National Discrimination Tribunal of Finland prohibits ethnic discrimination

The Ombudsman for Minorities requested the National Discrimination Tribunal of Finland to settle whether Tallink Silja Oy had infringed the Non-Discrimination Act’s prohibition of discrimination when the ship's personnel examined the travel documents of the Iranian-born Finnish citizens A and B in conjunction with a sea voyage, and, if necessary, under notice of a conditional fine, to prohibit Tallink Silja Oy from continuing or repeating the discriminatory practice.

The Ombudsman for Minorities had deemed the practice to have been direct discrimination and possibly, in part, harassment. The National Discrimination Tribunal deemed the account given by the petitioner to have generated a presumption of discrimination, and therefore the respondent had to prove that it had not acted in breach of the prohibition of discrimination. The National Discrimination Tribunal did not deem examination of the travel documents of all passengers to constitute discrimination, but it did deem the removal of only A’s and B’s passports to be directly discriminatory based on their ethnic background, and prohibited Tallink Silja Oy from continuing the infringement of section 6 of the Non-Discrimination Act directed at A and B or at anyone else.

The National Discrimination Tribunal did not deem the removal of the passports, considering the circumstances, to be so serious that it could be regarded as harassment. When taking the events and other circumstances relating to the matter into account, the National Discrimination Board did not consider it appropriate to impose a conditional fine.

The National Discrimination Tribunal in its decision of 17 December 2012 deemed established that the events that were the basis of the petition had occurred on board the ship while the vessel was still in the Port of Mariehamn, and subsequently in Finnish territorial waters. The National Discrimination Tribunal considered that the principle of territorial waters must be applied in the case and, on this basis, all merchant vessels in the Port of Mariehamn shall be subject to the legislation of the State of Finland, regardless of the flag under which the vessels are registered.

Under the Non-Discrimination Act, the jurisdiction of the National Discrimination Tribunal is not limited regionally, thus it is the national authority which has jurisdiction throughout the territory of Finland. Since the Act on the Autonomy of Åland does not provide otherwise, the National Discrimination Tribunal considered the matter to be within its jurisdiction.

The effectiveness requirement concerning judicial protection by and administrative implementation and application of European Union law entails that that it does not render in practice impossible or excessively difficult the exercise of rights conferred by European Union law. The individual must have effective access to justice.

Although Tallink Silja Oy does not own the vessel M/S Victoria I or operate it − instead the ship is operated by the AS Tallink Grupp, which belongs to the same consolidated corporation − the National Discrimination Tribunal considered that Tallink Silja Oy sells and markets cruises in Finland on behalf of a company belonging to the same consolidated corporation and obtains economic benefit from the operation in question. Tallink Silja Oy had also provided A and B with compensation in the form of another cruise on account of what had happened to them in Finland. In other respects too, the consolidated corporation presents itself as a single group when providing services to consumers, even though it consists of separate companies.

The National Discrimination Tribunal deemed that Tallink Silja Oy could not validly avoid its responsibility by claiming that the consolidated corporations other companies may have acted in a discriminatory manner, therefore the applicants’ demand for prohibition of discrimination could be aimed at Tallink Silja Oy.

The entire decision in Finnish and Swedish is published on Internet site of the Tribunal: http:// www.syrjintalautakunta.fi

Further information: Juhani Kortteinen, Rapporteur of the National Discrimination Tribunal, tel. 071 8788680, E-mail: [email protected]