(1)

Equality and non-discrimination are recognised as essential values of the Union in Articles 2 and 3 of the Treaty on European Union (TEU). Articles 8 and 10 of the Treaty on the Functioning of the European Union (TFEU) provide, respectively, that the Union is to promote equality between men and women and combat discrimination based on sex in all its activities. The Charter of Fundamental Rights of the European Union protects the right to non-discrimination and the right to equality between women and men in Articles 21 and 23. The Union has already adopted several Directives to combat discrimination.

(2)

The purpose of this Directive is to lay down minimum requirements for the functioning of bodies for the promotion of equal treatment (‘equality bodies’) to improve their effectiveness and guarantee their independence in order to strengthen the application of the principle of equal treatment as derived from Directives 2006/54/EC (3) and 2010/41/EU (4) of the European Parliament and of the Council.

(3)

Directive 2006/54/EC prohibits discrimination based on sex, in relation to access to employment and occupation, including promotion, and to vocational training, in relation to working conditions, including pay, and in relation to occupational social security schemes.

(4)

Directive 2010/41/EU prohibits discrimination between men and women engaged in an activity in a self-employed capacity.

(5)

The Court of Justice has held that the scope of the principle of equal treatment for men and women cannot be confined to the prohibition of discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, it also applies to discrimination arising from gender reassignment (5).

(6)

Directives 2006/54/EC and 2010/41/EU require Member States to designate one or more bodies for the promotion of equal treatment, including the analysis, monitoring and support of equal treatment of all persons without discrimination on the grounds covered by the respective Directive. Those Directives require Member States to ensure that the competences of such 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. They also require Member States to ensure that the tasks of those bodies include the exchange of information with corresponding European bodies, such as the European Institute for Gender Equality.

(7)

Council Directives 2000/43/EC (6) and 2004/113/EC (7) also provide for the designation of equality bodies for the promotion, analysis, monitoring and support of equal treatment of all persons without discrimination on the grounds covered by the respective Directive.

(8)

All Member States have designated equality bodies pursuant to Directives 2006/54/EC and 2010/41/EU. A diverse system of equality bodies has been put in place, and good practices have emerged. However, many equality bodies face challenges, in particular concerning the resources, independence and powers necessary to perform their tasks.

(9)

Directives 2006/54/EC and 2010/41/EU leave a wide margin of discretion to Member States as regards the structure and functioning of equality bodies. As a result, there are significant differences between equality bodies in the Member States, in terms of their mandates, competences, structure, resources and operational functioning. This, in turn, means that protection against discrimination differs from one Member State to another.

(10)

To ensure that equality bodies can effectively contribute to the enforcement of Directives 2006/54/EC and 2010/41/EU by promoting equal treatment, preventing discrimination and offering assistance in accessing justice to all individuals and groups that are discriminated against across the Union, it is necessary to establish minimum standards for the functioning of those bodies. The minimum standards laid down in this Directive take into account Commission Recommendation (EU) 2018/951 (8), drawing on some of its provisions and the approach recommended therein. They also draw on other relevant instruments, such as the revised General Policy Recommendation No 2 on equality bodies adopted by the European Commission against Racism and Intolerance and the Paris Principles relating to the Status of National Human Rights Institutions adopted by the United Nations, which are applicable to national human rights institutions.

(11)

The same minimum standards for the functioning of equality bodies as regards the matters covered by Council Directive 79/7/EEC (9), Directive 2000/43/EC, 2000/78/EC (10) and Directive 2004/113/EC are provided for in Council Directive (EU) 2024/1499 (11).

(12)

This Directive should apply to equality bodies’ action as regards the matters covered by Directives 2006/54/EC and 2010/41/EU. The minimum requirements laid down in this Directive should only concern the functioning of equality bodies and should not extend the material or personal scope of those Directives.

(13)

This Directive applies to equality bodies when tackling discrimination covered by Directive (EU) 2019/1158 of the European Parliament and of the Council (12) by virtue of the reference in Article 15 of that Directive to Article 20 of Directive 2006/54/EC that is being replaced by this Directive.

(14)

Directive (EU) 2023/970 of the European Parliament and of the Council (13) should be considered lex specialis in relation to Directive 2006/54/EC only regarding matters covered therein. This Directive should be without prejudice to more specific provisions on equality bodies set out in Directive (EU) 2023/970.

(15)

In promoting equal treatment, preventing discrimination, collecting data on discrimination and assisting victims in accordance with this Directive, it is important that equality bodies pay particular attention to intersectional discrimination, which is understood as discrimination based on a combination of sex and any other ground or grounds of discrimination protected under Directives 79/7/EEC, 2000/43/EC, 2000/78/EC or 2004/113/EC.

(16)

Member States should designate one or more bodies to exercise the competences laid down in this Directive. Member States may divide the competences between several equality bodies, for example by entrusting one body with prevention of discrimination, promotion of equal treatment and assistance to victims of discrimination, and another with decision-making functions. This Directive should be without prejudice to the competences of labour inspectorates or other enforcement bodies, as well as the autonomy and role of the social partners.

(17)

Equality bodies can only fulfil their role effectively if they are able to act with complete independence without being subject to any external influence. For that purpose, Member States should take a number of measures that contribute to the independence of equality bodies. Equality bodies that exercise competences laid down in this Directive may be part of a ministry or another organisational entity, provided that the necessary safeguards are in place to ensure the performance of their tasks independently from political, financial, religious or any other influence. In particular, while performing their tasks and exercising their competences, equality bodies should retain their independence in relation to any external influence, whether direct or indirect, by refraining from seeking or taking instructions from anybody. In line with the objectives of this Directive and within the applicable legal framework, equality bodies should be able to manage their own financial and other resources, including by selecting and managing their own staff, and be able to set their own priorities. Staff members holding a decision-making or managerial position, whether permanent or temporary, such as the head or deputy head of the equality body and, where applicable, members of the governing board, should be independent, qualified for their position and selected through a transparent process. Transparency in that process can be ensured, for example, by publishing vacancy notices publicly.

(18)

Member States should ensure that the internal structure of equality bodies, such as their internal organisation and processes, allows the independent, and where appropriate impartial, exercise of their various competences, by establishing appropriate safeguards where equality bodies have potentially conflicting tasks, especially when some of those tasks focus on support to victims. Equality bodies should, in particular, act impartially while conducting an inquiry or assessing a case, especially when the equality body holds binding decision-making powers.

(19)

Where the equality body is part of a multi-mandate body such as an ombudsperson with a broader mandate or a national human rights institution, the internal structure of such a multi-mandate body should guarantee the effective exercise of the specific equality mandate.

(20)

Through their respective national budgetary processes, Member States should ensure that equality bodies receive sufficient resources, including qualified staff, appropriate premises and infrastructure to carry out each of their tasks effectively, within a reasonable time or within the deadlines established by national law. Receiving such sufficient resources is key to the effective functioning of equality bodies and the fulfilment of their tasks. It is important that, where new competences are ascribed to equality bodies, Member States ensure that their financial and other resources continue to allow them to perform their tasks and to exercise their competences effectively.

(21)

It is important that the allocation of financial resources remain stable, be planned on a multi-annual basis and allow equality bodies to cover costs that can be difficult to anticipate, such as in the event of increases in complaints, litigation costs and the use of automated systems. Devoting attention to the opportunities and risks presented by the use of automated systems, including artificial intelligence, is key. In particular, equality bodies should be equipped with appropriate human and technical resources. Those resources should, in particular, enable equality bodies to use automated systems for their work on the one hand and to assess such systems as regards their compliance with non-discrimination rules on the other hand. Where the equality body is part of a multi-mandate body, the resources necessary to carry out its equality mandate should be ensured.

(22)

Equality bodies, alongside other actors, such as the social partners and civil society organisations, have a key role in the prevention of discrimination and the promotion of equality. To address the structural aspects of discrimination and to contribute to social change, equality bodies should be empowered to carry out activities to prevent discrimination on the grounds and in the fields covered by Directives 2006/54/EC and 2010/41/EU and to promote equal treatment. Such activities can include the sharing of good practices, positive action and equality mainstreaming among public and private entities, and providing them with relevant training, information, advice, guidance and support. It is also vital that equality bodies communicate with relevant stakeholders and engage in public debate.

(23)

In addition to prevention, a central task of equality bodies is to provide assistance to victims of discrimination. Victims should be understood to encompass all persons who consider that they have experienced discrimination as referred to in Article 4 of Directive 2006/54/EC or in Article 4 of Directive 2010/41/EU, irrespective, for example, of their socio-economic status, political opinion, age, health, nationality, residence status, language, colour, level of literacy, gender, gender identity, gender expression or sex characteristics. Any person can be a victim of discrimination on the basis of sex and should benefit from the assistance of equality bodies from an early stage, irrespective of whether discrimination has been established. Such assistance should always include at least the provision of key information to complainants, including information as to whether the complaint will be closed or whether there are grounds to pursue it further, unless the complaint was made anonymously. Member States are responsible for defining the modalities under which the equality body would inform the complainants, such as the timeframe of the process or procedural safeguards against repetitive or abusive complaints.

(24)

To ensure that all victims are able to complain, it should be possible to submit complaints in various ways. According to Recommendation (EU) 2018/951, the submission of complaints should be possible in a language of the complainant’s choosing which is common in the Member State where the equality body is located. To address one of the causes of underreporting, namely the fear of reprisals, equality bodies should inform victims about the applicable confidentiality rules.

(25)

To offer a possibility for a quick, affordable, out-of-court resolution of disputes, Member States should provide for the possibility for parties to seek alternative dispute resolution, as offered by the equality body itself or by another existing competent entity. In selecting another competent entity, it is important to take into consideration entities established on a durable basis and to ensure that the person or persons in charge of the resolution process are independent, impartial and possess the necessary expertise. The resolution of disputes out of court is more likely to yield successful outcomes where it is done with the agreement of the parties. Having the possibility to seek independent advice or to be represented or assisted by a third party such as the social partners can also be helpful to the parties at any stage of the alternative resolution of their dispute. The absence of a resolution, for example because one of the parties rejected the outcome of the process, should not prevent the parties from acting in court proceedings. Member States should define the modalities of the alternative dispute resolution process according to national law and practice.

(26)

Where the equality bodies suspect a possible violation of the principle of equal treatment laid down by Directives 2006/54/EC and 2010/41/EU, they should be able to conduct inquiries, notably following a complaint or on their own initiative.

(27)

Evidence is key in determining whether discrimination has taken place and it is often not in the possession of the victim. Equality bodies should therefore be able to access the information necessary to establish whether discrimination has occurred and to cooperate with other competent bodies, which can include the relevant public services, such as labour inspectorates or education inspectorates, and the social partners. Member States should establish an appropriate framework for the exercise of that competence, in accordance with national rules and procedures. Member States may entrust another competent body, in accordance with national law and practice, with conducting inquiries. In order to avoid a duplication of processes, such a competent body should provide the equality body, upon its request, with information on the results of the inquiry when the process is completed.

(28)

Equality bodies should be able to document their assessment of the complaint on the basis of the evidence gathered. Member States should determine the legal nature of this assessment that can be a non-binding opinion or a binding decision. Both should state the reasons for the assessment and include, where appropriate, measures to remedy any breach of the principle of equal treatment found and to prevent further occurrences, while taking into account the different nature of opinions and decisions. To ensure the effectiveness of equality bodies’ work, Member States should adopt appropriate mechanisms for the follow-up of opinions and the enforcement of decisions.

(29)

To raise awareness of their work and of equality law and non-discrimination law, equality bodies should be able to publish at least the summaries of those of their opinions and decisions which they consider to be of particular relevance.

(30)

Equality bodies should have the right to act in court proceedings in order to contribute to ensuring the respect of the principle of equal treatment laid down in Directives 2006/54/EC and 2010/41/EU. Such court proceedings can take place in courts or equivalent bodies handling matters of equal treatment and discrimination, in accordance with national law and practice. National law and practice on the admissibility of actions and in particular any condition of legitimate interest, cannot be applied in a way that is liable to undermine the effectiveness of the equality bodies’ right to act. The powers to conduct inquiries and to take decisions, and the right to act in court proceedings given to equality bodies under this Directive are expected to facilitate the practical implementation of the current provisions of Directive 2006/54/EC on the burden of proof and of Directives 2006/54/EC and 2010/41/EU on the defence of rights. Under the conditions provided for in this Directive, equality bodies will be able to establish facts from which it can be presumed that there has been direct or indirect discrimination, thereby fulfilling the conditions provided for in Article 19 of Directive 2006/54/EC. The support provided by equality bodies under this Directive will therefore facilitate access to justice for victims. It should be possible for equality bodies to select the cases they decide to pursue in court proceedings so as to contribute to the proper interpretation and application of equal treatment legislation.

(31)

Where equality bodies have the power to take binding decisions, they should be empowered to act as a party in proceedings on the enforcement or judicial review of those decisions. Equality bodies should also be able to submit observations to the courts, for example by providing their expert opinion, in accordance with national law and practice.

(32)

The right of equality bodies to act in court proceedings can take different forms in different national legal frameworks. Therefore, Member States should choose, in accordance with national law and practice, one or more of the following forms of action for equality bodies: acting on behalf of one or several victims, or in support of one or several victims, or initiating court proceedings in its own name.

(33)

Equality bodies should be able to act on behalf of or in support of victims, where applicable with their approval, allowing them to access justice where procedural and financial barriers or a fear of victimisation often deter victims. Where equality bodies act on behalf of one or several victims, they represent the victims before the court. Where equality bodies act in support of one or several victims, they take part in court proceedings initiated by the victims, to support the claim.

(34)

Some instances of discrimination are difficult to combat because there is no complainant pursuing the case themselves. In its judgment in case C-54/07 (14), which was brought by an equality body in its own name, the Court of Justice confirmed that discrimination can be established even in the absence of an identified victim. Therefore, in order to combat discrimination in the public interest, Member States should have the option to provide that equality bodies be able to act in their own name in certain cases of discrimination, for example due to the abundance or seriousness of cases or the need for legal clarification, each of which could imply that the discrimination is structural or systematic in nature. Member States should be able to provide, in accordance with national law and practice, that such cases of discrimination require an identified person or entity as a respondent.

(35)

To ensure the respect of individual rights, Member States should frame the powers of equality bodies within appropriate procedural safeguards, ensuring that the right of confidentiality and general principles of law such as the right to a fair trial, the right of defence and the right to judicial review of binding decisions are appropriately protected, including where the equality body acts as a party or on behalf of a party in court proceedings. Member States can, for example, offer confidentiality to witnesses and whistle-blowers as an important way of encouraging the reporting of instances of discrimination.

(36)

The provisions of this Directive on the equality bodies’ right to act in court proceedings do not alter the rights of victims or of associations, organisations or other legal entities that enforce the rights of victims which have, in accordance with the criteria laid down by national law, a legitimate interest in ensuring that Directives 2006/54/EC and 2010/41/EU are complied with, as laid down in those Directives, including when those victims, associations, organisations or other legal entities have engaged in any judicial or administrative proceedings or both.

(37)

The effectiveness of equality bodies’ work also depends on giving groups at risk of discrimination full access to their services. In the Second European Union Minorities and Discrimination Survey conducted by the European Union Fundamental Rights Agency, 71 % of members of ethnic or immigrant minority groups reported to be unaware of any organisation offering support or advice to victims of discrimination. A key step to support such access is for Member States to ensure that people know their rights and are aware of the existence of and services offered by equality bodies. This is particularly important for disadvantaged groups and groups whose access to that information can be hindered, for example by their precarious economic status, age, disability, level of literacy, nationality or residence status, or their lack of access to online tools.

(38)

Access to equality bodies’ services and publications on an equal basis for all should be guaranteed. For that purpose, potential barriers to access to equality bodies’ services should be identified and addressed. Services should be free of charge for complainants. Member States should also, without prejudice to the autonomy of regional and local authorities, make sure that the services of equality bodies are available to all potential victims throughout their territory, for example through the establishment of local offices, including mobile ones, the use of communication tools, the organisation of local campaigns, cooperation with local delegates or civil society organisations or through contracted service providers.

(39)

In order to guarantee access for persons with disabilities to all services and activities of equality bodies, it is necessary to ensure accessibility, in accordance with the requirements set out in Directive (EU) 2019/882 of the European Parliament and of the Council (15) and to ensure reasonable accommodations in line with the United Nations Convention on the Rights of Persons with Disabilities, adopted on 13 December 2006. Therefore, equality bodies should ensure physical and digital accessibility by preventing and removing the barriers that persons with disabilities can face in accessing equality bodies’ services and information, and provide reasonable accommodations, making necessary and appropriate modifications and adjustments where needed in a particular case.

(40)

Enabling equality bodies to regularly coordinate and cooperate at different levels, on a long-term basis, is key for mutual learning, coherence and consistency, and it can broaden the outreach and impact of their work. Equality bodies should cooperate, within their respective fields of competence, with other equality bodies within the same Member State and with public and private entities at local, regional, national, Union and international level, such as networks of equality bodies at Union level, civil society organisations, data protection authorities, the social partners, labour and education inspectorates, law enforcement bodies, agencies with responsibility at national level for the defence of human rights, national statistical offices, authorities managing Union funds, National Roma Contact Points, consumer bodies, and national independent mechanisms for the promotion, protection and monitoring of the United Nations Convention on the Rights of Persons with Disabilities.

(41)

Equality bodies cannot fulfil their role as experts in equal treatment nor contribute to gender mainstreaming if they are not consulted in sufficient time during the policymaking process on matters related to rights and obligations derived from Directives 2006/54/EC and 2010/41/EU. Therefore, Member States should establish procedures to ensure such consultation in a timely manner and should, where equality bodies consider it necessary, allow them to make recommendations and publish them in time for them to be taken into consideration.

(42)

Equality data are crucial for raising awareness, sensitising people, quantifying discrimination, showing trends over time, proving the existence of discrimination, evaluating the implementation of equality legislation, demonstrating the need for positive action, and contributing to evidence-based policymaking. Equality bodies can contribute to the development of equality data for those purposes, for example by organising roundtables gathering all relevant entities. Equality bodies should also collect and analyse data on their own activities, be able to conduct surveys and, in accordance with national law, be able to access and make use of statistics related to the rights and obligations derived from Directives 2006/54/EC and 2010/41/EU. Personal data collected by the equality body should be anonymised or, where this is not possible, pseudonymised.

(43)

Equality bodies should adopt a work programme setting out their priorities and prospective activities, allowing them to ensure the coherence of their different strands of work over time and to address systemic issues of discrimination falling under their mandate as part of a long-term action plan.

(44)

In addition to publishing an annual activity report, equality bodies should regularly publish a report including an overall assessment of the situation regarding discrimination falling under their mandate in the Member States, as well as other reports relating to discrimination.

(45)

In order to ensure uniform conditions for the implementation of Member States’ reporting obligations as regards the functioning of equality bodies designated under this Directive, implementing powers should be conferred on the Commission to establish a list of relevant indicators, on the basis of which data should be collected. Such indicators should not be for the purpose of ranking or of issuing specific recommendations addressed to individual Member States. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (16).

(46)

This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State.

(47)

Any processing of personal data by equality bodies under this Directive should be carried out in full compliance with Regulation (EU) 2016/679 of the European Parliament and of the Council (17). Member States should ensure that the tasks of equality bodies are clearly laid down in law, in accordance with Regulation (EU) 2016/679. Equality bodies should process personal data only to the extent necessary to fulfil their tasks under this Directive. Individuals whose personal data are processed should be informed about their rights as data subjects, including the remedies available to them at national level.

(48)

Where the fulfilment of the tasks of equality bodies requires the processing of the special categories of personal data referred to in Article 9(1) of Regulation (EU) 2016/679, Member States should also ensure that national law respects the essence of the right to data protection and provides for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject, in accordance with Article 9(2), point (g), of Regulation (EU) 2016/679. Such safeguards should include for example internal policies and measures to ensure data minimisation, including through anonymisation of personal data, where possible; to apply pseudonymisation and encryption to personal data; to prevent unauthorised access and transmission of personal data; and to ensure that personal data is not processed longer than is necessary for the purposes for which they are processed.

(49)

This Directive builds on the rules laid down in Directives 2006/54/EC and 2010/41/EU by introducing strengthened standards for the functioning of equality bodies. The provisions on equality bodies in Directives 2006/54/EC and 2010/41/EU should therefore be deleted.

(50)

This Directive aims at ensuring the functioning of equality bodies according to minimum standards, with a view to improving their effectiveness and guaranteeing their independence, so as to strengthen the application of the principle of equal treatment. Since the objective of this Directive cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality as set out in that Article, this Directive, which limits itself to setting minimum standards, does not go beyond what is necessary to achieve that objective.

(51)

The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council (18) and delivered an opinion on 2 February 2023 (19),

(a)

adopt a work programme setting out their priorities and prospective activities;

(b)

produce and make available to the public an annual activity report, including their annual budget, staff and financial reporting; and

(c)

publish one or more reports, with recommendations, at least every four years, on the state of equal treatment and discrimination, including potential structural issues, in their Member State.