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A comparative analysis of gender equality law in Europe 2016

January 13th 2017

This report provides a general overview of the ways in which EU gender equality law has been implemented in the domestic laws across Europe. 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.

Overview

This report discusses how European Treaty provisions and the gender equality 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.

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.

Enforcement and compliance: Equality Bodies

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 have put an equality body into place that seeks to implement the requirements of EU and national gender equality law, including Turkey as of very recently. 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, Denmark, 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) or also investigate complaints, give legal advice and assistance, issue (non-binding) opinions, recommendations and warnings, try to get to an out-of-court settlement, bring cases to court, etc. (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 has put into place the Human Rights and Equality Institution based on a new law that entered into force in April 2016, by which two gaps in gender equality were closed; the lack of a specific law on non-discrimination and the lack of an equality body. 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 AntiDiscrimination 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. While the Estonian Gender Equality and Equal Treatment Commissioner receives more complaints every year, its resources are being reduced. In Montenegro, the Ombudsman was given the role of monitoring discrimination cases processed before various enforcement organs. Apart from shortcomings in human and financial resources, the Ombudsman has reported that its work is made more difficult due to the lack of case records relating to discrimination. Although the Law on Prohibition of Discrimination is clear and imperative, the bylaws and regulations to this Act are entirely vague and ambiguous, which has also been reported already by the Ombudsman as well as the inconsistency and inaccuracy of the Rulebook on the Content and Manner of Keeping Separate Records on Cases of Reported Discrimination, which is supposed to provide for the establishment of special records in the form of an electronic database, enabling immediate access to data to the Ombudsman.

Read the Report here.