Proportionality implies a careful balancing between the interests at stake, the goals pursued, the means employed to reach them and the rights and freedoms that might be curtailed in this process.
The European Commission hasn’t proven that the ETD is proportionate to the aims pursued and that there were no less restrictive means available to deal with the issue of discrimination.
The ETD’s aim is tackling and reducing discrimination in a wide “range of areas outside the labour market, including access to social protection, access to education and access to and supply of goods and services, including housing” (ETD, Recital 9).
Despite the obvious far-reaching scope of the ETD, the Commission admits that “it is difficult to provide reliable and comprehensive information on (…) the measures to combat discrimination.” (Impact Assessment, p 33)
This being the case, it fails to show how the ETD would strike a reasonable balance between different competing interests, such as freedom of contract, freedom of expression, freedom of thought, conscience and religion. It also doesn’t guarantee that the limitations in personal freedom inherent in the ETD would be proportionate or would even contribute to reducing discrimination.
The unbalanced character of the ETD is reflected by article 13 which states, with reference to national laws, 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.”
What this means is that the ETD could have a huge impact on a wide range of existing national laws, depriving Member States of the power to regulate the business sector and limiting, in an unprecedented manner, both freedom of contract and personal autonomy.