The ETD is not necessary
Any piece of legislation must be necessary. In the case of the ETD, it must be shown that there is a need for such wide-ranging anti-discrimination laws, but this need hasn’t been demonstrated.
No objective data
First of all, the Commission has failed to show, with objective data, where and to what extent the discrimination that the ETD attempts to deal with takes place.
Rather, in its impact assessment, the EP uses subjective data from the EC Special Eurobarometer, stating (emphasis added):
- “17% of Europeans report they have personally felt discriminated against or harassed (in the course of 12 months prior to the survey).” 
- “Many Europeans believe discrimination is widespread, in particular on grounds of sexual orientation (51%) and disability (45%), age (42%) and religion (42%) and embraced several areas, notably housing, education and services.”
These data tell us how people feel and what they believe about discrimination, but they don’t tell us anything about actual discrimination in the EU.
Regulations already in place
An EU-wide minimum standard in non-discrimination with regards to employment and public services certainly makes sense. But this is already regulated by various other EU Directives, such as Directives 76/207/EEC and 2004/113/EC ensuring equal treatment for men and women in the employment area and in the provision of goods and services, the Racial Equality Directive 2000/43/EC, and Directive 2000/78/EC establishing a general treatment for equal treatment in employment and occupation. It remains unclear why the EU needs to place such a massive bureaucratic burden on all citizens based on vague assumptions of discrimination.
The ETD goes too far in its provisions
Legislation also needs to be proportionate. That is, the form and content of the action must be in keeping with the aim pursued. So for the ETD, this means making sure that its provisions are warranted, relative to the aim of reducing discrimination. This has not yet been demonstrated.
No evidence that limits on personal freedom are proportionate
By the Commission’s own admission, “it is difficult to provide reliable and comprehensive information on (…) the measures to combat discrimination” (EC 2008 Impact Assessment, p 33) . This being the case, it fails to show how the ETD would strike a reasonable balance between different competing interests. It also doesn’t give any guarantee that the limitations in personal freedom inherent in the ETD would be proportionate to the aim of reducing discrimination.
Authority of member states undermined
Article 13 of the ETD, in reference to national laws, states that:
- “Any laws, regulations, and administrative provisions contrary to the principle of equal treatment are abolished;
- Any contractual, 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.”
This means that the ETD could have a huge impact on a wide range of existing national laws. It would deprive Member States of the power to regulate the business sector and also limit, in an unprecedented manner, both freedom of contract (which represents the basis of civil law) and personal autonomy.
The ETD’s aims are best achieved at the national level
The EU is committed to the principle of subsidiarity, meaning that the Union doesn’t take action unless it is more effective than action taken at national, regional or local level . The ETD contravenes this principle because discrimination is best tackled by Member States themselves.
The kind and degree of discrimination is very different in each Member State; Bulgaria has different problems to Sweden, Italy differs from Lithuania, and so on. This is because no two nations share exactly the same culture, history and people groups. These differences indicate that discrimination is dealt with far more effectively by each national government than it is by EU legislation.
The ETD is a “one size fits all” solution to a problem that actually requires a tailor-made solution for each Member State.
The lack of proven necessity of the ETD, its broad regulatory scope, and the lack of agreement among the Member States on the ETD, all suggest that it would be wiser to regulate anti-discrimination at the level of the Member State.