Vezi raport EN

„protecţie efectivă a drepturilor omului”

II. ARTICLE 2 PAR.4 OF DIRECTIVE 2000/43/CE

Transposition of the concept of instruction to discriminate (order or instruction to discriminate). Interpretation of the concept

226. The Steering Committee refers to the provisions of art. 2 par. 2 of G.O. no. 137/2000, republished which rules: “For the purpose of this ordinance, the order to discriminate against persons based on any of the grounds stipulated in par. (1) shall be regarded as discrimination”. The instruction to discriminate, or, in other words the order to discriminate is a form of discrimination, introduced by the Romanian legislator in the process of transposition of the provisions of Council Directive 2000/43/CE implementing the principle of equal treatment between persons, irrespective of racial or ethnic origin, published in the Official Journal of the European Communities (OJ) no. L180 of 19 July 2000 and the provisions of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, published in the Official Journal of the European Communities (OJ) no. L303 of 2 December 2000. 227. In this regard, we set down that in the area of non-discrimination, as the acquis communautaire is transposed, in order to have an instruction to discriminate the meeting of its constitutive elements is necessary. Thus, the instruction to discriminate consists of a compulsory rule, in written or oral form, issued by an authority or empowered person that has to be fulfilled by those aimed with the purpose to discriminate and to treat differently persons who are in comparable or

analogous situations, without a reasonable and objective justification, for the purpose of art. 2 par. 1 of G.O. no. 137/2000, republished. The different treatment for the purpose of art. 2 assumes: „any distinction, exclusion, restriction or preference based on race, nationality, ethnic and social origin, language, religion, beliefs, gender, sexual orientation, age, disability, non- infectious chronic disease, HIV contamination, affiliation to a disadvantaged category, as well as on any other criterion aiming or resulting in the restriction or hindering of the recognition, use or exercise, under equality conditions, of the human rights and fundamental freedoms or of the rights recognized by the law in the political, economic, social and cultural field, or in any other fields of public life”. 228. In the same regard, Council Directive 2000/43/EC implementing the principle of equal treatment between persons, irrespective of racial or ethnic origin” defines in art. 2 par. 4 the order or instruction to discriminate, ruling: „An instruction to discriminate against persons on grounds of racial or ethnic origin shall be deemed to be discrimination within the meaning of paragraph 1” (par. 1 of art. 2 of Directive 43/2000 defines direct discrimination and indirect discrimination respectively). 27

(Excerpt of Decision no. 278 of 22.04.2008, NCCD ).

III. ARTICLE 4 OF DIRECTIVE 2000/43/EC

Transposition of the concept of specific occupational requirements. Interpretation of concept

229. In the analysis of the notified aspects, the Committee acknowledges that Directive 2000/78/EC establishing a general framework for equality of treatment in employment and occupation, Directive 2000/43/EC of the Council of 29 June 2009 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, as well as Directive 2002/73/EC amending Council Directive 76/207/CEE of the Council on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions in art. 4 and art. 2 par. 6 rule that the Member States may provide, as regards access to employment that ” a difference of treatment which is based on a characteristic related to racial or ethnic origin, religion or conviction, disability, age, sexual orientation and sex shall not constitute discrimination where, by reason of the nature of the particular occupational activities or the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate”.

27 Committee Decision no. 278 of 22.04.2008, reasoning drawn-up by NCCD Steering Committee member, Dezideriu Gergely

     RO - Piaţa Valter Mărăcineanu 1-3, sector 1,
      Bucureşti, Tel / fax 021-312.65.78/79/85                   60                     „building trust in human rights”
                   www.cncd.org.ro