Extending Protection Against Age Discrimination Outside the Area of Employment

Author: Krystyna Romanivna Bakhtina [1]

Abstract

The present article examines the protection against age discrimination in the European Union (EU). Currently, EU legislation prohibiting age discrimination applies solely to the field of employment and occupation. However, as revealed in the research studies, Europeans are subject to age discriminatory practices in various areas of life beyond the area of work. Only few Member States provide a comprehensive protection against age discrimination outside the field of employment at domestic legislative level. In 2008 the EU Commission published a proposal for an additional Directive prohibiting discrimination based on age, amongst other grounds, and extending the protection beyond the areas of employment. The proposal is for a long time on the discussion table by the European Council, thus, EU citizens still don’t have a protection against age discrimination when buying goods or accessing services, in the sphere of education and training or other areas. This issue has received a limited attention in academic literature. The scholarly research of the last few years did not concentrate on the age discrimination beyond employment, also not much has been said about the recent developments on the new anti-discrimination Directive proposed by the Commission. The present article discusses the topic of age discrimination outside the area of employment in the EU. It demonstrates the scale of the problem, reveals the limitations of the regulation in the national legislations. The paper mainly argues the necessity to push forward the introduction of anti-discrimination Directive, which, it is believed, serves as a start towards the fight against age discrimination outside the area of a workplace.

Keywords: Age discrimination outside employment, equality, Commission proposal, Employment Equality Directive

A Introduction

Protection against discrimination plays an important role in the EU law. Article 2 of Treaty on European Union (TEU) states that the Union is founded on the values of respect of human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. According to article 3 of TEU, the Union ‘shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.’ [2] Equal treatment as a principle existed already in the founding treaties in relation to discrimination on the grounds of nationality and sex discrimination. Article 7 of Treaty establishing the European Economic Community (TEEC) referred to the general prohibition of ‘any discrimination on grounds of nationality’. [3] Further, article 119 of TEEC [4] established the principle of equal pay between men and women stating that ‘each Member State shall in the course of the first stage ensure and subsequently maintain the application of the principle of equal remuneration for equal work as between men and women workers.’

On the other hand, the history of the fight against age discrimination in the European Union is recent. It started only in 1997 when the Treaty of Amsterdam was signed introducing article 13 [5] which allowed the EU institutions to adopt the law to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation both inside and outside the employment. The importance of article 13 has been widely discussed in the academic literature. [6] Its addition to the Treaty undoubtedly reshaped the EU equality law resulting in the introduction of new anti-discrimination Directives. First, the EU adopted Racial Equality Directive [7] prohibiting discrimination on grounds of racial or ethnic origin in both employment and non-employment areas. Then there was Employment Equality Directive [8] which prohibits, among other grounds, age discrimination in the field of employment and occupation. Finally, the Goods and Services Directive was adopted which provides a prohibition on discrimination between men and women in the provision and supply of goods and services. [9]

Prohibition of age discrimination in EU law led to some important changes. Member States were supposed to introduce new laws or strengthen existing ones in order to be compliant with the Employment Equality Directive, citizens obtained a legal possibility to enforce their rights. However, one of the main weaknesses of the current European legislation is that it applies solely to the area of employment and occupation. Still, various studies illustrate that older and younger people may be treated unfairly because of their age in the various areas beyond the field of work. It is submitted that the elimination of discrimination both within and outside of the labour market is essential for the European Union and its citizens.

The paper highlights the necessity of the adoption of the new Directive extending anti-discrimination measures for areas outside employment as a prerequisite for fighting age discrimination. First, the paper examines different surveys with regards to age discrimination for both older and younger people outside the workplace to demonstrate the scale of the problem. The second part provides an overview of the national legislation of Member States in order to understand how age discrimination beyond employment is regulated on the national level. Finally, the paper looks at the developments regarding the 2008 proposal of the European Commission which aims to prohibit discrimination on grounds of religion or belief, disability, age and sexual orientation in the fields of social protection, social advantages, education, goods and services, including housing.

B Surveys on Age Discrimination

Equality laws are focused mainly on practices within the workplace. [10] Currently, only sex and race enjoy the protection from discrimination outside employment under the EU law. Some scholars expressed criticism by pointing at the hierarchy of norms within the equality legislation in the EU [11] , where racial and ethnic origin is at the top of the hierarchy, followed by sex, and finally religion or belief, disability, sexual orientation and age are at the bottom of the hierarchy ladder. [12] It is difficult not to agree with the presented critics. Why do some discrimination grounds, such as age, receive a lesser protection in the EU? The EU did not make it clear, for example, why in the field of race the realisation of the goal of equality requires regulation outside of employment, while it is not required for the grounds of sex, disability, sexual orientation, age. But the problem lies not only in the hierarchy of equality grounds. The major issue is that citizens are subject to discriminatory practices in their everyday lives and there is no solid legal mechanism neither on the EU or national level to protect them against discrimination outside the field of work.

Various surveys and studies help to demonstrate what are the experiences of age discrimination in the EU, and to what extent they apply to the areas beyond employment. Some research touching on age discrimination of older people have been conducted by AGE Platform Europe (AGE), a European network of non-profit organisations of and for people aged 50+, which aims to promote the interests of the citizens aged 50+ in the European Union. The report of 2004 published by AGE [13] found the examples of age discrimination across 13 areas. [14] It was based on responses to questionnaires that AGE secretariat received from AGE members in 17 Member States and thus represented a wide-ranging review of the issue. The report highlighted the need for Europe to undertake more serious and integrated approach towards combatting age discrimination. It was stated:

...unless Europe recognises and considers this issue seriously it cannot say that it fully recognises the human and political rights of older people or that it has made comprehensive efforts to include older people in society, despite the aspirations expressed in the Universal Declaration of Human Rights and the European Treaty. It demonstrates that Europe has yet to come to terms with its changing demography and recognised that in an ageing society older people will be crucial to the economic and social development of Europe – as consumers, contributors and citizens. [15]

AGE UK, a registered charity and a founded member of AGE, is another organisation which focuses on active ageing and conducts research on later life. In 2011 it published the results of the research conducted within 28 countries (including 21 EU Member States) and analysed data from 54,988 respondents regarding their experiences of age discrimination. It was found that ageism is the most widely experienced form of discrimination across Europe for every age group. 35 % of respondents reported unfair treatment on grounds of age (more than on grounds of gender and race/ethnicity), 44% considered age discrimination as serious or very serious. The need for stronger EU legislation was emphasised in the report and it was suggested to extend the ban on discrimination on grounds of age by tackling discrimination of older people in access to goods and services. [16]

Another illustration of discrimination outside employment can be found in the background document ‘Unblocking the Anti-Discrimination Directive’ on age discrimination in access to financial services prepared by AGE in March 2012. [17] Based on the conducted field research supplemented with internet findings and cold-calling, the report confirmed the existence of discrimination practices in the field of financial services, in particular, regarding travel insurance, complementary health insurance, mortgages and loans. Some forms of direct age discrimination were identified, such as the imposition of upper age limits for some essential financial products. Furthermore, the report revealed indirect discriminatory conditions such as disproportionate increases in premiums for people above a certain age, downgraded access to alternative products, the practices which have a negative impact on older people’s access to basic services. Such findings on age discrimination in the area of financial services are not surprising and can be partly explained by the fact that currently, a modern technology may place older clients at a disadvantage to the younger ones. The research by Equality Commission for Northern Ireland into older people’s access to financial services highlighted that older people indeed encountered obstacles which can often be related to the lack of familiarity with modern forms of managing money, e.g. online methods. [18] It further demonstrated the examples of direct and indirect discrimination regarding financial services which were uncovered during the research.

Referring to some recent publications, in 2016 AGE presented a report on structural ageism, which was based on a survey gathering its member organisations’ experiences. The study mentioned that despite the progress in some areas older people across Europe continue to experience discrimination in various fields, such as financial services, social and civic participation, employment, social security, health and long-term care. Examples were provided confirming the discriminatory practices in the different European Member States. The report emphasised that the impact of ageism on individuals is very serious. It was stated that current legal and policy measures do not sufficiently protect older people and thus it is important to strengthen such measures at both national and EU levels. The document also criticised the existence of differences in protection for older people among the Member States due to the lack of harmonised anti-discrimination legislation and monitoring. [19] Only some Member States in their national legislation prohibit age discrimination in access to goods and services, while in other EU countries older people do not receive a protection from being discriminated against outside of employment. [20] Moreover, according to the report, in six Member States, equality bodies responsible for monitoring and registration of allegations of discrimination do not cover age discrimination in goods and services, in Spain and Portugal equality bodies do not deal with age-related issues at all. [21]

Most of the research on age discrimination seems to have concerned with older workers, however, young people may be also subject to discriminatory practices in various areas of life. In fact, as correctly mentioned by Malcolm Sargeant, every stereotypical assumption about older people is likely to be a stereotypical assumption about younger people. [22] Indeed, both older and younger people may be alike affected by age discrimination.

Of course, age discrimination among youth is more visible in the field of employment. One of the studies demonstrated the reasons for employers not to hire younger people, which were: ‘older people have the right skills, approach or energy’, ‘experience is important’, ‘legal requirements’, ‘younger people can’t supervise/manage people older than themselves’ and ‘younger people are unlikely to be able to do the job’. [23] Younger age groups typically experience two main problems: they are not given equal opportunities regarding access to employment and second, once employed, they are not treated equally with other workers. [24] Further research studies reveal that age discrimination among young people also extends to the areas beyond the employment. The European Youth Forum, a platform of youth organisations in Europe presented the findings of the study based on the online survey on multiple discrimination affecting young people between 18 and 35 years old which involved 495 young people. One of the objectives of the survey was to reveal the grounds and areas where young people experience discrimination and to make the suggestions for further legal and policy changes. The discrimination grounds included in the survey went beyond those covered by the EU legislation and the legislation of the Council of Europe. The findings demonstrated that the main experiences of discrimination reported by respondents occurred in the areas of education and employment/occupation, however, the cases of discrimination could also be found in the access to goods and services, including housing. According to the results of the survey, being 18-24 years old was considered as a discrimination ground almost in all the fields. More specifically, when looking for a flat/housing/accommodation, 6.2 % reported discrimination on the basis of age-being 18-24 years old. When trying to get access to bank services 7.3 % considered being discriminated against due to their age between 18-24 years old, 2.7 % - because being aged 25-29 years old. 46.7 % of respondents reported that they experienced multiple discrimination, as according to them discrimination occurred on each ground in various situations. Important to note that 27.2 % of respondents stated that they would not report the case of discrimination if they were discriminated against. Taking into account the findings of the research, the European Youth Forum has drafted the recommendations and proposed the enforcement of the current antidiscrimination legislation, enlarging the list of antidiscrimination grounds, the enhancement of monitoring practices of discrimination, raising awareness about current anti-discrimination legislation and possibilities for submitting a complaint. [25]

One of the latest reports 'Social inclusion and young people – excluding youth: a threat to our future' of the European Youth Forum also addressed the problem of discrimination among young people, mentioning the examples of discrimination regarding access to housing, healthcare systems. [26] Further, the report highlighted that the European social model is no longer protecting young people, and they are now at higher risk of social exclusion and poverty:

‘the European social model has to adapt to a changed social and economic context, to guarantee investment in the young generation through education, creation of quality jobs, social protection, healthcare and housing support’. [27]

C Regulating Age Discrimination Beyond Employment on National Levels

It is important to note that in the several EU Member States, namely, the Netherlands, Greece, Denmark, Poland, Italy and Malta the discrimination on the ground of age currently does not enjoy protection outside the labour market. Also, in Northern Ireland age discrimination is regulated only across the material scope of Employment Equality Directive. On the other hand, other EU countries in their national legislation provide prohibitions on age discrimination covering the areas beyond employment. In Austria and Belgium such prohibitions are subject to the combination of federal and regional laws, while in the other Member States these can be found either (or both if they are complementary) in constitutional provisions or in specific anti-discrimination legislation. As an example, in Estonia, the prohibition of discrimination, including age, can be found in the Constitution. In accordance with legal doctrine and court practice in Estonia, all constitutional provisions in relation to fundamental rights, including the rights to equality and non-discrimination, are directly applicable in both the public and private areas. [28] Article 12 of the Constitution provides an explicit ban on discrimination:

Everyone is equal before the law. No one shall be discriminated against on the basis of ethnic origin, race, colour, sex, language, origin, religion, political or other opinion, property or social status, or on other grounds. The incitement of ethnic, racial, religious or political hatred, violence or discrimination shall, by law, be prohibited and punishable. The incitement of hatred, violence or discrimination between social strata shall, by law, also be prohibited and punishable.

In one of its decisions, the Constitutional Review Chamber of the Supreme Court claimed that the general principle of equality is applicable to ‘all spheres of life’. [29] In other words, it can be assumed that the prohibition against age discrimination which is implicitly mentioned in the text of the Constitution applies to different areas of life beyond the area of employment and occupation.

In Slovenia discrimination on all personal grounds is prohibited by Article 14 of the Constitution. Further, in 2014 the Act Implementing the Principle of Equal Treatment was adopted in order to implement the Racial Equality and Employment Equality Directives. Later, in 2016 the law was replaced by the Protection against Discrimination Act. According to this legislation, besides the areas of employment, age discrimination is also prohibited in the areas of social protection, social security and healthcare; social advantages; education; and access to and supply of goods and services which are available to the public, including housing. Additionally, the Protection against Discrimination Act mentions that the law is binding for state bodies, local communities and holders of public authority, as well as legal and natural persons who are responsible for ensuring protection from discrimination in all fields of exercising public authority, participation in legal transactions and all other areas of their activities. [30]

In fact, the major part of the European Member States has adopted specific anti-discrimination laws containing the prohibition on age discrimination in the areas beyond employment. [31] For instance, Sweden, where one of the main anti-discrimination legislation is the Discrimination Act, prohibits both direct and indirect discrimination as well as harassment in working life based on sex, ethnicity, religion or other belief, disability, sexual orientation, transgender identity or expression and age. Additionally, Swedish legislation which came into force on 1 January 2013, extended the protection against discrimination on the ground of age to the fields of goods and services including housing; meetings and public events; health, medical care and social services; social and unemployment insurance and financial aid for education; and public sector employment. [32] Also in Slovakia anti-discrimination Act adopted in May 2004 not only meets the minimum requirements of the Racial Equality and Employment Equality Directives but goes beyond them. The Act prohibits discrimination based on age, amongst other grounds, in relation to employment relations, social protection, education and access to goods and services including housing. The law applies both to the public and the private sector. [33]

Despite the existence of specific anti-discrimination legislation applicable to age discrimination outside employment on a national level, these laws are generally accompanied by the exceptions. The good illustration is Great Britain (which excludes Northern Ireland), where the Equality Act 2010 prohibits direct and indirect discrimination, harassment, victimisation and instructions to discriminate because of race, sex, disability, sexual orientation, religion or belief and age in employment and occupation and access to goods and services, education, housing and the performance of public functions. [34] However, there are a number of exceptions provided to the prohibition on age discrimination. The Equality Act 2010 does not apply to those aged under 18. Also, the law sets out specific exceptions from the ban, including, in respect of providers of financial services, age-based concessions and age-restricted services.

The fact that it is quite a common feature for the national laws of the Member States to provide exceptions when regulating age discrimination in the areas beyond employment is demonstrated in the report of the Directorate-General for Justice which analysed the national protections beyond employment on the grounds of religion and belief, disability, age and sexual orientation among 33 countries. [35] With regards to prohibitions on discrimination on grounds of age, the report highlighted that in some national legislations exceptions were provided in the context of financial services. [36]

The report specified that in such EU countries as the Netherlands, Denmark, Latvia, Malta, Spain, Poland, Greece the prohibitions on age do not apply to goods and services generally, or financial services in particular. According to the report, some Member States [37] which offer the protection against age discrimination in relation to financial services provide general justification defences. [38] Another important point is that the various Member States provide justifications with regards to access to insurance. In Luxembourg, in relation to insurance contracts, individuals may be subject to differential treatment because of age if this exception is objectively and reasonably justified. However, the law does not specify for any detail on what the assessment of risk has to be based. [39] In Lithuania, the differential treatment on the grounds of age and state of health in the calculation of insurance risks is permitted. [40] Croatian anti-discrimination legislation provides exceptions on the grounds of age when determining insurance premiums and other insurance conditions. [41] Equal Status Act introduced in Ireland permits the differences of treatment in respect of annuities, pensions and insurance policies where there is actuarial evidence to show that the difference is reasonable. [42] According to the Slovakian law when providing insurance services differences of treatment on the grounds of age would not be considered as discrimination when such treatment results from different levels of risk, subject to verification by statistical or similar data, and where the conditions of insurance services adequately reflect such risk. [43] German General Act on Equal Treatment applies to financial services, but a difference in treatment on the ground of age, amongst other grounds, is permissible for private insurance, if it is based on recognised principles of calculations adequate to the risks, especially on actuarial evaluations based on statistical data. [44] In France, there is an exception which allows insurance providers related to life expectancy, invalidity and incapacity to take into account the insured person’s health. [45] In Sweden prohibition on age discrimination is not applicable to the insurance sector. [46]

The presence of justifications to age discrimination with regards to insurance services may be explained, as there is an evidence that life expectancy reduces as age increases. Age is considered as the most significant risk factor among the various risk factors used for rating life insurance and annuities. [47] In such cases it seems reasonable to set age restrictions, however, in order to make sure that such exceptions are justified and to prevent potential abuses, the laws have to be constructed in a very clear, precise and detailed manner. Further, it is submitted that age discrimination regarding the access to financial services requires better regulation, which is currently not the case for the many Member States. As supported by various studies both older and younger people experience age discrimination practices with respect to financial services, such as payments of higher premiums or restricted access to loans or other financial products. Actions have to be undertaken in order to provide extended financial inclusion and adequate protection against age discrimination in this domain has to be established.

Most of the Member States which regulate age discrimination outside employment provide the protection in relation to the field of education. Regarding the areas of social protection and social advantages, the report of the Directorate-General for Justice highlighted that it is quite a common feature for the national laws to include exceptions for age discrimination in these areas. Some countries provide general justification defences, such Member States as Luxembourg and Ireland permit differences in treatment on grounds of health. Indeed, it is important to take into account age in the field of social protection and especially health care, for example, when deciding if a particular treatment should be provided to a patient. Still, in this domain, discriminatory practices are widespread, mainly, among older people. Thus, it seems important to create a more comprehensive legal framework with regards to social protection of older people. This is also mentioned in the article 23 of the revised European Social Charter and article 25 of the EU Charter of Fundamental Rights, which require states to guarantee and protect the rights of older people with respect to social protection.

The report concluded that among the countries analysed, disability was the most comprehensively covered ground, while the age was the least regulated. Overall, the study clearly demonstrated that despite the fact that there was a wide range of the legislation in the Member States on discrimination outside employment, the national approaches differ to a large extent. Some countries regulate age discrimination only in the field of labour. In the Member States which prohibit age discrimination in the sectors beyond employment, in relation to some areas, e.g. financial services, national laws are often accompanied by significant justifications.

There may be reasons why such gaps regarding age discrimination beyond employment exist in the national legislations. The awareness about age discrimination was developed later than in other areas. Prior to the introduction of the Employment Equality Directive, most Member States did not have their own age discrimination legislation. [48] Also, lawmakers have historically concentrated on labour discrimination, rather than other areas of public life. [49] In the present days, considering the fact that age discrimination is present in various areas beyond the labour market it seems important to introduce relevant laws in this respect. The adoption of the European instruments aiming to combat age discrimination outside employment can be a strong incentive for national legislators to implement necessary measures.

D The European Commission Proposal for a New Anti-Discrimination Directive

Political discussions about the additional anti-discrimination legislation seem to have started already in 2004. The future EU Commission President Jose Manuel Barroso in his speech before the European Parliament has emphasised the importance to fight against all forms of discrimination. He also mentioned about his intention to commence the work in view of a framework-directive on the basis of Article 19 of the TFEU. [50]

Later in 2007, the Commission announced that it would adopt new legal measures under the Article 19 and would terminate any perception of the hierarchy of protection. [51] It stressed that more consistent and uniform approach regarding protection against discrimination has to be established in the EU:

Three Directives have already been adopted under this legal base but they are not applicable against discrimination outside of the employment sphere only for racial or ethnic origin and sex. Although some Member States may go beyond the current Directives and provide for the same level of protection for all the grounds of discrimination, it is necessary to ensure certain coherence throughout Europe in this field. Only a European Directive can provide such a coherent framework. [52]

Finally, on 2 July 2008, the Commission adopted a proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (‘Commission proposal’) [53] with an objective to extend the protection against discrimination on these grounds to areas outside employment. The Explanatory Memorandum accompanying the Commission proposal mentions:

The aim of this proposal is to implement the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation outside the labour market. It sets out a framework for the prohibition of discrimination on these grounds and establishes a uniform minimum level of protection within the European Union for people who have suffered such discrimination. This proposal supplements the existing EC legal framework under which the prohibition of discrimination on grounds of religion or belief, disability, age or sexual orientation applies only to employment, occupation and vocational training. [54]

The Commission proposal duplicates those parts of the material scope of the Race Directive which were not included in the Employment Equality Directive: social protection, including social security and healthcare; social advantages; education; access to and supply of goods and other services which are available to the public, including housing. [55] Another novelty mentioned in the proposal is the obligation for the Member States to designate a body or bodies for the promotion of equal treatment. [56] This duty was not prescribed by the Employment Equality Directive but exists in EU legislation in respect of discrimination on grounds of racial or ethnic origin and sex. Further, the text of the Commission proposal contains some general and specific exceptions, some of them being equivalent to those mentioned in the Employment Equality Directive. First, there are general exceptions which can be found in article 2 (8):

This Directive shall be without prejudice to general measures laid down in national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and the protection of the rights and freedoms of others.

Other exceptions can be found in Article 3 which talks about the limitations on the scope of application of the Directive. The Commission proposal also refers to some exceptions regarding age discrimination specifically. First one relates to the grounds of age and disability. Article 2 (7) allows ‘proportionate differences in treatment’ in financial services, provided that ‘age or disability is a key factor in the assessment of risk based on relevant and accurate actuarial or statistical data.’ Further, another exception relating to age discrimination is mentioned in article 2 (6) which states:

…Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are justified by a legitimate aim, and if the means of achieving that aim are appropriate and necessary. In particular, this Directive shall not preclude the fixing of a specific age for access to social benefits, education and certain goods or services.

Due to some resistance in the Council and since its unanimity is required, the Commission proposal has remained blocked and is still being debated by the Member States. In December 2011 the Employment, Social Policy, Health and Consumer Affairs Council was informed by the Polish Presidency about the outcome of its analysis on the provisions related to age and the Working Party on Social Questions has subsequently continued its evaluation of the proposal under the Danish Presidency, having a focus mainly on age discrimination. The amendments to the Commission proposal discussed in that Working Party were the exclusion of protection from age and disability discrimination in respect of social protection and of age protection in the context of education. Some members proposed the complete removal of social protection, and others the removal of education, from the scope of the Directive. [57]

The progress report regarding the Commission proposal prepared under the Italian Presidency in November 2014 focused mainly on the disability provisions and further mentioned some outstanding points which have to be discussed in order to push forward the legislation:

  • the overall scope, as some delegations don’t support the inclusion of social protection and education within the scope;

  • various aspects of the disability provisions;

  • further aspects of the division of competences and subsidiarity; and

  • legal certainty in the Directive as a whole [58]

Analysing the following report drafted under the Dutch presidency in June 2016, the Working party has continued to examine the Commission proposal with the focus on the interplay between this proposal and the proposed European Accessibility Act (EAA) and some other issues. The report highlighted the necessity to have a further discussion on disability provisions, an interplay between EAA and the Commission proposal, the overall scope of the Commission proposal, aspects of the division of competences and subsidiarity and legal certainty regarding the obligations established by the proposal. [59]

In sum, most delegations affirm the importance of the Commission proposal as a tool to promote equal treatment, although some of them earlier questioned the necessity of its introduction. The reports mention that some delegations would prefer to have stronger provisions on disability. The issues which were constantly discussed but still remain unresolved refer to the lack of legal certainty, the division of competences and the overall scope of the proposal.

The process of adopting new EU legislation prohibiting age discrimination outside the employment is quite lengthy and complex. Almost ten years have already passed since the proposal was adopted by the European Commission. Numerous discussions, redraftings in the Working party did not lead to the concrete results. And considering the last progress reports, it is not certain how much time will be still needed in order to work on the outstanding issues. It can be assumed that difficulties are connected to the fact that this new proposal aims to ensure common legislation for the four discrimination grounds and concerns a wide material scope. There are indicators, however, that the fight against age discrimination and the introduction of the EU legislation prohibiting discrimination outside employment are high on the agenda. In July 2014 the President of the European Commission has presented ‘political guidelines’ focusing on ten policy areas in which he mentioned that the European Union could make a difference, also the importance of achieving concrete results in each area was underlined. One of such policy areas is ‘an area of Justice and Fundamental Rights based on mutual trust.’ Mr Juncker clearly mentioned that he planned to maintain the Commission proposal:

Discrimination must have no place in our Union, whether on the basis of nationality, sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation, or with regard to people belonging to a minority. I will, therefore, maintain the proposal for a Directive in this field and seek to convince national governments to give up their current resistance in the Council.

Further, in its recent resolution on the application of the Employment Equality Directive, the European Parliament has highlighted the importance of combating discrimination in all areas of life and the adoption of the Commission proposal was indicated as a starting point:

The European Parliament…stresses how important it is to reach an agreement as soon as possible, and calls on the Council to break the deadlock, in order to move towards a pragmatic solution and speed up without further delay the adoption of the EU horizontal anti-discrimination directive proposed by the Commission in 2008 and voted for by Parliament; considers it a pre-condition to secure a consolidated and coherent EU legal framework, protecting against discrimination on the grounds of religion and belief, disability, age and sexual orientation outside of employment… [60]

One may question the need for a new anti-discrimination Directive. Indeed, in many ways Commission proposal replicates the provisions of the existing Directives without bringing any originality to the European equality laws. Also, the text of the proposed legislation still contains justifications, including those with respect to age discrimination. However, it is submitted, that the adoption of the Commission proposal is a necessity in order to fight against age discrimination beyond the area of employment. If changes are to be made in the European Union in this respect, the legislation is a starting point. As an example, before the introduction of the Employment Equality Directive many EU countries did not have age discrimination laws in place. Only thanks to its adoption all the Member States were required to adopt or reinforce the legislation prohibiting age discrimination in employment. In a similar way, a European incentive is required in order to guarantee the protection against age discrimination in the areas outside employment. The national laws on age discrimination do not provide comprehensive protection against age discrimination beyond the area of employment and vary among the Member States. Thus, in some European countries, citizens may receive stronger protection than in the others. New Directive on equal treatment will provide a legal guarantee for equal opportunities for the citizens by stimulating the revision of the national laws.

E Conclusion

After the adoption of the Treaty of Amsterdam, the EU extended its reach to the new anti-discrimination areas. Introduction of Employment Equality Directive was a crucial step towards fighting against age discrimination. However, this legislation applies solely to the area of employment and occupation. Surveys revealed that age discrimination practices occur in the lives of both old and young people when getting access to goods and services, in the field of education and training or other areas of life. As demonstrated in the paper, non-governmental organisations dealing with age discrimination issues, EU Commission and EU Parliament emphasise the need to foster the existing legislation and advocate for the adoption of new anti-discrimination Directive. As on the European level at the present moment there is no instrument which prohibits discrimination outside employment on grounds of age, disability, sexual orientation and religion or belief, the EU cannot fight discrimination with efficiency in all the domains which seriously impact fundamental rights of individuals. As can be concluded from the presented analysis, national legislations differ a lot from one Member State to another and often do not provide comprehensive protection against age discrimination beyond employment. This leads to the situation that in one Member State citizens may be better protected than in the others. In several countries age discrimination is not regulated at all, in the Member States where it is regulated, justifications are generally provided. The adoption of the EU legislation which would prohibit, among other grounds, age discrimination outside employment would provide a consistent, coherent protection in the Union. Further, as has been previously highlighted, due to the divergence in the material scope of the various anti-discrimination Directives it can be assumed that some discrimination grounds are taken less seriously than the others. The introduction of the new anti-discrimination Directive will help to combat the idea of the hierarchy of equality norms.

According to the latest Eurobarometer Survey, 42% of EU citizens consider age discrimination as being widespread on the basis of being above 55 years old, 19% believe this is also the case for those below 30 years old. [61] The problem of age discrimination is rife, thus it requires a comprehensive approach and has to be addressed both inside and outside of the employment sector. New Directive will serve as an additional layer of protection and will provide the opportunity to fight against age discrimination in the fields of social protection, social advantages, education, goods and services, including housing.



[1]Scuola Superiore Sant'Anna, k.bakhtina@santannapisa.it

[2] Consolidated Version of the Treaty on European Union [2008] OJ C115/13

[3] Now Art 18 of Treaty on the Functioning of the European Union (TFEU)

[4] Now Art 157 TFEU

[5] Now Art 19 TFEU

[6] H Meenan (ed), Equality Law in an Enlarged European Union: Understanding the Art 13 Directives (CUP 2007);

H Meenan, ‘Reflecting on age discrimination in the European Union—the search for clarity and food for thought’ (2009) 10 ERA Forum 107

[7] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L 180 /22 (Racial Equality Directive)

[8] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16 (Employment Equality Directive)

[9] Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] L373/37 (Goods and Services Directive)

[10] E Ellis and P Watson, EU Anti-Discrimination Law (2nd edn, OUP 2012) 361

[11] M Bell and L Waddington, ‘Reflecting on inequalities in European equality law’ (2003) 28 ELRev 349; S Fredman, ‘Equality: A New Generation?’ (2001) 30 ILJ 145; L Waddington and M Bell, ‘More Equal than Others: Distinguishing European Union Equality Directives’ (2001) 38 CMLRev 587.

[12] E Howard, ‘The Case for a Considered Hierarchy of Discrimination Grounds in EU Law’ (2006) 13 MJ 445,446

[13] AGE – The European Older People’s Platform, ‘Age Barriers: Older people’s experience of discrimination in access to goods, facilities and services’ ( December 2004) < http://www.age-platform.eu > accessed 5 January 2018

[14] These areas include: education and training; health care services; social security; insurance; financial services; Volunteering & Community activities; housing; special offers, marketing and the media; access to public spaces, transport and modern technologies; measurement in statistics and monitoring information; taxation

[15] AGE – The European Older People’s Platform (n 13) 18

[16] Age UK, ‘Grey Matters – A Survey of Ageism across Europe’ ( June 2011) < https://www.ageuk.org.uk/documents/en-gb/for-professionals/ageism_across_europe_report.pdf?dtrk=true > accessed 20 December 2017

[17] AGE Platform Europe, ‘Unblocking the Anti-Discrimination Directive’ (March 2012) < http://www.age-platform.eu/images/stories/Background_document_anti-discrimination_directive_AGE.pdf > accessed 20 December 2017

[18] Institute for Conflict Research, ‘Strengthening Protection for All Ages against Age Discrimination outside the Workplace’ ( March 2014) < http://www.equalityni.org/ECNI/media/ECNI/Publications/Delivering%20Equality/Age-Discrimination-ICR-Final-Report-Final.pdf > accessed 16 January 2018

[19] AGE Platform Europe, ‘AGE Platform Europe Position on Structural Ageism’ (April 2016) < https://www.age-platform.eu/sites/default/files/AGE_IntergenerationalSolidarity_Position_on_Structural_Ageism2016.pdf > accessed 9 January 2018

[20] Ibid

[21] Ibid

[22] M Sargeant, ‘Young People and Age Discrimination’ [2013] 2 EJICLS < http://ejcls.adapt.it/index.php/ejcls_adapt/article/view/51 > accessed 9 January 2018

[23] H Metcalf, P Meadows , Second survey of employers’ policies, practices and preferences relating to age (RR682)

(the Department for Business, Innovation and Skills and the Department for Work and Pensions 2010) 23

[24] L Altan, A Ivankovic-Tamamovic, Overview of youth discrimination in the European Union (Publications Office of the European Union 2015) 18

[25] European Youth Forum, ‘Multiple Discrimination and Young People in Europe’ (2014) < http://www.youthforum.org > accessed 22 December 2017

[26] European Youth Forum, ‘Social Inclusion and young people’ (2016) <http://www.youthforum.org>accessed 23 December 2017

[27] Ibid 3

[28] V Poleshchuk, ‘Report on measures to combat discrimination. Directives 2000/43/EC and 2000/78/EC’ (2013) < http://www.non-discrimination.net > accessed 2 January 2018

[29] V Poleschuk, ‘Older Age, Employment and Equality in Legislation: A ‘Progressive’ Estonian Approach?’ [2014] 12 The Equal Rights Rev < http://www.equalrightstrust.org/ertdocumentbank/vadim.pdf > accessed 23 December 2017

[30] N K Šalamon, Non-discrimination Slovenia 2015 (Publications Office of the European Union 2016) 6

[31] Such countries include Hungary, Bulgaria, Croatia, Sweden, Slovakia, Great Britain, Czech Republic, Finland, Germany, Portugal, Ireland, Luxembourg, Latvia.

[32] L Chopin, C Germaine, Comparative analysis of anti-discrimination law in Europe 2015 (Publications Office of the European Union 2015) 33

[33] J Debrecéniová, V Durbáková, Non-discrimination Slovakia 2016 (Publications Office of the European Union 2017) 8

[34] A McColgan, Non-discrimination United Kingdom 2016 (Publications Office of the European Union 2017) 6

[35] EU Member States, candidate countries and EEA countries

[36] A McColgan, National protection beyond the two EU Anti-discrimination Directives (Publications Office of the European Union 2013) 6

[37] Belgium, Cyprus, Czech Republic, Romania, Sweden, Great Britain

[38] A McColgan (n 36) 56

[39] ibid 57

[40] G Andriukaitis, Non-discrimination Lithuania 2017 (Publications Office of the European Union 2017) 66

[41] I Bojic, Non-discrimination Croatia 2017 (Publications Office of the European Union 2017) 8

[42] O O’Farrell, Non-discrimination Ireland 2017 (Publications Office of the European Union 2017) 8

[43] Act No. 365/2004 of 20 May 2004 on equal treatment in certain areas and protection against discrimination, amending and supplementing certain other laws (SK)

[44] M Mahlmann, Non-discrimination Germany 2017 (Publications Office of the European Union 2017) 45

[45] S Latraverse, Non-discrimination France 2017 (Publications Office of the European Union 2017) 92

[46] P Norberg, Non-discrimination Sweden 2017 (Publications Office of the European Union 2017) 58

[47] Groupe Consultatif Actuariel Européen, ‘Use of age & disability as rating factors in insurance’ (2011) < https://actuary.eu/documents/GC_Age_Disability_Underwriting_Paper_051211.pdf > accessed 6 April 2018

[48] >J Lahey,‘International Comparison of Age Discrimination Laws’ (2010) 32 SAGE Journals 679

[49] Institute for Conflict Research (n18) 6

[50] M Bell, ‘Advancing EU Anti-Discrimination Law: the European Commission’s 2008 Proposal for a New Directive’ [2009] 3 The Equal Rights Rev < http://www.equalrightstrust.org/ertdocumentbank/mark%20bell.pdf>accessed 23 December 2017

[51] Commission, ‘Commission Legislative and Work Programme 2008’ (Communication) COM (2007) 640 final

[52] COM (2007) 640, annex

[53] Commission, ‘Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ COM (2008) 426 final

[54] COM (2008) 426

[55] COM (2008) 426, art 3

[56] COM (2008) 426, art 12

[57] A McColgan (n 34) 9

[58] Council of the European Union, ‘ Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation ’ (Progress report) (21 November 2014) 15819/14

[59] Council of the European Union, ‘ Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation ’ (Note) (3 June 2016) 9729/16

[60] European Parliament resolution of 15 September 2016 on application of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘Employment Equality Directive’) (2015/2116(INI))

[61] Commission, Discrimination in the EU in 2015, (Directorate-General for Communication 2015) 6