Ex-Commissioner Bolkestein: “Take the Equality Directive off the Agenda”

The controversial Commission proposal for a horizontal “Equal Treatment Directive”, also known as “Anti-Discrimination Directive”, apparently fails to convince Frits Bolkestein, a former EU Commissioner for the Interior Market and former leader of the Volkspartij voor Vrijheid en Democratie (VVD). In an op-ed in today’s edition of the daily De Volkskrant (English translation here), Bolkestein calls for the proposal to be ditched. Not only, writes the Ex-Commissioner, does the proposed measure fail to comply with the Subsidiarity Principle, which is a fundamental principle of the EU,  but it also undermines equality rather than promoting it, giving a better standard of protection to Salafists and members of the Moon Sect than to ordinary Dutchmen. In addition, he warns that the directive, if adopted, would be at odds with elementary standards of fairness, reversing the burden of proof and establishing a ‘guilty-unless-proved-innocent’ principle. Finally, he is also concerned that it could be used for frivolous and extortionary litigation, as evidenced by a recent case in Northern Ireland that has made headlines all over Europe.

Mr. Bolkestein’s critique comes at a very delicate moment and is noteworthy for a number of reasons.

First, as a Commissioner he was responsible for building the legal framework the EU’s Internal Market. He must thus be considered a true veteran of EU politics, and has a profound understanding of where EU can, and where it cannot, provide an added value. His name is inextricably linked to the so-called “Bolkestein Directive”, a legislative draft that would have considerably facilitated the free circulation of services, but was attacked by left-wing European politicians over concerns that it would lead to competition between workers in different parts of Europe — e.g. the proverbial “Polish plumber” — resulting in social dumping. After the 2004 original draft had been substantially amended, the proposal was approved on 12 December 2006 by the European Parliament and Council, and adopted as the Directive 2006/123/EC. But the Bolkestein Directive, like it or not, did contribute to a better functioning of the Internal Market, and it clearly did comply with the Subsidiarity Principle. This is much  less certain for the “Anti-Discrimination Directive”, which seems to concern matters that are of a local rather than a cross-border interest.

Second, and even more importantly, Bolkestein is a veteran leader and personified “conscience” of the VVD, the liberal political movement currently headed by Mark Rutte, the Netherland’s current Prime Minister. At the same time, however, Mr. Rutte’s coalition government also comprises the Partiv voor de Arbeid (PvdA), a socialist party of which Frans Timmermans, the Commission’s First Vice-President, is a member. Given the anti-liberal, anti-freedom-of-contract, and anti-property orientation of the controversial draft, it is perhaps unsurprising that Mr. Timmermans is one of the main supporters  of the Anti-Discrimination Directive inside the Commission, which for this reason is dubbed by some as the “Timmermans Directive”. When at the beginning of this Commission’s mandate all pending legislative proposals were reviewed and a considerable number of them withdrawn, it was Timmermans who made sure that the Anti-Discrimination Directive survived the exercise, although it has been debated in Council for more than six years without even a remote hope of obtaining the unanimous support of all Member States.

Third, it is interesting to note the marked difference in the understanding of “liberalism” between Bolkestein’s VVD, which is “liberal” in the economic sense, and the “social liberalism” promoted by D66, another “liberal” party in the Netherlands that, like VVD, is part of the European Parliament’s ALDE (Alliance of Liberals and Democrats) group, but unlike VVD is not part of the Dutch government. D66’s leader in the EP, Sophie in ‘t Veld, is one of the most tenacious supporters of the proposed Directive inside the EP, thus evidencing that her version of “liberalism” is not really liberal…

The question is then whether and how Mr. Bolkestein’s pointed critique reflects the official position of the Dutch government, which is due to take over Presidency of the Council on next January 1st. As it would appear, there is a divergence of opinion within the Dutch government in regard to the controversial Directive, which could mean that the Netherlands could drift into the camp of Member States opposing it.

Reportedly, the op-ed has immediately triggered a heated debate in the Hague and beyond…