Ahead of the International Day for the Elimination of Racial Discrimination on 21 March, today we witnessed the first ever EU Anti-Racism Summit, with important political statements, ambitious requests from civil society and even some controversies.
This high-level event shouldn’t overshadow the importance of the Commission publishing its report also today on the application of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘the Racial Equality Directive’) and of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (‘the Employment Equality Directive’).
A new report only for EU Policy Geeks?
Now, the title of the report may only sound attractive to EU policy geeks, but in reality the document provides a rare institutional analysis of the state of play on equality in Europe today and the effectiveness of existing legislation and this is or at least can be a key milestone in the EU’s journey towards equality. This is why Equinet provided extensive input during the preparation of the report in the form of a perspective issued last year.
The Commission’s report provides a wealth of information and identifies a number of important problem areas from the proper understanding of concepts such as indirect discrimination or victimisation to the adequate enforcement of rights, effective sanctions and the proper collection of equality data. We shall turn to analysing these points in due course, so do stay tuned. However, in this post let me concentrate on what the report tells us about the role and importance of equality bodies and what could and should be the next steps.
The Role of Equality Bodies
Equality bodies are named as key partners in addressing the challenges identified in the report. It finds that ‘many Member States have enabled their equality bodies to play a meaningful role, going beyond the minimum requirements of the Directives. Equality bodies in several Member States have managed to become important centres of expertise and support on discrimination matters, for individuals, organisations and public authorities. They actively promote equality and social change’. The report explicitly refers to the important contributions of equality bodies through their powers to provide accessible support to victims of discrimination (including through litigation and deciding cases); to collect data and report on the current situation of discrimination and equality; to build an expertise in these fields; to issue recommendations; to contribute to the enforcement of the law; and to promote equality.
Diversity of Equality Bodies
Second, the report acknowledges the great diversity of equality bodies, noting that this diversity reflects a variety in Member States’ legal traditions and legal systems. This is diversity that we should accept and welcome. However, the report notes that this diversity also reflects different levels of ambition and achievement in Member States pursuing the objectives of the Directives. This leaves more room for concerns, given that ambition should be at the highest level across the Member States when talking about and acting upon fundamental rights and founding values of the European Union.
Issues of Concern
Third, the report reveals many issues and concerns. There are still gaps in the protection for some grounds and/or some fields in around a third of the Member States. Several equality bodies still lack the necessary litigation and/or decision-making powers to ensure effective support to victims of discrimination and even where the powers are there on paper, they are not always able to apply them to a significant extent in practice, partly because of insufficient resources. The level of resources is named as a major source of concern in general, where most equality bodies consider their resources inadequate – in terms of funding, number of staff and/or skill set of staff. This has repercussions for legal work, but also research, recommendations and policy work and the accessibility of equality bodies where they cannot set up the necessary regional and local offices. Worryingly, the report confirms that a significant number of equality bodies are not fully independent and depend on the government. The report notes that ‘this could raise serious concerns in less consensual political climates’ but seeks to reassure that ‘the equality body may still function quite independently in practice’. One must wonder whether ‘quite independent’ functioning should really be accepted as adequate when for instance in the case of data protection authorities the EU is more categorical and requires ‘complete independence’. The report also notes with concern the limited awareness of equality bodies’ existence. We must share this concern, a major source of under-reporting. However, we must also understand its reasons when several equality bodies struggle to ensure their independence, demonstrating that they are a ‘safe space’ and when several equality bodies do not have the necessary powers to effectively litigate or to issue dissuasive sanctions.
Next Steps?
Fourth, where do we go next? The Commission report reiterates that their Recommendation from 2018 serves as a common standard for the effective and independent functioning of equality bodies. However, they state, ‘a limited and unequal level of implementation of the Recommendation continues to hinder some equality bodies in effectively exercising their role. In practice, this leads to different levels of protection against discrimination across the EU’. Therefore, they call for continued good practice sharing at EU level and the raising of awareness but note that this is not sufficient. Last, but certainly not least, ‘the Commission will also assess whether to propose new legislation to strengthen the role of national equality bodies by 2022’. Half a year ago, I would have called this a major development. However, the Commission put the bar very high with the Anti-racism Action Plan, the Disability, LGBTIQ+ and Roma Equality Strategies and I have to admit that I was hoping for today’s report to be clearer about representing the next step in the process. As expected, it clearly confirms the immense potential of equality bodies and notes the many systemic woes hindering their independent and effective functioning. It seems logical to conclude that this, and the reluctant take-up of the Commission Recommendation, calls for binding EU legislation on equality bodies.
Let us be clear: the current situation endangers both the coherent implementation of EU equality legislation and strategies, as well as the effective protection of the rights of all persons and groups at risk of discrimination across Europe. We cannot afford this and this should be our loud and clear message to all racialised communities in the EU ahead of the International Day for the Elimination of Racial Discrimination, but also to all other groups that suffer daily from discrimination and inequality and look towards equality bodies for help. Therefore, I look forward to working closely with the European Commission for a dedicated and ambitious legislative proposal with provisions for robust monitoring.
