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A comparative analysis of non-discrimination law in Europe 2016

January 12th 2017

This report, written by the European network of legal experts in gender equality and nondiscrimination, presents the general trends in European anti-discrimination policy and points out some of the remaining dilemmas in the application of anti-discrimination legislation. It gives an overview of the main substantive issues in both directives: the grounds of discrimination, the definition of grounds and scope, exceptions to the principle of equal treatment and positive action, access to justice and effective enforcement, and Equality Bodies.

Countries covered

The objective of this report is to compare and contrast anti-discrimination law in the 28 EU Member States, four EU candidate countries (namely the Former Yugoslav Republic of Macedonia, Montenegro, Serbia and Turkey) and the EEA countries (Iceland, Liechtenstein and Norway), based on the 2016 updates of the country reports . The state of play and the major developments are summarised in this publication.

Compliance with anti-discrimination legislation

All Member States were required to review and amend their existing legislation to comply with the requirements of the directives. The Racial Equality Directive and the Employment Equality Directive had to be transposed into national law by 19 July 2003 and 2 December 2003 respectively in the (then) 15 EU Member States. Countries acceding the EU after this date had to transpose both directives by the date of their accession: 1 May 2004 for 10 new Member States and 1 January 2007 for Bulgaria and Romania. Croatia entered the EU as its most recent Member State on 1 July 2013, and was required to transpose the legislation by that date. The Former Yugoslav Republic of Macedonia, Montenegro, Serbia and Turkey entered the transposition process and they must align their national legislation with EU law by the date on which they enter the EU. EU directives on anti-discrimination are not binding on EEA countries, as the EEA agreement only provides obligations on those countries vis-à-vis EU legislation related to the internal market. In practice, provisions on anti-discrimination exist, but the level of protection varies greatly compared with EU standards. It goes beyond the scope of this report to assess the extent to which Member States have fully complied with the directives or to assess the legislative impact of the European directives on the laws of all the countries examined. However, the report could potentially be used as one of the instruments for making such an assessment. Ambiguities in the directives became apparent in the transposition process. This report will not seek to clarify these gaps, although, where appropriate, the report makes some suggestions to that effect.

This synthesis overview of the national situation in 35 countries is complemented by the comprehensive country reports. Readers can turn to these country reports for detailed and nuanced information about the law of a particular country, containing information current as of 1 January 2016

Equality Bodies

All EU Member States have now designated a specialised body for the promotion of equal treatment irrespective of racial or ethnic origin, as required by Article 13 of the Racial Equality Directive. Among the candidate countries, in Turkey there is no single specialised body that would be able to fulfil all three functions under Article 13(2) of the Racial Equality Directive, although the National Human Rights Institution and the Ombudsman’s Office, both established in 2012, partially fulfil the directive’s requirements. As far as EEA countries are concerned, only Norway has a specialised body for the promotion of equal treatment irrespective of racial or ethnic origin, in accordance with Article 13 of the Racial Equality Directive. There is no specialised body in Iceland, while Liechtenstein has established the Office of Equal Opportunities to deal with gender equality, but it is also mandated to cover other grounds of discrimination including disability, sexual orientation, racial and ethnic origin.

Some Member States have set up completely new bodies such as France, Germany, Greece, Hungary, Italy, Romania, Slovenia, and Spain. Bodies that already existed but which have been given the functions designated by Article 13 include the Cypriot Ombudsman, the Estonian Chancellor of Justice and Commissioner for Gender Equality and Equal Treatment, the Lithuanian Equal Opportunities Ombudsperson, the Maltese National Commission for the Promotion of Equality, the Slovak National Centre for Human Rights and the Croatian Ombudsman. In some states, Article 13 functions are fulfilled by, or shared between, several organisations (e.g. Greece). A new trend has arisen with the merging of existing institutions into one single body to exercise different responsibilities in a variety of areas. For instance, the French Equal Opportunities and Anti-discrimination Commission was merged in 2011 with
several other statutory authorities to become the Defender of Rights. In the Netherlands, a new law created the Human Rights Institute in November 2011, replacing the Equal Treatment Commission. Similarly, in 2014, the Irish Equality Authority and the Human Rights Commission were merged into the Irish Human Rights and Equality Commission. The Swedish Equality Ombudsman was created in
2009 through the merger of four pre-existing ombudsmen institutions working with different grounds of discrimination: sex, ethnic origin and religion; disability and sexual orientation.

Read more about the grounds covered (p.108) and the competencies of equality bodies (p.114) in the Report

Standards for Equality Bodies

Some concerns in relation to particular countries should be highlighted here. There is concern that some specialised bodies are too close to Government, thereby jeopardising the independence of their work. For instance, the independence of the equality body is not stipulated in law in Portugal, while the Italian National Office against Racial Discrimination operates as a ministerial department. The Spanish Council for the Elimination of Racial or Ethnic Discrimination is attached to the Ministry of Health, Social Services and Equality although it is not part of the ministry’s hierarchal structure. However, representatives of all ministries with responsibilities in the areas referred to in Article 3(1) of the Racial Equality Directive have a seat on the council. Since 2014, the act defining the functions of the council has stated that it must exercise its functions ‘with independence’, although it is difficult to assess this de facto, given the large number of Government representatives. In Slovakia, the President and the Vice-President of the Board of the Slovak National Centre for Human Rights were also both members of the Parliament in 2015. In Lithuania, the position of Ombudsperson, at the head of the equality body, remained vacant for a long time following the death of the previous Ombudsperson in November 2013. The Ombudsperson for the Rights of the Child was appointed as a temporary substitute. While several candidates for the position were proposed but rejected by Parliament, the work and reputation of the institution suffered.

Independence, but also effectiveness, has been greatly affected by the budgetary cuts faced by many equality bodies since the economic crisis. This has had an impact, for instance, in Ireland, Hungary (although the Hungarian Equal Treatment Authority’s budget for staff costs has been increasing in the past years) and the United Kingdom. Financial cuts in previous years had already affected Ireland, Latvia, Romania and the UK, while the Commission for the Protection against Discrimination in the Former Yugoslav Republic of Macedonia has consistently been allocated a very limited budget since its creation. In addition, new problems have arisen due to the fact that the national equality body is severely under-equipped and understaffed, which is also the case in Cyprus.

Equinet and its members believe that minimum standards across Europe should be put into place so that equality bodies can implement their functions and powers effectively. These standards would ensure complete independence, effectiveness, sufficient powers and adequate resources for equality bodies.
Read more in our Working Paper on Developing Standards for Equality Bodies

Further Reading

Download the document from the website of the European network of legal experts in gender equality and non-discrimination