The Equal Treatment Directive back in the spotlight

Bolkestein_MauvaisCoupOn the 7th December 2015, former Dutch EU Commissioner for Internal Market and Services, Frits Bolkestein, published an op-ed in the third largest Dutch journal, Volkskrant, in which he strongly criticized a pending piece of legislation, called the Equal Treatment Directive. Mr. Bolkestein, calls this draft Directive “an absurd piece of legislation” that should “disappear from the Commission’s agenda”. The Equal Treatment Directive is currently the oldest pending legislative proposal at an EU level: it was voted in the European Parliament in 2010 and since then, it is being negotiated in the Council (the EU body comprised by the member states’ governments). The necessary unanimity has not yet been reached. Therefore, the legislative process has been stalled.

The Equal Treatment Directive seeks to eliminate discrimination in the provision of goods and services, including housing.

But why is the former EU Commissioner so critical about this Directive and why is he voicing his concerns now?

It is easier to answer the second question first. The Dutch Government will hold the EU Presidency in the pN--LF-T first half of 2016 and will also have a list of priorities for the Council Presidency, The Equal Treatment Directive is currently being negotiated at the Council. Mr. Bolkestein was also former party leader of the Dutch Liberal Party (VVD), that is leading the Dutch Government with Mark Rutte as Prime Minister.

Timmermans4_(9598641476)Additionally, first VP Timmermans’ (pic on the left) promises to reduce red tape on businesses and his commitment to better regulation at the EU level appear to be in contradiction with the practical effects of the Equal Treatment Directive, which would increase bureaucracy and put further burdens on businesses. As a result, we will witness an unprecedented limitation in contractual freedom. These implications are outlined in detail in the analysis made by the Lawyers’ organisation ADF International. But the negative effects of this Directive will not only be evident in the business sector.

Freedom of expression, freedom of association and freedom of religion would be significantly limited under the “non-discrimination” umbrella.

Moreover, Bolkestein outlines two other problems:

  1. First, a breach in the principle of subsidiarity – meaning that the EU only takes action where it is more effective, leaving in the other fields the Member States to act individually at a national or local level. However, the cases of discrimination “this law [the Directive] aims to tackle will all be issues of local competence.”
  2. Secondly, Bolkestein shows that the reversal of the burden of proof, instituted by the Directive, goes against the basic presumption of innocence: “The directive suggests that one of the ways citizens will discriminate is by intimidation (…) Who determines if there is intimidation? The claimant, if they feel intimidation has occurred. And then the person accused of intimidation must prove his or her innocence. Not only does this go against the basic principle of the presumption of innocence (“everyone is innocent until proven guilty”) but it will also be very difficult to show that a person has not been intimidating because the claimant can always insist that they felt intimidated.

Bolkestein concludes that these two arguments “are sufficient to make this directive Disappear in the black hole of history” and urges the Dutch Government which will hold the EU Presidency in the first half of 2016 to stop this legislative process. (Bolkestein’s article reference)

The timing for Bolkestein’s intervention was very strategic, since on the very day the article was published (last Monday) the Dutch Parliament in the Hague held a Plenary Session debating the State of the EU and the List of Priorities of the Dutch Presidency. Bolkestein’s article was also used to raise the issue of the Equal Treatment Directive”. On the question of MP Pieter Omtzigt (CDA) if the concerns of Mr. Bolkestein are justified or not, Dutch Minister of Foreign Affairs agreed that “the Dutch Government is concerned about the possible financial, juridical and practical consequences of the Directive”, and that “this concern has been shared by many member states”. He also mentioned that as “a good Chair”, they would like to “continue the handling of the Directive”

The Directive is controversial, against subsidiarity, concerned financial and administrative consequences, Member States are divided. Why it is still on the agenda?