Abstract
This chapter provides insight in how positive action can look like in practice with a view to combating the discrimination against, and promoting the inclusion of, Roma in Europe. It highlights examples and good practices across Europe, because the widespread lack of awareness about what positive action is and what it does hinders this human rights instrument from reaching its full potential for this ethnic minority in Europe. First, emphasis is placed on the importance of adopting a sectorial, bottom-up approach to the designing, implementing, monitoring and evaluating of positive action to ensure that the measures are tailored to the specific needs of local Roma communities and proportionate to the goals they pursue. Next, the inter-connectedness of the problems encountered by Roma in the areas of education, housing, employment and health is acknowledged, before taking a closer look at the implementation of soft and strong types of measures for Roma in these four key areas of socio-economic life. Too often, discussions are dominated by the controversy that surrounds strict quotas, which are by far the most well-known as well as the strongest kind of positive action. The aim of this chapter is to demonstrate that States have a considerable number of options with varying levels of intensity in each of these fields.
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Notes
- 1.
Commissi Communication, Report on the evaluation of the EU Framework for National Roma Integration Strategies up to 2020 (NRIS) (4 December 2018), pp. 2 and 3. Country-specific examples: ECRI, Fifth Report on the Czech Republic (16 June 2015), paras. 79 to 88 and 113. ECRI, Fifth Report on Greece (10 December 2014), paras. 105 to 114. ECRI, Fifth Report on Bulgaria (19 June 2014), paras. 76, 77 and 97. Hollo (2006), pp. 3, 4, 16 and 43. See Chap. 1 (Sect. 1.3), where the two main topics of the book were introduced. See also Chap. 9 (Sect. 9.1.1), where it was argued that positive action is an essential instrument to achieve effective equality for Roma.
- 2.
- 3.
In March 2019, for instance, Roma were attacked in France following false rumors on social media that members of the Roma minority had abducted children. Guy (2019). Other country-specific examples: ECRI, Fifth Report on Greece (10 December 2014), paras. 34, 43 and 50. ECRI, Fifth Report on Bulgaria (19 June 2014) CRI(2014)1, paras. 31, 35 and 52. ECRI, Fifth Report on the Czech Republic (16 June 2015), paras. 29 to 35, 38, 40 to 44, 50, 61 to 66, and 69 to 72. ECRI, Fifth Report on Germany (5 December 2013), paras. 40, 45 and 51. Hollo (2006), p. 16. Increased levels of anti-Gypsyism were also reported within the framework of the mid-term evaluation of the EU Framework for NRIS. Commission Communication, Report on the evaluation of the EU Framework for National Roma Integration Strategies up to 2020 (NRIS) (4 December 2018), pp. 20, 21, 33, 58 and 68. Anti-Gypsyism was defined and discussed in Chap. 1 (Sect. 1.2.1) on the particular vulnerability of Roma in Europe today.
- 4.
- 5.
- 6.
- 7.
- 8.
- 9.
These four areas are cited as key fields in the EU Framework for NRIS. This was confirmed in the mid-term evaluation of the EU Framework in 2018. Other areas, including access to justice and participation in public life, are also important, but they fall outside the scope of this book. Commission Communication, Report on the evaluation of the EU Framework for NRIS (4 December 2018). Commission Communication, An EU Framework for NRIS (5 April 2011).
- 10.
As will be seen, these options range from investments to increase the education chances for Roma, to the provision of better housing and the adoption of equality plans to promote diversity in the workplace. European Network of Equality Bodies (Equinet) (2010), p. 23. See Chap. 8 (Sect. 8.2.2) for a discussion of the case law of the CJEU on gender-based positive action. The five challenges limiting the effectiveness of positive action for Roma in Europe were identified in Chap. 9 (Sect. 9.2).
- 11.
- 12.
- 13.
- 14.
- 15.
- 16.
The relevance of sectorial data collection practices was briefly mentioned in Chap. 5 (Sect. 5.2.1) on official statistics on Roma, when explaining that in some countries data on this ethnic minority are collected by different ministries (e.g. Ministry of Education in Hungary, Ireland and Romania; Ministry of Labour in Macedonia; Ministry of Health in Serbia).
- 17.
- 18.
This was explained in Chap. 9 (Sect. 9.1.3) on the importance of proportionality when adopting positive action measures for Roma. The European Commission states that “EU Roma integration goals should cover, in proportion to the size of the Roma population, four crucial areas: access to education, employment, healthcare and housing”. See: Commission Communication, An EU Framework for NRIS (5 April 2011), p. 4. In 2008, the Committee on the Elimination of Racial Discrimination (CERD Committee) encouraged Hungary to adopt “specifically targeted measures, including by enhancing professional training and sustainable employment opportunities in communities with significant Roma populations”. See: Committee on Economic, Social and Cultural Rights (CESCR Committee), Concluding Observations on Hungary (16 January 2008), para. 34.
- 19.
Hollo (2006), pp. 34 and 35.
- 20.
- 21.
Terenzani-Stanková (2013).
- 22.
Hollo (2006), pp. 34, 35 and 39.
- 23.
See, for instance: ACFC, First Opinion on Germany (1 March 2002), para. 24.
- 24.
De Schutter (2007), p. 869.
- 25.
Id.
- 26.
- 27.
- 28.
- 29.
- 30.
- 31.
- 32.
- 33.
- 34.
Bell (2007), p. 5.
- 35.
Resolution 1740 of the Parliamentary Assembly on the situation of Roma in Europe and relevant activities of the Council of Europe (22 June 2010), art. 15.10. Recommendation CM/Rec(2000)4 of the Committee of Ministers to Member States on the education of Roma/Gypsy children in Europe (3 February 2000), art. 6 (Appendix Guiding principles of an education policy for Roma/Gypsy children in Europe).
- 36.
- 37.
Commission Communication, An EU Framework for NRIS (5 April 2011), p. 5. Chapter 11 will focus on inter-cultural mediation for Roma.
- 38.
- 39.
- 40.
- 41.
ERRC (2007b), pp. 56 and 57. See Chap. 9 (Sect. 9.2.2.2), where rendering the adoption of positive action mandatory in the EU framework was discussed and where the implementation of a positive duty for States to promote equality for racial and ethnic groups was put forward as an interesting complementary course of action. The notion equality impact assessment was analysed in Chap. 6 (Sect. 6.1.3.5).
- 42.
ENAR (2008), pp. 3 and 4.
- 43.
Roma Education Fund (2009), p. 109. The mid-term evaluation of the EU Framework for NRIS confirms that transition from education to employment remains a considerable bigger challenge among Roma compared to non-Roma. Commission Staff Working Document, Evaluation of the EU Framework for NRIS (4 December 2018), p. 32. In a report on the transition from education to employment of young Roma in nine EU Member States, the FRA (2018, pp. 23–33) explains that socio-demographic characteristics as well as socio-economic factors influence the employment status of young Roma. Discrimination, on the other hand, also plays a role, but rather in terms of lower quality of employment (e.g. job security, benefits and income).
- 44.
- 45.
- 46.
Teacher training is done, for instance, in Hungary, Ireland and Slovakia. Extra teachers have been introduced in Ireland, Italy, Germany and Sweden. Resolution 1740 of the Parliamentary Assembly on the situation of Roma in Europe and relevant activities of the Council of Europe (22 June 2010), arts. 16.3 and 16.6. ENAR (2007), p. 15.
- 47.
CERD Committee, General Recommendation No. 27: Discrimination against Roma (16 August 2000), paras. 19 and 21.
- 48.
Corsi et al. (2010), p. 135.
- 49.
- 50.
Romania has a network of school mediators. Hungary and Slovakia also demonstrate good practices with Roma mediators in education. ACFC, Second Opinion on Slovakia (26 May 2005), para. 38. Council of Europe Strasbourg Declaration on Roma (20 October 2010), par. 33. Commission Communication, An EU Framework for NRIS (5 April 2011), p. 5. Equinet (2014), p. 39. ENAR (2007), p. 13.
- 51.
- 52.
Resolution 1740 of the Parliamentary Assembly on the situation of Roma in Europe and relevant activities of the Council of Europe (22 June 2010), art. 16.6.
- 53.
Depending on the level of education, this system has been in place since the 1990s or early 2000s. It concerns secondary schools, vocational schools and universities. The author repeatedly referred to this example in Chap. 9 on positive action for the Roma minority in Europe. For more on strict quotas as the strongest application of preferential treatment, see Chap. 6 (Sect. 6.2.4.2). Commission Communication, Steps forward in implementing National Roma Integration Strategies (26 June 2013), p. 15. Roma Education Fund (2009), pp. 27, 29, 32, 39 and 40.
- 54.
Roma Education Fund (2009), p. 13.
- 55.
Id. at pp. 42, 88, 89, 91, 93 and 94.
- 56.
- 57.
- 58.
- 59.
European Commission (2009), p. 57.
- 60.
Id.
- 61.
- 62.
The right to education and relevant EctHR case law were analysed in Chap. 2 (Sect. 2.7.2). See also Chap. 5 (Sect. 5.2.4), where international and European monitoring and litigation was identified as an essential data source on Roma. It concerns, among others: EctHR, Oršuš and Others v. Croatia, Judgment (16 March 2010, GC). EctHR, D.H. and Others v. the Czech Republic, Judgment (13 November 2007).
- 63.
The 29 Indicators for Monitoring Performance and Progress of Education and Training Systems in Europe can be found in Annex I to Commission Staff Working Document, Progress Towards the Common Objectives in Education and Training: Indicators and Benchmarks (21 January 2004). Cahn (2004), p. 36.
- 64.
EctHR, Oršuš and Others v. Croatia, Judgment (16 March 2010, GC), para. 157.
- 65.
EctHR, Oršuš and Others v. Croatia, Judgment (16 March 2010, GC), para. 177. See also: EctHR, Horváth and Kiss v. Hungary, Judgment (29 January 2013), para. 104: the EctHR refers explicitly to art. 6 of the Guiding principles of an education policy for Roma/Gypsy children in Europe that are attached to Recommendation CM/Rec(2000)4 of the Committee of Ministers to Member States on the education of Roma/Gypsy children in Europe (3 February 2000). Farkas (2007), p. 41.
- 66.
EctHR, Oršuš and Others v. Croatia, Judgment (16 March 2010, GC), paras. 152, 155, 157, 158, 162, 164, 165, 172 to 175, 184 and 185. See, similarly: EctHR, D.H. and Others v. the Czech Republic, Judgment (13 November 2007), paras. 181 and 207.
- 67.
Farkas (2007), p. 41.
- 68.
This is, for example, the case in Belgium. See: Vlaams Minderhedencentrum (2010), pp. 16 and 17. Centre for Equal Opportunities and Opposition to Racism (2009), pp. 28, 29, 39 and 40. ENAR (2007), p. 9. The mid-term evaluation of the EU Framework for NRIS confirmed that there have been very little change in the housing situation of Roma in the EU since 2011. Commission Staff Working Document, Evaluation of the EU Framework for NRIS (4 December 2018), pp. 18 and 19. Housing issues were briefly addressed in Chap. 1 (Sect. 1.2.1). See Chap. 2 (Sect. 2.7.3) for an analysis of the right to housing.
- 69.
Commission Communication, An EU Framework for NRIS (5 April 2011), p. 7.
- 70.
Hollo (2006), p. 3.
- 71.
Id. at p. 29.
- 72.
Belgium violated the European Social Charter (18 October 1961) for not having sufficient caravan sites to accommodate the needs, for not making adequate efforts to rectify the problem, for not adapting housing quality standards to caravans and caravan sites, for not adapting its urban legislation to caravans, for the situation of possible eviction of illegally placed caravans, and for lacking a coherent and coordinated policy to tackle the issues at hand. ECSR, International Federation of Human Rights (FIDH) v. Belgium, Decision (21 March 2012).
- 73.
Commission Communication, An EU Framework for NRIS (5 April 2011), p. 7. In Sect. 10.1, the author argued in favour of a sectorial bottom-up approach to positive action to supplement national frameworks.
- 74.
- 75.
- 76.
ECSR, European Roma Rights Centre v. Bulgaria, Decision (18 October 2006), para. 42. See Chap. 9 (Sect. 9.1.1), where it was argued that positive action is an essential instrument to achieve effective equality for Roma. See also Chap. 6 (Sect. 6.1.4) on the limits of the traditional approach to equality. In Chap. 8 (Sect. 8.1.2.1), it was mentioned that the ECSR requires the adoption of positive action under certain circumstances.
- 77.
ERRC (2007a).
- 78.
The ECSR found a violation of the right of the family to social, legal and economic protection in art. 16 Revised European Social Charter (3 May 1996) in conjunction with the non-discrimination principle in art. E. The ECSR came to the same conclusion regarding housing conditions of Roma in other States such as Greece and Italy. See: ERRC v. Bulgaria, Decision (18 October 2006).
- 79.
Council of Europe Strasbourg Declaration on Roma (20 October 2010).
- 80.
- 81.
- 82.
- 83.
- 84.
The Flemish government covers up to 90 per cent of the total cost of caravan sites for Travellers. In the French-speaking Community it concerns up to 60 per cent of the total cost. See: Van Caeneghem (2013), pp. 244 and 245.
- 85.
- 86.
Kostadinova (2006), p. 4. This qualifies as individual outreach, because the subsidies are attributed directly to members of the Roma community in order to promote their opportunities to live in mixed areas. See Chap. 6 (Sect. 6.2.4.1) on strong types of positive action. The temporary nature of measures was identified as a normative element of positive action in Chap. 6 (Sect. 6.1.2.3).
- 87.
In particular, see: Hollo (2006), pp. 27 and 29. See Chap. 1 on issues Roma face in the area of housing today (Sect. 1.2.1) and on the importance of respecting Roma identity (Sect. 1.2.4). See also the discussion on several concepts in Chap. 2, in particular so on the notions assimilation and pluralism (Sect. 2.3.3) and on the right to identity and the prohibition of assimilation as interrelated building blocks of minority rights protection (Sects. 2.3 and 2.4).
- 88.
Hollo (2006), p. 27.
- 89.
The importance of adopting a bottom-up approach to positive action for Roma was emphasised in Sect. 10.1. See also Chap. 6 (Sect. 6.3.2) on the need for active participation of all relevant stakeholders in positive action, and Chap. 9 (Sect. 9.2.4) on the lack of consultation and participation of local communities as one of the challenges that limit positive action for Roma.
- 90.
Commission Communication, Report on the evaluation of the EU Framework for NRIS (4 December 2018), p. 4. Commission Communication, An EU Framework for NRIS (5 April 2011), p. 6. FRA (2016), pp. 17–22. World Bank (2010), pp. 13 and 16. European Union Agency for Fundamental Rights (FRA) (2009), pp. 157, 158 and 160–163. ENAR (2007), p. 9. Employment issues were mentioned in Chap. 1 on a general level (Sect. 1.2.1) and specifically in relation to Roma women (Sect. 1.2.3.2). The right to work was briefly introduced in Chap. 2 (Sect. 2.7.4).
- 91.
ACFC, First Opinion on Ireland (22 May 2003), para. 35.
- 92.
- 93.
CESCR Committee, Concluding Observations on Hungary (16 January 2008), para. 34. CERD Committee, General Recommendation No. 27: Discrimination against Roma (16 August 2000), paras. 28 and 29. This corresponds to the remedial and the cultural aim of positive action, as discussed in Chap. 6 (Sects. 6.4.1 and 6.4.2 respectively). See also Chap. 9 (Sects. 9.1.2.1 and 9.1.2.2) on the multifarious aims positive action for Roma can pursue.
- 94.
- 95.
- 96.
Resolution 1740 of the Parliamentary Assembly on the situation of Roma in Europe and relevant activities of the Council of Europe (22 June 2010), art. 18.3.
- 97.
- 98.
Commission Communication, An EU Framework for NRIS (5 April 2011), p. 6.
- 99.
- 100.
Council of Europe Strasbourg Declaration on Roma (20 October 2010), para. 34.
- 101.
See Chap. 11 on inter-cultural mediation to enhance Roma inclusion.
- 102.
CESCR Committee, Concluding Observations on Hungary (16 January 2008), para. 34. CESCR Committee, Concluding Observations on Ukraine (4 January 2008), para. 37. CERD Committee, General Recommendation No. 27: Discrimination against Roma (16 August 2000), paras. 28 and 29.
- 103.
Kostadinova (2006), p. 4.
- 104.
Resolution 1740 of the Parliamentary Assembly on the situation of Roma in Europe and relevant activities of the Council of Europe (22 June 2010), art. 18.4.
- 105.
Bell (2007), p. 6. Hollo (2006), p. 53. This is a strong type of positive action providing preferential treatment, as explained in Chap. 6 (Sect. 6.2.4). For more information on the FRA Roma Internship programme, see: https://fra.europa.eu/en/about-fra/recruitment/roma-traineeship (Accessed 28 January 2019).
- 106.
European Commission (2009), p. 58.
- 107.
Id.
- 108.
- 109.
Council of Europe Strasbourg Declaration on Roma (20 October 2010), para. 34.
- 110.
- 111.
ENAR (2008), pp. 3 and 4.
- 112.
- 113.
CESCR Committee, Concluding Observations on Ukraine (4 January 2008), par. 37. CERD Committee, General Recommendation No. 27: Discrimination against Roma (16 August 2000), paras. 28 and 29.
- 114.
Commission Communication, An EU Framework for NRIS (5 April 2011), p. 6.
- 115.
The report mentions Croatia, Hungary, Italy, Latvia, Slovakia, Slovenia and Romania. Equinet (2014), pp. 6 and 36.
- 116.
De Vos (2007), p. 42.
- 117.
ACFC, First Opinion on Ireland (22 May 2003), paras. 36, 37 and 94.
- 118.
Henrard (2013), pp. 54 and 55.
- 119.
ENAR (2007), p. 9.
- 120.
Hollo (2006), p. 53. This was referred to as preferential treatment by applying a tiebreak in Chap. 6 (Sect. 6.2.4.2) when presenting the three types of strong positive action measures that involve preferential treatment. Provided there is savings clause guaranteeing objective assessment of individual characteristics, such a strong measure is permitted by the CJEU in its case law on gender-based positive action. For an overview of the CJEU’s case law on positive action, see Chap. 8 (Sect. 8.2.2).
- 121.
- 122.
Hollo (2006), p. 53.
- 123.
- 124.
ACFC, First Opinion on Ireland (22 May 2003), para. 38.
- 125.
Id.
- 126.
- 127.
See Sect. 10.4 on positive action for Roma in employment.
- 128.
- 129.
Commission Communication, An EU Framework for NRIS (5 April 2011), pp. 6 and 7.
- 130.
- 131.
Hollo (2006), pp. 3 and 27.
- 132.
- 133.
Commission Communication, An EU Framework for NRIS (5 April 2011), p. 7. The importance of active participation of Roma in positive action schemes on this ethnic minority was cited in Chap. 9 (Sect. 9.2.4) when addressing the challenges that limit positive action for Roma from reaching its full potential.
- 134.
Council of Europe Strasbourg Declaration on Roma (20 October 2010), para. 35. Chapter 11 zooms in on inter-cultural mediation.
- 135.
- 136.
- 137.
- 138.
Resolution 1740 of the Parliamentary Assembly on the situation of Roma in Europe and relevant activities of the Council of Europe (22 June 2010), art. 119.2.
- 139.
European Commission (2009), p. 58.
- 140.
- 141.
Id.
- 142.
EctHR, Oršuš and Others v. Croatia, Judgment (16 March 2010, GC).
- 143.
See Chap. 11 on inter-cultural mediation to enhance Roma inclusion.
References
Legal Instruments
Council of Europe
European Social Charter (18 October 1961) ETS No. 35
Revised European Social Charter (3 May 1996) ETS 163
Non-legally Binding Instruments
Council of Europe
Council of Europe Strasbourg Declaration on Roma (20 October 2010) CM(2010)133 final
Recommendation CM/Rec(2000)4 of the Committee of Ministers to Member States on the education of Roma/Gypsy children in Europe (3 February 2000)
Resolution 1740 of the Parliamentary Assembly on the situation of Roma in Europe and relevant activities of the Council of Europe (22 June 2010)
European Union
Commission Communication, An EU Framework for National Roma Integration Strategies up to 2020 (5 April 2011) COM(2011) 173 final
Commission Communication, Report on the evaluation of the EU Framework for National Roma Integration Strategies up to 2020 (4 December 2018) COM(2018) 785 final
Commission Communication, Steps forward in implementing National Roma Integration Strategies (26 June 2013) COM(2013) 454 final
Commission Staff Working Document, Progress Towards the Common Objectives in Education and Training: Indicators and Benchmarks (21 January 2004), SEC(2004) 73 final
Case Law
European Court of Human Rights
D.H. and Others v. the Czech Republic, Judgment (13 November 2007), Application No. 57325/00
Horváth and Kiss v. Hungary, Judgment (29 January 2013), Application No. 11146/11
Oršuš and Others v. Croatia, Judgment (16 March 2010, GC), Application No. 15766/03
European Committee of Social Rights
European Roma Rights Centre v. Bulgaria, Decision (18 October 2006), Collective Complaint no. 31/2005
International Federation of Human Rights (FIDH) v. Belgium, Decision (21 March 2012), Collective Complaint No. 62/2010
Country Monitoring
Committee on Economic, Social and Cultural Rights
Concluding Observations on Hungary (16 January 2008) E/C.12/HUN/CO/3
Concluding Observations on Ukraine (4 January 2008) E/C.12/UKR/CO/5
Advisory Committee on the Framework Convention for the Protection of National Minorities
First Opinion on Germany (1 March 2002) ACFC/INF/OP/I(2002)00
First Opinion on Ireland (22 May 2003) ACFC/INF/OP/I(2004)003
First Opinion on Serbia and Montenegro (27 November 2003) ACFC/INF/OP/I(2004)002
Second Opinion on Slovakia (26 May 2005) ACFC/OP/II(2005)004
European Commission Against Racism and Intolerance
Fifth Report on Bulgaria (19 June 2014) CRI(2014)1
Fifth Report on the Czech Republic (16 June 2015) CRI(2015)35
Fifth Report on Germany (5 December 2013) CRI(2014)2
Fifth Report on Greece (10 December 2014) CRI(2015)1
General Comments and Recommendations
Committee on the Elimination of Racial Discrimination
General Recommendation No. 27: Discrimination against Roma (16 August 2000) A/55/18, annex V
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Van Caeneghem, J. (2019). Positive Action for Roma in Four Key Areas. In: Legal Aspects of Ethnic Data Collection and Positive Action. Springer, Cham. https://doi.org/10.1007/978-3-030-23668-7_10
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