Czech Republic: Senate votes 55-3 against controversial EU “Anti-Discrimination” and “Gender Quota” Directives

Coming from a relatively small country and published exclusively in a language that is not spoken by many, resolutions by the upper house of the Czech parliament usually do not get a big echo outside the country’s borders.

In this case, however, the vote is of significant importance for the entire European Union. With a majority of 55 against 3 votes, the Senate has adopted a resolution that severely criticizes country’s centre-left Government led by social-democrat Prime minister Bohuslav Sobotka for having changed its (previously negative) position with regard to the European Commission’s proposals for a horizontal “Anti-Discrimination Directive” and for a Directive that would provide for a compulsory gender quota for the supervisory boards of public companies traded on stock exchanges. In other words, while the Commission may still believe to have persuaded the Czech Republic to endorse those proposals, this may actually not be the end of the story.

The background is that the Czech Republic has for a long time opposed both proposals, both of which are – fore highly ideological reasons –  among the Commission’s top political priorities despite well-founded criticism that they disrespect the principle of subsidiarity. The surprising choice of Commission President Jean-Claude Juncker to confer responsibility for both proposals to Věra Jourová, the Commissioner designate from the Czech Republic, may have been due precisely to his expectation that she rather than anyone else might be able to sway her country into supporting the “Anti-Discrimination Directive”, which (jointly with Germany) it had steadfastly opposed for more than six years. And the strategy seemed to work: following a narrow electoral victory that brought the current government consisting of social-democrats and liberals to power, the Czech Republic announced that it had reconsidered its stance regarding the controversial proposal and was now willing to support it. This appeared to be a major breakthrough for the Commission.

As it turns out now, the Czech Government’s new position appears to lack political legitimacy. What may have changed is the position of some top Government officials – but not the opinion of the parliamentary majority. What is particularly impressive about the 55-3 vote on the resolution tabled by Senator Václav Hampl is that also the senators belonging to the government majority voted in favour of it. The 3 votes against all come from the social-democrat group – but within that group the vote was 21-3 in favour. ANO, the perty of which Commissioner Jourová is a member, voted 5-0 in favour.

Besides the “Anti-Discrimination Directive”, the Resolution also expresses an unfavourable opinion on the Commission’s gender quota proposal.

The original (Czech) text of the Resolution and the result of the vote are available on the official website of the Senate of the Czech Parliament. What you find below is an unofficial translation we have made for the convenience of our readership.


 

CR

 Resolution of the Senate

regarding

the Government’s report concerning the change of its positions on the proposal for a directive of the European Parliament and of the Council on improving the gender balance among the members of the Supervisory Board / non-executive members of companies listed on stock exchanges and related provisions

and

on the proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation.

 

The Senate of the Parliament of the Czech Republic:

I.

  1. takes the view that a fundamental change in the government’s position towards an EU draft legislative act whose implementation would depend on cooperation with the domestic Legislatures should first be debated in parliament;
  2. recalls that in its Resolution No. 566 on the development of the European Union in 2013, adopted at the 23rd session of the 9th parliamentary term on 23 July 2014, it asked the Government to ensure that, when a fundamental change occurs with regard to the Government’s position on such a draft EU legal act (in particular, when such changes concern the revision of framework positions) has been discussed in the Senate, the Senate is duly informed on any further development of the proceedings;
  3. stresses that this information should be obtained by the Senate when the Government official responsible for dealing with the EU legislative proposal concerned begins work on a proposal to redefine the Government’s position, since already at this moment it must know the reasons and purposes of these changes;
  4. also stresses that the government, when planning a change of its framework positions, should also be attentive to the fact that discussing the possibility of such changes in framework positions in the Senate can become much more difficult towards the end of the Senate’s mandate;
  5. considers it be inappropriate that Government representatives act in the EU institutions under the revised framework positions before these changes have been discussed in Parliament;

II.

  1. has considered the reasons which led the Government to change the framework position on the proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation;
  2. takes the view that a policy of equal treatment and protection against discrimination should be pursued primarily at the national level, since with the exception of coordination measures there is no reason why it should be implemented primarily through regulations adopted by the European Union, which despite their considerable societal importance are not informed by a sufficiently thorough public debate at the national level;

III.

  1. observes regarding the proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation that

– Act no. 198/2009 Coll., on equal treatment and legal means of protection against discrimination and amending certain laws (Anti-Discrimination Act) already now contains a number of provisions which the draft Directive would require;

– the adoption of the Directive would still have an important impact on many areas of the legal order, the scope and cost impact both for public budgets and private individuals cannot currently be estimated, mainly due to a too general requirement to ensure accessibility of goods and services for the disabled;

  1. requests the Government to submit to the Senate, prior to the eventual adoption of the Directive, a detailed analysis of the impact and cost guidelines for private persons and public institutions providing goods and services to which the Directive applies, as well as for local authorities and for the state;
  2. recalls that in its Resolution No. 485 on the proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, adopted at the 16th session of the 6th parliamentary term on 18 September 2008, it noted in particular that

– the proposed Directive is not consistent with the principles of subsidiarity and proportionality,

– the adequate way of dealing with the issue is at national level, which would allow EU Member States to flexibly respond to their specific needs and circumstances and corresponds better to the existing standards and practices;

– intrusion into the sphere of exclusive competences of national legislators is best prevented if the European Commission limited its focus on non-legislative forms of action;

– the definition of the scope of the directive for social protection, including social security and health care, social benefits, education and access to goods and other services which are available to the public, including housing, was considered to be too wide, not allowing to identify in advance the limits of legal regulation and its financial and other impacts;

– it disagreed with the reversal of the burden of proof to the detriment of the defendant in litigation in purely private relationships;

  1. notes that the reservations concerning the draft Directive that were expressed in the above-quoted resolution continue to persist;
  2. and therefore disagrees with the change of the Government’s position on the proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation;

IV.

  1. recalls Resolution No 163. on the proposal for a Directive of the European Parliament and of the Council on improving the gender balance among the members of the Supervisory Board / non-executive members of companies listed on stock exchanges, adopted at the 6th meeting of the 9th parliamentary term on 22 March 2013, which stated in particular that

– whilst being aware of the long-term significant gender imbalance in senior positions, the Senate considers that this imbalance may be caused by factors other than unequal treatment;

– it believes that it is premature to impose mandatory women quotas for all EU countries, given that the effects of such measures in the Member States that have taken them still need to be evaluated, and that this approach does not take into account the different conditions in which businesses operate in different Member States, the different traditions of administrative and supervisory boards of companies, and the inherent limits set to by the ownership rights of shareholders when it comes to deciding on the composition of the executive bodies owned by them;

– the Proposal relates only to members of supervisory boards and non-executive board members of companies listed on stock exchanges, which means that its real impact on equal opportunities for women and men will remain very limited, thus raising doubts about the effectiveness and meaningfulness of this proposal with regard to its stated objectives;

– far greater discrimination is faced by women with regard to motherhood, who at any stage of their career find it more difficult than men to effectively combine work and family life, and, as a consequence of this, lose out financially;

– the legislative initiative of the European Commission should therefore focus primarily on removing barriers that prevent the full participation of women in society, such as discrimination in regards maternity and parental leave, different pay for equal work and overcoming gender stereotypes;

  1. adds that in that resolution it urged the government to not to give up on issues of equal opportunities for women and men and to respect the recommendations of international and domestic institutions that have long pointed to the chronic lack of childcare facilities for pre-school children, the absence of support for flexible forms of employment for parents caring for children, and to problems associated with the return of parents to work;
  2. calls on the Government to respect, in the context of equal treatment policies, the priorities set by the Senate in the order set out above.
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