This is the tenth issue of the biannual European equality law review, produced by the European network of legal experts in gender equality and non-discrimination (EELN). This issue provides an overview of legal and policy developments across Europe and as far as possible reflects the state of affairs from 1 January to 30 June 2019. The aim of the EELN is to provide the European Commission and the general public with independent information regarding gender equality and non-discrimination law and, more specifically, the transposition and implementation of the EU equality and non-discrimination directives.
This Law Review opens with four in-depth analytical articles. The first article investigates the case law of the Court of Justice of the European Union concerning the access of female workers to the labour market. The second article examines the concepts of sexual harassment, and harassment related to sex, at work; and evaluates relevant EU law limits and potential for future EU legislative action. The third article explores the issue of primacy of national law over EU law with regards to a controversial provision of the Irish Equal Status Act. The final article examines the implementation of the shift of the burden of proof in non-discrimination cases, focusing on Belgium, France and Ireland.
This Law Review also offers a section presenting the most recent case law of the Court of Justice of the European Union and of the European Court of Human Rights in the field of gender equality and non-discrimination, and closes with a section detailing the most recent developments in legislation, case law and policy at the national level.
In the articles on sexual harassment, the authors reinforce the idea that Equinet has been highlighting recently, namely that there is an added value of acknowledging sexual harassment and harassment related to sex at work as forms of gender discrimination. The recognition of sexual harassment and harassment related to sex as forms of gender discrimination (as compared to the mere dignity approach or health and safety approach) offers the victim a complex of procedural and substantive protective provisions: inter alia, judicial remedies even after the employment relationship has ended; the shift of the burden of proof; the prohibition of victimisation; the standing of trade unions, NGOs and other legal entities; the establishment of specialised equality bodies; and most importantly, the no-fault requirement.
The country reports include many cases from equality bodies, as well as relevant updates on national non-discrimination legislation, which often affects equality bodies. (Do a search for “Equality Body” and you’ll find over 50 entries!) Some highlights are mentioned below.
In North Macedonia, a new law on Prevention and Protection against Discrimination has been adopted. There were many reasons for adopting a new law, but the main ones were that the previous law was not fully in line with the EU acquis and it did not provide a framework for effective protection against discrimination.
The old law raised issues with regard to the equality body – the Commission for Protection against Discrimination (CPAD), the main ones being: (1) the appointment criteria for the Commissioners were too general; (2) the criteria for dismissal of the Commissioners were not clear; and (3) Commissioners were not appointed full time and the establishment of an administrative support unit was prohibited. Under the new law, these matters are resolved. The newly titled Commission for Prevention and Protection against Discrimination (CPPD) will (1) be composed of members appointed against a list of criteria which explicitly ask for five years of experience in equality and non-discrimination matters; (2) the criteria for dismissal are clearly stated in a separate article; and (3) the Commissioners are full-time appointees who will work with the support of an administrative unit.
Unia (the national equality body dealing with discrimination on the grounds of, inter alia, racial or ethnic origin, religion or belief, disability, age and sexual orientation) and the Institute for Equality between Women and Men (IEFH) signed a Cooperation Protocol on 20 March 2019. The aim of this protocol is to formalise the collaboration between these two institutions to fight against discrimination. The Cooperation Protocol aims at promoting mutual information and strengthening the collaboration between the two institutions and foresees notably the organisation of joint meetings and joint initiatives. The institutions undertake to inform each other when processing reports that fall within the other’s remit, with the possible consequence of overcoming the institutional obstacles to tackling situations of multiple discrimination. Until now, there has been no joint strategic litigation of both bodies to tackle multiple or intersectional discrimination. The protocol formalises a cooperation that has existed for years in practice and attempts to stimulate increased and valued exchanges.
In June 2019, ECRI published its conclusions on the Cypriot government’s implementation of the recommendations issued by ECRI in June 2016. ECRI’s conclusions expressed concern over the fact that the office of the Commissioner for Administration (Ombudsman), which is also the national equality body, continues to be unable to appoint its own members of staff, as this remains, by virtue of the Constitution, the responsibility of the Public Service Commission.
The Advocate of the Principle of Equality, the Slovenian equality body, increased its capacity in terms of staff and budget allocated for 2019. The new equality body was established and the new chair nominated in October 2016. Starting with no employees, it currently operates with 20 full-time employees and an annual budget of EUR 1.1 million. This capacity enables the Advocate to implement the majority of tasks allocated by the 2016 Protection against Discrimination Act (PADA). In 2019, the equality body initiated field visits to local communities, meeting mayors, businesses, social and employment institutions and nongovernmental organisations. It also regularly conducts structured dialogues with the representatives of civil society organisations focusing on individual discrimination grounds.
On 16 January 2019, the lower chamber of Parliament passed the Budgetary Law for 2019. The Office of the Commissioner for Human Rights (RPO), which is the Equality Body in Poland, has once again received less money for its activities than required. The budget cuts regarding this office thereby undermine the infrastructures responsible for, amongst other things, the elimination of discrimination.