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Equality Bodies and Freedom of Movement

December 1st 2015

An Equinet Discussion Paper

Developed on the basis of a membership survey and the discussions of the Equinet Working Group on Equality Law, this Equinet Discussion Paper outlines the key challenges identified by equality bodies if they are to be designated as bodies under Directive 2014/54/EU, aimed at facilitating the uniform application and enforcement in practice of the already existing rights conferred on workers by Article 45 TFEU and by Regulation (EU) 492/2011 in the context of freedom of movement for workers.

Background

Equality bodies have been set up in all EU Member States and beyond on the basis of EU equal treatment legislation, in particular Directive 2000/43/EC (Race Directive), Directive 2004/113/EC (Gender Goods and Services Directive), and Directive 2006/54/EC (Gender Recast Directive). These Directives cover the grounds of gender, race and ethnic origin in matters of employment and beyond. However, neither these, nor any of the other equal treatment directives cover the ground of nationality.

In contrast, EU Treaties and secondary legislation in the field of free movement prohibit nationality-based discrimination, with Article 18 of the Treaty on the Functioning of the European Union (TFEU) and Article 21 of the Charter of Fundamental Rights of the EU (Charter) containing a general non-discrimination provision on this ground within the scope of application of the Treaties.

Article 45 of the TFEU stipulates free movement of workers and requires the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. The EU has adopted a number of secondary laws in the field of free movement to detail some of these rules.

In 2014 the EU adopted new legislation, Directive 2014/54/EU, aimed at facilitating the uniform application and enforcement in practice of the already existing rights conferred on workers by Article 45 TFEU and by Regulation (EU) 492/2011 in the context of freedom of movement for workers. Thus, the scope of this Directive is identical to that of Regulation (EU) 492/2011 and it applies to Union workers and members of their families.

Article 4 of the Directive foresees the setting up of bodies to promote equal treatment and to support Union workers and members of their family. The regulatory approach and wording of this Article is similar to the wording found in the EU Equal Treatment Directives as illustrated by the table below, comparing its text with the Recast Directive, where only a few important differences are apparent.

Recital 18 of the Directive as well as the detailed explanation in the Explanatory Memorandum regarding this article stipulates specifically that it is up to each Member State to decide whether they would like to set up a new body or allocate the functions to an existing structure. The Explanatory Memorandum goes further and suggests that ‘Building on existing structures has the advantage of benefiting of the existing knowledge and experience. It also increases simplicity and accessibility since it avoids the risk of creating confusion and uncertainty as to where to turn in case of problems’. Furthermore, ‘at present ’nationality’ could be covered by the competence of existing Equality bodies in 19 Member States’.

Equinet Discussion Paper

Having realised the possible relevance of this new Directive for Equality Bodies, Equinet surveyed its membership in July—August 2014 and repeated the survey in April 2015 to find out more about the position, expectations, capacities and possible reservations of equality bodies with regard to this Directive.

The survey, answered by 32 equality bodies, revealed that by April 2015 three equality bodies were already designated as Article 4 bodies under the Directive (even though the implementation deadline for the Directive is only 21 May 2016). Nine more equality bodies reported that they are likely to be designated as bodies under the Directive.

Importantly, 19 equality bodies out of 32 reported that their mandate could already cover discrimination on the basis of nationality and/or citizenship. For some, this is listed in legislation as a separate ground, while others would understood them as part of other grounds, typically race and ethnicity. The large number of our members already dealing with nationality-based discrimination is also reflected in the significant case law from equality bodies that Equinet could collect and that is compiled at the end of this discussion paper.

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Equality Bodies and Freedom of Movement (2015)
Equality Bodies and Freedom of Movement (2015)