Part II
Carmen Eugenia BÂRSAN, Ph.D. in Law, Assistant Professor, The application domain of the European directives concerning the interdiction of discrimination in civil law
On the basis of article 13 EC Treaty were adopted two directives which scope is the fight against discrimination on the ground of racial and ethnic origin in the general civil law and the extension of the prohibition of discrimination on the ground of sex from the labour law to the whole civil transactions with goods and services. It concerns the Council Directive 200/43/EC, of 29 June 2000, implementing the principles of equal treatment between persons irrespective of racial or ethnic origin (Directive against the racism) and the Council 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 (Directive concerning the equal treatment between men and women outside of labour law).
Through implementation of the prohibition of discrimination in the general contract law, the directives raise the ticklish problem of the balance between the protection against discrimination and the principle of freedom of the contract. Taking into consideration this aspect, the article aims to provide an attentive analysis of the domain of application of the directives. This analysis is an absolutely necessary premise for the regulation of the protection against discrimination in the contract law and for its stretch.
The domain of application of the Directive concerning the equal treatment between men and women outside of labour law covers the contracts irrespective of the reputation of the person, the private insurance contracts and the financial services. The directive against the racism covers the contracts between consumers and entrepreneurs, inclusive of tenancy agreements. The discrimination criteria which are foreseen by the directives are the racial and ethnic origin, and the sex.
Both directives regulate the prohibition of discrimination in “the access to and supply with goods and services”, which leads to the conclusion that the prohibition of discrimination must be complied with during the negotiations of the contract, by the elaboration of the contract and by its termination.
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