Journal on Ethnopolitics and Minority Issues in Europe (Oct 2002)
The Drafting of a Law against Discrimination on the Grounds of Racial or Ethnic Origin in Germany - Constraints in Constitutional and European Community Law
Abstract
On 29 June 2000 the European Council adopted the Race Equality Directive, which outlaws, inter alia, direct and indirect discrimination based on racial or ethnic origin regarding access to employment and supply of goods and services, which are available to the public. EC member states now have to adopt laws to comply with the directive. Thus, the German Federal Ministry of Justice introduced a Discussion Draft Law on the Prevention of Discrimination in the Private Sector. The publication of the discussion draft led to a debate among scholars and players in the field of anti-discrimination. some scholars endorsed the draft law. Other authors claimed that the draft law violates not only the constitution but also common sense. This article gives an overview of current German regulations against discrimination on the grounds of racial or ethnic origin, the discussion on the draft law and its compatibility with constitutional and European Community law. It will show, that most of the arguments against the draft law are unfounded. The author argues that the primary basis for an assessment of the compatibility with higher-ranking law is European Community law and not German constitutional law. However, a carefully drafted discrimination law in the sector of private and labour law would be consistent with the Basic Law. Owing to the recent election campaign in Germany, the adoption of the Draft Law was postponed. Thus, the author also discusses consequences deriving from European Community law, should it be the case that Germany fails to implement the Race Equality Directive, in the period prescribed by the directive.
