A long-stalled EU proposal to broaden anti-discrimination protections faces withdrawal, prompting urgent calls to salvage its vital principles amidst rising inequality.
The future of a significant European Commission proposal, first tabled in 2008, aimed at ensuring equal treatment for individuals regardless of religion or belief, disability, age, or sexual orientation, appears bleak. The Commission now deems the necessary unanimous support within the Council of Ministers unattainable. Consequently, its work programme for 2025 includes the Directive among the pending legislative proposals slated for withdrawal by July. This development sends a concerning signal at a time when diversity, equality, and integration are facing significant pressures, suggesting an abandonment of efforts that arguably require renewed vigour. The moment is ripe to explore avenues for preserving the core tenets of what is widely known as the Equal Treatment Directive.
The Directive’s Foundational Importance
The primary strength of the proposed Directive lies in its ambition to extend legal safeguards against discrimination based on religion or belief, disability, age, or sexual orientation beyond the currently protected areas of employment and related fields like vocational training. The principle of equal treatment would thus be applied to social protection, encompassing social security and healthcare, social advantages, education, and access to and provision of goods and services available to the public, including housing. This would apply across both the public and private sectors. The adoption of the Equal Treatment Directive would align the EU’s legal protection against discrimination based on religion or belief, disability, age, or sexual orientation with the existing robust protections against discrimination based on racial or ethnic origin. Indeed, there is no justifiable reason for this disparity to persist.
Seventeen years since its inception, the proposal remains as relevant as ever. The most recent Eurobarometer survey on the subject, published in 2023, revealed a widespread perception of discrimination within the EU based on (trans)gender identity (57 percent), sexual orientation (54 percent), disability (49 percent), intersex identity (47 percent), age (45 percent), and religion or belief (42 percent). Alarmingly, 21 percent of respondents reported personally experiencing discrimination or harassment in the preceding year, marking a four percentage point increase since 2019.
This regrettable situation spurred both the Portuguese and Belgian Council Presidencies (in the first half of 2021 and 2024, respectively) to dedicate considerable effort to achieving a consensus. However, a small number of member states continue to reject any reasonable compromise. Germany has been a prominent and consistent opponent. Since 2008, it has maintained a steadfast, though never publicly justified, opposition to the text, irrespective of the governing coalition in Berlin. Support for this opaque and conservative stance has shifted from Poland (under the previous Law and Justice government) to Czechia and Italy currently. Their main concerns appear to revolve around the potential adaptation costs for businesses in ensuring accessibility for disabled individuals and issues of subsidiarity.
Exploring the Options
As Commissioner for Equality Hadja Lahbib stated to the European Parliament, “a blocked Directive does not improve peoples’ lives”. This is undoubtedly true and should serve as a catalyst for a change in approach. Starting with the fundamental principle of maintaining the broad non-discrimination coverage at the heart of the proposal, three alternative pathways present themselves. Firstly, the Commission could integrate the Directive’s objectives into a non-binding equality strategy. However, such a non-legislative option should be dismissed outright. By its very nature, it lacks the enforceability of a transposed Directive, which empowers citizens to assert their rights before national courts, even if it contradicts national law or practice.
The second option involves the European Council invoking the general “passerelle clause” in the Treaty on European Union, thereby authorising the Council to adopt the non-discrimination measures within the Directive by qualified majority. Both the Commission and the European Parliament have advocated for this approach. Nevertheless, activating the “passerelle” itself requires a unanimous decision, and each national parliament retains the power to veto it. Consequently, while worth pursuing, the likelihood of success remains limited.
The most promising way forward lies in the adoption of the Directive through what the EU Treaties term “enhanced cooperation” among a minimum of nine member states (while remaining open to – but not contingent upon – the participation of all others). The necessary conditions for this are met. After 17 years of sustained efforts by several Council Presidencies to achieve consensus, it is clear that a last resort situation has been reached: the proposal’s objectives cannot be realised by the Union as a whole. Under these circumstances, enhanced cooperation serves as a means of advancing the Union’s objectives and values, and reinforcing its integration process, without undermining the internal market or its cohesion.
While enhanced cooperation is undoubtedly a second-best solution compared to a Directive agreed upon by all, in the fight against discrimination, inaction is no longer a viable option. Initiating enhanced cooperation is likely to shift the current dynamics in two key ways. It will create a platform for the progressive development of the existing text, for instance on intersectional discrimination, moving away from the current focus on accommodating the objections of a few. Furthermore, it will exert considerable pressure on the dissenting member states to justify their non-participation domestically, thereby incentivising them to join later. There is no time to lose for those Member States willing to progress and form an avant-garde to submit the relevant request to the Commission.
As Mario Draghi emphasised, the Union’s fundamental challenge lies in enhancing its competitiveness and establishing itself as an independent global actor, while upholding its founding values and the rights it embodies, such as equality and non-discrimination: “The EU exists to ensure that Europeans can always benefit from these fundamental rights. If Europe can no longer provide them to its people – or has to trade off one against the other – it will have lost its reason for being”. There is no stronger argument for rescuing the Equal Treatment Directive.
Youri Devuyst teaches History and Law of the European Union at the Vrije Universiteit Brussel, where he is affiliated with the Brussels School of Governance.