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The Sanctions Regime in Discrimination Cases and its Effects

December 10th 2015

An Equinet Paper

This study, carried out by Katrin Wladasch of the Ludwig Boltzmann Institut of Human Rights, aims to identify different types of sanctions as a tool for fostering the implementation of the principles of equal treatment and non-discrimination. A specific focus is given to the (potential) role of equality bodies in strengthening effectiveness, proportionality and dissuasiveness of sanctions’ regimes.

Background

An acknowledgement of the need to use sanctions as a tool for fostering the factual implementation of the principles of equal treatment and non-discrimination is rooted in the EU Equal Treatment Directives. These Directives oblige Member States to lay down rules on sanctions for cases of infringement and to take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive .

The Directives however, do not provide any guidance as to the nature of such sanctions, nor do they set a minimum standard or even lay down who should be the body in charge of issuing such sanctions. They leave the interpretation of what they would consider as ‘effective, proportionate and dissuasive’ to the national legislator. Consequently, the concrete regimes of sanctions and remedies are very diverse throughout Europe.

The Aims of Sanctions

Sanctions have to be adequate in relation to their respective aims, such as:

  • Providing remedy for single victims of discrimination (compensative character)
  • Constituting a punishment for the perpetrator (punitive character)
  • Being a tool for preventing further discrimination (preventive character)
  • Being a tool for fighting discrimination and fostering equality on a societal level (social-preventive character)

These aims are also reflected in the three parameters for sanctions and remedies defined in the EU Anti-Discrimination Directives, when they require sanctions and remedies to be characterised by

  • Effectiveness: producing the desired effect for the victim (compensation of damages), resulting in a punitive and preventive effect for the perpetrator and implementing the objective of the directive (fostering the effective implementation of the principles of equal treatment and non-discrimination – social-preventive effect),
  • Proportionality: extent of damage and loss suffered by the victims reflected in the sanction or remedy foreseen in a way that is appropriate (compensation of damages)
  • Dissuasiveness: effectiveness of sanction not only towards the infringer but also as a tool to prevent others from doing likewise (preventive and social-preventive effects).

Equinet Research Paper

This study, which aims to identify different types of sanctions, challenges in implementing them and ways to make them more effective, answers five main questions:

  1. What are the aims of sanctions and remedies in discrimination cases?
  2. Which type of sanction regime would be the most adequate tool for each of these aims?
  3. How should a sanction regime look in order to be accessible for victims of discrimination?
  4. How should a system of monitoring look in order to enhance effectiveness of sanctions, recommendations and other remedies?
  5. What role can equality bodies play in order to promote and secure effectiveness of sanctions and remedies?

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The Sanctions Regime in Discrimination Cases and its Effects (2015)
The Sanctions Regime in Discrimination Cases and its Effects (2015)