Act of February 25, 2003 pertaining to the combat of discrimination and to the amendment of the Act of February 15, 1993 pertaining to the foundation of a centre for equal opportunities and opposition to racism

BS, March 17, 2003 - Err. BS, May, 13 2003

CHAPTER I: Introductory provision

Article 1
This act governs a matter pursuant to Article 77 of the Constitution.

CHAPTER II – General provisions
Art. 2
§ 1. Direct discrimination occurs if a difference in treatment that is not objectively or reasonably justified, is directly based on sex, a so-called race, colour, descent, national or ethnic origin, sexual orientation, marital status, birth, fortune, age, religion or belief, current and future state of health, a disability or physical characteristic.

§ 2. Indirect discrimination occurs when a seemingly neutral provision, measure or practice has harmful repercussions on persons on which one of the grounds for discrimination set out in § 1 applies, unless said provision, measure or practice is objectively and reasonably justified.

§ 3. The lack of reasonable adaptations for a person with a disability constitutes discrimination under this act.

Reasonable adaptation shall be considered an adaptation that entails no unreasonable burden, or one where the burden is sufficiently offset by existing measures.

§ 4. Any and all forms of direct or indirect discrimination is prohibited with respect to:

the provision or availment of goods or services to the public;
the conditions for access to gainful, unpaid, or self-employment, including the selection and appointment criteria, irrespective of the branch of activity, on all levels of the occupational hierarchy, including promotion opportunities, as well as employment and working conditions, including dismissal and pay, in both the private and the public sector;
the appointment and promotion of an official or the assignment of an official for a service;
the mention in an official document or in a report;
(...)
the access to and participation in, as well as any and all other exercise of an economic, social, cultural or political activity accessible to the public.
§ 5. With regard to labour relations, as defined in the second and third indent of § 4, a dispute concerning treatment shall be based on an objective and reasonable justification if, owing to the nature of an occupational activity or the context in which it is carried out, such an identification constitutes an essential and decisive occupational requirements, provided the aim is legitimate and the requirement is proportional to that aim.

§ 6. Harassment shall be considered as a form of discrimination in cases of undesired behaviour connected to the discrimination grounds summarised under §1 aimed at or affecting the dignity of a person and creating a threatening, hostile, insulting, demeaning or offensive environment.

§ 7. Any and all practices which consist of inciting discrimination against a person, a group, a community or members of it pursuant to one of the grounds referred to in §1, shall be considered as discrimination pursuant to this act.

Art. 3
This act shall not prejudice the protection and the exercise of fundamental rights and liberties guaranteed by the Constitution and international conventions on human rights.

Art. 4
The provisions of this act shall constitute no obstacle to the taking or using of measures geared to guaranteeing full equality in practice, or preventing or offsetting the disadvantages entailed by one of the grounds referred to in Article 2.

Art. 5
With the exception of Chapter III and of Article 19, §§ 3 and 4, which shall remain in force, discrimination on the grounds of sex and with respect to the subjects referred to in Article 2, § 4, 2nd and 3rd indents shall be subject exclusively to the Act of 7 May 1999 on the equal treatment of men and women with respect to working conditions, access to the employment process and promotion opportunities, access to self-employment and the supplementary regulations for social security.

CHAPTER III – Penal provisions
Art. 6
§ 1.The following shall be punished by a prison sentence of one month to a year and by a fine of fifty to one thousand euros, or by one of these punishments alone:

whoever incites discrimination, hatred or violence against a person, a group, a community or the members of it, on the grounds of sex, sexual orientation, marital status, birth, fortune, age, religion or belief, current or future state of health, disability or physical characteristic, in the circumstances given in Article 444 of the Penal Code;
(...)
§ 2. (...)

Art. 7
A new Article 377 bis has been inserted in the Penal Code, which runs as follows:

"Art. 377 bis. — In the cases stipulated in this article, the minimum punishments stipulated in these articles shall be doubled in the case of a prison sentence, and increased by two years in case incarceration when one of the motives of the crime or offence is hatred against, contempt for or hostility to a person on the grounds of his so-called race, colour, descent, national or ethnic origin, sex, sexual orientation, marital status, birth, fortune, age, beliefs or philosophy of life, current and future state of health, a disability or physical characteristic."

Art. 8
A new Article 405 quarter has been inserted in said Penal Code, which runs as follows:

"Art. 405 quater. — In the cases stipulated in Article 393 to 405bis the minimum punishments stipulated in this articles shall be doubled in the case of correctional punishment, and increased by two years in case incarceration when one of the motives of the crime or offence is hatred against, contempt for or hostility to a person on the grounds of his so-called race, colour, descent, national or ethnic origin, sex, sexual orientation, marital status, birth, fortune, age, religion or belief, current and future state of health, a disability or physical characteristic."

Art. 9
A new Article 422 quater been inserted in the Penal Code, which runs as follows:

"Art. 422 quater. — In the cases stipulated in Articles 422bis and 422ter, the minimum correctional punishments stipulated in these articles can be doubled when one of the motives of the crime or offence is hatred against, contempt for or hostility to a person on the grounds of his so-called race, colour, descent, national or ethnic origin, sex, sexual orientation, marital status, birth, fortune, age, religion or belief, current and future state of health, a disability or physical characteristic."

Art. 10
A new Article 438 bis been inserted in the Penal Code, which runs as follows:

"Art. 438 bis. — In the cases stipulated in this article, the minimum punishments stipulated in these articles can be doubled in the case of correctional punishments and increased by two years in the case of incarceration, when one of the motives of the crime or offence is hatred against, contempt for or hostility to a person on the grounds of his so-called race, colour, descent, national or ethnic origin, sex, sexual orientation, marital status, birth, fortune, age, religion or belief, current and future state of health, a disability or physical characteristic."

Art. 11
A new Article 422 ter been inserted in the Penal Code, which runs as follows:

"Art. 422 bis. — In the cases stipulated in Article 422bis, the minimum correctional punishments stipulated in this article can be doubled when one of the motives of the crime or offence is hatred against, contempt for or hostility to a person on the grounds of his so-called race, colour, descent, national or ethnic origin, sex, sexual orientation, marital status, birth, fortune, age, religion or belief, current and future state of health, a disability or physical characteristic."

Art. 12
A new Article 453 bis been inserted in the Penal Code, which runs as follows:

"Art. 453 bis. — In the cases stipulated in this article, the minimum correctional punishments stipulated in this article can be doubled when one of the motives of the crime or offence is hatred against, contempt for or hostility to a person on the grounds of his so-called race, colour, descent, national or ethnic origin, sex, sexual orientation, marital status, birth, fortune, age, religion or belief, current and future state of health, a disability or physical characteristic.”

Art. 13
A new Article 514 bis been inserted in the Penal Code, which runs as follows:

"Art. 514 bis. — In the cases stipulated in Articles 510 to 514, the minimum punishments stipulated in these articles can be doubled in the case of correctional punishments and increased by two years in the case of incarceration, when one of the motives of the crime or offence is hatred against, contempt for or hostility to a person on the grounds of his so-called race, colour, descent, national or ethnic origin, sex, sexual orientation, marital status, birth, fortune, age, religion or belief, current and future state of health, a disability or physical characteristic.”

Art. 14
A new Article 532 bis been inserted in the Penal Code, which runs as follows:

"Art. 532 bis. — In the cases stipulated in Articles 528 to 532, the minimum punishments stipulated in these articles can be doubled in the case of correctional punishments and increased by two years in the case of incarceration, when one of the motives of the crime or offence is hatred against, contempt for or hostility to a person on the grounds of his so-called race, colour, descent, national or ethnic origin, sex, sexual orientation, marital status, birth, fortune, age, religion or belief, current and future state of health, a disability or physical characteristic.”

Art. 15
Without prejudice to the application of Articles 31 and 32 of the Penal Code, the perpetrators of the crimes referred to in Article 6 shall be sentenced to expulsion pursuant to Article 33 of said Code.

Art. 16
The provisions of Book I of the Penal Code, Chapter VII and Article 85 not excluded, shall apply to the crimes referred to in this act.

Art. 17
Without prejudice to the powers of the officers of the criminal investigation department, officials appointed by the King shall supervise the compliance with this act and the implementing decrees thereof.

Said officials shall exercise said supervision pursuant to the provisions of the Act of 16 November 1972 concerning the labour inspectorate.

CHAPTER IV – Civil provisions
Art. 18
Terms and conditions of an agreement which run contrary to the provisions of this act and terms and conditions that stipulate that one or more contracting parties are to relinquish in advance rights guaranteed to them by this act, shall be null and void.

Art. 19
§ 1. At the request of the victim of discrimination or of one of the groups referred to in Article 31, the president of the court of first instance or, depending on the nature of the act, the president of the industrial tribunal or the commercial court, shall rule on the existence of an act that falls even under penal law, whereby the provisions of this act are violated, and shall order the cessation thereof.

The president of the court can order the lifting of the cessation as soon as proof is provided that the violation of this act has been terminated.

§ 2. The president of the court may rule that his decision or the summary which he draws up, is affixed for a period that he shall specify inside and outside the institutions of the transgressor or the premises belonging to the latter, and that his ruling or summary thereof be published in newspapers or in any other manner, at the expense of the transgressor.

These publicising measures may however be imposed only if they can contribute to putting a stop to the challenged act or the effect thereof.

§ 3. When the victim of discrimination or one of the groups referred to in Article 31 produces before the competent court facts such as statistical data or field trials that lead to the supposition of direct or indirect discrimination, the burden of proof that no discrimination has been committed shall fall on the defendant.

§ 4. Proof of discrimination on the grounds of sex, sexual orientation, marital status, birth, fortune, age, religion or belief, current or future state of health, disability or physical characteristic can be provided by means of a field trial which can be carried out by a bailiff.

The King shall define, by decree deliberated on in the Council of Ministers, the subsequent rules for the performance of the field trial as provided under § 3 and § 4 of this article.

Art. 20
The court may, at the request of the victim of discrimination or one of the groups referred to in Article 31, order those who have committed the discrimination to pay a fine if the discrimination is not stopped.

The court shall rule pursuant to Articles 1385 bis to 1385 novies of the Code of Judicial Procedure.

Art. 21
§ 1. An employer who employs an employee who has, pursuant to the procedures in force filed a reasoned complaint with the company or the department in which he works, or with the Social Security Inspectorate, or for whom the latter inspectorate has intervened, or who has taken legal action, or for whom a legal action has been introduced by virtue of the provisions of this act, relative to promotion opportunities, working conditions, including the conditions of dismissal, or by virtue of the Act of 30 July 1980 on the punishment of certain actions motivated by racism and xenophobia, may not terminate the employment relationship, except for reasons not connected with said compliant or legal action.

§ 2. The burden of proof relative to these reasons shall fall on the employer if the employee is dismissed or the working conditions are altered unilaterally within twelve months following the filing of the complaint. Said burden of proof shall likewise fall on the employer in the event of dismissal or unilateral alteration of the working conditions after legal action was taken, up to three months after the entry into force of the definitive judgement of the court.

§ 3. If the employer should terminate the employment relationship or alter the working conditions unilaterally in contravention of the provisions of § 1, the employee or the trade union to which he is affiliated shall request that the employee is taken on again or restored to his position under the same conditions as before.

The request shall be made by registered letter within thirty days after the date of the service of notice, of the termination without notice, or the unilateral alteration of the working conditions. The employer must respond to the request within thirty days after the service of the letter of request.

The employer who takes the employee again in the company or in the department, or restores him to his position under the same conditions as before, must pay the income lost on the grounds of the dismissal or alteration of the working conditions as well as the relevant employer’s and employees contributions connected therewith.

§ 4. If, after the request referred to in § 3, first paragraph, the employee is not taken on again or not restored to his position under the same conditions as before, or if it is ruled that the dismissal or unilateral alteration of the working conditions runs counter to the provisions of § 1the employer must pay compensation to the employee which, according to the latter’s choice, may be equal to a lump-sum corresponding to the gross pay for six months, or to the loss actually suffered by the employee; in the latter case, the employee shall have to prove the scope of said loss.

§ 5. The employer shall be required to pay said compensation, without the employee or the trade union to which he is affiliated having to file the request referred to in § 3, first paragraph, to be taken on again or restored to his former position under the same conditions if:

1° the competent court rules that the discrimination facts have been proven;

2° the employee terminates the contract of employment because the employer’s behaviour runs counter to the provisions of § 1, which, according to the employee, is a reason for terminating the contract of employment without notice or prior to the expiry thereof;

3° if the employer has dismissed the employee for a serious offence, provided that the competent court finds said dismissal unjustified and rules that it contravenes the provisions of § 1.

Art. 22
The claim pursuant to Article 19, shall be filed and treated as in summary proceedings.

It shall be filed by petition in quadruplicate to the office of the clerk of the competent court or sent to said office by registered letter.

The petition shall, on pain of voidance, indicate:

1° the day, month and year;

2° the surname, first names, occupation and official residence of the petitioner;

3° the name and address of the natural person or the body corporate against whom the claim is filed;

4° the object and the statement of the grounds on which the claim is based.

The clerk of the court shall notify the other party without delay by a letter from the court, inviting said party to appear at the earliest within three or eight days, at the earliest or the latest respectively, after the dispatching of said letter, a copy of which shall be attached to the petition.

The court shall rule on the claim, notwithstanding any proceedings based on the same facts pending before any other criminal court.

When a claim to cease and desist is filed with the criminal court, said court shall rule on the claim only after a definitive decision has been handed down. During the suspension period, the lapse of the criminal proceedings shall be likewise suspended.

The decision shall be enforceable in advance, notwithstanding any legal remedy and without bail. It shall be communicated by the clerk of the court immediately to all the parties and to the public prosecutor.

CHAPTER V – Amending provisions
Art. 23
Article 2, first sentence, of the Act of February 15, 1993 pertaining to the foundation of a centre for equal opportunities and opposition to racism, amended by the Act of 13 April 1995, is replaced by the following provisions:

"Art. 2. The Centre’s task is to promote equal opportunities and to oppose any and all forms of distinction, exclusion, limitation or preference on the grounds of:

1° a so-called race, colour, descent, origin or nationality;

2° sexual orientation, marital status, birth, fortune, age, religion or belief, current and future state of health, a disability or physical characteristic.

The Centre shall carry out its task in a spirit of dialogue and cooperation with associations, institutes, bodies or services which carry out, fully or partially, the same task, or are directly involved in the performance of said task."

Art. 24
Article 3, second paragraph, 5°, of the same act, amended by the Act of 13 April 1995, is replaced by the following provision:

"5° take legal action in any disputes that falls under the application the following acts:

the act of 30 July 1981 on the punishment of certain acts motivated by racism or xenophobia;
the act of 23 March 1995 pertaining to punishment for denying, minimising, justifying or approving the genocide perpetrated during World War II by the Germany National-Socialist regime;
the act of 13 April 1995 pertaining to provisions to fight human trafficking and child pornography;
the Act of 25 February 2003 pertaining to the combat of discrimination and to the amendment of the Act of February 15, 1993 pertaining to the foundation of a centre for equal opportunities and opposition to racism”
Art. 25
Article 578 of the Code of Judicial Procedure, amended by the Acts of 5 December 1968, 4 August 1978, 17 July 1997, 13 February 1998, 7 May 1999 and 17 June 2002, is supplemented with a point 12°, which runs as follows:

"12° disputes concerning discrimination pursuant to the Act of 25 February 2003 pertaining to the combat of discrimination and to the amendment of the Act of February 15, 1993 pertaining to the foundation of a centre for equal opportunities and opposition to racism, which pertain to the conditions of access to gainful, unpaid, or self-employment, including the selection and appointment criteria, irrespective of the branch of activity, on all levels of the occupational hierarchy, including promotion opportunities, as well as employment and working conditions, including dismissal and pay, in both the private and the public sector, with the exception of those governed by a public law statute.”

Art. 26
Article 581 of said Code, replaced by the Act of 30 June 1971, and amended by the Acts of 4 August 1978, 1 August 1985, the Royal Decree of 25 September 1985 and the Acts of 30 December 1992 and 7 May 1999, is supplemented with a point 10°, which runs as follows:

"10° disputes concerning discrimination pursuant to the Act of 25 February 2003 pertaining to the combat of discrimination and to the amendment of the Act of February 15, 1993 pertaining to the foundation of a centre for equal opportunities and opposition to racism, which pertain to the conditions of access to gainful, unpaid, or self-employment, including the selection and appointment criteria, irrespective of the branch of activity, on all levels of the occupational hierarchy, including promotion opportunities, as well as employment and working conditions, including dismissal and pay, in both the private and the public sector.”

Art. 27
Article 585 of the same Code, amended by the Act of 11 April 1989, is supplemented with a point 9°, which runs as follows:

"9° on claims for cessation and impose such publicising measures of his decision as he shall deem fit by virtue of Article 9 of the Act of 25 February 2003 pertaining to the combat of discrimination and to the amendment of the Act of February 15, 1993 pertaining to the foundation of a centre for equal opportunities and opposition to racism.”

Art. 28
Article 587bis of the same Code, inserted by the Act of 19 March 1991, is replaced as follows:

"Art. 587 bis. — The president of the industrial tribunal, solicited by petition, shall rule:

1º on claims filed by virtue of Articles 4 and 5, §§ 3 and 4, of the Act of 19 March 1991 relative to a specific regulation on the dismissal of employee representatives in companies and in committees for safety, health and embellishment of the workplace, as well as candidate employee representatives;

2º on claims for cessation and impose such publicising measures of his decision as he shall deem fit by virtue of Article 9 of the Act of 25 February 2003 pertaining to the combat of discrimination and to the amendment of the Act of February 15, 1993 pertaining to the foundation of a centre for equal opportunities and opposition to racism.

Art. 29
Article 588 of the same Code, amended by the Acts of 24 June 1970, 14 July 1971, 5 December 1984, 11 April 1989 and 4 December 1990, is supplemented by a point 13°, which runs as follows:

"13º on claims for cessation and impose such publicising measures of his decision as he shall deem fit by virtue of Article 9 of the Act of 25 February 2003 pertaining to the combat of discrimination and to the amendment of the Act of February 15, 1993 pertaining to the foundation of a centre for equal opportunities and opposition to racism."

Art. 30
In article 764, first paragraph of the same Code, replaced by the Act of 3 August 1992 and amended by the Acts of 3 August 1992, 17 July 1997, 23 April 1998 and 17 June 2002, point 10° is replaced by the following provision:

"10° the claims referred to in Articles 578, 11° en 12°, 580, 581, 582, 1°, 2° and 6° and 583".

CHAPTER VI – Final provision
Art. 31
The Centre for Equal Opportunities and Opposition to Racism may intervene in disputes to which this act may give rise.

If the statutory tasks which they have set are departed from, the following associations or organisations can take legal action in disputes that result therefrom:

1° public utility institutions and all associations which on the date of the facts, have enjoyed legal personality for at least five years, and have defined, as their object in their articles of association, to defend human rights and fight discrimination;

2° the representative employers’ organisations and trade unions, as specified in Article 3 of the Act of 5 December 1968 pertaining to collective bargaining agreements and joint committees;

3° the representative organisations pursuant to the Act of 19 December 1974 on the governing of relations between the government and the trade unions of its personnel;

4° the representative organisations of the self-employed.

When the victim of a violation of the act or of the discrimination is a natural person or a body corporate, the claim of the groups referred to in the first and second paragraph shall be admissible only if they can prove that they are acting with the approval of the victim.