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A comparative analysis of gender equality law in Europe 2015

May 31st 2016

European network of legal experts in gender equality and non-discrimination

A comparative analysis of the implementation of EU gender equality law in the EU Member States, the former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Montenegro, Norway, Serbia and Turkey.

Introduction

This report provides a general overview of the ways in which EU gender equality law has been implemented in the domestic laws of the 28 Member States of the European Union, as well as Iceland, Liechtenstein and Norway (the EEA countries) and four candidate countries (the Former Yugoslav Republic of Macedonia, Montenegro, Serbia and Turkey).

The analysis is based on the country reports written by the gender equality law experts of the European equality law network (EELN). At the same time, this report explains the most important elements of the EU gender equality acquis. The term ‘EU gender equality acquis’ refers to all the relevant EU Treaty and EU Charter of Fundamental Rights provisions, legislation and the case law of the CJEU in relation to gender equality.

Since the entry into force of the Lisbon Treaty on 1 December 2009, the European Community and the EU have merged into one single legal order, the European Union. However, we continue to work with two treaties: the Treaty on European Union (TEU) that lays down the basic structures and provisions, and the TFEU, which is more detailed and elaborates the TEU. In addition, the Charter of Fundamental Rights of the EU entered into force in 2009 and has the same legal value as the two Treaties (the TEU and the TFEU). The TEU, the TFEU and the Charter all contain provisions that are relevant to the field of gender equality.

This report will discuss how these Treaty provisions and the directives are implemented at the national level. As this report will show, the transposition was done in various ways: by amending relevant national legislation (such as Labour Codes), by adopting legislation relating to employment and social security legislation, and/or by adopting specific Acts on gender equality and/or non-discrimination. The EU directives which are discussed in this report are annexed to the report. This comparative analysis provides a state-of-the art overview of the implementation of EU gender equality law, and the most recent developments in this area. It discusses the most important topics of EU gender equality law, namely core concepts such as direct and indirect discrimination and (sexual) harassment; equal pay and equal treatment at work; maternity, paternity, parental and other types of care leaves; occupational pension schemes; statutory schemes of social security; self-employed workers; equal treatment in relation to goods and services; violence against women in relation to the Istanbul Convention; and enforcement and compliance issues.

Equality Bodies (pages 79-80)

Since 2002, by virtue of Directive 2002/73/EC, the Member States and EEA countries are also obliged to designate equality bodies. The tasks of these bodies are the promotion, analysis, monitoring and support of equal treatment of all persons without discrimination on grounds of sex. They may form part of agencies with responsibilities at the national level for defending human rights or safeguarding individual rights. These bodies must have the competence to provide independent assistance to victims of gender discrimination, to conduct independent surveys concerning gender discrimination and to publish independent reports and make recommendations (Article 20 of Recast Directive 2006/54/EC and Article 12 of Directive 2004/113/EC).

All states, except Turkey, have put an equality body into place that seeks to implement the requirements of EU and national gender equality law. Yet, these bodies differ in terms of purpose, competence and discrimination grounds they can deal with. In some countries, there are specific bodies limited to dealing with gender equality issues (Belgium, Croatia, Cyprus, Iceland, Italy), whereas in most countries they can also act in defence of non-discrimination on other grounds (Austria, Bulgaria, Czech Republic, Estonia, Finland, Greece, Germany, Hungary, Latvia, the Netherlands, France, Ireland, Lithuania, Luxembourg, the FYR of Macedonia, Malta, Montenegro, Norway, Poland, Serbia, Slovakia, Slovenia, Sweden, the United Kingdom). Some countries have both types of bodies (Liechtenstein, Romania). Such bodies may have just an informative and/or research function (e.g. Germany, Luxembourg, Slovenia) or also investigate complaints, give legal advice and assistance, issue (nonbinding) opinions, recommendations and warnings, try to get to an out-of-court settlement, bring cases to court, etc. (Austria, Estonia, Finland, Greece (no recourse to courts), Hungary, Iceland, Ireland, Italy, Lithuania, Montenegro, Norway, Poland, Serbia, Slovakia, Sweden). Some equality bodies may also issue fines (Cyprus, Hungary, Lithuania) or impose sanctions (Bulgaria). The Irish Human Rights and Equality Commission can also invite – a group of – undertakings to carry out an equality review or to prepare and implement an equality action plan. The situation in the FYR of Macedonia is rather opaque, as the law also provides for a special state agent to act as a gender equality body, but seemingly not having an independent power of investigation, monitoring and reporting. No information is available regarding its actual functioning either. The Norwegian expert has noted that the main weakness of the Equality Ombud is that neither she nor anyone else has the specific task of providing independent assistance to victims of discrimination that will enable them to have access to effective, proportionate and dissuasive sanctions as required by EU law.

The Croatian expert has noted that many victims feel more confident complaining to the Ombudsperson for Gender Equality in out-of-court, less formalistic proceedings at no cost than when going to court. The same applies for Greece. The Ombudsperson annually investigates 300-400 individual complaints. Similarly, in Portugal the difference between the reduced number of actions brought before the courts and the intense work of the national equality body (CITE) gives ground to the conclusion that the more effective action regarding practical implementation takes place outside the courts. Alleged victims of discrimination also have the right to seek counsel and to report discriminatory practices to both CITE and the Labour Inspection Services. The Polish expert has also observed that practice shows that often more can be achieved through direct contacts between the Labour Inspectorate and the employer than by going to court, referring to a wide investigation involving 581 companies regarding the dismissals of persons returning from maternity, paternity and parental leaves and the observance of other employee rights. Turkey also has an Ombudsman institution, and one of the five Ombudspersons is in charge of women and children. It can try to settle complaints but also to get a judicial settlement if need be, in which case the judge will consider the (non-binding) report of the Ombudsperson. The French Defender of Rights body can also help victims to make a case against agents of discrimination and, thanks to special powers, can carry out an investigation and demand explanations from defendants, by conducting hearings and collecting other evidence, including the gathering of information on site. It can issue recommendations and publish them, thus encouraging the defendant to comply. Another noteworthy development concerns the establishment of so-called Anti-Discrimination Bureaus (ADV) in the Netherlands; all municipalities are obliged to establish and subsidise an ADV, the main task of these Bureaus being to assist victims of discrimination and to monitor the situation in this regard.

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Via European Equality Law Network