is also determined by questions of racial or ethnic origin. Since the EU holds the notion of the principle of equal treatment at its core it will be concerned to see that the acceding countries strive ’In implementing the principle of equal treatment irrespective of racial or ethnic origin, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination.’[15]

One of the important measures then in bringing the acceding countries into line with the EU ideal of equal participation in the Community is the Race Equality Directive (RED). However, in considering the extent to which these countries fall with in or outside the terms of compliance of this instrument one may pause for a moment to ask, how appropriate a tool is the Race Equality Directive in tackling institutional discrimination? It is argued that institutional discrimination is a major factor that impacts on racial and ethnic minorities and women within these groups. In using the RED to measure compliance of the acceding countries, how doe the RED itself measure up?

In order to eradicate racism in general in the member states the EU has brought forth measures such as the European Council Directive 2000/43/EC (Race Equality Directive). The new Race Equality Directive (RED) is one of the latest measures adopted by the Council of Ministers under its enlarged powers aimed at combating racism in the EU. The RED reflects the strategic thinking of EU policy aimed at combating institutionally racist[16] constraints on the free movement of persons within the Community. The question is to what extent will this measure afford the level of human rights protection of minorities in the acceding countries necessary to combat institutional racism?[17] It is argued that the premise that the RED is adequate is itself questionable since it assumes much and offers very little by way of remedy.

Introduction

The EU Community is set to widen[18] economically, socially and politically from its current membership of 15 Member States to 25 since 13 countries have applied to join as new members and 10 are set to join on 1st May 2004.[19] These applicants “the acceding countries” of Central and Eastern Europe will be expected to take both the benefits and the burdens of membership of the EU.[20] The potential benefits would include access to wider markets in the provision of labour, goods, services and capital. In turn these economies will be required to open up their economies[21] and in their wake ensure that their internal markets are not stratified along racial or ethnic lines. Any European state applicant for admission to the EU must respect fundamental principles. The principles of liberty, democracy, respect for human rights.[22] Article 6 of the Treaty of European Union is based on the ‘principles of liberty, democracy, respect for human rights and fundamental freedoms’ guaranteed by the European Convention on Human Rights.[23] In the European context these principles relate to ‘…access to and provision of goods and services, to respect the protection of private and family life and transactions carried out in this context.’[24] ‘When it joins the Community,[25] the new Member State must also accept all existing Community law, Acquis Communautaire.’[26] The Treaty of Accession 2003 was signed in Athens on 16 April of that year. Particular provision include Articles 53 and 54 (relating to directives and decisions).[27]

The integration of the Aquis Communautaire into the national law of these acceding countries will include evidence that they are fostering the conditions for a ‘socially inclusive labour market’[28] through laws and administrative provisions aimed at the eradication of ‘discrimination against groups such as ethnic minorities.’[29] Law in this area is important to breakdown those forces that would undermine the E U’s long term goals of ‘…the attainment of a high level of employment and social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity.’[30] It is said that one of the difficulties with the Eastern bloc is its failure to foster tolerant societies. Intolerance is likely to have an impact on liberal notions of democracy, particularly where participation of individuals in areas beyond the labour market is also determined by questions of racial or ethnic origin. Since the EU holds the notion of the principle of equal treatment at its core it will be concerned to see that the acceding countries strive ’In implementing the principle of equal treatment irrespective of racial or ethnic origin, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination.’[31]

One of the important measures then in bringing the acceding countries into line with the EU ideal of equal participation in the Community is the Race Equality Directive. One method that will be employed by the EU as a way of assessing the countries commitment to these obligations is to judge whether or not the acceding countries legislative and administrative arrangements are in compliance with EU legal obligations aimed at the eradication of racial discrimination. The instrument that will provide this lynch-pin is the Race Equality Directive (RED).[32] However, in considering the extent to which these countries fall with in or outside the terms of compliance of this instrument one may pause for a moment to ask, how appropriate a tool is the Race Equality Directive in encouraging these states to tackle institutional discrimination? It is argued that institutional discrimination is a major factor that impacts on racial and ethnic minorities and women within these groups. In using the RED to measure compliance of the acceding countries, how doe so RED itself measure up?

In order to eradicate racism in general in the member states the EU has brought forth measures such as the European Council Directive 2000/43/EC (Race Equality Directive). The new Race Equality Directive (RED)is one of the latest measures adopted by the Council of Ministers under its enlarged powers aimed at combating racism in the EU. The RED reflects the strategic thinking of EU policy aimed at combating institutionally racist[33] constraints on the free movement of persons within the Community. The question is to what extent will this measure afford the level of human rights protection of minorities in the acceding countries necessary to combat institutional racism?[34] It is argued that the premise that the RED is adequate is itself questionable since it assumes much and does not offer a sufficient legal mechanism for dealing with institutional racism.

Background to Race Directive

European Council Directive 2000/43/EC[35] (Race Directive) was adopted by the Council of Ministers on 29th June 2000 and will come into effect on the 19th July 2003 in Member States. The Race Directive[36] is a landmark in the evolution of EU policy on race discrimination, since it is the first time that a legal duty has been placed on Member States to provide a 'common minimum level of legal protection from discrimination in public and private sectors.'[37] Its objective is to provide a foundational, common framework for Member States to put into place anti-race discrimination measures by requiring the abolition of any laws, regulations or administrative provisions contrary to the principle of equal treatment.[38] The Race Directive can be seen as an equal opportunities measure that addresses two related problems – market and social integration. Market integration can be understood as requiring the dismantling of racially and ethnically determined barriers to the marketplace. The business case for removing these barriers concern questions about ‘effective service delivery, concerns with the public image of an organisation…and issues surrounding recruitment and retention’.[39] Social integration raises questions of equity that resonate beyond the market.[40] The obligations imposed by the Race Directive concern both market and social integration. Successful implementation should mean that no person[41] is prevented from pursuing economic and social opportunities because of discrimination against them based on racial grounds.

Background to Acceding Countries

Post the fall of the Berlin wall in 1989 saw the development of political cooperation and improved trade relations between the EU and Central and Eastern European countries. Clearly there were advantages for the EU in the long run. Expanded territories within which to promote business and secure political stability for the EU itself. Investment in the Eastern European countries with financial packages such as that Phare Programme,[42] that has helped to prepare the economies of these countries prior to enlargement. in the early 1990’s the question of whether the acceding countries would be able to meet the conditions for membership of the EU took a positive step with the meeting of the Copenhagen European Council. The Copenhagen Council decided that provided these countries met the criteria for membership accession could take place.[43] The ‘Copenhagen Criteria’ consisted of the following:-

• stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;

• the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union;

• the ability to take on the obligations of membership including adherence to the aims of political, economic & monetary union. [44]

In October 2002 the European Commission made a number of recommendations to the Council in relation to application for membership of the acceding countries. These were favourable to applications for membership in that the Republics of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia would be able to fulfil the Copenhagen, be in a position to sign the Accession Treaty in Spring 2003 and be ready for membership in 2004. At the time of writing the situation as regards ethnic minorities and the position adopted by the accession countries is that represented by the table that follows.

Table Representing Position of Acceding and Candidate Countries

|Applied for membership |Ethnic Minorities |Domestic legislation on racial |Transposition of Race Equality |

| | |equality |Directive |

|Bulgaria |Turks 9.4%, Roma 3.4%. 13% |Constitution prohibits |Prohibition of Discrimination |

| |Islam |discrimination in any field on |Bill incorporates Race Equality|

| | |grounds of race, national |Directive, goes beyond EU law, |

| | |origin, ethnic appurtuance, |e.g., legal standing to NGO’s |

| | |personal and public status. |and collective action for |

| | |Discrimination prohibited |victims. With Parliament since|

| | |through international law, |September 2002. Recent draft |

| | |domestic law applies to various|within Parliament – Protection |

| | |fields. Law not comprehensive. |Against Discrimination Bill, |

| | | |reduced level of protection and|

| | | |enforcement, no specific |

| | | |prohibitions against |

| | | |discrimination, no positive |

| | | |measures, weakens Commissions |

| | | |powers, powers of independent |

| | | |body and judicial |

| | | |protection.[45] |

|Cyprus |20% Turkish Cypriot |Information relates to Republic|Race Equality Directive not |

| | |of Cyprus. Constitutional |transposed. Legislation |

| | |provisions, e.g., Article 28 |Drafting committee set up to |

| | |Cyprus Constitution “all |work on transposition. New |

| | |persons are equal before the |piece of legislation to be |

| | |law”. International and |introduced. Adoption and |

| | |European treaties ratified in |incorporation of Directive into|

| | |relation to discrimination. |domestic law pending.[46] |

| | |Lacks detailed measures. | |

|Czech Republic |3% Slovak, Polish, German, Roma|Broad provisions in |Two models envisaged –‘general |

| |and Hungarian |Constitution and Charter of |framework’ model using General |

| | |Fundamental Rights and Freedoms|Draft Law on Equal Treatment |

| | |on discrimination. Charter |and Protection against |

| | |indirectly applicable. |Discrimination or ‘diffusive’ |

| | | |model’ that would preserve and |

| | | |amend existing laws. Latter is |

| | | |seen as inadequate because |

| | | |existing laws not sufficiently |

| | | |extensive.[47] |

|Estonia |Russians25.6%, Ukranians 2.1%, |No specific anti-discrimination|Draft law on Equality should |

| |Bellorussians 1.2%, Finns 0.9% |legislation. Article 12 |implement Race Equality |

| |others 2.3%. |Estonian Constitution general |Directive, if so would be valid|

| | |prohibition on discrimination. |from 1 January 2004.[48] |

| | |Principle of non-discrimination| |

| | |incorporated into the Law on | |

| | |Cultural Autonomy of the | |

| | |National Minority, and other | |

| | |provisions. Penal provisions | |

| | |on crimes against humanity, | |

| | |genocide, violation of | |

| | |equality, incitement to racial | |

| | |hatred, signed Protocol to | |

| | |Convention on Cybercrime re | |

| | |criminalisation of racist and | |

| | |xenophobic conduct. | |

|Hungary |Officially recognised and |Ratified all international |Government programme focuses on|

| |registered minorities – |treaties regarding |comprehensive |

| |Germans, Gypsies, Croats, |discrimination. Constitution |anti-discrimination law. Draft |

| |Slovaks, Romanians, Bulgarians,|prohibits discrimination. |Bill should adopt |

| |Greeks, Polish, Armenian, |Anti-discrimination clauses in |anti-discrimination law that |

| |Ruthens, Serbs, Ukranian. |various measures. Penal Code |would cover more grounds than |

| | |prohibits violence against |the Race Equality |

| | |national, ethnic, racial or |Directive.[49] |

| | |religious groups. | |

|Latvia | Russian origin 29.2%, other |Article 92 Latvian Constitution|Labour Law 17 drafted to take |

| |origins- Belarussian, Ukranian,|general prohibition on |account of Race Equality |

| |Polish, Lithuanian, others. |discrimination . No single |Directive.[50] |

| | |comprehensive law. | |

|Lithuania |Polish origin 6.7%, Russian |Legal obligations under |Draft Law on Equal |

| |origin 6.3%. |international treaties, |Opportunities presented to |

| | |Lithuanian Constitution equal |Parliament November 2002, First|

| | |treatment on racial grounds, |Reading February 2003, draft |

| | |national, language, origin. |approved by Government May |

| | | |2003.[51] |

|Malta |10,358 resident foreigners. |Article 45 Maltese |Constitution provides general |

| |Arabs,[52] |Constitution1964, European |protection. Various other |

| | |Convention Act 1987 through |provisions exit that appear to |

| | |which Article 14 ECHR can be |conform to the Race |

| | |invoked, Article 82A Criminal |Directive.[53] |

| | |Code criminalises incitement to| |

| | |racial hatred, international | |

| | |and national and other | |

| | |legislative measures guarantee | |

| | |the principle of | |

| | |non-discrimination on grounds | |

| | |of race./ minority. However, | |

| | |national measures inadequate to| |

| | |cover types of racial | |

| | |discrimination and indirect | |

| | |racial discrimination. | |

|Poland |13 national or ethnic |1997 Constitution of the |Diffuse model. Planned |

| |minorities recognised. |Republic of Poland contains |amendment to Labour Law Code to|

| | |right to equal treatment and |take account of Race Equality |

| | |general prohibition on |Directive.[54] |

| | |discrimination. Ratified | |

| | |international conventions. | |

| | |Signatory to many | |

| | |anti-discrimination | |

| | |international agreements. | |

| | |Anti-discrimination clauses in | |

| | |many laws. | |

|Romania |Several national, linguistic |Constitution of Romania has |Diffusive approach with several|

| |and religious minorities. |explicit anti-discrimination |pieces of legislation that deal|

| |Hungarian 6.6%, Roma 2.4%, |provisions on race, nationality|with the areas of the Race |

| |Ukrainian o.3%, German 0.3%, |ethnic origin, language, |Equality Directive. Examples |

| |other 1%. |religion. Ordinance 137/2000 on|are Ordinance 137/2000 on |

| | |Preventing and Punishing all |Preventing and Punishing All |

| | |Forms of Discrimination which |Forms of Discrimination – |

| | |prohibits and sanctions any |sanctions any discrimination |

| | |discrimination based on race, |based on race, nationality, |

| | |nationality, ethnic |ethnic appurtenance, language, |

| | |appurtenance, language, |social status, religion. |

| | |religion. Ratified most |Emergency Ordinance No 31/2002 |

| | |international documents on |(forbids organisations and |

| | |human rights and minority |symbols of racist nature), Law |

| | |protection. Law is |on Health Social Insurance No. |

| | |comprehensive on Race Equality.|145 of 1997 (non-discriminatory|

| | | |right to medical services)[55] |

| | | |Penal provisions. |

|Slovakia |Hungarian 9.7%, Roma 1.7%, |General constitutional |Preparing a draft law |

| |Czech 0.8%, Ruthenian 0.4%, |provisions that guarantee basic|“anti-discrimination law” that |

| |Ukranian 0.2%,, German 0.1%, |rights regardless of race, skin|is expected to cover all the |

| |Polish 0.04%. |colour, language, religion, |grounds in the Race Equality |

| | |faith, national or ethnic |Directive.[56] |

| | |origin. Articles of | |

| | |constitution not independent | |

| | |but accessory rights. No | |

| | |specific provisions on | |

| | |discrimination. | |

|Slovenia |0.11% Italian, 0.32% |Constitutional guarantees on |Diffusive system with some |

| |Hungarians, 0.17% Roma people, |equality, Articles regarding |areas of the Race Equality |

| |1.98% Serbs, 1.81% Croats, and |equality re criminal charges. |Directive covered but not all. |

| |other. [57] |Signatory to several |There are moves to secure |

| | |international treaties |compliance.[58] |

| | |regarding human rights. Penal | |

| | |Code prohibits violation of | |

| | |equality, stirring up of | |

| | |racial, ethnic, religious | |

| | |hatred, strife or intolerance. | |

|Turkey |Includes Kurds,[59] Lazs, |Article 10 Constitution |No proposals based directive on|

| |Caucasians, Arabs, Greeks, |provision for equal treatment |the Race Equality |

| |Armenians, Jews, Assyrians.[60]|and outlaws discrimination |Directive.[61] |

| | |based on colour, language, | |

| | |race. Ratified several | |

| | |international conventions. | |

| | |Labour Code on discrimination. | |

| | |Discrimination law weak. | |

Sources[62]

Issues

The Race Equality Directive is a tool developed to combat racial and ethnic discrimination in the current as well as new member states of the EU. In so doing it is envisaged that the implementation of this measure will provide for a liberalisation of the internal market[63] so that workers are not recruited for employment on the basis of racial or ethnic origin, but rather that such selection is based on merit. This move should provide one of the elements necessary to ensure that Article 39 (ex Article 48) EC Treaty on the free movement or workers is guaranteed, not only in theory but also in practice.[64]

According to A European Commission statement:-

“The racial equality directive, adopted by EU governments in 2000, prohibits discrimination against people on the grounds of racial or ethnic origin. The rules cover a wide range of areas where unfair treatment might occur, including access to jobs, working conditions, rates of pay and the rights and benefits linked to a job. In addition, they also include access to education and training, social security benefits and health care and access to and supply of goods and services which are available to the public, including housing. In all countries, governments also have to designate a body to provide practical and independent support and guidance to victims of racial discrimination. This means creating a body to perform this role if one does not already exist.

New Member States must also transpose the provisions of the Directive into national law before joining the Union.”[65]

The recognition of the de-stabilizing effect on the internal market of ‘unfair treatment’ driven by racism is clearly acknowledge throughout the race awareness campaigns, the action programme[66] and the work of the European agencies seized with the responsibility for developing policies and programmes to combat racism.[67] The Race Equality Directive may be said to represent in legislative form a measure whose aim is to use the arm of the law to complement and give strength and direction to agencies and reassurance to vulnerable communities that their concerns are taken seriously. This is because all persons are entitled to respect for human rights and fundamental freedom, the right to equality before the law and protection against discrimination. These principles apply in the context of the provision of goods and services, and respect and protection of private and family life. Furthermore, the European Community recognises that any realistic attempt to build an ‘…ever closer union among the peoples of Europe’[68] must go hand in hand its stated concern that

‘…the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin, [requires] specific action in the field of discrimination based on racial or ethnic origin [that] should go beyond access to employed and self employed activities and cover areas such as education, social protection including social security and healthcare, social advantages and access to and supply of goods and services.’[69]

However, what is striking about the instrument that is to be used to deal with this matter is that the fundamental concepts of ‘race’ and ‘ethnicity’ are not defined. The closest reference to the meaning of these terms appear in Recital 6 of the Preamble.[70] Here the European Union states that it ‘rejects theories which attempt to ‘determine the existence of separate human races.’[71] Given this stance it is somewhat surprising that a provision should be created that is unlikely to counter this tendency that has become ingrained practice in several of the acceding member states.

Race

The decision of a Czech court in relation to a case concerning an alleged ‘racially motivated’ attack may serve as an example of the difficulties that may be encountered at national level where there is no European wide definition of terms such as race. In the District Court in Hradec Králové[72] the court allowed the defence to raise the question of whether a racially motivated offence had occurred where the alleged victim of the offence, a person described as of Roma origin, was stated to be of the same racial group as the perpetrator – described as Indo-European. The court held:- “It is necessary to distinguish between three large racial groups: Indo-European, Negro-Australian and Mongolian ;while the citizens of the Roma origin belong to the same group as the citizens of the Czech national origin as they are

the representatives of the same Indo-European race. Therefore, it is not possible to prosecute [those violent crimes] as racially motivated because they had been committed by perpetrators who are of the same race [as the victim]”.[73]

How much weight to give to this decision in uncertain since the decision was one at first instance, nevertheless, the reasoning of the court may have serious implications for people who, because they are perceived of in negative terms, and treated accordingly are unable to rely on the law of the land to protect them. The approach adopted by the court may be termed institutionally racist in that it indicates the ‘collective failure of an organisation to provide an appropriate and professional service because of their….ethnic origin….’[74] In this case that organisation is the criminal justice system. The ‘unwitting prejudice’[75] may be said to exist because ‘racist stereotyping’[76] has operated to the disadvantage of a member of the ethnic minority community. In this case the racial stereotyping of the victim and the perpetrator meant that the crime itself was not termed a racially aggravated one.[77] On the other hand the approach adopted by the British legal system in the area of racially motivated crimes courts does not appear to provide a better result. The approach of the Czech court was quite different to that taken by the British courts.[78] In White[79] and the earlier case of Pal.[80] The Defendant in White was successfully convicted of a racially aggravated crime contrary to section 4(1) of the Public Order Act and section 31 of the CDA 1998. His submission on appeal was that the use of the words “African bitch” should not suffice for a racially aggravated offence because both he and the victim were of the same racial group, i.e., African, and, furthermore, he contended that the provisions were not intended to operate within racial groups but between such groups. The earlier case of Pal opened up the possibility of using the measures concerning racially aggravated crimes ‘intra-racially’. In that case the defendant, an Asian, was convicted of racially aggravated common assault when he called an Asian caretaker “a white man’s arse licker” and a “brown English man.” It can be argued that these cases represent another example, albeit in reverse, of institutional racism at work in the criminal justice system, in that rather than use racially aggravated crimes to protect ethnic minority groups, the legislation has been used against them.

A related problem is whether racism is recognised at all. Under Polish law for instance, both statute and case law do not provide a definition of race.[81] If the concept of race is not recognised in the ordinary or legal language how can a victim of such discrimination raise a valid claim under the arrangements designed to transpose the directive? The position of Malta provides an instance where the question of racism appears to be generally denied on the surface on the basis of a public belief that there are no separate races. However, this assumption has to be questioned. First of all Article 45 (3) of the Constitution of Malta includes the terms ‘race’ and ‘colour’ in its definition of discrimination.[82] Furthermore, under the Ombudsman Act of 1995 a person who has ‘…been subjected to discriminatory treatment (particularly on the basis of racial or ethnic origin) at the hands of the Government of Malta….can ....request the Ombudsman to investigate…’[83] A further consideration is that there exits penal provision that prohibit incitement to racial hatred ‘…against a group of persons in Malta defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.’[84]

The ECRI recently published a report in which the position of vulnerable groups was presented.[85] Vulnerable groups were defined as people who were of Arabic origin or black people from Africa. Discrimination experienced by these groups was manifested in general prejudice and stereotypes, in particular regarding the issue of “criminality”.[86] The ECRI reported that:-

‘The widely-accepted view within Malta is that problems of racism and discrimination are not really prevalent in the country, and that Maltese society is particularly tolerant. This tolerance is attributed to the mixed cultural heritage and historical position of Malta at the crossroads of European and Arabic societies and to its modern situation as a tourist destination. However, some sources have commented that although racism in Malta is not generally of the ideological or violent sort, there does exist in the popular feeling quite significant levels of prejudice and, in some cases, hostility, towards certain groups of foreigners, including immigrants and especially persons of Arabic origin and black persons of African origin. These stereotypes and prejudices appear to be based on the belief that such persons have come to Malta for illegal purposes such as drug trafficking or to transit to other European countries, or as illegal immigrants who will take employment away from Maltese workers. Such prejudices find their expression in discrimination in certain areas of life (see paragraphs 22 and 23 above) and also in attitudes among the general public, where negative assumptions and perceptions concerning certain minority groups appear to be rather commonplace. Such attitudes are in some cases reflected in the media, while it has also been reported that political debate around issues such as asylum has at times been conducted in somewhat negative tones.’[87]

Such ‘popular feeling’ clearly needs to be challenged in a sensitive way – one that does not create, but rather seeks to resolve, conflict. However, how is this to be done when the law itself offers no real guidance on the meaning of terms such as ‘race’?

Another grey area is where disadvantaged minorities are recognised in some form but it is unclear whether they constitute a racial group. For instance, in Estonia, the plight of Russian-speaking minorities has been raised in a recent report.[88] It has been argued that whilst outward hostility is rare, there are more subtle ways in which discrimination tends to manifest itself against those who use Russian as their language of communication. Russian-speaking minorities are under-represented in many spheres of life. Problems such as unemployment have a disproportionate impact on these groups and is likely to deteriorate.[89] Additionally, there is concern that the number of people who fall into this category is unknown because of the lack of official statistics in existence, thus the extent of the problem of discrimination is not really known.

This conundrum will not be resolved by with the Race Equality Directive since it is silent on the meaning of race. What approach should the courts take? Should ‘the courts read legislative intent ‘literally’ or take a more ‘purposive’ approach? Which ever approach is adopted – to what extent would this give effect to the concern of the EU that the Race Equality Directive must be implemented by Member States in a way that should be ‘…effective, proportionate and dissuasive…’[90] remains unclear.

Ethnicity

The term ethnicity is also one that is not defined in the Race Equality Directive. This raises similar questions as that raised by the term race – who has locus standi to bring a claim of racial discrimination based on ethnicity? This question will primarily rely on the transitional arrangements used to implement the Race Equality Directive however in several of the acceding countries this term is not defined. For instance the legislation in the Czech Republic does not incorporate a definition of ethnic origin and it has been suggested that there is a desire to operate with some kind of definition.[91] A definition may provide some way by which to measure whether institutional racism might flourish in the context of access to jobs, good and services, and grounds for challenge under EU law. In Hungary there is a plethora of terms used to describe an ethnic group, these include ‘ belonging to an ethnic group (etnikai csoporthoz való tartozás), ethnic affiliation (etnikai hovatartozás)and ethnic origin (etnikai származás)’.[92] Does a person who is discriminated against on the basis of ethnic affiliation constitute an ethnic group for the purposes of the Race Equality Directive? Further complications arise in the context of ethnicity and religion.

Historically, the Eastern European states have been a complex mix of minority groups where, under the Ottoman millet system populations were classified by reference to religion and not ethnicity. This raises issues for how a group is to be defined since religion and ethnicity tend to be conflated.[93] Some complaints have been brought about by recognised ‘religious groups’. Maronites have complained about their designation merely as a religious group; they consider themselves also as “a specific ethnic group”. [94]

Added to this difficulty is the failure of states to give recognition to the claims of minority groups that they should be recognised. For instance, in Greece and in Bulgaria the Macedonians are not recognised by the state as a separate group.[95] With such a problem, how if at all are they to acquire the right to bring a case or raise issue on matters of racial discrimination? Another group who experience great difficulties in this area are the Roma. They are probably the group who are most likely to face the worst forms of discrimination across sectors, yet are likely to be the group least able to bring a claim of racial or ethnic discrimination. Institutional blindness in this regard is unlikely to be improved by the vagueness of this term in the Race Equality Directive.

Jurisprudence in the Western European states, such as Britain may only be of limited use in the area of whether or not a group constitutes an ethnic group. The British Model in terms of anti-race discrimination legislation is important because it was used as the basis for the Race Equality Directive. Many of the ideas are influenced by the British Race Relations Act 1976. Ideas such as an independent monitoring body and the very concept of discrimination are some such examples. Thus one might expect that the courts of the acceding states may well look to Britain to provide guidance on the issue of ethnicity. Whilst it might be argued that Britain currently holds an extensive list, the court’s decisions in relation to this term has raised disquiet.

The seminal English case on the question of whether a person aggrieved on the basis of racial discrimination, could bring a case under the Race Relations Act 1976 (RRA) on the basis of membership of an ethnic group is Mandla (Sewa Singh) v Dowell Lee and Others.[96] In this case the House of Lords held that for the purposes of the Race Relations Act 1976 (RRA), an ethnic group is one principally defined by reference to a long shared history and a cultural tradition of its own.[97]The leading judgement of Lord Fraser was influenced to a large extent by the approach adopted by the New Zealand courts in King-Ansell v Police.[98] There the courts had to interpret the statutory provisions dealing with racial discrimination and started with dictionary definitions as key to understanding. Several English cases where the question of ethnicity has been raised have been based on the Mandla ruling. The application of the ruling has resulted in anomalies since there are those who by virtue of the essential criteria – a long shared history and a cultural tradition of their own – fall within, and those who fall outside. Thus This definition has been criticised as being overly restrictive since certain groups are unable to take advantage of it in order to seek legal redress under the Act in cases of discrimination. Thus in Cooper v British Rail,[99] CRE v Precision Manufacturing Services Ltd[100] and Dawkins v Department of the Environment[101] the courts have consistently decided that certain groups such as Muslims and Rastafarians are not ethnic groups. By contrast, groups such as Jews[102] and Gypsies[103] have been afforded the benefit of the Mandla definition enabling them to seek legal redress under the RRA. Given the racism that Rastafarians[104] and Muslims face commentators have argued that it is illogical not to extend anti-racist legislation to them.[105] In Poland the provisions of Polish law do not define the concepts of national/ethnic minorities and there have been problems in the courts in defining a national minority.[106] Such issues have arisen where the refusal of the right to vote has been challenged by groups such as the Silesian National People’s Association.[107] Furthermore, under Polish case law there is no definition of the concepts of race or religion.[108] For Latvia there is no real discourse on the issue of race. There are ethnic and linguistic differences. The latter raises an issue because the official language is Latvian. Certain posts require knowledge of this official language thereby there is the potential for discrimination based on ethnic/language divide.[109] In Portugal several ethnic minorities are often discriminated in the internal market for jobs, good and services on the basis of cultural factors. African ethnic minorities are particularly vulnerable because they are subject to 'latent racism'. However, an evaluation of the legal jurisprudence related to this area suggests a lacuna.[110] Discrimination is not dealt with by reference to 'ethnicity' rather issues are framed in terms of 'working' and 'living' conditions. This means that who is within and who without these parameters, in terms of ethnic groups, is difficult to decipher. Without a working definition of what an ethnic group might be, it is difficult to assess to what extent the transposition arrangements will effectively deal with discrimination against ethnic groups. By way of contrast, Austrian legal jurisprudence is familiar with the term 'ethnic origin'. This is dealt with through the Austrian Constitution's equality clause and takes its language from the International Convention on Elimination of all Forms of Racial Discrimination (ICERD): any distinction, exclusion, restriction or preference based on…ethnic origin….[111] However, there is no definition of what is meant by ethnic origin. This means that the potential exists for certain groups to be excluded and thus not afforded protection from racial discrimination. An added complication in the Austrian context is the existence of 'special measures' for protected national minorities. Some groups of national minorities in Austria are so defined under the Volksgruppengesetz (National Minorities Act). This defines 'a national minority as one that comprises groups of Austrian citizens with a non-German mother tongue and a common autonomous cultural heritage who have their residence and home in a part of the Austrian Federal territory.'[112] Whilst anyone can affiliate to an ethnic group,[113] given the prevalence of skin colour' racism in Austria[114] it seems highly unlikely that Austrian born Africans or Muslims could do so in the context of how national minorities are defined. The Race Directive might have been better served in terms of its desire to protect people from ethnic discrimination had it provided a way of dealing with the issue raised here.

In English legal jurisprudence the question of whether or not a person is a member of an ethnic group has become problematic because of the problem for those left out.[115] Anthropologists and Sociologists explain that the term ethnicity is necessarily complex, shaped as it is by ‘…a process of internal definition and external labelling. That is, people who share the same ethnic origin define themselves as 'us' and are categorised as 'them' by people outside the group.’[116] In the context of law the categorisation of a group as an ethnic group by reference to external criteria is clearly problematic. Few in the legislature or the judiciary are necessarily informed of the meaning of ethnicity, yet they are able to create measures that frame the way in which the law gives credence to the claims by groups that they are ethnic groups, or not as the case may be. This is problematic because the criteria developed may be limiting in its scope and effect. Thus to state that an ethnic group is one with a long shared history and a cultural tradition of its own, raises the question –why is this the essential criteria? Scholars argue that the focus on ‘culture’ for instance, should be taken with caution because this ‘…focus on the internal constitution and history of separate groups and emphasise the importance of shared fundamental cultural values (which may become manifest in overt signals such as dress and language)…’[117] tends to produce essentialist ideas that are not necessarily borne out in an objective manner.[118] Such focus produces a ‘check-list’ of cultural essentials’[119] as a fundamental measure which presumes that ethnicity is something which is ‘fixed’. It could be argued that the use of an essence as determinative of a group, albeit for legitimate purpose creates anomalies and thus has a tendency to contradict the notion of equality of treatment – the corner stone of EU anti-race discrimination. Furthermore, the use of essentials or essences is surely contrary to EU policy stated in the preamble to the Race Equality Directive where specific reference is made to the fact that ‘The European Union rejects theories which attempt to determine the existence of separate human races. The use of the term "racial origin" in this Directive does not imply an acceptance of such theories.’[120] Since, the term ‘ethnicity’ is often taken to be a derivate of ‘race’, it can be argued that the approach adopted by courts such as the English courts to the definition of ethnic group in the context of anti-race discrimination law is problematic. Moreover, given the fact that this type of definition does not cover all ethnic minority groups, the spectre of institutional racism is surely called into play. There is an apparent failure to provide a service to people based on race or ethnicity. This failure will not be resolved with the RED in the way it is currently framed since this inherent ambiguity is likely to present a gap for the acceding countries that a coach and horses could ride through. It has been argued that the focus on culture has been rejected by an approach that stresses’…primary focus is the set of rules that govern inter-ethnic social encounters that allow for the persistence of cultural differences. From this perspective, ethnic groups are what people believe or think them to be; cultural differences mark 'group-ness', [121]they do not cause it or indelibly characterise ethnic identity; and ethnic identification arises out of and by interaction between groups.’[122] It is suggested that the ‘down up’, rather than ‘top down’ analysis is to be preferred and one that should be encouraged in the development of jurisprudence concerning the application of laws dealing with the Race Equality Directive.

Religion

Directive 2000/78/EC

Recent events in relation to 'September 11' have brought to the fore the question of 'cultural racism'.[123] It has been argued that racism cannot be understood as based only on colour,[124] nor can the racism experienced by Muslims be side-stepped by construing the victimisation process as one based on religion – or indeed ethnicity.[125] There are developing sets of 'cultural racisms' that use cultural difference to denigrate or 'demand cultural assimilation from groups who also suffer colour racism.'[126] The Directive fails to provide a mechanism whereby this problem is both understood and dealt with in terms of national anti-discrimination legislation. It is argued that the issues raised in this section demonstrate the 'fractured' approach to the prohibition of racial discrimination at national level, using the Race Directive as a device to combat racism. Whilst well meaning, such a strategy indicates that the Directive reflects a failure to provide a service to a significant proportion of people of the EC. This failure indicates the process of institutional racism because this blinkered approach tends to impact on people on the basis of ethnicity.

Armenians, Jews and Assyrians…’[127] a troubling difficulty is that ‘…ethnic minorities are statistically invisible in official documents....’ So who are ‘they’ and ‘who’ decides who they are? This is bound to cause problems that the Race Equality Directive with its ambiguous language and with the nature of the instrument, is unlikely to resolve.

Conclusion

The entry of the accession countries into the legislative ambit of EU race discrimination law is likely to present an interesting and different challenge to that which was probably envisaged by the authors of the Race Equality Directive. Issues such as that of culture and language, the rights of national minorities, and the mesh of religion and ethnicity are likely to test the legal imagination. The concept of the right of the individual and its understanding and acceptance in these future Member States as one that ‘trumps’ most rights is possibly going to be a key factor in how institutions are asked to transform the way in which they recognise those practices that might lead to institutional racism.

-----------------------

[1] This will represent the 5th enlargement in the EU’s history. In the 1950’s it consisted of six countries and has grown to its current 15.

[2] That is Cyprus, Poland, Slovenia, Hungary, Latvia, Malta, Czech Republic, Estonia, Lithuania and Slovakia, Bulgaria and Romania are looking to join in 2007. The position of Turkey is unclear. The Commission will present the financial package for Bulgaria and Romania's accession to the EU on 10 February 2004, Enlargement Commissioner Günter Verheugen said on 27 January. The package will specify the total financial support to be made available by the EU to the two negotiating candidates between 2007 and 2013. To date, Sofia has closed 26 of its 31 negotiation chapters with the Commission, while Bucharest has provisionally closed of 22 of the 31. The next annual Commission reports on the two countries' progress toward EU membership are due out in the autumn of 2004’ see 28 01.2004.’ Macedonia is likely to make a formal bid for membership on 26 February 2004, see EurActiv, 2 February 2004. Croatia made a formal bid to join in February 2003 see EurActiv, 21 February, 2003.

[3] Walsh has argued that enlargement will not necessarily reap benefits for the Central and Eastern European states. It is argued that on almost every criteria any benefits are outweighed by the costs. Since economic integration is largely complete there will be no ‘…floodgates to new trade flows with Eastern Europe.’ Free trade has already been secured by a number of bilateral contracts that were agreed to in the last decade of the last century.

[4] Although it may be argued that these markets are already liberalised, see

images/IOD_Images/pdf/EUEnlargement.pdf June 2003.

[5] See amendments introduced by the Treaty of Amsterdam to Arts O[49] and F(1){6(1)} TEU.

[6] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Official Journal 2000 L180/22.

[7] Directive 2000/43/EC recital 2.

[8] Directive 2000/43/EC recital 4.

[9] Agreement between the 10 applicant countries and the EU was reached in December 2002. Three more applicants are in negotiation with the EU. Bulgaria and Romania may join in 2007. Turkey has acquired recognition but remains short in its arrangements regarding the protection of minorities – there may be accession discussions during 2004, see generally EurActiv.

[10] Walsh suggests that the adoption of the ‘…entire acquis communautaire - 80,000 pages of EU rules and regulations. For the most enterprising states, EU membership will actually make them less competitive –not more.’ He argues that the adoption of the acquis communautaire has been a ‘bitter pill to swallow’ for many entrepreneurs.

[11] Upon accession, the new Member States shall be considered as being addressees of directives and decisions within the meaning of Article 249 of the EC Treaty and of Article 161 of the Euratom Treaty, provided that those directives and decisions have been addressed to all the present Member States. Except with regard to directives and decisions which enter into force pursuant to Article 254(1) and 254(2) of the EC Treaty, the new Member States shall be considered as having received notification of such directives and decisions upon accession. Article 54, the new Member States shall put into effect the measures necessary for them to comply, from the date of accession, with the provisions of directives and decisions within the meaning of Article 249 of the EC Treaty.

[12] Directive 2000/43/EC recital 8.

[13] Directive 2000/43/EC recital 8.

[14] Directive 2000/43/EC recital 9. Walsh argues that the wholesale adoption of EU law by the acceding countries, the Aquis Communautaire might be perceived cynically as a ‘the acquis as a cynical move by the powerful leaders of the current EU to protect their own markets from more competitive neighbours. In Poland, for example, the cost of conforming with EU environmental standards is estimated at around 40 billion – a sum equivalent to the Polish Government’s total annual budget - over a transitional period that ends in 2015.

[15] RED recital 14.

[16] Defined as 'acts by the total white community against the black community', see Carmichael, S. and Hamilton, C.V. Black Power. The Politics of Liberation (Vintage Books, 1967), 4 and more recently as the “collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.' See Sir William Macpherson of Cluny, The Stephen Lawrence Inquiry. Report of an Inquiry (London, Stationery Office, 1999) CM 4264-1, para. 6.34.

[17]‘’With the entry into force of the new Article 13 of the EC Treaty, introduced by the Treaty of Amsterdam, the Community has the power to combat discrimination on a wider range of grounds than ever before - sex, racial and ethnic origin, religion and belief, disability, age and sexual orientation - and in areas both in and outside of employment. The Community's legislative framework now includes Directive 2000/43/EC prohibiting racial and ethnic discrimination in employment, education, social security and healthcare, access to goods and services and housing and Directive 2000/78/EC prohibiting discrimination in employment on grounds of religion and belief, disability, age and sexual orientation. A Community Action Programme has been defined in order to promote the study of discrimination and exchanges of experience and good practice between the Member States.’ See EUROPA Enlargement, December 2002, chapter 13 Economic and Social Policy.

[18] This will represent the 5th enlargement in the EU’s history. In the 1950’s it consisted of six countries and has grown to its current 15.

[19] That is Cyprus, Poland, Slovenia, Hungary, Latvia, Malta, Czech Republic, Estonia, Lithuania and Slovakia, Bulgaria and Romania are looking to join in 2007. The position of Turkey is unclear. The Commission will present the financial package for Bulgaria and Romania's accession to the EU on 10 February 2004, Enlargement Commissioner Günter Verheugen said on 27 January. The package will specify the total financial support to be made available by the EU to the two negotiating candidates between 2007 and 2013. To date, Sofia has closed 26 of its 31 negotiation chapters with the Commission, while Bucharest has provisionally closed of 22 of the 31. The next annual Commission reports on the two countries' progress toward EU membership are due out in the autumn of 2004’ see 28 01.2004.’ Macedonia is likely to make a formal bid for membership on 26 February 2004, see EurActiv, 2 February 2004. Croatia made a formal bid to join in February 2003 see EurActiv, 21 February, 2003

[20] Walsh has argued that enlargement will not necessarily reap benefits for the Central and Eastern European states. It is argued that on almost every criteria any benefits are outweighed by the costs. Since economic integration is largely complete there will be no ‘…floodgates to new trade flows with Eastern Europe.’ Free trade has already been secured by a number of bilateral contracts that were agreed to in the last decade of the last century, see

images/IOD_Images/pdf/EUEnlargement.pdf June 2003.

[21] Walsh argues that these markets are already liberalised.

[22] See amendments introduced by the Treaty of Amsterdam to Arts O[49] and F(1){6(1)} TEU.

[23] Directive 2000/43/EC recital 2.

[24] Directive 2000/43/EC recital 4.

[25] Agreement between the 10 applicant countries and the EU was reached in December 2002. Three more applicants are in negotiation with the EU. Bulgaria and Romania may join in 2007. Turkey has acquired recognition but remains short in its arrangements regarding the protection of minorities – there may be accession discussions during 2004, see generally EurActiv.

[26] Walsh, supra, suggests that the adoption of the ‘…entire acquis communautaire - 80,000 pages of EU rules and regulations. For the most enterprising states, EU membership will actually make them less competitive –not more.’ He argues that the adoption of the acquis communautaire has been a ‘bitter pill to swallow’ for many entrepreneurs.

[27] Upon accession, the new Member States shall be considered as being addressees of directives and

decisions within the meaning of Article 249 of the EC Treaty and of Article 161 of the Euratom

Treaty, provided that those directives and decisions have been addressed to all the present Member States. Except with regard to directives and decisions which enter into force pursuant to Article 254(1) and 254(2) of the EC Treaty, the new Member States shall be considered as having received notification of such directives and decisions upon accession. ARTICLE 54 The new Member States shall put into effect the measures necessary for them to comply, from the date of accession, with the provisions of directives and decisions within the meaning of Article 249 of the EC Treaty.

[28] Directive 2000/43/EC recital 8.

[29] Directive 2000/43/EC recital 8.

[30] Directive 2000/43/EC recital 9. Walsh argues that the wholesale adoption of EU law by the acceding countries, the Aquis Communautaire might be perceived cynically as a ‘the acquis as a cynical move by the powerful leaders of the current EU to protect their own markets from more competitive neighbours. In Poland, for example, the cost of conforming with EU environmental standards is estimated at around 40 billion – a sum equivalent to the Polish Government’s total annual budget - over a transitional period that ends in 2015’

[31]Race Equality Directive, Recital 14.

[32] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Official Journal 2000 L180/22.

[33] Defined as 'acts by the total white community against the black community', see Carmichael, S. and Hamilton, C.V. Black Power. The Politics of Liberation (Vintage Books, 1967), 4 and more recently as the “collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.' See Sir William Macpherson of Cluny, The Stephen Lawrence Inquiry. Report of an Inquiry (London, Stationery Office, 1999) CM 4264-1, para. 6.34.

[34]‘’With the entry into force of the new Article 13 of the EC Treaty, introduced by the Treaty of Amsterdam, the Community has the power to combat discrimination on a wider range of grounds than ever before - sex, racial and ethnic origin, religion and belief, disability, age and sexual orientation - and in areas both in and outside of employment.The Community's legislative framework now includes Directive 2000/43/EC prohibiting racial and ethnic discrimination in employment, education, social security and healthcare, access to goods and services and housing and Directive 2000/78/EC prohibiting discrimination in employment on grounds of religion and belief, disability, age and sexual orientation. A Community Action Programme has been defined in order to promote the study of discrimination and exchanges of experience and good practice between the Member States.’ See EUROPA Enlargement, December 2002., chapter 13 Economic and Social Policy.

[35] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Official Journal 2000 L180/22

[36] The Race Directive is broadly modelled on the UK Race Relations Act 1976.

[37] See O'Brien, M. "The European Race Directive - Our plans for implementation", European Lookout 3 (2000), 2.

[38] Article 14 Council Directive 2000/43/EC above n 2.

[39] Dandeker, C. and Mason, D. "Diversity in the British Armed Forces: the Debate Over Ethnic Minority Representation", Paper presented to a conference on ‘Redefining Society –Military Relations: From Vancouver to Valdistock, at the University of Birmingham, 16-18 April 1999.

[40] Ibid.

[41] Race Directive applies to human and legal persons see

[42] The Phare programme is one of the three pre-accession instruments financed by the European Communities to assist the applicant countries of central Europe in their preparations for joining the European Union. Originally created to assist Poland and Hungary in 1989, today the Phare programme encompasses the 10 candidate countries of central and eastern Europe, Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia and Romania helping them through a period of massive economic restructuring and political change. The other 3 candidates, Cyprus, Malta and Turkey benefit from separate pre-accession funding. Until 2000 the countries of the Western Balkans (Albania, Bosnia & Herzegovina and The Former Yugoslav Republic of Macedonia) were also beneficiaries of Phare. However, as of 2001 the CARDS programme (Community Assistance to Reconstruction, Development and Stability in the Balkans) has provided financial assistance to the Western Balkans. Following the 1993 Copenhagen Council’s invitation to central European countries to apply for membership, Phare support was reoriented, including a marked expansion in support to infrastructure investment. However, Phare’s total "pre-accession" focus was put in place only in 1997 in response to the Luxembourg European Council’s launching of the present enlargement process. Phare funds now focus entirely on the pre-accession priorities highlighted in each country’s Accession Partnership. Civil servants from member states are now seconded through "twinning" to assist their counterparts in preparing for accession. Lastly, Phare’s management was integrated into applicant country government structures through the creation of the National Fund and a limited number of implementing agencies, see EUROPA, Enlargement

[43] See EurActiv history

[44] Ibid.

[45] M. IlIeva, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Bulgaria (Netherlands, MEDE, 2003).

[46] N. Trimikliniotis, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Cyprus (Netherlands, Mede, May 2003). Report does not cover the territory of Cyprus under Turkish occupation since 1974.

[47] B. Bukovska and P. Bouckova, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Czech Republic (Netherlands, Mede, May 2003).

[48] V. Poleshchuck, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Estonia (Netherlands, Mede, May 2003).

[49] A. Kadar and L. Farkas, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Hungary (Netherlands, Mede, May 2003).

[50] G. Feldhune, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Latvia (Netherlands, Mede, May 2003). At the time of writing the Latvian government had resigned (5 February 2004, see EurActiv, 6/02/2004) so it is difficult to gauge how this might impact on the implementation of the Race Equality Directive.

[51] T. Baranovos, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Lithuania (Netherlands, Mede, May 2003).

[52] See Reports from the United Nations and Committee for the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Malta, 19/04/2000, CERD/C/304/Add.94 focus on racism and racial discrimination in Malta but the breakdown of ethnic groups affected is difficult to ascertain.

[53] T. Ellul, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Malta (Netherlands, Mede, May 2003).

[54] E. Zienkiewicz and M. Mazur-Rafal, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Poland (Netherlands, Mede, May 2003).

[55] R. Weber, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Romania (Netherlands, Mede, May 2003).

[56] J. Hrubala, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Slovakia (Netherlands, Mede, May 2003).

[57] European Commission, Directorate General for Social Affairs, Unit D.4, Equality, Diversity and Enlargement, Reports on Measures to Combat Discrimination in Acceding and Candidate Countries, September 2003.

[58] M. OGRADI, G. PELICON, M. PILIH, Z. ŠUÆUR, N. TADIÆ, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Slovenia (Netherlands, Mede, May 2003).

[59] Amnesty International Annual Report 2003, Central and Eastern Europe Summaries.

[60] European Commission, Directorate General for Social Affairs, Unit D.4, Equality, Diversity and Enlargement, Reports on Measures to Combat Discrimination in Acceding and Candidate Countries, September 2003.

[61] L. Korkut, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Turkey (Netherlands, Mede, May 2003).

[62] EUROPA European Enlargement at see also T. Ellul, Report on Measures to Combat Discrimination in the 13 Candidate Countries, (VT/2002/47) Country Report, Malta, May 2003, MEDE European Consultancy (Netherlands) and Migration Policy Group (Belguim) and see Equality, Diversity and Enlargement. Report on Measures to Combat Discrimination in Acceding and Candidate Countries, Fundamental Rights and Anti-discrimination, European Commission, Directorate General for Employment and Social Affairs, Unit D.4, September 2003.

[63] It has been argued by Walsh that the markets of the acceding and candidate states have already been liberalised.

[64] There are transitional issues regarding this guarantee since there are concerns that free movement will encourage migratory flows from the accession countries that might have a negative impact on the labour markets of current member states (in particular Austria and Germany). Similar concerns were expressed in relation to Greece and later concerning the application of Spain and Portugal. Transitional arrangements were applied in 1981 and 1986 respectively. Studies suggest that fear of large migratory flows are unlikely, although there may be an impact on the border regions of some member states in the magnitude of 1% and 8% over time. To avoid a ‘blanket response’ to this issue a strategy based on flexibility has been suggested with several options, see European Commission, Free Movement of Workers in the Context of Enlargement, Information Note, 6 March 2001. However, reports indicate that the current member states will respond in an illiberal way to enlargement through fears that this will open the door to migratory flows. Britain is likely to introduce ‘Transitional rules on the free movement of citizens’, Sweden is considering two-year restrictions, whilst Germany and Austria are likely to use the 7 year period permitted under EU measures. The Netherlands and Ireland have adopted a more liberal approach. Netherlands is likely to allow 22,000 in the first year, whilst Ireland has imposed no restrictions, arguing that a transitional period is not necessary. See EurActiv 05/02/2004.

[65] See European Commission, Press Release, IP/03/1047, Brussels, 18 July, 2003. The new Member States are the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia.

[66]Council Decision 2000/750/EC establishing a Community action programme to combat discrimination (2001 to 2006) (27/11/00)

[67] see EUMC, ECRI, ENAR also see 96/443/JHA: Joint Action adopted by the Council on the basis of Article K.3 of the Treaty on European Union, concerning action to combat racism and xenophobia (15/07/96)

[68] Council Directive 2000/43/EC, Recital 1.

[69] Council Directive 2000/43/EC, Recital 12.

[70] Council Directive 2000/43/EC.

[71] Council Directive 2000/43/EC, Recital 6.

[72] 20 November 1996, the Decision No. 3T 196/96.

[73] See B. Bukovska and P. Bouckova, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Czech Republic (Netherlands, Mede, May 2003). 1 The relevant Law 200/1990 of the Coll., the Law on Misdemeanours (zákon o přestupcích).

[74] Macpherson para. 6.34.

[75] Macpherson para. 6.34.

[76] Macpherson para. 6.34.

[77] For a criticism of the use of racially aggravated crimes deal with social tension see F. Brennan, “Racially Motivated Crimes: The Response of the Criminal Justice System’ Crim. L. R. 1999.

[78] See F. Brennan, Islamophobia, Journal of Civil Liberties 2004, forthcoming.

[79] R v White [2001] 1 WLR CA 1352.

[80] DPP v Pal [2000] Divisional Court LTL.

[81] See E. Zienkiewicz and M. Mazur-Rafal, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Poland (Netherlands, Mede, May 2003).

[82] Article 45 (3) In this article, the expression “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour, creed or sex whereby persons of one such

description are subjected to disadvantages12 or restrictions to which persons of another

such description are not made subject or are accorded privileges or advantages which are

not accorded to persons of another such description.

[83] Act XXI of 1995. Chapter 385 of the Laws of Malta. See article 22.See REPORT ON MEASURES TO COMBAT DISCRIMINATION IN THE 13 CANDIDATE COUNTRIES (VT/2002/47) COUNTRY REPORT MALTA MAY 2003 Tonio Ellul MEDE European Consultancy.

[84] This provision in the Criminal Code is ‘numbered Article 82A (1) provides that any person who uses any threatening, abusive or insulting words or behaviour, or displays any written or printed material which is threatening, abusive or insulting, or otherwise conducts himself in such a manner, with intent thereby to stir up racial hatred or where racial hatred is likely, having regard to all the circumstances, to be stirred up shall, on conviction, be liable to imprisonment for a term of six to eighteen months.’

[85] See CRI (2002) 22 Second report on Malta. adopted on 14 December 2001 and made public on 23 July 2002.

[86] See CRI (2002) 22 Second report on Malta. adopted on 14 December 2001 and made public on 23 July 2002, para. 25.

[87] See CRI (2002) 22 Second report on Malta. adopted on 14 December 2001 and made public on 23 July 2002, para. 30.

[88] SeeCRI (2002) 1 Second report on Estonia Adopted on 22 June 2001 and made public on 23 April 2002.

[89] SeeCRI (2002) 1 Second report on Estonia Adopted on 22 June 2001 and made public on 23 April 2002, para. 58-60.

[90] Article 15 of Council Directive 2000/43/EC.

[91] See B. Bukovska and P. Bouckova, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Czech Republic (Netherlands, Mede, May 2003).

[92] See A. Kadar and L. Farkas, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Hungary (Netherlands, Mede, May 2003).

[93] MINORITIES OF SOUTHEAST EUROPE: INCLUSION AND EXCLUSION , Christopher J Walker, from Report Minority Rights Group International.

[94] Furthermore, the Latin group is not satisfied with the term “Latin” as it does not properly reflect their Roman Catholic religious identity (see Opinion on Cyprus by the Advisory Committee on the Framework Convention for the Protection of National Minorities 2001)38. This was adopted by the Committee of Ministers (Council of Europe 2002). Another issue, primarily relating to religious freedom, highlighted by international reports is that of reservist conscientious objectors(see Amnesty International Press Release 2002, Human Rights Without Frontiers 2003) see N.Trimikliniotis, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Cyprus (Netherlands, Mede, May 2003).

[95] Minorities of Southeast Europe: Inclusion and Exclusion, Christopher J Walker, from Report Minority Rights Group International who argues that there are deep prejudices both in the general population and central organs of the state.

[96] [1983] 2 AC 548.

[97] [1983] 2 AC 548 at 562.

[98] [1976] 2 NZLR 531.

[99] Unreported, Independent 27 Nov 1986.

[100] Case No.4106/91 where it was alleged that an instruction to discriminate against Muslims fell outside the Race Relations Act because Muslims did not constitute an ethnic group because the tribunal believed that Islam was a spread of faith rather than a group of people who could trace their descent from a common geographical origin. Also see Nyazi v Ryamans, EAT, 10 May 1998 (unreported), Tariq v Young, Birmingham IT, 19 Apr 1989 (unreported); J H Walker Ltd v Hussain [1996] IRLR 11.

[101] [1993} IRLR 284.

[102] Seide v Gillette Industries Ltd [1980] IRLR 427.

[103] Commission for Racial Equality v Dutton [1989] 1 All ER 306.

[104] For instance the recent English judicial inquiry into the death of David ‘Rocky’ Bennett, a Rastafarian who died in mental health custody while being physically restrained by personnel. The inquiry headed by retired high court judge Sir John Blofeld found institutional racism in the way that Rocky Bennet had been medically treated, negligence in the way he had been restrained and more generally racism in the delivery of mental health services, see The Guardian, 6 February 2004.

[105] See Gearty, C. A. "The Internal and External 'Other' in the Union Legal Order: Racism, Religious Intolerance and Xenophobia" in Alston above n 66 , 335-339 at 327, (in relation to Rastafarians and Muslims); Dobe, K. and Chhokar, S. "Muslims, Ethnicity and the Law" 4 (2000) International Journal of Discrimination and the Law, 369 (regarding Muslims).

[106] Beginning in 1989, successive Sejms have worked on a Bill on National and Ethnic Minorities containing a suitable definition. Bearing in mind the history of work on successive versions of the bill, it is difficult to assess its realistic chances of being passed in the current parliamentary term. See E. Zienkiewicz and M. Mazur-Rafal, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Poland (Netherlands, Mede, May 2003).

[107] The problem of defining a national minority has appeared in the judgements of the common courts in relation to the refusal to register an Association with the name “Silesian National People’s Association.” Despite the successful registration of the association in the first instance, following an appeal of the decision and an appeal in cassation, the attempt at registration of an association representing the “Silesian nation” was rejected, based on the argument that the freedom to choose a nationality may be applied only to objectively existing nations, i.e. those formed through a historical process.41 In its verdict of 20 December 2001, the European Court of Human Rights in Strasbourg unanimously affirmed that the denial of registration of the Association did not violate art. 11 of the Convention.See E. Zienkiewicz and M. Mazur-Rafal, Report on Measures to Combat Discrimination in the 13 Candidate Countries (VT/2002/47), Country Report Poland (Netherlands, Mede, May 2003).

[108] Ibid.

[109] Ibid.

[110] Niessen, J. and Chopin, I. (eds.), Anti-discrimination Legislation in EU Member States. A comparison of national anti-discrimination legislation on the grounds of racial or ethnic origin, religion or belief with the Council Directives. Austria, (Vienna, Austria, EUMC, 2002).

[111] Article 1, para 1 of ICERD.

[112] Niessen and Chopin (eds.), ibid., at 20.

[113] Ibid.

[114] See ZARA, Racism Report 2001. Case Reports on Racist Excesses in Structures in Austria, Vienna Austria, 2001.

[115] See Dobe, K. and Chhokar, S. "Muslims, Ethnicity and the Law" 4 (2000) International Journal of Discrimination and the Law 369 and Poulter, S. Ethnicity, Law and Human Rights. The English Experience (OUP, 1998), chapter 9.

[116] See ERACE – a Web Forum on race discrimination issues, under the auspices of the Human Rights and Equal Opportunities Commission, Australia, where reference is made to the following literature on this subject:-John E. Zucchi, 'Cultural Constructs or Organic Evolution? Italian Immigrant Settlements in Ontario' in Julius Molinaro & Maddalena Kuitunen (eds) The Luminous Mosaic; Italian Cultural Organizations in Ontario, Editions Soleil, Toronto, 1991. See also Kay Anderson, Vancouver's Chinatown: racial discourse in Canada 1875-1980, McGill-Queen's Studies in Ethnic History, Montreal, 1991.

[117] See Gill Bottomley, From Another Place: migration and the politics of culture, Sydney: Cambridge University Press, Sydney, 1992. See also Richard Jenkins, Rethinking Ethnicity: Arguments and Explorations, Sage Publications, London, 1997.

[118] See ERACE – a Web Forum on race discrimination issues, under the auspices of the Human Rights and Equal Opportunities Commission, Australia, Anthropological and Sociological Approaches.

[119] Ibid.

[120] Recital 6 Council Directive 2000/43/EC.

[121] My emphasis.

[122] Frederik Barth (ed) Ethnic Groups and Boundaries: The Social Organisation of Cultural Difference, Universiteforlaget, Oslo, 1969.

[123] See Brennan, F. 'Islamophobia: the Response of the Criminal Justice System', 2003 (forthcoming).

[124] Modood, T. et al., Ethnic Minorities in Britain: Diversity and Disadvantage 'The Fourth National Survey of Ethnic Minorities in Britain' (Policy Studies Institute, 1997).

[125] Religious discrimination is dealt with by the Framework Directive on Employment and Occupation.

[126] Fredman, S. Discrimination Law (OUP, 2002).

[127] Equality, Diversity and Enlargement. Report on Measures to Combat Discrimination in Acceding and Candidate Countries, Fundamental Rights and Anti-discrimination, European Commission, Directorate General for Employment and Social Affairs, Unit D.4, September 2003.

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