(1)

It follows from Article 2 of the Treaty on European Union that the Union is founded on the value of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

(2)

Article 8 of the Treaty on the Functioning of the European Union provides that in all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.

(3)

Article 21 of the Charter of Fundamental Rights of the European Union prohibits any discrimination on any grounds, such as sex, race, ethnic origin, religion or belief, disability, age or sexual orientation. Article 23 of the Charter enshrines the right to equality between men and women in all areas, including employment, work and pay. Its Article 26 recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. Moreover, the equality of everyone before the law is enshrined in Article 20 of the Charter of Fundamental Rights of the European Union.

(4)

Pursuant to Article 19 of the Treaty on the Functioning of the European Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation, without prejudice to the other provisions of the Treaties and within the limits of the powers conferred upon the Union. Under Article 157(3) of the Treaty on the Functioning of the European Union, the European Parliament and the Council shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

(5)

Several Directives on the prohibition of discrimination in the relevant areas have been adopted on the basis of these provisions.

(6)

Council Directive 2000/43/EC (1) prohibits direct and indirect discrimination based on racial or ethnic origin, including harassment. It applies to all persons, as regards both the public and private sectors, including public bodies, in relation to (a) conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; (b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; (c) employment and working conditions, including dismissals and pay; (d) membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations; (e) social protection, including social security and healthcare; (f) social advantages; (g) education; and (h) access to and supply of goods and services which are available to the public, including housing.

(7)

Council Directive 2000/78/EC (2) prohibits direct or indirect discrimination, including harassment, on the grounds of religion or belief, disability, age or sexual orientation as regards employment, occupation and vocational training. It applies to all persons, as regards both the public and private sectors, including public bodies, in relation to points (a)-(d) cited in the previous recital.

(8)

Council Directive 2004/113/EC (3) prohibits direct and indirect discrimination based on sex, including harassment and sexual harassment, in access to and supply of goods and services.

(9)

Directive 2006/54/EC of the European Parliament and of the Council (4) on sex equality provides for a prohibition against direct and indirect discrimination based on sex, including harassment and sexual harassment, in matters of access to employment, including promotion, and to vocational training, working conditions, including pay, and occupational social security schemes.

(10)

Directive 2010/41/EU of the European Parliament and of the Council (5) prohibits direct and indirect discrimination, including harassment and sexual harassment, between men and women engaged in an activity in a self-employed capacity. The scope of the Directive covers all types of discrimination, but social protection and maternity benefits are specifically mentioned.

(11)

All the abovementioned Directives (hereinafter ‘the equality Directives’) have been transposed by the Member States. The equality Directives, except for Directive 2000/78/EC, provide that Member States shall designate a body or bodies for the promotion, including the analysis, monitoring and support of equal treatment of all persons without discrimination on the grounds covered by the respective Directives (hereinafter ‘equality bodies’). Accordingly, all Member States have established equality bodies.

(12)

The present Recommendation applies to the equality bodies set up under the abovementioned equality Directives.

(13)

Where the equality Directives provide for such equality bodies to be established, they require Member States to ensure that the competences of these bodies include providing independent assistance to victims, conducting independent surveys concerning discrimination, publishing independent reports and making recommendations on any issue relating to such discrimination.

(14)

In addition, on 2 July 2008 the Commission adopted a proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (6). The scope of the proposal covers (a) social protection, including social security and healthcare; (b) social advantages; (c) education; and (d) access to and supply of goods and services which are available to the public, including housing. Under the proposed Directive Member States are obliged to designate a body or bodies for equal treatment also in those areas, which may be the same bodies as those already established under the equality Directives. Although the proposal has not been adopted to date, Member States should be encouraged to designate equality bodies in those areas, since experience shows that designation of such bodies strengthens protection from discrimination.

(15)

Directives 2006/54/EC and 2010/41/EU in addition require Member States to ensure that the tasks of the equality bodies include exchange of information available with corresponding European bodies.

(16)

In a number of Member States, the mandate of equality bodies also covers hate crime and hate speech. This bears relevance, in particular, as regards ensuring effective implementation of Council Framework Decision 2008/913/JHA (7) on combating certain forms and expressions of racism and xenophobia by means of criminal law, setting minimum standards for the criminalisation, prosecution and sanctioning of racist hate speech and crime.

(17)

In addition to their obligations under the Directives to establish equality bodies, most Member States have extended the mandate of their equality bodies' to encompass generally the scope of application of discrimination on the grounds of gender, racial or ethnic origin, religion or belief, disability, age or sexual orientation in the areas of employment and occupation, access to and supply of goods and services, education, social protection and social advantages, therefore covering the scope of Directive 2000/78/EC, as well as other areas.

(18)

The text of the equality Directives leaves a wide margin of discretion to Member States on the structure and functioning of equality bodies. This results in significant differences between the equality bodies established in the Member States, in terms of the bodies' mandate, competences, structures, resources and operational functioning. This in turn sometimes leads to unsatisfactory access to protection for citizens, a protection which is unequal from one Member State to another (8).

(19)

Some Member States have founded more than one equality body, which requires creating clear mechanisms for their coordination and cooperation.

(20)

In some Member States existing equality bodies have seen their mandate extended to the most diverse fields without an appropriate increase in resources. A number of equality bodies have even faced significant reductions in their budgets, which may result in weakening their capacities to carry out their tasks (9).

(21)

Cases of equality bodies lacking independence and effectiveness, for instance due to external pressure or inadequate staffing have been pointed out in studies (10).

(22)

In practice, independence could be affected in particular when the equality body is set up as part of a ministry taking instructions directly from the Government.

(23)

Equality bodies should not concentrate to a disproportionate extent on some tasks to the detriment of others (11).

(24)

To help groups or individuals that are discriminated against to make use of their rights, equality bodies should also raise the general public's awareness of their existence, of the anti-discrimination rules in force and of ways to seek redress. For this purpose, it should be easy for all to access equality bodies, physically and online. Submission of complaints should also be facilitated by confidentiality and simple procedures which are free of charge.

(25)

To help ensure that equality bodies function properly and in an equivalent way across the Union, it appears appropriate to recommend Member States standards for equality bodies.

(26)

The need for standards for equality bodies was further underlined in the 2014 Joint report on the application of Directives 2000/43/EC and 2000/78/EC (12), the 2015 Report on the application of Directive 2004/113/EC (13) as well as in the evaluation report of the 2014 Pay Transparency Recommendation and the EU Action Plan 2017-2019 ‘Tackling the gender pay gap’ (14). In addition, the European Parliament called for equality bodies' standards in its 2015 resolution (15)

(27)

Standards for equality bodies and human rights institutions have already been adopted by the United Nations (16), the European Network of Equality Bodies (17) and the Council of Europe (18).

(28)

The present Recommendation is addressed to Member States. It aims to contribute to closing the gap in standards between equality bodies across Europe.

(29)

The Recommendation sets out standards regarding the mandate, independence, effectiveness, accessibility, and coordination of equality bodies and regarding access to them, with a view to ensuring that they can effectively perform their functions.

(30)

This Recommendation builds on the Commission's commitment to encourage and help Member States to improve their capacity to enforce Union legislation and provide remedies to ensure that individuals and groups that are discriminated against and protected by Union law can fully enjoy their rights, in line with the Communication ‘EU law: Better results through better application’ (19). Independent equality bodies play an essential role in implementing Union legislation effectively and enforcing it comprehensively and consistently. Equality bodies are also valuable institutions for the sustained development of equal and inclusive democratic societies.

(31)

In the areas covered by Union competence, the standards for equality bodies also have to comply with the accessibility requirements enshrined in the United Nations Convention on the Rights of Persons with Disabilities. This Convention was approved on behalf of the European Community by Council Decision 2010/48/EC (20), and is thus an integral part of the EU legal order prevailing over EU secondary law.

(32)

Directives 2000/43/EC, 2000/78/EC, 2004/113/EC and 2006/54/EC contain an obligation for Member States to communicate all available information on their application so that the Commission can draft a report assessing of the measures they have taken under the relevant Directives. The communication is to take place within certain pre-established intervals (21) in order to enable the Commission to adopt and publish the report. Including in that communication information on the Member States' compliance with the present Recommendation would enable an assessment of its impact.

(33)

At Union level, the present Recommendation is without prejudice to the principles of national procedural law and the legal traditions of the Member States. It does not entail an extension of the Union's powers as defined by the Treaties and by secondary Union law,