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procedures (…) are available to all persons who consider themselves victims of
discrimination”. Also, associations that have a legitimate interest can help
discrimination subjects to file a complaint, or even act on their behalf (art. 7(2) of
Race Equality Directive (RE) 2000/43/EC
). In order to enhance the chances of
success of an action any contract, or provision of a contract, which is discriminatory
can automatically be declared null and void by a judge (art. 14
RE
); alleged victims
benefit from a reversal of the burden of proof provided there are sufficient
presumptions (i.e., according to art. 8
RE
, it is up to the respondent to prove that
there has been no discrimination), and they are entitled to an effective, proportionate
and dissuasive remedy (art. 15
RE
). Victims of discrimination are also guaranteed
the right to be protected against retaliation in case of a successful procedure (art. 9
RE
). For an example at the national level, Belgium has implemented this
requirement by setting up a special procedure called
action en cessation
(action for
injunction), which guarantees victims that their case will be swiftly examined (6
months), and that they will automatically receive a lump sum, if discrimination is
proven (Closset-Marchal & Van Drooghenbroeck, 2008, p. 363).
17
When taking a closer look at what
kind
of subjective rights each of these two
regimes contain, some interesting contrasts come to the fore. The rights granted by
data protection, such as the right to access one's own data, are very concrete
actions that each data subject can undertake in an autonomous way (even though
in practice only a limited amount of data subjects bother or manage to mobilise
them). In comparison, what we have qualified as subjective rights in the field of
anti-discrimination legislation does not refer to fully-fledged subjective rights, but
rather to guarantees that aim at making action before court successful, thereby
ensuring a real judicial efficiency to anti-discrimination principles
.
Thus it would
not seem unfair to argue that data protection rights correspond closer to the notion
of subjective rights: it could be argued that the data subject's rights are part of the
very essence of data protection, i.e. that data protection is about granting
prerogatives to the person whose personal information is being processed, whereas
in the case of anti-discrimination the prerogatives merely represent an ancillary
tool in order to ensure the efficiency of the legal framework.
In order to make sense of this distinction, one has to take into account the
object
of each of these legal regimes. Data protection is fundamentally different
from anti-discrimination law, in that it regulates one
18
kind of action (the
processing of personal data), independently of its actual consequences.
19
By
17
See also, Belgian Equality Act, art. 20(1); Belgian Gender Discrimination Act, art. 25(1);
Belgian Anti-Racism Act, art. 18(1).
18
There are two exceptions (art. 3(2)
DP
): data processed in the context of the household or
criminal law enforcement do not fall under the scope of the
DP
Directive. See
supra
,
section 4.3.
19
One should, however, distinguish between the
actual consequences
and the
aim
of the
data processing
as inscribed in the process
of data handling. According to the
DP
Directive the latter is of great importance in assessing the overall legitimacy of the
processing of data. Thus, data protection does not look into the actual outcomes of data
processing, but it does assess whether the reasons and interests (art. 7(f)
DP
) for a
particular instance of data processing were legitimate. Of course, in practice this
conceptual distinction might turn out to be permeable. See
infra
, section 4.7.
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