Berlin parliament passes anti-discrimination law targeting public authorities

Proponents argue that the new law fills an existing legal gap. This is because the General Equal Treatment Act (AGG), which came into force in Germany in 2006 to transpose four European directives on equal treatment, does apply to the private sector, but not to state action. EPA-EFE/CLEMENS BILAN [EPA-EFE/CLEMENS BILAN]

Berlin’s state parliament on Thursday (4 June) passed a controversial law that aims to hold public authorities to account for acts of discrimination, EURACTIV Germany reports.

The state anti-discrimination law known as Landesantidiskriminierungsgesetz (LADG) is intended to make it easier for those affected to protect and defend themselves against discrimination by public authorities.

If discrimination is considered “predominantly likely”, the respective public authority must then refute the accusations made against it. Previously, the legal situation was that those affected had to prove discrimination first.

“This is an important step in the fight against discrimination and racism. For the first time it is possible to take action against discrimination on the part of state actors and to punish this in a simplified way,” said Werner Graf, the regional chairman of Bündnis 90/Die Grünen Berlin.

In addition to facilitating the burden of proof, the right to compensation, as well as for associations to sue on behalf of those affected, are also included.

The law, whose adoption was already anchored in the coalition agreement of Berlin’s Socialist-Green state government, is the first of its kind in Germany.

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Legal gap

Proponents argue that the LADG fills a legal gap because the General Equal Treatment Act (AGG), which came into force in Germany in 2006, and transposed four EU equal treatment directives, applies to the private sector, not the state.

Up to now, administrative courts have only been able to establish unlawful conduct by a state authority without being able to derive a legal consequence.

“The LADG is not only useful but also necessary in order to implement European guidelines,” Eva Maria Andrades, Managing Director of the Anti-Discrimination Association Germany, told EURACTIV Germany.

The association, as well as numerous social and migration associations, have welcomed the decision of the Berlin House of Representatives.

Aziz Bozkurt, Federal Chairman of the Working Group on Migration and Diversity in the SPD, is also pleased that “there is now a pioneer” for the legal basis for discrimination cases by public authorities.

However, Germany’s police union (DPolG) has criticised the new law.

“The assertion that this law would close a gap in protection is absurd,” said DPolG federal chairman Rainer Wendt, referring to the current state liability law, which applies if an authority can be proven to have deliberately caused damage.

However, according to Wendt, this hardly ever comes into effect because only a few cases of alleged discrimination has found police wrongdoing.

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A “declaration of mistrust”?

Throughout Germany, the law has been widely rejected, especially by police unions, which are supported by the Berlin Federation of Civil Servants and the Berlin CDU.

“The law is driven by distrust and contempt for the police and the entire public service in Berlin,” Wendt said.

“In reality, (it is) a law discriminating against civil servants”, said Berlin CDU lawmaker Burkhard Dregger yesterday (4 June) in the Berlin House of Representatives.

“The law places police officers and other public employees under general suspicion,” added Berlin’s CDU chairman, Kai Wegner, who noted that it represents “a single declaration of mistrust against the employees.”

Earlier this week, Federal Interior Minister Horst Seehofer (CDU) told Der Tagesspiegel that the the law was “basically madness”.

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Declaration of war against racial profiling

However, the debate has become more explosive following recent events in the US.

In Germany, too, thousands of people have protested against racism and police violence in recent days, triggered by the violent death of African-American George Floyd.

“Nobody and nothing is completely free of racism and discrimination, especially not in a white majority society,” Graf said. This makes it all the more important to create structures that expose discrimination, he added.

“Racial profiling also exists in Germany,” said Social Democrat Dietmar Köster (SPD), adding that one example of this would be “suspicion-independent controls of people with dark skin colour.”

Köster is also a member of the foreign affairs committee and the US delegation of the European Parliament.

According to a 2016 report by the Federal Anti-Discrimination Agency, incidents of racial discrimination are over-represented in cases of discrimination by police officers in Germany.

Andrades emphasises that the new Berlin law, however, is “more than just police work and racial discrimination” as about 20% of the cases reported to anti-discrimination offices in Germany concern discrimination by public authorities.

The Berlin Senate Department for Justice, Consumer Protection and Anti-Discrimination hopes that other federal states will follow the Berlin LADG.

“The goal of a non-discriminatory administration should no longer be questioned in 2020,” a spokesperson for the Senate Administration told EURACTIV Germany.

[Edited by Benjamin Fox]

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