Remedies for Discrimination: a Comparison of the Draft Common Frame of Reference and the Acquis Principles
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Remedies for Discrimination: a Comparison of the Draft Common Frame of Reference and the Acquis Principles Fryderyk Zoll
Published online: 20 August 2008 © ERA 2008
1. Two Similar Sets of Rules with a Different Concept of Remedies Anti-discrimination law forming part of the acquis communautaire by now affects the core of European contract law. Two EC directives (Directives 2000/43/EC and 2004/113/EC) go beyond the boundaries of labour law and govern either exclusively (in the case of Directive 2004/113/EC) or together with other contracts (in the case of Directive 2000/43/EC) contracts that provide access to publicly-available goods or services, including housing.1 The Acquis Group2 has decided to include the antidiscrimination rules in its Acquis Principles, which are a restatement of European contract law.3 The rules of the Acquis-Group on combating discrimination have been taken over (with some modifications) into the text of the Draft Common Frame of Reference.4 The differences between the two texts are largely of a technical nature. The main difference seems to be in relation to remedies. The Acquis Principles contain in Article 3:201 (2) an open general formula,5 granting the discriminated person the right “to other remedies 6 which are suitable to undo the consequences of the Directive 2000/43/EC of June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services. 2) On the aims and methodology of the Acquis Group see: Dannemann [2], pp. XXIII–XXIV and XXVIII– XXIX. 3) Leible/Navas Navarro/Pisuliński/Zoll [4], p. 106, Art. 3:101, No. 2.; See also: Leible [6], p. 84. 4) An Interim Outline Edition of the Draft Common Frame of Reference has been already published: von Bar/Clive/Schulte-Nölke and Beal/Herre/Huet/Schlechtriem/Storme/Swann/Varul/Veneziano/Zoll [10]. 5) Leible/Navas Navarro/Pisuliński/Zoll [4], p. 120, Art. 3:201, No. 9. 6) Note that the right to compensation is granted under Article 3:201 (1). 1)
Dr. hab. Fryderyk Zoll () Jagiellonen University ul. Bracka 12, 31-005 Krakau, Poland e-mail: [email protected] Fryderyk Zoll is Professor at the Jagiellonian University and the L. Koźmiński College of Law.
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discriminating act or prevent further discrimination”. According to Article II.-2:104 of the Draft Common Frame the discriminated person may resort to these remedies “without prejudice to any remedy which may be available under Book VI (Noncontractual Liability for Damage caused to another)” for non-performance of an obligation (including damages for an economic and non-economic loss). The Draft Common Frame of Reference does not allow for an application of remedies, which are not strictly determined by law. Thus the list of remedies is closed. The Acquis Principles generally permit a newly-constructed remedy, developed only for application in the s
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