In the European equality law review 2019/1, Equinet's Deputy Director Tamás Kádár analyses the legal standing of equality bodies with a particular focus on Belgium, Romania and Sweden. The article explores different forms of legal standing as well as the different ways in which equality bodies have used their standing to ensure effective enforcement of the EU non-discrimination directives.
Legal standing, understood as the right to bring a legal action to a court of law, or to appear in a court, is an important precondition for equality bodies to effectively promote equality and fight discrimination. When granted such powers, equality bodies can contribute to the development of the legal framework for equality both at national and at European level and it is only then that they can effectively assist victims of discrimination. Despite European standards for equality bodies requiring Member States to accord wide-ranging legal standing to equality bodies, some of them don’t yet have effective powers in this regard.
"One cannot but be struck by the extraordinary complexity and variety of rules concerning the legal standing of equality bodies. European standards make it clear that it is crucial for equality bodies to be able to appear in courts, yet in some Member States they don’t yet have effective powers in this regard. This is deplorable and undermines efforts to reach equality in European societies."
Tamás Kádár, Equinet Deputy Director
Challenges
Common challenges include a general lack of adequate funding for equality bodies to investigate and litigate cases. This, together with the threat of excessive legal costs being awarded against the equality body when losing a court case, can result in an inability of equality bodies to use their legal standing and litigate to the extent necessary to fulfil their potential. It might also influence their decision on whether or not to litigate in a particular case, potentially leading to litigating primarily in relatively straightforward and low-risk cases at the expense of other, perhaps equally strategic but more controversial cases.
The tension between support and litigation on one hand and impartial decision-making on the other hand may also influence how the equality body uses its legal standing, although it appears that in practice equality bodies holding both these competences tend to have a clear vision for prioritising one or the other or they build in safeguards such as clear firewalls between the units deploying the different competences.
Interventions and amicus curiae powers are not granted to equality bodies in all jurisdictions. However, even where they are granted such powers, the reluctance of courts to allow equality bodies to use them in practice appears to be a considerable challenge.
The internal rules and procedures of equality bodies also constitute an important challenge when they lack a clear and well-thought-through strategy for the use of their legal standing.
In light of the challenges identified, Kádár makes proposals to Member States, the European Commission and equality bodies to take into consideration to effectively strengthen the legal standing of equality bodies. Read them here (p.15).
European Equality Law Network - Law Reviews
The first 2019 issue of the European Equality Law Review provides a new overview of legal and policy developments across Europe, reflecting the state of affairs from 1 July to 31 December 2018. It describes the most recent case law of the Court of Justice of the European Union and the European Court of Human Rights and details the most relevant developments in the same period in legislation, case law and policy in the 36 countries that are covered by the network.
This Law Review furthermore includes four in-depth analytical articles, including the one by Kádár mentioned above. In the second article, Sybe de Vries, Professor of EU Single Market Law and Fundamental Rights at Utrecht University, looks at the horizontal direct effects of the EU Charter of Fundamental Rights for gender equality after the 2018 landmark decision of the CJEU in Bauer. In the third article, the Romanian non-discrimination expert Romaniţa Iordache examines the practice of invoking a religious ethos to discriminate on grounds of sexual orientation in access to goods and services. The fourth article by the Icelandic gender equality expert Herdís Thorgeirsdóttir tackles the issue of victimisation and the protection afforded by EU gender equality law.
