Towards a new gold standard for Equality Bodies – and equal societies?

This is the moment we’ve been waiting for. 

After years (decades?!) of discussions, research, recommendations and advocacy – by Equinet, but also from our civil society partners and researchers – the European Commission adopted two proposals for Directives today, aiming to strengthen National Equality Bodies. This, I hope, is a significant step for these public institutions fighting discrimination and promoting equality. It also holds the potential to enhance equality for all in our societies and sends an important message at a time when the idea of equality is under attack on too many fronts. 

What’s our starting point? 

National Equality Bodies are independent public institutions promoting equality and combating discrimination in their countries. Every Member State, and several other countries around Europe, have an obligation to designate an Equality Body or bodies to promote equality and combat discrimination. However, the current provisions on Equality Bodies leave a large discretion to the Member States as to the mandate, powers, independence, and resources of these bodies. Differences between the Member States in the structure and functioning of Equality Bodies result in unequal protection against discrimination across the EU. 

We know that the issue was identified, and political will has been there, since at least 2018, when the Commission published a Recommendation on standards for Equality Bodies. While it wasn’t a legally binding document, it was a strong signal and ‘warm encouragement’ for Member States to strengthen their Equality Bodies. It came shortly after a revised recommendation from the Council of Europe’s European Commission against Racism and Intolerance, setting out clear and comprehensive standards for Equality Bodies. 

Why do we need new standards? 

Good question! In short, the ‘warm encouragement’ mentioned above unfortunately didn’t work, as was clearly shown in the Commission’s report assessing its implementation. As the Commission put it,  

‘Equality bodies are essential in assisting victims of discrimination and making sure that EU law on non-discrimination is implemented on the ground. This new legislation will ensure that equality bodies can achieve their full potential. It will better protect victims of discrimination and contribute to the prevention of discrimination.’ 

Once adopted, these Directives will be the first ever international, legally binding standards for Equality Bodies. As important and authoritative previous recommendations are, they remain just that – recommendations. 

Such legally binding standards have the potential to make Equality Bodies more independent, effective, respected and accessible. They can overcome the currently unequal levels of protection against discrimination across the EU. With their dedicated focus on functions linked to data collection, promotion of equality and making policy recommendations, they will also ensure that Equality Bodies can proactively work to achieve equality for all. In short, it will benefit every person in the EU – and beyond, for instance in accession countries.  

The Commission’s proposals – a strong and ambitious package 

Today, the Commission has proposed two Directives: one concerning Equality Bodies working on the ground of sex in the field of employment and occupation; and another one concerning Equality Bodies working on the ground of sex in the field of goods and services and social security, on the grounds of religion or belief, disability, age or sexual orientation in the field of employment and occupation and on the ground of racial or ethnic origin in multiple fields.  

Sounds complicated? Well, it is, if we are honest… the reason lies in the so-called legal basis – the EU uses another provision of the EU Treaties to legislate on gender equality in employment. One could argue that the Commission could have reasonably used just one legal basis for the whole package, saving us from having to deal with two Directives.  

However, there is an interesting and important implication of this, namely that the Directive addressing Equality Bodies working on gender equality in employment does not need to be adopted unanimously in the Council of the EU. This may help a speedier adoption process, at least on this file (consider the fate of the Horizontal Directive based on Article 19…).  

Beyond the legal basis, however, the provisions in both Directives are practically identical, at least for the moment.  

• They broaden the mandate of Equality Bodies and the obligation of Member States, requiring them to designate Equality Bodies to promote equality and combat discrimination on the grounds of age, disability, religion or belief and sexual orientation in the field of employment and on the ground of sex in the field of social security.  
• The Directives will guarantee the independence of Equality Bodies, free from external influence. This is crucial if Equality Bodies are to successfully tackle low levels of reporting discrimination cases and gain the trust of all persons, organisations and communities they serve. 
• They will require Member States to provide adequate resources to Equality Bodies, sufficient to effectively perform all tasks and competences. 
• The Directives also expect Member States to grant Equality Bodies legal standing, allowing them to take and support cases before the courts, not only as amicus curiae but also supporting victims and acting in their own name in the collective interest. They also allow Equality Bodies to collect evidence, possibly with a legal obligation on the alleged perpetrator and any third party to provide any information and documents requested. 
• Equality bodies may also be granted legally binding and enforceable decision-making powers and not only may they apply measures to remedy any breach found, but also to prevent further occurrences, taking a more proactive approach. 
• The collection and publication of equality data is both an opportunity and an obligation for Equality Bodies. They will have enhanced access to statistical data, even from private companies, and they can also make recommendations on which data should be collected. The Directives will require Equality Bodies not only to publish annual reports on their activities, but also to use the equality data collected to publish regular reports on the state of equal treatment and discrimination in their country, including potential structural issues. 
• The Directives establish a duty for Member States to promote equality legislation and the existence of Equality Bodies and their services. 
• Equality Bodies’ power to make policy and legislative recommendations is also strengthened, requiring Member States to establish transparent procedures for consulting them in a timely manner and allowing Equality Bodies to require feedback from the authorities concerned. 
• Last, but not least, monitoring the implementation of the Directives will be the duty of the European Commission, with the help of a list of common indicators to measure their practical effects. It is good to know that the indicators developed by Equinet (here and here) will be taken into account when agreeing the Commission’s indicators. 

The Commission’s proposals – what could improve? 

Is this too good to be true? Well, while the Commission’s proposal is strong and ambitious, here are a few points where I would have perhaps liked to see them go further, as mentioned also in Equinet’s ‘ambitions paper’ on the topic.  

• While the Directives will broaden the mandate of Equality Bodies, it would have been great to see the Commission propose that they shall cover all combinations of grounds and fields in the EU Treaties and thereby overcome the existing hierarchy of discrimination grounds. 
• The possibility to use strong investigation powers is a definite positive development, but the proposals would not allow Equality Bodies to use some of this evidence in court, except when submitting an amicus curiae brief or as a defendant in case of a judicial review of the Equality Body’s decision. This is a major concern for many Equality Bodies that currently have such powers, as such a restriction would represent a regression for them – contrary to the non-regression clause, whereby ‘the implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States’.  
• It would have been even better to see the proposals extend the list of grounds covered, at least in the Recitals, for instance to gender identity, expression and sex characteristics, health status and socio-economic status, as proposed by Equinet’s recent research paper and following the progressive approach of the Charter of Fundamental Rights of the EU. This is a missed opportunity, even if, interestingly, in the context of promotional work, other grounds such as economic status, literacy, nationality, residence status and lack of access to online tools are also mentioned. 
• I would have been pleased to see Equality Bodies’ mandate expressly extended to issues of hate speech and activities of public authorities, such as the police. This has been a recommendation by Equinet and the need was also clarified in the public consultation about the gaps in the Racial Equality Directive. 
• Another seemingly missed opportunity is a lack of mention of multiple and intersectional discrimination, even though a recital referring to ‘discrimination based on several of the grounds’ gives me some hope in this regard. 
• Last, but not least, while currently the text of the two Directives is practically identical, I have some fears that this may well change during the legislative process. I hope this is my ‘Cassandra moment’, but I suggest it’ll be useful to think of the possible implications of the two texts diverging significantly and possible ways to prevent this from happening. While the majority of Member States would hopefully decide for transposing the more ambitious provisions for the whole mandate of all Equality Bodies, we may see issues with contradicting provisions or with confusing and complex national provisions. 

Way forward 

Of course, we still have a long way to go from now, with the legislative process only starting in the European Parliament and the Council of the EU. Equinet will tirelessly continue the work we have already done to make better standards for Equality Bodies a reality and we are counting on all friends of equality, colleagues and partners to join us on this exciting journey. 

So, with all the above, is this really the moment we’ve been waiting for?  

Well, I have no doubt about that. 

This is a fantastic opportunity for Equality Bodies to become even stronger and effective actors in the equality infrastructure. An opportunity for the EU to live up to its founding values and establish itself as a global leader in strengthening equality and human rights institutions. And most of all, a hope for all persons in the EU that we can effectively prevent and combat discrimination and achieve a society where equality for all is the norm and the reality.