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     HOW THE ‘EQUAL TREATMENT’ DRAFT DIRECTIVE MAY AFFECT THE
      BODY OF CHRIST IN THE UK AND THE REST OF EUROPE BY 2011

    AN ADVISORY DOCUMENT PREPARED IN ASSOCIATION WITH CHRISTIAN CONCERN
                                            1
                             FOR OUR NATION

                                              INDEX

    1.0   INTRODUCTION


2.0       KEY DIRECTIVE ELEMENTS

          2.1      Direct and Indirect
                   Discrimination

          2.2      Harassment

                                                      2.21   Harassment Definition

                                                      2.22   A Recent Harassment
                                                             Amendment Proposal
          2.3      The assumption of guilt

          2.4      No upper limit for
                   compensation

3.0       IMPACT OF THE DIRECTIVE

          3.1      Not for profit organisations

                                                      3.11   Scope

                                                      3.12   Christian Unions and Similar
                                                             Bodies
                                                      3.13   Amending Scope of Member
                                                             States
3.2                The directive and church
                   bodies
                                                      3.21   Protective Clauses
3.22               Potential Application Advice
                                                      3.23   The Church and Fundamental
                                                             Human Rights

                                                      3.24   The Absence of Checks and
                                                             Balances

4.0       DIRECTIVE IMPLICATIONS


1
 Further advice may be obtained directly from CCfoN http://www.ccfon.org It is
particularly worthwhile accessing the video ‘EU Directive on Equal Treatment:
Professor Wagner Explains Concerns’.


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        4.1      Application to those running
                 businesses

        4.2      Christian missionary
                 organisations

        4.3      The media

        4.4      Application to churches

5.0     CONCLUSION

6.0              What can be done

END NOTES




                                    SUMMARY
The European Commission has drafted an anti-discrimination Directive that is
now in its final stage of amendment, before being imposed on the UK and all
other Member States of the European Community. Although termed ‘Equal
Treatment’, its secularist impact is highly likely to subdue Christian debate and
witness, and reduce freedom of speech generally to a degree not experienced in
the UK for centuries.

Although covering age and disability, its reach into religion and sexual orientation
will impact to varying extents on Christian bodies of all kinds, as well as individual
believers. Threatened and direct civil action through the courts with unlimited
compensation for aggrieved parties may severely hamper or destroy established
Christian mission and voluntary bodies, and potentially handicap church
ministries. For organisations and associations affected, internal rules would have
to change that could open the way for membership criteria challenges, such as
Christian Unions

An impossibly loose definition of ‘harassment’, the assumption of guilt by the
accused, and other criteria will create an indefensible scenario for individuals and
organisations, including the media. An immense opportunity is likely to open up
for disaffected individuals and organisations opposed to the Christian Gospel and
its outworking to threaten or start legal proceedings, with little risk to the
perpetrators.

An appeal is made for the Christian Church everywhere in the UK and Europe to
both pray and speak out whilst there is still opportunity.

Anthony Busk Chair, March of Repentance. +44(0)1482 666073 077 185 18759
abusk@insight.karoo.co.uk




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  HOW THE ‘EQUAL TREATMENT’ DRAFT DIRECTIVE MAY AFFECT THE
   BODY OF CHRIST IN THE UK AND THE REST OF EUROPE BY 2011

      AN ADVISORY DOCUMENT PREPARED IN ASSOCIATION WITH ‘CHRISTIAN
                       CONCERN FOR OUR NATION’

                               1.0    INTRODUCTION

The proposed Directive1 will implement outside of the labour market the principle
of equal treatment between persons irrespective of religion or belief, disability,
age or sexual orientation. Currently EC law only applies to employment,
occupation and vocational training, but should the Directive become law it will
have a far wider scope. It will apply to healthcare, social security, housing,
education and to individuals and organisations “performing a professional
activity or commercial activity” in the provision of goods and services available to
the public. If approved, the Directive will apply across all EU Member States,
including the United Kingdom.

                        2.0    KEY DIRECTIVE ELEMENTS

2.1     DIRECT AND INDIRECT DISCRIMINATION
The Directive defines Direct Discrimination as:
 “…where one person is treated less favourably than another is, has been or
would be treated in a comparable situation, on any of the grounds referred to in
Article 1.
That is on the grounds of religion or belief, disability, age, or sexual orientation”
(Article 2 (2) a2). In other words, discrimination can be very straightforward and
visible.

Indirect discrimination is more complex. The Directive states:
Indirect discrimination shall be taken to occur where an apparently neutral
provision, criterion or practice would put persons of a particular religion or belief,
a particular disability, a particular age, or a particular sexual orientation at a
particular disadvantage compared with other persons, unless that provision,
criterion or practice is objectively justified by a legitimate aim and the means of
achieving that aim are appropriate and necessary. (Article 2(2) b3)
This means that a person or organisation may behave inadvertently in a way that
creates a disadvantage compared with others.

2.2     HARRASSMENT

2.21 Harassment Definition
A central tenet of the Directive is the test of harassment. This is described in
Article 2(3) as follows:
Harassment shall be deemed a form of discrimination within the meaning of
paragraph 1, when unwanted conduct related to any of the grounds referred to in
Article 1 takes place with the purpose or effect of violating the dignity of a person


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and of creating an intimidating, hostile, degrading, humiliating or offensive
environment (Article 2(3)4)..

The definition is extraordinarily wide, with massive legal ambiguity, lacking the
definitions normally present in law that would enable an individual or organisation
to predict and therefore avoid behaviour that could be actionable. Harassment
can take different forms, including unwanted verbal, physical, or other non-verbal
conduct.

2.22 A Recent Harassment Amendment Proposal
The Swedish Presidency in the Council of Ministers is currently having a series of
meetings proposing amendments to the original Directive text, to be agreed and
negotiated upon with Member States. The final text of the Directive is therefore
unknown. One proposed amendment is in the recitals, which provide an
interpretative description of the main enabling Articles.           A new recital
interpretation and descriptive expansion of the term ‘harassment’ suggests
‘repetition’ would be necessary, and a personal opinion would be acceptable5.
However, the actual Directive enabling Articles have not been altered. Also,
recitals do not in principle have a substantive effect in themselves. It is the actual
Directive enabling Articles that really count.6

If this proposed recital amendment is accepted in the final text then conduct
deemed to be harassment in the meaning of this Directive is:
…when it is either repeated or otherwise so serious in nature that it has the
purpose or effect of violating the dignity of a person and of creating an
intimidating, hostile, degrading, humiliating or offensive environment. In this
context, the mere expression of a personal opinion or the display of religious
symbols or messages is presumed as not constituting harassment.

Whilst it is helpful to include the need for repetition or seriousness for
harassment to apply, it does not alleviate the need for harassment to be totally
removed from the Directive on the grounds of religion or belief and sexual
orientation. For example, what would happen if a personal opinion was
repeated? Then this might potentially be caught within the legislation. It may also
be necessary to prefix everything that a Christian said with the statement ‘that in
my personal opinion’ Jesus is the way, the truth and the life, rather than state this
as an absolute truth. The chilling effect on free speech for Christians when
providing goods and services is all too apparent.
…
2.3     THE ASSUMPTION OF GUILT
The principle of Anglo-Saxon law with few exceptions is for the respondent to be
considered innocent of a charge unless there is sufficient evidence to show guilt.
However, this Directive reverses that role, and the respondent, which may be an
organisation, is no longer considered from the outset to be innocent until proven
guilty. This is spelt out clearly under Article 8:




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“Member States shall take such measures as are necessary, in accordance with
their national judicial systems, to ensure that, when persons who consider
themselves wronged because the principle of equal treatment has not been
applied to them establish, before a court or other competent authority, facts from
which it may be presumed that there has been direct or indirect discrimination, it
shall be for the respondent to prove that there has been no breach of
the prohibition of discrimination. “(Burden of Proof Article 87).

2.4    NO UPPER LIMIT FOR COMPENSATION
The civil law, not the criminal law is the recourse for those who believe their
dignity is violated, and8 an intimidating, hostile, degrading, humiliating or
offensive environment has been created. However, there is no upper limit stated
in the Directive:
The punishment for those confirmed as ‘guilty’ are such that sanctions may
comprise the payment of compensation, which may not be restricted by the fixing
of a prior upper limit, and must be effective, proportionate and dissuasive.
(Sanctions Article 149).

                       3.0    IMPACT OF THE DIRECTIVE

3.1   NOT-FOR-PROFIT ORGANISATIONS

3.11 Scope
As well as businesses and professions, Member States will have to ensure that
non-profit making associations also will be legally required to change their
internal rules to maintain a non-discriminatory environment should the Directive
affect them. Article 13 puts it this way:
Any contractual provisions, internal rules of undertakings, and rules governing
profit-making or non-profit-making associations contrary to the principle of equal
treatment are, or may be, declared null and void or are amended (Article 13
Compliance10)

The scope of the Directive is extremely wide, covering social protection (includes
social security and health care), social advantages11 and education. It therefore
not only covers the commercial sector with its financial contractual element, but
the provision of services usually covered by professionals, such as doctors or
social workers. Charitable bodies in general, whether or not they are registered
with the Charities Commission, will be covered where they could be deemed to
provide a service to the public when performing a professional service or
commercial activity.

Therefore Article 13 of the Directive would obviously include rules regarding
direct and indirect discrimination, and the application within the organisation not
to infringe the broad definition of harassment. Internal rules and undertakings
which do not adhere to the principle of equal treatment would be declared to be
null and void, and could well mean the association cannot confine its



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membership or leadership criteria to those holding particular beliefs if it is to
provide equal treatment.

3.12 Christian Unions and Similar Bodies
There is a Gender Directive that prohibits discrimination for men and women on
the grounds of sex. An additional later provision was added in order to protect
differences in treatment for single sex clubs, so as to allow for differences in
freedom to associate where there was a legitimate aim to do so.12 No such extra
provision is being proposed in this Directive to allow for differences in treatment
for religious associations. Therefore this article is also likely to adversely affect
the integrity of religious associations such as Christian Student Unions. Whilst
fundamental rights such as the freedom to associate may be argued in defence,
this will not prevent the possibility of claims of discrimination being brought in the
first place.

3.13 Amending Scope of Member States
Potentially, Member States will take necessary measures to ensure that an
organisation even with professional voluntary workers 13 would not discriminate
regarding age, disability, sexual orientation and religion. However, recent
proposed changes to the Directive suggest that the meaning of terms such as
“ professional” or “commercial activity” will be determined by nations themselves.
If this is confirmed within the Directive articles, this will provide limited flexibility.

Current UK laws allow for the inclusion of goods and services whether or not they
are charged for. This is despite Article 50 of the EC Treaty, which indicates that
the meaning of services should only include those that are “normally provided for
remuneration”. A simple way to solve this dilemma would be to state in both
domestic and European Directives that this does not include services which are
not directly paid for.

3.2    THE DIRECTIVE AND CHURCH BODIES

3.21 Protective Clauses
In its preamble, the Directive document comments that it does not affect national
rules governing the activities of churches and other religious organisations or
their relationship with the State.14 However, although there are checks and
balances for disability and age discrimination, it is significant that these do not
appear within sexual orientation or religion.

The original draft Directive contained a protective clause regarding “… the status
and activities of churches and other organisations based on religion or belief,”
(Article 3 (4)), but the advisory EU Parliament proposed an amendment that the
Directive would apply within areas that fall within EU competences15. In doing,
so this was an invasion into the concept of Subsidiarity, the principle that agreed
areas of Commission proposals should not be imposed on Member States. This
amendment is therefore contrary to Declaration 11 of the Treaty of Amsterdam 16,



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which affirms the respect of the EU for the status of such groups as churches
under national law.

However, the amendments suggested by the European Parliament are advisory
only. The real power to make changes resides with the Council of Ministers at
national level. The Council of Ministers has national representatives from each
Member State, which is why it is important for each State to contact their
respective Minister responsible for Equality issues. So far, the Council of
Ministers have retained the original protective paragraph within Article 3.
However, such protection for churches and other religious organisations is better
in a solidly Christian country where national laws protect such beliefs, than in a
country such as the UK moving to a more secular agenda. This is particularly
important as Nations have scope in translating the Directive into law.

3.22 Potential Application Advice
A summary of the legal advice of Mr James Dingermans QC 17 on the proposed
Directive has stated that::

      “Religious exemptions... do not extend to individuals or religious
       organisations carrying out professional or commercial activities.”
      “Where church based groups hire facilities to enable them to run social
       activities, the religious exemption will not protect them...”.
      “Where religious organisations provide welfare and care, a claim for
       discrimination could be made against the organisation for refusing to
       condone same sex activities e.g. refusing a double room in a Christian
       home to a same sex couple...”.

.
3.23 The Church and Fundamental Human Rights
In this European Directive, the prohibition of discrimination is meant to go hand
in hand with fundamental human rights. The European Convention on Human
Rights,18 incorporates:
  “the right to freedom of thought, conscience and religion”. This includes “the
freedom to change a religion or belief, and to manifest a religion or belief in
worship, teaching, practice and observance, subject to certain restrictions that
are in accordance with law and necessary in a democratic society” (Article 9).

The European Court of Human Rights has also stated that all Member States
must grant the right to transmit religious knowledge and beliefs in a way that can
be defined as objective, critical and pluralistic. Governments must also avoid
indirect support for dogmatism or cultural and ethnic totalitarianism19.

The International Covenant on Civil and Political Rights (Article 18) which is
based on the 1966 Declaration of Human Rights20 states:
“Freedom to manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law”. Such laws include those necessary to


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protect public safety, order, health, or morals. Additionally, laws should protect
“the fundamental rights and freedoms of others”.

The draft Equal Treatment Directive recital 17 states that:
“Whilst prohibiting discrimination it is important to respect other fundamental
rights and freedoms, including the protection of private and family life and
transactions carried out in that context, the freedom of religion, and the freedom
of association...”

Regrettably, such fundamental rights are only in the descriptive interpretative
recitals as opposed to the enabling articles. It is of concern that the Maruko
case21 for the Employment Directive over-ruled a recital due to the “principle of
equality”. How far this “principle of equality” will be taken in future cases is
unclear. However, it is already of concern how little weight is being placed upon
fundamental human rights in Article 9 in recent English cases.

For example, there is the Employment Appeal Tribunal (EAT) case of Lilian
Ladele, the registrar who refused to undertake civil partnership ceremonies due
to strongly held religious beliefs, which is currently being appealed to the Court of
Appeal. The Tribunal stated, “The European Court of Human Rights has in fact
adopted a very narrow protection indeed for employees who seek to rely on their
article 9 rights.”22 Yet the International Covenant on Civil and Political Rights
considers the human rights of freedom of thought, conscience and religion in
Article 18 as so important that even in time of public emergency, which threatens
the life of the nation, Article 4, does not allow any derogation from Article 18.23

3.24 The Absence of Checks and Balances
It is where the draft Directive really misses the balance between rights        and
freedoms of others and religious liberty that is critical. The absence of       any
checks, balances and exceptions for religious organisations regarding            the
conflicts between religions and between religion and sexual orientation is of   real
concern.

The Government Equalities Office’s partial equality impact assessment on the
Directive in the UK does recognise there are concerns, and has stated as
follows:

      “The UK currently has a number of balances in relation to religion and
       belief and sexual orientation and would wish to be able to preserve these-
       for example exceptions for religious organisations from the prohibition
       against discrimination on the grounds of sexual orientation”.24

      “..current UK legislation is subject to a number of exceptions which have
       been considered necessary in order to balance the potentially conflicting
       fundamental rights of different groups. For example, our UK domestic
       legislation has been construed in order to achieve a balance between



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       EHRC Article 8 rights (the right to respect for private and family life ) of
       “gay”25,lesbian and bi-sexual persons with the Article 9 rights (freedom of
       thought, conscience and religion) of others, including service providers
       with a religious ethos, together with the Article 10 rights of (freedom of
       expression) of both groups.26

In terms of the negative impact of the Directive due to the harassment inclusion,
,the Government Equalities Office in the UK has stated as follows:

      “The UK has specific concerns about the proposal in this Directive to
       eliminate harassment on the grounds of religion and belief and sexual
       orientation outside of the workplace. In the UK this proposal was
       previously considered, and subsequently rejected as part of the extensive
       public consultation for the forthcoming Equality Bill. 27 Its potential inclusion
       was rejected as the consultation did not highlight any substantial evidence
       that there was a need for such protection. In fact, the consultation actually
       highlighted quite extensive concerns about the implications of adopting
       such harassment provisions due to the effect that the provisions might
       have with regard to: freedom of speech; academic freedom; the rights of
       those with a religious motivation to proselytise their faith ;and the possible
       “chilling” effect the provisions would have on religious groups delivering
       public services.”28

                        4.0    DIRECTIVE IMPLICATIONS

The combination of the vagueness of the definition of harassment, potentially
unlimited compensation through the civil courts, and a presumption of guilt will
create a poisonous chalice that is virtually insurmountable. The door will be open
for pressure groups such as Islam and other religious bodies, homosexual
organisations, and secular societies to challenge conventional Christian opinions
and behaviour on the grounds of creating an intimidating, hostile, degrading,
humiliating or offensive environment.29

Although the European Convention on fundamental human rights such as the
right to freedom of expression exists as a default mechanism to prevent a
potentially systematic silencing of Christianity across Europe, there is sufficient
vagueness within the Directive to create litigation through to the European Court
of Human Rights. The Directive will be required to be transposed into national
law, and existing national law will always be applied at first instance. Even in the
European Courts there is the possibility that an undue emphasis may be placed
upon the “principle of equality”. The Directive’s impact will be immense and
cast a cloud on religious liberty not seen in the UK since the Dark Ages.

There will be a chilling effect upon free speech as Christians who in the
course of providing goods and services woold fear offending someone of another
religion or belief, and specifically when professing biblical truths on sexual ethics.



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Although the Directive covers goods and services and not employment, it will
have an indirect impact on the employment of Christians in every commercial
enterprise or public sector body when supplying goods and services to the public.
For example, an employer providing printing services may no longer wish to
employ Christian staff who do not wish to print for a “homosexual” event The
employer will fear being sued without fixed upper limit if Christian staff fail to keep
quiet about their beliefs. The Directive has the potential to have a devastating
impact on Christian employment across Europe.


4.1    APPLICATION TO THOSE RUNNING BUSINESSES
Apart from the direct costs involved in applying Equal Treatment legislation, there
will be indirect expenses such as insurance against the risk of litigation, with
potentially rigorous conditions to minimise it happening. Secular competitors or
public funders may potentially deliberately use the legislation to damage
Christian firms who wish to provide services in accordance with their Christian
conscience. It has the potential to damage free and fair competition in the
provision of goods and services across Europe with secular providers being
preferred.

4.2    CHRISTIAN MISSIONARY ORGANISATIONS
Charitable status will be no protection, and well respected missionary bodies
although being recognised as religious bodies, may still be challenged by militant
groups opposed to their ministry. It is the combination of harassment,
presumption of guilt, recourse through the civil law, and unlimited compensation
that is so potent. Consequent legal costs could be crippling, and many of our
household name societies could disappear.

4.3    THE MEDIA
The content of media and advertising are not excluded from the Directive, and
although it could be recognised legally as a religious organisation, it is TV or
radio programmes, literature production including Bibles, and marketing
strategies that may be a hunting ground for potential litigants. The ability to
easily claim discrimination and initiate numerous challenges could rapidly reduce
robust evangelical organisations into poverty and cessation. Secular media will
also not escape. It may also lead to a censorship of the press and media as a
result of a chilling effect upon freedom of expression due to fear of offending
those of a particular sexual orientation. The protection of traditional family values
may also suffer as a result.

4.4    APPLICATION TO CHURCHES
The Directive might be applied in particular circumstances. If one assumes the
British Government upholds strongly the principle of Subsidiarity the Sunday
service and mid-week meeting could escape censure. However, if there is a
semi-autonomous ministry taking place, particularly if it is sustained by a




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commercial activity such as a coffee bar or bookshop, it may be argued that the
Directive is applicable in such circumstances.

Although the Directive is stated to allow for national legislation concerning the
status and activities of churches and other organisations based on religion or
belief in Article 3(4); in view of the vagueness of the Directive wording, would a
Minister on a Sunday be viewed by some in Article 3(1) (d) as an individual
“performing a professional” service to the public and thereby come under the
Directives provisions?

                                 5.0   CONCLUSION

This analysis of the Draft Equal Treatment Directive has revealed grave
implications for freedom of speech both in the secular and Christian sphere.
Despite recent proposals and adjustments in the recitals, as it stands the
principle key elements remain. The combination of harassment, assumption of
guilt, no upper limit on compensation, broad application, with a subtle bias
against Christianity will provide unprecedented power to disaffected individuals
and groups.

It has immense potential to not only severely subdue Christian testimony, but
also indirectly affect the employment opportunities and job security of Christian
Believers. It could result in Christian businesses who provide goods and services
to the public being ruined, and missionary bodies being forced to close down. A
cloud will hang over churches and fellowships across the UK and the rest
of Europe, with Christian media organisations severely handicapped. There are
no religious conscience exceptions, and the strength of existing EU and
international Human Rights legislation may be insufficient to counter the
Directive’s power, particularly in secularist States.

Its roots in part lay with Brussels lawyers as a Commission proposal determined
to subdue the historic independence the Church in Europe to teach doctrine and
morals contrary to secularism.

                           6.0     WHAT CAN BE DONE

Certainly appeasement is not the answer, as this will just encourage rigorous
application as secular and opposing religious and sexual orientation groups take
advantage. Waiting for 2011 also is not acceptable, as whether or not the
Directive is approved shortly, the lobbying to mould its application will commence
straight away.

National prayer is vital. At this stage, also contacting MPs and the Equality
Minister in each European Nation to make them aware of the Directive will
be very productive, as they have their own networks to reach pivotal ministers
and others who are likely to show concern. The British Government itself has



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reservations on the Directive, particularly about the harassment clause, but
otherwise it does not appear to be raising objections. The following options may
be suggested when writing:

    The first option would be to say No to the Directive. Currently one Nation
     can currently veto, but when the Lisbon treaty applies then the majority
     vote rules.

    The second option would be to remove sexual orientation and religion
     from the Directive. The original Directive only covered disability!

    The third option would be to make amendments to a “bad text” to try to
     improve it.

    The fourth option would include removing “harassment”, and reverse the
     iniquitous principle of the burden of proof falling on the accused rather
     than the complainant.

    The fifth option is to allow a religious conscience exception and the
     necessary checks, balances and exceptions.

 By 2011, this Directive will become law unless through prayer and
testimony it is halted, with final decisions expected in the next few weeks,
possibly November 09.

Christians everywhere need to cry to God for mercy and grace at this time of
crisis in our Christian history, and not recede into relative oblivion. The blood of
martyrs was shed to achieve religious liberty – will the Church and its
leaders, particularly in the UK, be noted in future history books as those
who betrayed the Cause for which they fought?




Anthony Busk
Chair, March of Repentance

October 22nd 2009

Note
This document has been prepared in close collaboration with CCfoN. It is
therefore recommended that for further information of a technical nature,
including updates on the Directive’s passage through the Council of
Ministers, contact CCfoN directly. (http://www.ccfon.org 020 7467 5427).




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End notes
1
  Proposal for a Council Directive on implementing the principle of equal
treatment between persons irrespective of religion or belief, disability, age or
sexual orientation (presented by the Commission) Brussels, 2.7.2008.
http://www.europarl.europa.eu/meetdocs/2004_2009/documents/dv/com(2008)42
6_/com(2008)426_en.pdf
The proposed EU Directive on Equal Treatment outside Employment can be
found at the following link:
http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52008PC0426:EN:NOT
2
    Ibid 1 first reference see page 18 .
3
    Ibid 1 first reference see page 18
4
    Ibid 1 first reference page 19.
5
  “…Harassment can take different forms, including unwanted verbal, physical, or
other non-verbal conduct. Such conduct may be deemed harassment in the
meaning of this Directive when it is either repeated or otherwise so serious in
nature that it has the purpose or effect of violating the dignity of a person and of
creating an intimidating, hostile, degrading, humiliating or offensive environment.
In this context, the mere expression of a personal opinion or the display of
religious symbols or messages is presumed as not constituting harassment.”
(Council of Ministers Working Party Record Sept 13th. 09)

6
  For example, the European Court of Justice Case C-267/06 Tadao Maruko:
discrimination against civil partners April 2008, when the ECJ ruled that a recital
in an Employment Directive could be over-ruled by the principle of equal
treatment.
7
  Ibid 1 page 21.
8
  In UK law for harassment the disjunctive “or” is used rather than the conjunctive “and”
found in European Directives.
9
    Ibid 1 page 23
10
     Ibid 1 page 23
11
 Proposed to be deleted in (Council of Ministers Working Party Record October 14. 09
meeting). Reference is now made to “social assistance” instead.




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12
   See http://www.telegraph.co.uk/news/uknews/1507012/Europe-blasts-away-
traditional-sex-discrimination-at-golf-clubs.html
When the new directive was approved by EU states, a paragraph was added, saying
differences in treatment could be "justified by a legitimate aim". Such aims include:
"Freedom of association, in cases of membership of single-sex private clubs."
13
   The proposed Directive is stated in Article 3 (10 (d) to cover individuals for the
only in so far as they are performing a professional or commercial activity. This
has been recently suggested to change from” individuals” to “natural persons”
with the terms “professional” or “commercial activity” being determined by nations
themselves. Nations may decide on a narrow or wide interpretation of such
terms, leaving this uncertain. (Subparagraph (d) shall apply to natural persons
only insofar as they are performing a professional or commercial activity defined
in accordance with national laws and practice.”) Council of Ministers Working
Party Record October 14. 09 meeting)

For example, a wide definition would allow professional to cover unpaid work as
well. Currently in our legislation in Britain, the definitions are wide and cover
unpaid work as well. Section 46(5) of the Equality Act 2006 which covers goods
and services in relation to religion or belief states that it is immaterial whether or
not a person charges for the provision of goods and services.
http://www.opsi.gov.uk/Acts/acts2006/ukpga_20060003_en_5#pt2-pb2-l1g46

The Equality Act(Sexual Orientation) Regulations 2007 in regulation 4(4) has
similar provisions to cover work with whether or not a charge is made in relation
to outlawing discrimination in the provision of goods and services on the grounds
of sexual orientation..

ttp://www.opsi.gov.uk/si/si2007/uksi_20071263_en_1#l1g3
It appears contrary to Article 50 of the EC Treaty where services should be
taken as those within the meaning of Article 50 of the EC Treaty.

“Article 50 :Services shall be considered to be "services" within the meaning of
this Treaty where they are normally provided for remuneration, in so far as they
are not governed by the provisions relating to freedom of movement for goods,
capital and persons.

"Services" shall in particular include:

     (a) activities of an industrial character;
     (b) activities of a commercial character;
     (c) activities of craftsman;
     (d) activities of the professions.

Without prejudice to the provisions of the chapter relating to the right of
establishment, the person providing a service may, in order to do so, temporarily


             EU Draft Directive ‘Equal Treatment’ Advisory Document October 09
                                                                                    15



pursue his activity in the State where the service is provided, under the same
conditions as are imposed by that State on its own nationals.”

http://eur-lex.europa.eu/en/treaties/dat/12002E/htm/C_2002325EN.003301.html
14
   The Directive does not therefore require any Member State to amend its
present laws and practices in relation to these issues. Nor does it affect national
rules governing the activities of churches and other religious organisations or
their relationship with the state (Subsidiarity and Proportionality p8).
15
   . This Directive shall not apply to national law ensuring the secular nature of
the State, State institutions or bodies, or education, or concerning the status,
activities and legal framework of churches and other organisations based on
religion or belief where this falls outside the competence of the EU. Where the
activities of churches or other organisations based on religion and belief fall
within EU competence, they shall be subject to the Union's non-discrimination
provisions. It is equally without prejudice to national legislation ensuring equality
between males and females (amended Article 3 (4.4)
16
   Declaration No. 11 of the Final Act of the Treaty of Amsterdam states that the
European Union respects and does not prejudice the status of churches and
religious associations and communities and also non-confessional bodies
asrecognised in each Member State.
17
     See http://www.christian.org.uk/issues/2008/eudirective/dingemansopinion.pdf
18
  The European Convention on Human Rights (ECHR) was adopted under the
auspices of the Council of Europe in 1950 to protect human rights and
fundamental freedoms. All Council of Europe Member States are party to the
Convention and new members are expected to ratify the convention at the
earliest opportunity.

4 Giulio Murano address delivered at the International Coalition for Religious
Freedom Conference on "Religious Freedom and the New Millenium" Berlin,
Germany, May 1998
20
  The International Covenant on Civil and Political Rights is a United Nations
Treaty based on the Universal Declaration of Human Rights created in 1966 and
came into force on 23 March 1976
21
   For example, the European Court of Justice Case C-267/06 Tadao Maruko:
discrimination against civil partners April 2008, when the ECJ ruled that a recital
in an Employment Directive could be over-ruled by the principle of equal
treatment.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006J0267:EN:HTML



             EU Draft Directive ‘Equal Treatment’ Advisory Document October 09
                                                                                       16


22
   See paragraphs 118 to 120
http://www.christian.org.uk/eat_ladele_19dec08.pdf
23
     See Articles 4 and 18 http://www2.ohchr.org/english/law/ccpr.htm
24
   See GEO’s answer to question 3;
http://www.equalities.gov.uk/pdf/Directive%20Partial%20Equality%20Impact%20Asses
sment%20v2.pdf
25
     Quote marks due to the correct terminology being “homosexual”.
26
   See GEO’S answer to question 4:
http://www.equalities.gov.uk/pdf/Directive%20Partial%20Equality%20Impact%20Asses
sment%20v2.pdf
27
   The Equality Bill is currently going through Parliament and is subject to amendments .
The current version as amended in the Public Bill Committee of the House of Commons
can be found at the following link:
http://www.publications.parliament.uk/pa/cm200809/cmbills/131/09131.i-vii.html
Clause 28(8) of the Equality Bill excepts harassment in the provision of goods and
services for the protected characteristics of religion or belief and sexual orientation.
28
   See answer to question 4b:
http://www.equalities.gov.uk/pdf/Directive%20Partial%20Equality%20Impact%20Asses
sment%20v2.pdf
29
   The definition of harassment in this country uses the disjunctive “or” in the
definition rather than the conjunctive “and”. The latest Swedish proposals will
allow nations to determine the definition and so it is likely that the more stringent
definition will be retained in Britain.




              EU Draft Directive ‘Equal Treatment’ Advisory Document October 09

				
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