EUROPEAN COMMISSION

Brussels, 7.12.2022

SWD(2022) 386 final

COMMISSION STAFF WORKING DOCUMENT

Analytical document

Accompanying the documents

Proposal for a
COUNCIL DIRECTIVE

on standards for equality bodies in the field of equal treatment between persons irrespective of their racial or ethnic origin, equal treatment in the field of employment and occupation between persons irrespective of their religion or belief, disability, age or sexual orientation, equal treatment between women and men in matters of social security and in the access to and supply of goods and services, and deleting Article 13 of Directive 2000/43/EC and Article 12 of Directive 2004/113/EC













and













Proposal for a





DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL













on standards for equality bodies in the field of equal treatment and equal opportunities between women and men in matters of employment and occupation, and deleting Article 20 of Directive 2006/54/EC and Article 11 of Directive 2010/41/EU

{COM(2022) 689 final} - {SWD(2022) 387 final}

Contents

1.Introduction

1.1.Political and legal context

1.2.Analysis in preparation of this initiative

2.Problem definition

2.1.What are the problems?

2.2.What are the problem drivers?

3.Why should the EU act?

3.1.Legal basis

3.2.Subsidiarity: necessity of EU action

3.3.Subsidiarity: Added value of the EU intervention

4.Objectives: what is to be achieved?

4.1.Objectives

4.2.Operational objectives

5.What are the policy options?

Description of possible measures

6.Assessment of the possible measures

7.Preferred combination of measures

8.How will actual impacts be monitored and evaluated?

Annex 1: List of equality bodies in the EU Member States

Annex 2: Procedural information

Annex 3: Stakeholder consultation (synopsis report)

Annex 4: Overview of the structure and functioning of equality bodies in Member States

Annex 5: Retrospective analysis report

1.Introduction

2.What was the expected outcome of the intervention?

2.1.Description of the intervention and its objectives

2.2.Point(s) of comparison

3.How has the situation evolved over the period examined by the retrospective analysis?

4.Analysis of findings

4.1.To what extent was the intervention successful and why?

4.1.1.Effectiveness

4.1.2.Efficiency

4.1.3.Coherence

4.2.How did the EU intervention make a difference?

4.3.Is the intervention still relevant?

5.Conclusions

Annex A: Retrospective analysis matrix and questions

Annex B: Overview of benefits and costs

1.1.    Introduction

1.1.1.1.    Political and legal context

This analytical document accompanies two proposals of directives on standards for equality bodies. It includes a retrospective analysis of the EU framework applicable to equality bodies, identifying current challenges, as well as an assessment of the policy options considered in preparation of these proposals to address them. This initiative was exempted from the obligation to conduct a fully-fledged impact assessment.

Equality is a fundamental value of the European Union, laid down in Article 2 of the Treaty on European Union (TEU). In accordance with Article 19(1) of the Treaty on the Functioning of the European Union (TFEU), the Council can take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. In addition, Article 157 TFEU provides for the principle of equal pay for male and female workers for equal work or work of equal value. Equality bodies established under EU equality legislation have a key role to play in ensuring implementation of these principles. This has also been acknowledged by the European Parliament, which adopted several resolutions in this regard 1 . The current list of equality bodies in EU Member States is annexed (see Annex 1).

In 2016, the Council adopted conclusions 2 calling on the European Commission and Member States to reinforce and continue to support the activities of national equality bodies and of the European Network of Equality Bodies (Equinet). In its Recommendation of 12 March 2021 on Roma equality, inclusion and participation 3 , the Council also stressed the importance of supporting equality bodies so that they can, within the scope of their mandates, function effectively and independently and cooperate with all relevant actors. In 2022, the Council also adopted conclusions on combating racism and antisemitism 4 inviting Member States to support robust equality bodies and adopt a legislative framework enabling them to carry out their role independently, and provide them with the necessary resources to carry out their tasks effectively.

In 2021, the European Parliament called on the Commission to propose legislation on equality bodies, with the aim of ‘providing them with a stronger mandate and adequate resources to safeguard the equal treatment of persons with disabilities, and to ensure accessible information dissemination for all 5 ’.

In the EU anti-racism action plan 6 , the EU Roma strategic framework for equality, inclusion and participation 7 , the LGBTIQ Equality Strategy 8 , the Strategy for the Rights of Persons with Disabilities 9  and the EU Strategy on Combating Antisemitism and Fostering Jewish Life 10  as well as in its application report on the ‘Racial Equality Directive’ and on the ‘Employment Equality Directive’ 11 , the Commission announced that it intended to propose measures to strengthen the role and independence of equality bodies. This commitment was confirmed in the Commission work programme 2022 12 . 

Equality bodies were first established by Directive 2000/43/EC (‘Racial 13 Equality Directive’) 14 . They were entrusted with the promotion of equal treatment through the following tasks: assisting victims of discrimination; conducting independent surveys; publishing independent reports and making recommendations on discrimination matters.

As regards the prohibition of discrimination based on sex, equality bodies were first introduced through a 2002 amendment of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions 15 . Directive 76/207/EEC was later repealed and replaced by Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (‘Gender Equality Directive in the field of employment’) 16 . Two additional equality directives entrusted equality bodies with the same responsibilities in their respective field: Directive 2004/113/EC (‘Gender Equality Directive in the field of goods and services’) 17 , and Directive 2010/41/EU (‘Gender Equality Directive in the field of self-employment’) 18 . Directives 2006/54/EC and 2010/41/EU have added the additional responsibility for equality bodies to exchange information with corresponding European bodies, such as the European Institute for Gender Equality (‘EIGE’). Finally, Article 15 of Directive (EU) 2019/1158 on work-life balance for parents and carers provides that Equality bodies under Directive 2006/54/EC have competence for issues relating to discrimination falling under its scope.

The rationale behind the establishment of equality bodies and the tasks assigned to them was to (i) ensure that (potential) victims are aware of their rights and the existence of equality bodies; (ii) ensure assistance and redress for victims; (iii) improve factual knowledge about the state of discrimination; (iv) better inform policymaking; and (v) improve the behaviour and awareness of companies and the general public about matters of discrimination.

There are also two more Equality Directives that do not contain provisions on equality bodies: Directive 79/7/EEC (‘Gender Equality Directive in the field of social security’) 19 and Directive 2000/78/EC (‘Employment Equality Directive’) 20 .

Two further proposals put forward by the Commission recently contain references to equality bodies, namely the proposal for a Pay Transparency Directive 21 and the proposal for a Directive on combatting violence against women and domestic violence 22 .

The proposed Equal Treatment Directive 23 , being negotiated since 2008, also includes provisions on equality bodies. The proposal intends to cover discrimination based on religion or belief, disability, age or sexual orientation in the fields of social protection, including social security and healthcare, social advantages, education and access to and supply of goods and other services that are available to the public, including housing.

In 2018, the Commission issued a Recommendation on standards for equality bodies (‘2018 Recommendation’) 24 . This non-binding instrument contains suggestions regarding the mandate and independence of equality bodies and cooperation and coordination between them and with other relevant authorities.

In 2021, the Commission examined the implementation of the 2018 Recommendation in its report on the application of the Racial Equality Directive and the Employment Equality Directive (‘2021 application report’) 25 and the accompanying dedicated staff working document (‘2021 Staff Working Document’) 26 .

The 2021 application report indicated that, in most cases, equality bodies have proved to be key to promoting and enforcing equal treatment legislation. Equality bodies are essential for ensuring that individuals and groups facing discrimination can enjoy their right in full. They have emerged as necessary and valuable institutions for change at the level of individuals, institutions and society at large. They should therefore be able to effectively perform the tasks assigned to them under EU law. However, challenges remain. Divergences in terms of their mandate, powers, structure, leadership, independence, resources and effectiveness have led to an unequal enforcement of the Directive across Member States, as regards the level and nature of protection and the promotion of equality and awareness-raising among the general public and national institutions. While many Member States pointed to the important work of equality bodies at national and local level to tackle discrimination and address underreporting, few people would, according to surveys, report an incident of discrimination to such bodies. Reasons for not reporting cases of discrimination may include doubt about chances of success, unawareness of rights and/or of the existence of equality bodies, difficulties to provide evidence; and/or fear of retaliation. Other concrete problems that may hamper access to justice (which particularly affect the most vulnerable or marginalised groups) include the costs, complexity and length of proceedings, and uncertainty as to the outcome of the case.

The 2021 Staff Working Document concluded that a limited and unequal level of implementation of the 2018 Recommendation continues to hinder some equality bodies in effectively exercising their role, leading to different levels of protection against discrimination across the EU. A key cross-cutting issue negatively affecting the execution of the responsibilities and activities of equality bodies is the inadequacy of their resources in terms of funding and staff. Other major challenges include a limited awareness of the equality bodies’ existence, limited independence (or insufficient legal safeguards to independence) and limited legal standing. In addition, not all equality bodies are competent for all the fields and grounds put forward by the Recommendation.

1.2.1.2.    Analysis in preparation of this initiative 

To further substantiate the findings of the 2021 Staff Working Document and get a complete picture of the current state of play as regards equality bodies, a retrospective analysis has been conducted to inform this analytical document. The retrospective analysis focuses on all 27 Member States and covers the period from 29 June 2000, the adoption date of the first Directive that introduced equality bodies, namely the Racial Equality Directive. However, it is worth noting that some Member States joined the EU after this date; for these Member States, the period examined by the retrospective analysis starts from the date of their accession (1 May 2004 27 , 1 January 2007 28 and 1 July 2013 29 ). For the retrospective study and this analytical document, the term ‘EU framework’ is used to refer to the provisions concerning equality bodies in the equality directives as well as the 2018 Recommendation on standards for equality bodies.

The analysis is built on findings and conclusions of research conducted by an external contractor (‘VVA’). Its results, and the retrospective analysis it contains, are summarised below. A full analysis is included in Annex 5. The research was conducted before Spain reformed its anti-discrimination legislation in July 2022 30 . The information presented in this analytical document presents the situation in Spain before the reform 31 .

Assessment categories:    very positive     positive limited negative inconclusive

The EU framework’s effectiveness has been assessed as limited regarding progress on the fight against, and prevention of, discrimination. Some progress has been made, especially in countries where equality bodies did not exist before the EU intervention; however, the desired effects were not fully achieved. The retrospective analysis has shown that levels of discrimination remained high 35 , while victims’ awareness about their rights remained low 36 . Underreporting is still a considerable problem and public awareness about and knowledge of discrimination remains limited 37 . Even if some Member States have established well-functioning equality bodies, the EU framework is too general and narrow in scope to establish effective equality bodies generally. Many equality bodies are not properly equipped to assist victims effectively.

Efficiency has been assessed as inconclusive on costs and benefits, mainly due to limited data availability. This situation has not been mitigated by the more detailed 2018 Recommendation given its non-binding nature. The retrospective analysis has shown that equality bodies’ resources are a considerable problem in this context, as they vary greatly between Member States and, for a majority of equality bodies, are insufficient to fulfil all their tasks.

Coherence has been assessed as generally positive at EU level and overall positive 38 at other levels. The retrospective analysis has shown that coherence with the EU Treaties and the Charter of Fundamental Rights of the EU are high, as the EU framework intends to enhance equality and non-discrimination, which are among the founding values of the EU. Non-discrimination is also a fundamental right protected by the Charter. While international instruments, such as the Paris Principles and Recommendation No 2, of the European Commission against Racism and Intolerance, are more detailed due to their different legal nature, there is no inconsistency on substance between them and the EU Directives in force. They are also consistent with the 2018 Recommendation.

EU added value has been assessed as positive. The retrospective analysis has shown that before the EU framework was put in place, only about half of the (EU-15) Member States had an equality body, and with a limited mandate. Stakeholders also confirmed that equality bodies would not have been set up in all Member States without the EU taking action. The consistently high levels of discrimination throughout the Member States show that there is still added value from having EU action on equality bodies, but also that it would benefit from being more detailed and concrete.

Relevance of the EU framework’s original objectives in view of the initial and current needs has been assessed as positive. However, the original approach (the legal framework for equality bodies) has been considered as too narrow and vague. This view is generally shared by all stakeholders. The retrospective analysis has shown that there is broad support for taking further action to tackle the issues identified above 39 and to make sure that equality bodies have the resources to address new issues, such as those related to automated systems.

Overall, the retrospective analysis concluded that the framework’s ambition of ensuring implementation and enforcement of EU law on combating unequal treatment and discrimination and increasing prevention had not been fully achieved.

2.2.    Problem definition

2.1.2.1.    What are the problems?

Despite the EU rules in force to fight discrimination and increase prevention, discrimination persists and remains a considerable problem still today. Equality bodies were set up to help ensure implementation and enforcement of EU law on combating discrimination and to increase prevention. However, as the retrospective analysis demonstrated, they were only partially successful in doing so.

The retrospective analysis has shown that there are a range of underlying problems that led to this situation. In the equality directives in force, the provisions referring to equality bodies are very vague and broad, the directives do not include provisions on the functioning of equality bodies, and they fail to address more specific issues. Notably, while the EU provisions on equality bodies mandate them to assist victims of discrimination, they do not specify what this entails. As a result, the scope of services that equality bodies provide to victims of discrimination may not match their needs and not be equivalent in all Member States. For example, some equality bodies do not provide legal advice 40  and others do not provide it for free 41 . Some do not engage in mediation and/or conciliation activities 42 . Equality bodies from less than half of Member States can represent victims 43 , intervene in support of them 44 in court or engage in strategic litigation 45 . In a third of Member States, they can launch collective complaints 46 or bring proceedings to a court without an identifiable victim 47 . Half of the Member States 48 allow equality bodies to act as amicus curiae 49 . The retrospective analysis has shown that the grounds and fields covered by the Employment Equality Directive and the Gender Equality Directive in the field of social security are highly relevant since many of the cases of discrimination that occur fall under the scope of those Directives 50 . However, in the absence of an obligation in these directives, the mandate of some equality bodies does not cover those grounds and fields 51 .

The retrospective analysis has also shown that many victims still do not know to whom they can turn if they have been discriminated against 52 . Some do not come forward because they fear negative consequences for themselves. The same may be true not only for victims, but also for witnesses and whistle-blowers. Others do not seek assistance or redress because they are unaware of the existence of equality bodies and laws that protect them against discrimination in the first place. Lack of accessibility may also be a problem for some victims, due to factors such as remoteness (e.g. if the victim lives in a rural area and the equality body has only one office in the capital) 53 . The same may be true for victims who are computer-illiterate or those who have a disability. Fees charged by the equality body for providing assistance may pose an obstacle as well.

When providing assistance to victims, some equality bodies do not take aspects of prevention into account, which would add a more macro-level dimension beyond the individual case at hand. The use of strategic litigation would serve similar ends. This is in line with some of the objectives of the original intervention, namely (i) improved factual knowledge about the state of discrimination, (ii) better informed policymaking and (iii) improved behaviour and awareness of companies and the general public. However, the retrospective analysis has shown that fostering such public knowledge and awareness was not fully successful. Many equality bodies do not (or do not have the competencies to) engage in equality mainstreaming and/or the promotion of equality and non-discrimination. Their level of activity in conducting surveys, pursuing research and publishing reports also varies 54 ; this would however be key in order to address the still continuing lack of knowledge on the state of equality and discrimination. To that end, equality bodies also need to collect and/or have access to primary and secondary data 55 . Taking into account equality bodies’ knowledge and insights is also important to increase the quality of policymaking in the area of equality and non-discrimination and compliance by duty bearers.

The current provisions on cooperation between stakeholders in the relevant EU equality directives are very narrow 56 . To better foster public knowledge and awareness about equality and non-discrimination, efficient cooperation and knowledge exchange between relevant stakeholders, such as other equality bodies and civil society, would be important. The same is true for exchanges at national, European and international level. Currently, this is not always the case 57 .

Equality bodies currently often lack a long-term perspective in the planning of their activities. Another issue concerns the follow-up of recommendations issued and decisions taken by equality bodies, which are at the moment not always implemented. Generally, the rules provided for by the existing EU framework are not always properly enforced. This is due either to their broad and vague nature (those in the directives) or to the fact that they are non-binding and therefore not enforceable (those provided in the 2018 Recommendation).

2.2.2.2.    What are the problem drivers?

Even though most problems have specific underlying drivers that will be discussed below, the retrospective analysis 58 has shown that there are also some drivers that are common to the majority of problems addressed above. These are the lack of independence, lack of resources and inability to focus sufficiently on the equality mandate that some equality bodies face.

Overall, it can be said that many of the drivers are the lack or ambiguity of existing rules on various aspects of equality bodies’ tasks. More specifically, the fact that not all existing EU equality directives 59 contain provisions on equality bodies means that in some Member States, equality bodies do not cover all the grounds and fields addressed by those directives  and consequently do not offer assistance to victims on the grounds and in the fields concerned. The vagueness of existing provisions and the fact that they do not cover the full scope of assistance to victims results in the divergences and wide diversity of powers attributed to equality bodies in different Member States, as addressed above. While some level of divergence between Member States can be explained by different legal systems and traditions, the retrospective analysis has shown that differences in levels of protection go beyond that and result in differing levels of protection of the fundamental right to non-discrimination. The lack of awareness of equality bodies and equality law among certain groups in some Member States is also due to the fact that Member States do not fully ensure that people are informed about the existence and tasks of equality bodies.

The reason why some equality bodies do not engage in equality mainstreaming and/or the promotion of equality and non-discrimination is also because the role attributed to them in this field is not explicit. In many Member States, there is a lack of data on the activities of equality bodies and a lack of access by equality bodies to equality data. Since the rules on surveys and reports are very unclear, they are interpreted very differently. The existing rules on cooperation are either non-existent or very narrow. In addition, there is also no official consultation requirement of equality bodies in the policy-making process.

Finally, the absence of a requirement for strategic planning often results in the lack of a long-term perspective of equality bodies activities. Recommendations and decisions of equality bodies are not always implemented, in part because there is no obligation for decisions to be enforceable and for recipients of recommendations to provide feedback to the equality body. Also, the ambiguity of the current provisions on equality bodies significantly limits their enforceability. The basic monitoring system in the current directives consists of general reporting by Member States on the implementation of the equality directives as a whole every five years. This does not offer sufficient insight into how equality bodies perform their tasks.

3.3.    Why should the EU act?

3.1.3.1.    Legal basis

The initiative covers six equality directives, four of which currently contain provisions on equality bodies (the Racial Equality Directive (2000/43/EC), the Gender Equality Directive in the field of goods and services (2004/113/EC), the Gender Equality Directive in the field of employment (2006/54/EC) and the Gender Equality Directive in the field of self-employment (2010/41/EU)), and two of which do not currently include provisions on equality bodies to cover their grounds/fields (the Employment Equality Directive (2000/78/EC) and the Gender Equality Directive in the field of social security (79/7/EEC)).

The initiative consists of two proposals identical in substance, one based on Article 19(1) TFEU and one based on Article 157(3) TFEU to match the legal bases for the above acts.

Article 19(1) TFEU provides the legal basis for secondary legislation, such as directives, to take action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 157(3) TFEU provides the legal basis for 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.

The proposal based on Article 19(1) TFEU will cover the following four directives: the Racial Equality Directive (2000/43/EC), the Gender Equality Directive in the field of goods and services (2004/113/EC), the Employment Equality Directive (2000/78/EC) and the Gender Equality Directive in the field of social security (79/7/EEC).

The second proposal, based on Article 157(3) TFEU, will cover the following two directives: the Gender Equality Directive in the field of employment (2006/54/EC) and the Gender Equality Directive in the field of self-employment (2010/41/EU).

3.2.3.2.    Subsidiarity: necessity of EU action

The present initiative does not introduce legislation in a new area, but only revises or complements already existing legislation in order to increase its effectiveness. The aim of this intervention is to set common minimum standards for equality bodies across the EU, taking into account the diversity of legal traditions in the Member States and fully respecting their institutional autonomy. Since the co-legislators already passed EU legislation on equality bodies, the assumption is that the principle of subsidiarity is respected if the EU takes action in this area.

In the explanatory memorandum to the Racial Equality Directive, the Commission underlined the importance of providing access to redress in order to reinforce the fundamental values on which the EU is founded, such as equality, non-discrimination, fundamental rights and tolerance, and to contribute to the development of the EU as an area of freedom, security and justice. It also stressed the goal to help strengthen economic and social cohesion by ensuring that people in all Member States enjoy a basic level of protection against discrimination, with comparable rights to redress, while taking account of the cultural diversity of Member States. The same reasoning is also valid for the grounds and fields covered by the other directives. The same is also true in cross-border situations if citizens who reside in one Member State experience discrimination in another Member State.

Under Article 3 TEU, the fight against social exclusion and discrimination, and the promotion of social justice and protection, and of equality between women and men are amongst the EU’s objectives. Non-discrimination is also a fundamental right laid down by Article 21(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’). Article 23 of the Charter stipulates that equality between women and men must be ensured in all areas, including employment, work and pay. In order to safeguard citizens’ and workers’ rights to freedom of movement, access to both protection from discrimination and redress mechanisms has to be ensured throughout the EU. The strengthening of equality bodies serves as a means to this end. This is in line with strengthening economic and social cohesion, as outlined above.

In this regard, the present initiative pursues the same goals as the original provisions on equality bodies in the equality directives. As the retrospective analysis annexed to this analytical document shows, existing provisions on equality bodies have, due to their vagueness, proven not to be successful enough in reaching their objectives 60  or in contributing towards the EU’s common goals of the listed in the Treaties, as outlined above. While all Member States struggle with continuing discrimination, the specific levels vary from Member State to Member State 61 . Currently, great discrepancies exist in the structure, tasks, powers and mandate of equality bodies in the Member States 62 . This also hinders the effective implementation and enforcement of existing EU equality law. The conclusion, therefore, is that EU action is warranted to remedy the situation.

In preparing this initiative, the Commission conducted extensive consultations. A great majority (more than 80%) of stakeholders at national, regional and local level supported the introduction of minimum binding standards for equality bodies 63 . Member States have particularly stressed the importance of respecting diverse legal traditions.

3.3.3.3.    Subsidiarity: Added value of the EU intervention

The analysis of the situation before the establishment of equality bodies clearly demonstrated the added value of the EU intervention. Prior to it, equality bodies existed in only a few Member States and their setup varied – and continues to vary - greatly. Indeed the framework left considerable leeway to Member States, which prevented reaching the objectives to a satisfactory extent. This is why further EU action is warranted and expected to bring a clear added value 64 .

Strengthened standards for equality bodies will ensure that all Member States provide sufficient powers and resources to their equality bodies for effectively fighting and preventing discrimination, and for ensuring assistance and access to redress for victims of discrimination. The rules will be enforceable at EU level. They are expected to lead to a reduction in the prevalence of discrimination. In turn, this will lead to a reduction of the costs associated with discrimination.

EU-level action in this context is also relevant to the functioning of the single market. The single market is built on fundamental freedoms, such as the freedom of movement for workers. To safeguard this principle, it is important to guarantee the fundamental right of non-discrimination as laid down by the Charter and to ensure access to protection from discrimination and to redress mechanisms in all Member States and for all grounds and fields covered by the equality directives. As outlined above, equality bodies are a means to contribute to this goal.  

4.4.    Objectives: what is to be achieved?

Taking into account all of the above, the Commission identified the following objectives for this initiative on equality bodies.

4.1.4.1.    Objectives

This initiative has 21 objectives to tackle the problems and drivers identified above. Those can be grouped under three main thematic areas.

Minimum standards to deal with cases of discrimination/provide assistance to victims – mandate, powers, accessibility

•O1: Assist those victims who are currently outside the scope of protection on the grounds and fields that are covered by the Employment Equality Directive and Gender Equality Directive in social security.

•O2: Ensure victims have access to information and advice targeted to their situation.

•O3: Ensure that victims have access to amicable settlement mechanisms.

•O4: Ensure that victims can make their case in court proceedings and receive appropriate assistance to have a fair chance of winning.

•O5: Offer assistance to more victims, also to those who may be unaware that they are discriminated against 65 . Address cases of discrimination that would otherwise not be tackled.

•O6: Improve the knowledge of the general population, with particular attention to individuals and groups at risk of discrimination, on the rights under the Equality Directives and where they can get assistance in cases of discrimination.

•O7: Ensure confidentiality for witnesses, whistle-blowers and complainants.

•O8: Ensure that victims, including those in particularly vulnerable situations and those with disabilities, can submit claims and receive proper support.

•O9: Ensure that victims of discrimination can access assistance regardless of their financial means.

•O10: Support victims in remote areas and those who are not IT literate.

•O11: Ensure that all equality bodies may suggest measures to prevent the same situation from arising again in the future when assisting victims.

•O12: Elicit social, legal and policy changes via strategic litigation.

Minimum standards to foster public knowledge and awareness about equality and non-discrimination

•O13: Improve the knowledge base about equality and discrimination as well as mutual learning between equality bodies and with other stakeholders.

•O14: Promote equality and non-discrimination.

•O15: Improve the knowledge on the concrete activities of equality bodies and on the state of discrimination in general.

•O16: Improve statistical evidence on equality and proper analysis of relevant data.

•O17: Ensure that equality bodies can provide their insights on equality and non-discrimination policies and practices to policymakers and public and private entities.

Minimum standards on monitoring and enforcement

•O18: Ensure coherent actions of equality bodies on a long-term perspective.

•O19: Ensure that, if equality bodies issue opinions there is an incentive for recipients to give appropriate feedback.

•O20: Ensure that, if equality bodies have binding decision-making powers, their decisions are enforced and subject to judicial review.

•O21: Ensure that the provisions on equality bodies are clear enough to be enforceable and that there are clear monitoring and reporting obligations regarding their implementation.

4.2.4.2.    Operational objectives 

As shown by the retrospective analysis and already discussed above, three underlying drivers seem to cause most problems, which is why addressing them would contribute greatly to reaching the objectives set out above.

•OO1: Ensure that equality bodies are free from external influence so that they can exercise all their tasks independently.

•OO2: Ensure that all equality bodies have the necessary resources to perform all their tasks.

•OO3: Ensure that, if an equality body is part of multi-mandate body, there is an internal structure that guarantees sufficient independence, focus and resources for the equality mandate.

Intervention logic (colour codes are to be used horizontally. They show links between drivers/problems/objectives/outputs)

5.5.    What are the policy options?

The initiative was exempted from the obligation to conduct an impact assessment, building on the 2018 Commission Recommendation on standards for equality bodies. This is explained by the absence of simplification potential and the fact that the impacts of the provisions envisaged are expected to be only partially identifiable and very difficult to measure.

Non-legislative options have already been tested without producing the desired result to address all the issues identified. These options were (i) the set-up of an active network of equality bodies financed by the Commission (Equinet); (ii) the non-binding 2018 Recommendation; (iii) exchanges of best practices; and (iv) direct funding through the Commission’s Rights, Equality and Citizenship Programme (‘REC’).

Those measures would also remain in place if no specific further action in the area of equality bodies were to be taken (i.e. status quo). Furthermore, negotiations on three proposals 66 that also contain provisions on equality bodies are currently ongoing and may be finalised, which would extend the mandate of equality bodies.

For the reasons outlined above and addressed in the evaluation 67 , new binding legislation remains the only option. The question that remains therefore is which measures should be implemented through such legislation; this is what is examined in this section.

Description of possible measures

Of the various identified measures that could be included in a legislative act to help reach the 21 objectives presented above, 48 68  were selected for further analysis, falling under 11 thematic areas: mandate, powers, access, cooperation, surveys, data collection, monitoring, enforcement, independence, resources and structure. 

Dealing with cases of discrimination and providing assistance to victims of discrimination

As regards the mandate, there are two possible measures that could be taken. These would be to extend the scope to the two directives that currently do not contain provisions on equality bodies. These are the Employment Equality Directive and the Gender Equality Directive in the field of social security.

Both measures A.1 and A.2 address objective 1, which is to assist those victims who are currently outside the scope of protection in the grounds and fields that are addressed by the Employment Equality Directive and the Gender Equality Directive in the field of social security. The retrospective analysis has shown that levels of discrimination in the fields and on the grounds concerned remain high throughout the EU. Therefore, it would be important to ensure that all equality bodies in all Member States cover them.

For powers, the picture is more diversified; also, a broader variety of measures could be implemented.

The retrospective analysis has shown that, while all equality bodies can receive individual complaints, not all of them currently provide legal advice 69 to victims of discrimination. Measure B.1 aims to address this issue in order to fulfil objective 2, which is to ensure that victims have access to information and advice targeted to their situation. The same is true for providing or recommending amicable settlement mechanisms 70 , which is to be addressed by measure B.2. The aim is to implement objective 3, which is to ensure that victims of discrimination have access to amicable settlement mechanisms.

There are several possible measures that could be implemented in order to achieve objective 4, which is to ensure that victims can make their case in court and receive appropriate assistance to have a fair chance of winning. One aspect is covered by measure B.3, which is to ensure that equality bodies can submit oral or written statements (i.e. amicus curiae) to the courts on individual and collective discrimination cases. As the retrospective analysis has shown, half of the Member States 71  currently allow equality bodies to act as amicus curiae. Another possible aspect in this context is covered by measure B.4 and involves allowing equality bodies to litigate (in their own name, on behalf or in support of one or several victim(s), with their approval, even in the absence of identified victim(s)). Currently, equality bodies in around half of the Member States can represent victims 72 , intervene in support of them 73 in court or engage in strategic litigation 74 . In a third of Member States, equality bodies can launch collective complaints 75 or bring proceedings in front of a court without an identifiable victim 76 . This measure would also serve to achieve further objectives, namely objective 5, which is to assist more victims, also those who may be unaware that they are discriminated against and objective 12, which is to elicit social, legal and policy change through strategic litigation. Measure B.5, ensuring that equality bodies have effective rights to access information that is necessary to establish whether discrimination has occurred, would also serve to fulfil objective 4 to ensure that victims can make their case in court and receive appropriate assistance to have a fair chance of winning.

Measure B.6 aims to address the continuing lack of awareness of equality bodies and equality law in some Member States and among some groups(especially minorities). Adopting a strategy to raise awareness of the general population, with particular attention to individuals and groups at risk of discrimination, on the rights under the equality directives and the existence of equality bodies should help improve the knowledge of the general population, and in particular of potential victims, about where they can get assistance in cases of discrimination, which is objective 6.

The focus of the current directives that contain provisions on equality bodies is mainly on damage control, once discrimination has occurred, but they do not sufficiently address the prevention of discrimination. Measures B.7 and B.8 are possible options in order to tackle this issue. This is in line with objective 11, which is to ensure that all equality bodies take aspects into account that could prevent the same situation from arising again in the future when assisting victims.

The decision whether to entrust equality bodies with binding decision-making powers is left to the discretion of Member States. Implementing this measure at EU level has not been considered as an option because it would not be in line with the principle of procedural autonomy. Besides, the majority of stakeholders were against this measure, which would imply significant changes in most Member States, some of which have a well-functioning equality body.

For access and accessibility, several possible measures were considered.

The retrospective analysis has shown that not all equality bodies currently take all aspects of accessibility into account that could be relevant for all groups of victims. Measures C.1 and C.2 aim to tackle this issue by ensuring that there are no barriers, physical or digital, to complaint submission to an equality body (providing different means of submission), that there is access to equality bodies outputs, procedures, and services on an equal basis for all, including for persons with disabilities, and that the services of equality bodies are free of charge. This corresponds to objective 8, which is to ensure that victims, including those in particularly vulnerable situations and those with disabilities, can submit claims and receive proper support; and objective 9 that is to ensure that victims of discrimination can access assistance regardless of financial means. Measure C.3 also addresses objectives 8 and 9; however, it would go one step further and aim to provide financial assistance to victims of discrimination to litigate.

Another aspect of the problem regarding access and accessibility might be the fear of negative consequences if one comes forward to report discrimination, be it as victim, whistle-blower or witness. Measure C.4 aims to address this matter to fulfil objective 7, which is to ensure confidentiality for witnesses, whistle-blowers and complainants.

Finally, measures C.5 and C.6 aim to ensure that also victims in remote areas have access to the services offered by equality bodies, which would contribute to the implementation of objective 10.

Fostering public knowledge and awareness about equality and non-discrimination

As regards cooperation and coordination, the following measures could be implemented.

Provisions on cooperation in the directives currently in force are either non-existent 77 or very narrow 78 . Several measures could be implemented to improve cooperation between equality bodies and other stakeholders. Measure D.1 aims to ensure that equality bodies cooperate and coordinate their actions with other equality bodies within the same Member State. The goal of measure D.2 is to ensure that equality bodies engage in dialogue exchange and cooperate with relevant public and private entities (including NGOs and trade unions). Measure D.3 has a similar aim, which is to ensure that equality bodies engage with international and supranational institutions and equality bodies from other countries. All three measures would contribute to objective 13 to improve the knowledge base about equality and discrimination, as well as mutual learning.

The lack of focus on prevention in the current legislative framework is also relevant to this point. It means that equality bodies currently have no duty to engage with relevant stakeholders to foster public knowledge and awareness of equality and non-discrimination. Likewise, stakeholders have no obligation to consult equality bodies when drafting and/or implementing policies or legislation. Measures D.4, D.5 and D.6 are possibilities to tackle these issues in order to implement objective 14 to promote equality and non-discrimination. There is also a strong link between these measures and measures B.7 and B.8 that address the prevention of discrimination. Measures D.5, D.6 and D.7 also aim to implement objective 17 to ensure that equality bodies can provide their insights on equality and non-discrimination policies and practices to policymakers and public and private entities. The area of surveys and reports is related. Even though it is addressed by provisions in the current EU legislation, those are so broad that they have been interpreted very differently in Member States in practice. Concretising them may therefore help to better achieve objective 15 to improve the knowledge on the concrete activities of equality bodies and on the state of discrimination in general. Measure E.1 would contribute to implementing the first aspect of objective 15, while measure E.2 is focused on the second.

Another aspect of high relevance for fostering public knowledge and awareness about equality and non-discrimination is data collection. The approaches taken by Member States in this regard currently vary greatly. The measures listed in the box below would aim to address this matter.

Measure F.1 intends to ensure that equality bodies collect data on their activities, disaggregated by grounds and fields covered by the directives, and in accordance with the indicators developed to monitor the implementation of the directive. The goal of measure F.2 is to ensure that equality bodies can access data necessary to fulfil their mandate and tasks, from and/or collected by, public authorities, trade unions, companies, and civil society organisations. Measure F.4 is to ensure that equality bodies can make recommendations, in accordance with their mandate, to public authorities, trade unions, companies and civil society organisations on their data collection activities. All three measures aim to fulfil the first aspect addressed by objective 16, which is to improve statistical evidence on equality. Measure F.3, which is identical to measure E.2 above, provides for an obligation for equality bodies to publish a report, with recommendations, at least every four years, on the state of discrimination in their Member State, including on structural discrimination. This addresses the second aspect mentioned in objective 16, which is to improve the proper analysis of relevant data.

Expanding the scope of primary data collection for equality bodies beyond collecting data on their own activities was considered at an early stage, but discarded, as the main responsibility in this regard should remain with the relevant statistical offices. This view was widely supported by stakeholders 79 .

Monitoring and enforcement

In the area of monitoring, the following measures could be envisaged.

To ensure consistent actions on a long-term perspective, which is objective 18, measure G.1 would ensure that equality bodies adopt a programme setting out their priorities and prospective activities.

There are two options for the monitoring of the new Directives and implementation of the framework for equality bodies. In the first option, measure G.2, the Commission would monitor the implementation of the equality bodies directives by establishing a list of common indicators to assess their practical effects and implementation and drawing up a monitoring report every 5 years. The report would be based on the information provided by Member States in accordance with the indicators and additional relevant data collected at national and EU level, in particular from stakeholders, by the European Union Agency for Fundamental Rights and the European Institute for Gender Equality. The list of indicators would cover the resources, independent functioning, activities and effectiveness of equality bodies, as well as evolutions in their mandate, powers or structure. The second option, measure G.3, would be to put in place a system of accreditation through peer review, based on procedures and criteria agreed upon by the Member States, within 5 years of the adoption of the directive. Both would aim to fulfil objective 21 to ensure that the provisions in the future directives are clear enough to be enforceable (which is also a general overarching objective applicable to all provisions) and to ensure that there are clear monitoring and reporting obligations regarding their implementation.

For the area of enforcement, the measures considered mainly concern the enforcement of actions taken by equality bodies; the enforcement of the directives in general is a matter closely linked to monitoring which is covered by objective 21.

To ensure that if equality bodies issue recommendations, there is an incentive for recipients to give them appropriate feedback (objective 19), measure H.1 would ensure that when equality bodies issue opinions, they can request mandatory feedback from the recipients. Measure H.2 would go a step further and ensure that measures are put in place in case of non-compliance with the mandatory feedback requirement.

Measure H.3 addresses objective 20 to ensure that when equality bodies are entrusted with binding decision-making powers, their decisions are enforced, subject to judicial review 80 , and that the right of appeal must be guaranteed. Measure H.4 ensures that the rights of defence of natural and legal persons involved in any procedure in front of an equality body are duly protected. Another aspect that could be related to situations in which equality bodies have binding decision-making powers is to put in place a ‘firewall’ to ensure that the conditions to exercise that power do not conflict with other powers equality bodies have, such as assistance to victims. This aspect is addressed by measure H.5, where if equality bodies have various powers that could interfere with each other (e.g. support to victims and quasi-judicial powers), one has to ensure that they adopt an internal structure that guarantees the independent exercise of their powers.

Independence, resources and structure

As the retrospective analysis has shown, issues with independence, resources and structure are underlying challenges that in many cases lead to problems addressed by the objectives. Therefore, improvements in this area would contribute to the fulfilment of the objectives.

Several aspects could be taken into account to ensure equality bodies’ independence, which is operational objective 1.

As regards resources, the following aspects are of relevance to achieve operational objective 2 to ensure that all equality bodies have the necessary resources to perform all their tasks.

In the area of structure, operational objective 3 is to ensure that, if equality bodies are part of multi-mandate bodies, there is an internal structure that guarantees sufficient independence, focus and resources for the equality mandate.

6.6.    Assessment of the possible measures

This section aims to look further at the proposed measures and assess them along the five criteria of effectiveness 81 , efficiency 82 , coherence 83 , EU added value 84 and relevance 85 . While the assessment of EU added value, relevance and coherence looks more at a macro-level and is therefore done for the proposed legislative initiative as a whole, the assessment of effectiveness and efficiency will be done per thematic area, examining individual proposed measures. However, for some measures, a full assessment may not be possible due to limited availability of data or methodological constraints, above all the difficulties of quantifying equality and non-discrimination, in particular in monetary terms, as outlined above. This is especially true for assessing efficiency.

The assessment of policy options takes into account some data on the benefits of fighting discrimination. As highlighted in the retrospective analysis, a 2018 report issued by the European Parliamentary Research Service (EPRS) on the cost of non-Europe showed that reducing levels of discrimination by 5% through EU action could lead to an increase in GDP of between EUR 247 million and EUR 703 million 86 . The report also illustrates the considerable impacts that racial and ethnic discrimination have on individuals, societies and economies. In financial terms, these translate into lost earnings ranging from EUR 1.8 billion to EUR 8 billion annually for individuals, and losses ranging from EUR 2.4 billion to EUR 10.7 billion annually for society 87 .

Also, there has been strong support from stakeholders for further action in relation to equality bodies. An overwhelming majority of respondents (97.2%) to the open public consultation considered that setting up strong and effective equality bodies is important. 81.3% replied that adopting new binding minimum standards for equality bodies would have a positive impact for the respondents. Stakeholders also expressed strong support for taking ambitious action, during other consultation activities, such as workshops and a conference 88 .

Global assessment of possible measures – EU added value, relevance and coherence

As the retrospective analysis has shown 89 , Member States’ action alone is not sufficient to achieve a satisfactorily high level of protection against discrimination throughout the EU. This is however essential to guarantee citizens’ and residents’ rights in line with the founding values and objectives of the Treaties. The initial intervention clearly provided EU added value, leading to the set-up of equality bodies in about half of the EU-15 Member States that did not have such bodies in place when it was adopted. However, the retrospective analysis has demonstrated that it left too much leeway to Member States, which resulted in not fulfilling the objectives to a satisfactory level.

The retrospective analysis also demonstrated that the 2018 Recommendation could not mitigate this situation due to its non-binding nature. Since the proposed directives will be binding and will be more detailed, they are expected to tackle the problems that the existing instruments could not address and to close the gaps in the EU added value identified by the retrospective analysis. Similarly, the retrospective analysis has also shown that the proposed intervention remains highly relevant, since levels of discrimination are consistently high throughout Member States and the objectives of the initial intervention have not been achieved satisfactorily due to the vagueness of the existing provisions.

Several levels have to be examined when assessing coherence. The coherence with the Treaties and the Charter of all the measures being examined is high, as the proposal intends to increase equality and non-discrimination, which are among the founding values of the EU. Article 2 of the Treaty on European Union states that the EU is founded, on the respect for human dignity and equality, and that the values common to all Member States include non-discrimination, tolerance and equality between women and men. One of the reasons for setting up the EU is to promote its values. The creation of the single market has as one of its objectives combating discrimination and promoting equality between women and men (Article 3(3) TEU).

Article 8 TFEU states that the EU must aim to eliminate inequalities and promote equality, including between women and men, in all its activities. Article 10 TFEU requires the EU to combat discrimination based on sex, racial or ethnic origin, religion or belief, age or sexual orientation, in defining and implementing its policies and activities.

The EU Charter of Fundamental Rights, which applies when Member States implement EU law, contains provisions on equality under Title III (Articles 20-26). Of particular relevance is Article 21 of the Charter, which prohibits any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion, or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation. This is a wide-reaching prohibition (‘any discrimination’ based on ‘any ground’) that goes beyond the grounds covered by the existing directives and this initiative. However, since this difference is due to the scope provided for by the Treaties 90  for adopting secondary legislation in the area of equality, this cannot be regarded as inconsistent with the proposal.

Article 19(1) TFEU provides for the possibility of adopting secondary legislation to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. However, currently, the full scope of Article 19(1) is not covered by secondary legislation. As outlined above, the proposal for an Equal Treatment Directive 91 is still being negotiated. As a consequence, pending its adoption by the legislator, this initiative will not cover the scope addressed by the proposal for an Equal Treatment Directive.

As regards existing EU secondary legislation, not all EU Equality Directives currently contain provisions on equality bodies. The fact that the Gender Equality Directive in Social Security and the Employment Equality Directive do not contain provisions on equality bodies, although they pursue very similar objectives, has been identified as an incoherence in the retrospective analysis. This could be mitigated by implementing the proposed measures addressing the equality bodies’ mandate (measures A.1 and A.2, see below.)

There are two important international instruments which are relevant for equality bodies, the Paris Principles and the General Observations (addressed to National Human Rights Institutions), and the European Commission against Racism and Intolerance (‘ECRI’) Recommendation No 2. The proposed measures are in line with those instruments, despite variations in the level of detail that can be explained through the different legal nature of the instruments.

Detailed assessment of possible measures – Effectiveness and efficiency ( 92 ) 

Providing assistance to victims of discrimination

The common goal of all possible measures in this area is to improve different aspects of assistance to (potential) victims of discrimination.

As regards the mandate of equality bodies, there are two possible measures that could be taken; those are extending the scope of equality bodies’ actions to the Employment Equality Directive Directives, and extending the scope of equality bodies’ actions to the Gender Equality Directive in the field of social security, both directives that currently do not contain provisions on equality bodies. As the table below illustrates, most Member States have already done this. Therefore, the overall impact in terms of costs for Member States and national equality bodies is expected to be low. In addition, discrimination has a cost, which will be mitigated if the mandate of equality bodies is extended. However, since the retrospective analysis has shown that levels of discrimination in the fields and on the grounds concerned remain high throughout the EU, the effectiveness of this measure is still expected to be considerable.

Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three 94 equality bodies. Source: online survey conducted by VVA.

For powers, the picture is more varied; some measures have however already been implemented by some Member States, as illustrated in the table below.

Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three 99 equality bodies. Source: online survey conducted by VVA.

Expanding equality bodies’ powers is expected to increase costs due to increased activity and workload for equality bodies. However, it is also expected to be very effective in protecting victims of discrimination, which will support the implementation of the objectives of this intervention, of the equality directives and the founding principles of the EU Treaties. Among the proposed measures, litigation may be especially costly, though the exact costs will vary significantly between Member States. Litigation may be a particular powerful tool, also expected to be effective at macro-level, beyond the resolution of individual cases, especially if used strategically, to elicit social, legal or policy change. 59% of respondents to the open public consultation considered litigation powers for equality bodies very necessary and 22% stated they are necessary.

Strategic litigation is also expected to help increase public awareness, which is a goal of the initiative also addressed under the objective of developing public knowledge and awareness about equality and non-discrimination. A related matter with strong links to prevention and awareness-raising is the systemic inclusion of aspects addressing prevention when assisting victims. 54% of respondents to the open public consultation replied that additional measures to promote equality and prevent discrimination are very necessary; 28% considered them necessary. Though some additional resources will be needed (which will generate additional costs), such measures are, on the long run, expected to help reduce the number of instances of discrimination. As a result, the equality body would need to assist fewer victims, which would save costs in the long run.

Litigation costs may however pose significant obstacles for individual victims of discrimination who come disproportionally often from lower income backgrounds 100 . That is why providing amicable settlements mechanisms is also expected to be effective in encouraging a higher proportion of victims to take action against the discrimination they have experienced.

Stepping up possibilities for victims to access legal redress after experiencing discrimination may also mean that potential perpetrators are more likely to be caught, convicted and/or sanctioned. This could result in a deterrent effect that may, in the long run, contribute to social, legal and policy changes and reduced levels of discrimination.

Allowing equality bodies to litigate in support of several victims would be new for those Member States that have no tradition of collective redress mechanisms. Collective action is currently only possible, in discrimination cases, in seven Member States 101 . This measure is also included in the Commission’s proposal for a Pay Transparency Directive 102 . Such a measure would be essential to assist groups of victims, and in particular all victims who would not go to court on their own, due to the cost, length and/or complexity of the procedure.

Letting equality bodies act in their own name where there is no identified victim would also be in line with the jurisprudence of the Court of Justice of the European Union which recognises that EU law prohibits discrimination even where there is no identifiable individual victim 103 .

Similarly, some Member States do not have a strong tradition of amicable settlement mechanisms. However, Member States are obliged by the Directive on alternative dispute resolution for consumer disputes 104 to provide such mechanisms to consumers, meaning that they now exist in some form in all Member States. As outlined above, two thirds of Member States already have such measures in place for discrimination cases.

Awareness of the equality bodies’ existence is also an important factor in encouraging a higher proportion of victims to come forward and in deterring potential perpetrators. 54% of respondents to the open public consultation stated that such awareness by the general population was very necessary, 31% said it was necessary, while 69% and 21% respectively said such awareness was very necessary or necessary for groups at risk of discrimination.

For access and accessibility ( 105 ), many measures have already been at least partially implemented in some Member States, as outlined in the table below.

Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three 109 equality bodies. Source: online survey conducted by VVA.

Putting appropriate measures in place to ensure all victims have access to assistance provided by equality bodies is essential in order to fulfil the objectives of this intervention and also to guarantee the universal fundamental rights to which all victims are entitled to. In this respect, the measures listed are expected to address specific aspects of accessibility effectively. 69% of respondents to the open public consultation considered it very necessary to be able to submit easily; 22% considered this necessary. Compliance with accessibility requirements was considered very necessary by 62% of respondents; 25% rated it necessary. When asked about concrete measures to improve accessibility, respondents mentioned the following.

In your opinion, what would make the services of an equality body accessible to all (including persons with disabilities)?

Source: Open Public Consultation, N=178 (multiple replies allowed)

Although not possible to quantify in exact terms, the expected costs for this area of possible measures vary significantly. While ensuring that equality bodies guarantee, where needed, confidentiality of witnesses and whistle-blowers, and as far as possible, of complainants, does not imply significant costs, mandatory physical representation throughout the territory may, depending on the structure and size of the Member State, be very costly. Under some circumstances, alternative measures to reach out to certain groups in certain areas may be more cost efficient, such as using already existing structures, for example local NGOs or mobile offices in buses. This view has been shared by stakeholders during consultation activities 110 .

Fostering public knowledge and awareness about equality and non-discrimination

The possible measures listed in this section entail cooperation between relevant stakeholders, conducting analyses of the current state of play in terms of levels of discrimination in Member States based on reliable statistical data and providing advice based on this information.

As regards cooperation and coordination, the current state of implementation of possible measures in the Member States is as follows.

Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three 115 equality bodies. Source: online survey conducted by VVA.

Ensuring cooperation and knowledge exchanges between equality bodies and other relevant stakeholders at national, EU and international level is expected to improve current practices in equality bodies and draw their attention to matters that may otherwise go unnoticed. It is also expected to increase the level of awareness about the existence of equality bodies due to engagement with a wider audience. As a result, more people will be reached, including both (potential) victims, duty bearers and (potential) perpetrators of discrimination. 43%, 55% and 42% of respondents to the open public consultation considered cooperation with national public authorities, national stakeholders and EU/international stakeholders very necessary; 38%, 29% and 38% respectively stated that it was necessary.

Ensuring that equality bodies are consulted by governments and other institutions on a variety of matters related to discrimination would improve relevant public policy and legislation. This would help to create targeted, appropriate instruments that decrease levels of discrimination and increase public awareness of the problem. Due to their experience and insights, equality bodies are likely to have very valuable input in that regard.

Increased cooperation may lead to increased costs through additional work; however, new synergies are also expected to lead to cost savings. Similarly, increased consultations of equality bodies create additional work, thus additional costs, but should lead to better law and policy making, which is expected to reduce levels of discrimination in the long run.

The majority of equality bodies already publish an annual activity report, as outlined in the table below.

Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three 117 equality bodies. Source: online survey conducted by VVA.

Conducting surveys and publishing reports on a regular basis is expected to help prevent discrimination by increasing public knowledge. Even though this increases costs in the short term, it is expected to lead to fewer cases of discrimination in the future, which means savings for equality bodies in the long term, and benefits for society more broadly.

Some of the measures proposed for the area of data collection are quite specific and are therefore not yet in place in any Member State; however, many Member States already ensure that equality bodies collect data on their activities, as illustrated in the table below.

Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three 119 equality bodies. Source: online survey conducted by VVA.

Common rules on data collection and access to statistical data for equality bodies for analytical purposes are key to improving statistical evidence on equality and non-discrimination and ensuring a proper analysis of relevant data. This is crucial in enabling policymakers to take well-founded, informed decisions; furthermore, it is essential for the public discourse and awareness to have reliable information on current levels of discrimination in Member States. Since equality bodies are experts in the field of equality and non-discrimination, they are expected to be able to conduct sound in-depth analyses if provided with the necessary data. Respondents to the open public consultation largely shared this view, 54% rated it very necessary and 27% considered it necessary.

Increased data collection activities will require more resources and will therefore increase costs; however, they will also significantly contribute to increased knowledge about equality and non-discrimination, which is crucial in order to fulfil the objectives of the intervention.

Monitoring and enforcement

Since the possible measures for monitoring the implementation of the future directives are specifically connected to these directives, they cannot yet be in place in any Member State. However, equality bodies in many Member States have already implemented a related measure, namely strategic planning, as outlined in the table below. Strategic planning requires some resources, which means it will create costs; however, it should also lead to savings through better planning of activities. Furthermore, it is expected to result in more coherent action and enable a better policy steering through developing a long-term vision.

Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three 122 equality bodies. Source: online survey conducted by VVA.

The retrospective analysis has shown that the basic monitoring system in the current Directives (e.g. an application report by the Commission based on the information provided by Member States) is not sufficient to ensure a thorough knowledge of the implementation of the provisions related to equality bodies. This is also an impediment to enforcing these provisions. Proper enforcement is, however, crucial in order for the proposed directives to achieve the desired results. A better monitoring system is expected to mitigate this situation. A large proportion of respondents to the open public consultation agree: 52% consider monitoring of the functioning of equality bodies across the EU very necessary; 27% stated it was necessary.

There are several options for what such a monitoring system could look like. The first option would be that the Commission will monitor the implementation of the directives by publishing a report every five years, based on data from Member States (including equality bodies) collected in accordance with harmonised indicators drawn up after consulting all relevant stakeholders.

The second option would be to put in place a system of accreditation through peer review, based on procedures and criteria agreed upon by Member States, within 5 years of the adoption of the Directive.

The first option would create costs for equality bodies and Member States in collecting data according to a predefined list of indicators. It is however expected to also create synergies with other data collection activities and improve knowledge of the implementation of the Directives.

For the second option, operational costs would depend on who carries out the accreditation procedure. For peer accreditation, significant additional costs for equality bodies can be expected.

The measures envisaged in the area of enforcement - beyond the enforcement of the future Directives themselves (which is addressed under monitoring) - aim to ensure that actions taken by equality bodies within the limits of the powers attributed to them are enforceable and may be followed up on. One example is that, while this initiative does not intend to prescribe binding decision-making powers for equality bodies, in order to respect the principle of procedural autonomy, if Member States decide to attribute such powers to equality bodies 123 , these should be enforceable. Similarly, equality bodies should be able to request feedback from the recipients on their opinions. Measures should be put in place to tackle non-compliance with the mandatory feedback requirement. While there are no direct costs associated to these measures, ensuring proper enforcement is generally regarded as a highly effective tool in ensuring that rules are complied with. Respondents to the open public consultation agreed with this view: 59% considered the enforcement of appropriate sanction very necessary, 22% stated it was necessary. However, this is a procedural area, where the autonomy of Member States has to be taken into account: the provisions should therefore leave Member States in charge of taking appropriate measures to that effect.

Equality bodies should adopt an internal structure that guarantees the independent exercise of their powers, if they have various powers that could interfere with each other (e.g. powers to support victims and quasi-judicial powers). While this may lead to additional one-off and recurrent costs to put in place and keep an appropriate structure, it is needed to ensure equality bodies’ impartiality when taking binding-decisions and safeguard the procedural rights of those that are subject to such decisions.

Independence, resources and structure

This thematic area corresponds to the needs identified in operational objectives 1-3.

The potential impacts generated by the possible measures under independence vary depending on the measure and on the structure(s) in place in each Member State. As outlined above, ensuring that equality bodies can carry out their tasks independently is a crucial prerequisite for their effectiveness. This has also been confirmed by stakeholders in consultation activities such as the open public consultation, the stakeholder survey and the participatory workshop 124 . 73% of respondents to the open public consultation rated general independence of equality as very necessary, 16% considered it necessary. Measures to ensure equality bodies' independence, notably as regards their legal structure, accountability, budget, staffing and organisational matters, may lead to one-off costs for Member States depending on the current situation.

There are several possible approaches to ensuring that equality bodies can act independently. The suitability and the impact of such measures may vary greatly between Member States, depending on their respective situation and system. Respondents to the open public consultation shared this view and expressed support for a variety of measures, as shown in the box below. Future provisions should nevertheless not be too prescriptive in order to respect the principle of procedural autonomy.

In your opinion, what are essential criteria to guarantee the independence of an equality body? Source: Open public Consultation, N=176

This is in principle also true for measures relating to resources. Ensuring that each equality body is provided with the human, technical and financial resources necessary to carry out all its tasks and exercise its powers effectively, in all the grounds and fields they cover is a crucial prerequisite for the effectiveness of equality bodies. At the same time, this entails increased costs, varying between Member States. These findings have been confirmed by stakeholders during consultation activities. 71% rated sufficient resources as very necessary, 19% considered it necessary.

Similar points can be made about structure. If the equality body is part of a multi-mandate body, an internal structure to guarantee sufficient focus, independence and resources for the equality mandate is crucial so that it can exercise its tasks effectively. This may lead to one-off costs for putting a new structure in place in countries where this is currently not the case. Increased costs may also occur if increased resources are needed. As outlined above, this is however a crucial prerequisite for the effectiveness of equality bodies. The expansion of the equality mandate in multi-mandate bodies should not be done at the expense of the other mandates.

7.7.    Preferred combination of measures

This section presents the possible measures taken on board in the final Commission’s proposal and discuss the rationale behind this choice. The proportionality of the envisaged measures is described as well.

The majority of measures presented in the previous section have been taken up in the final proposal. Stakeholders have expressed very strong and consensual support for an ambitious package of measures that will be fit to properly tackle all the objectives identified for this intervention.

Overview of the preferred combination of measures

Description of preferred combination of measures per thematic area

Out of the 48 identified measures that could be included in legislation, 44 were retained in substance 125 .

Dealing with cases of discrimination/providing assistance to victims

In the area of mandate, both measures A.1 and A.2 are included in the final proposal, as these are necessary to achieve objective 1 and extend the scope of protection to cover all grounds and fields covered by the existing EU Equality Directives.

In the area of powers, measures B.1-B.5 are included in the proposal, in order to take a holistic approach to providing access to legal advice and redress, both via amicable settlement mechanisms and recourse to the courts, and to encourage a higher share of victims to come forward. These are all needed to achieve the proposal's general objectives and ensure its effectiveness. For the same reasons, measures B.6-B.8 are also retained, to ensure that equality bodies take aspects of prevention into account when assisting victims.

A safeguard is introduced in relation to measure B.4 to ensure that equality bodies’ rights to act in court respect the principles of fair trial and equality of arms. The equality body will not be allowed to submit in proceedings evidence which the alleged perpetrator or any third party was legally bound to provide in previous investigations on the same case. This will not apply where the equality body acts as a party in proceedings on the enforcement or judicial review of an own decision or acts as amicus curiae.

On access and accessibility, measures C.1, C.2 and C.4 are retained, since they all cover aspects that are relevant for removing obstacles to access to justice for victims. Measure C.3 126  was discarded because it would be difficult to implement in practice; and there are other national mechanisms to ensure access to litigation regardless of financial situation. In particular, legal aid is available in all EU Member States for people who do not have sufficient financial resources to bring a case to court 127 . Measure C.5 was discarded as well, as mandating a physical presence throughout the territory of the Member States has not been assessed as the most efficient measure; instead, more flexibility will be given to Member States who nevertheless need to ensure that equality bodies’ services are available to all potential victims throughout their territory, as set out in measure C.6, which is included in the proposal.

Fostering public knowledge and awareness about equality and non-discrimination

In the area of cooperation and coordination, measures D.1-D.3 are taken up in the final proposal, to ensure that knowledge exchange, mutual learning and cooperation take place between all relevant entities at all levels. In order to promote equality and non-discrimination, measures D.5-D.6 are included in the final proposal to tackle the issue from different angles and focus on different groups of stakeholders, including businesses, policymakers and public and private entities in general. Taking a broad approach is important to ensure that promotion activities reach a wide audience, which is crucial to ensuring their effectiveness. Measure D.7 has not been taken up because setting a mandatory frequency for consultation does not seem to be the most effective way to ensure good cooperation. Individual situations in Member States may require more flexibility than a strict, uniform timeframe for such consultations.

The related area of surveys and reports is equally important to improve knowledge regarding concrete activities by equality bodies and regarding the state of discrimination in general, which is why measures E.1 and E.2 are taken up. The same is true for data collection, therefore, measures F.1, F.2 and F.4 are included in the proposal. The same applies to measure F.3, which is identical to measure E.2. 

Monitoring and enforcement

In the area of monitoring, measure G.1 is included in the proposal, since long-term planning is important to ensure coherent and effective action. Measure G.2 is also taken up, which means that the initiative proposes a system where the Commission monitors the situation, rather than an accreditation system (measure G.3). There are several reasons for this decision. Firstly, accreditation would require significant resources from equality bodies, especially in case of a peer accreditation system as for National Human Rights Institutions 128 . Secondly, putting in place such an accreditation system may prove a very long and complicated process, in addition to the need to agree on common indicators. Thirdly, stakeholders were against setting-up an accreditation system. Equality bodies particularly emphasised that they would not like to assess each other as would be mandated under a system of peer accreditation. The proposed monitoring system is a simpler and less costly way to assess whether the standards set by EU legislation are applied in the Member States and whether equality bodies have the means to appropriately carry out their tasks.

Enforcement is crucial to ensuring the effectiveness of the directives and the duties carried out by equality bodies, which is why measures H.1-H.3 are taken up. However, measures H.1 and H.2 have been redrafted in a more general way, binding Member States to these obligation while respecting their procedural autonomy. It is also important to ensure that, if equality bodies have various powers that could potentially interfere with each other (e.g. providing support to victims and quasi-judicial powers), an appropriate structure must be put in place to prevent such interferences, which is why measure H.4 is also taken up in the final proposal.

Independence, resources and structure

The proposed initiatives include a list of requirements that are essential to ensure equality bodies’ independence. They encompass the possible measures initially presented (measures I.1 to I.7) , namely independence as regards (i) their budget (measure I.1), (ii) the selection, appointment, revocation and potential conflict of interest of the staff of equality bodies, in particular persons holding a managerial position (measures I.2, I.5 and I.6), (iii) their staffing and organisational matters (measure I.3), (iv) their legal structure (measure I.4),(v) and their accountability (measure I.7). However, the text of this provision is drafted in more general terms than the initial measures envisaged, so as to respect the institutional autonomy of Member States.

Resources are key to enabling equality bodies to function properly, which is why measures J.1 and J.2 are included in the proposal. In addition to the use of automated systems, three other situations have been highlighted where sufficient resources are crucial: increases of competences, increases in complaints, and litigation costs. Since appropriate focus, attention and resources for the equality mandate are essential in multi-mandate bodies, measure K.1 is included in the final proposal, as it is important to ensure an appropriate structure to achieve this. Measure K.2 is also taken up and is identical to measure H.4. 

Proportionality

The initiative to adopt binding legislation is a proportionate response to the needs, as demonstrated by the persistently high prevalence of discrimination throughout Member States. Softer measures to mitigate the situation, above all the 2018 Recommendation, have previously been put in place, but these have not achieved the desired result. The retrospective analysis has demonstrated that soft measures have not been effective enough in safeguarding people’s fundamental right to non-discrimination, and so binding legislation is necessary to achieve this goal. The proposed initiative sets minimum standards that are expected to improve the level of protection against discrimination significantly, which will have a considerable positive impact on the social situation of (potential) victims of discrimination.

It has been demonstrated above and in the retrospective analysis that Member States acting on their own was not sufficient to achieve the objectives of the initial intervention and to protect citizens’ and residents’ fundamental right to non-discrimination, for which equality bodies are a tool. For this reason, EU action is required. The legal bases chosen for this initiative allow for the adoption of secondary legislation. The choice of instrument – Directives – and the approach taken – common minimum standards – are proportional to the needs described in the intervention logic and leave flexibility to Member States to implement the measures in accordance with their legal systems and traditions.

The scope of the proposal does not go beyond those aspects that Member States cannot achieve satisfactorily on their own. The minimum standards are designed in such a way that they fill the gaps identified by the retrospective analysis, while respecting Member States’ procedural autonomy and leaving them flexibility regarding their implementation within a common EU framework.

The initiative does not create substantial additional costs for the European Commission and its Agencies. To support the monitoring of the implementation of this Directive, the Commission plans to task the European Union Fundamental Rights Agency (FRA) and the European Institute for Gender Equality (EIGE) to collect and analyse the relevant data every 5 years. This type of task is already covered in the existing mandates of FRA 129 and EIGE 130 and will be carried out without additional resources.

8.8.    How will actual impacts be monitored and evaluated?

The proposal includes a monitoring system by the Commission (see measure G.2 above). The Commission will establish a list of common indicators to measure the practical effects of these Directives, by means of an implementing act. The proposal specifies that the list of indicators will cover the resources, independent functioning, activities and effectiveness of equality bodies, as well as evolutions in their mandate, powers or structure. For the establishment of the list of indicators, the Commission will set up an expert group and various stakeholders, including Member States, the FRA and the EIGE, will be consulted. Equinet has already developed and piloted some indicators on equality bodies’ mandate and independence 131 ; those will be taken into consideration as well.

On the basis of information collected in accordance with these indicators, and provided by the Member States every five years, the Commission will draw up a monitoring report. This report will also include additional data and statistics collected by the FRA and the EIGE among various relevant stakeholders (e.g. social partners and civil society).

Annex 1: List of equality bodies in the EU Member States

Source: Equinet, European directory of equality bodies ( European Directory of Equality Bodies – Equinet (equineteurope.org) )

Annex 2: Procedural information

-Lead DG: DG JUST in cooperation with DG EMPL

-Decide reference: PLAN/2021/11134

-Roadmap Feedback period 23 July 2021 - 20 August 2021  Equality bodies – binding standards (europa.eu)

-Open Public Consultation 10 December 2021 - 18 March 2022 Equality bodies – binding standards (europa.eu)

-Work Programme reference: Point 32 under “A New Push for European Democracy” of Annex I “New initiatives” to the Communication on the Commission work programme 2022 Making Europe stronger together, COM(2021)645 of 19 October 2021 announced for Q3 2022 resource.html (europa.eu)

-The main reasons to derogate from Better Regulation rules were the following:

1.    Proportionality - the limited set of EU intervention

The proposals are solely focused on equality bodies that are covered by one Article in four Equality Directives (and “missing” from 2 other Equality directives). The said Article is almost identical in the 4 Directives. The proposals do not amend the wider intervention (the other provisions of the existing Directives). The proposals are also based on the existing 2018 Commission Recommendation on standards for equality bodies. Therefore, a fully-fledged evaluation of the relevant Directives in their entirety was neither proportionate nor necessary.

2.     The absence of simplification potential

One of the issues revealed by the retrospective analysis was the fact that the provisions on equality bodies in the Equality Directives are too narrow and vague. There is therefore no simplification potential in these provisions that a fully-fledged evaluation could have revealed. The feedback on the 2018 Recommendation never pointed at any need for simplification or any administrative burden.

3. The difficulty to assess impacts

A detailed assessment of economic, social and environment impacts could not be carried out because the impacts of the proposed measures are not clearly identifiable. For example the social impact of the activities of equality bodies, such as assisting victims of discrimination and preventing or promoting equal treatment in general, cannot be measured in the absence of comprehensive equality data.

-External expertise was used under a contract with VVA, for a study to support the preparation of a retrospective and prospective analytical document, in view of a legislative proposal on binding standards for equality bodies. Extensive stakeholders’ consultations provided valuable input.

Annex 3: Stakeholder consultation (synopsis report)

Information in this Annex is largely based on the research by VVA. Since the situation of equality bodies across the Member States is very diverse, and no common indicators have been defined and used yet, the accuracy and comparability of data is not always perfect. The present legislative initiative aims to address this issue in the future.

Introduction and consultation strategy

Objective of the consultation

The aim of the consultation was to obtain qualitative and quantitative information from a wide range of stakeholders, including representatives of equality bodies (EBs), NHRIs, NGOs, public authorities, academics and EU citizens.

For the retrospective analysis, the stakeholder consultation collected information and feedback from various key stakeholders to assess EBs and their functioning, and to evaluate the EU legal framework on EBs. This part of the stakeholder consultation included semi-structured interviews, an online survey, the analysis of the responses to the Commission Public Consultation, and three participatory workshops covering the following three topics: (i) accreditation monitoring process for EBs; (ii) data collection requirements; and (iii) powers.

For the analytical document, the stakeholder consultation aimed at assessing the problems identified by the retrospective analysis, setting objectives of the new initiative, and comparing possible measures for a potential new legislative proposal on binding standards for EBs. This part of the stakeholder consultation included semi-structured interviews, an online survey and a validation conference.

Consultation activities and tools

The consultation strategy was underpinned by a number of key activities using multiple tools to target a wide range of stakeholders through different channels and gather insights from as many relevant stakeholders as possible.

Three types of interviews took place in the context of this project. Scoping interviews were conducted in order to gather initial insights into the topic of equality bodies. In total, six scoping interviews were conducted with various EU-level and international stakeholders. In addition, stakeholder interviews aimed at gathering views from various key stakeholders (representatives of EBs, relevant public bodies, NHRIs, NGOs and academics) in the 27 EU Member States (MS). Overall, 101 interviews were performed as part of the national data collection. To gather additional information relating to costs, five interviews with selected equality bodies took place focusing on costs and resources.

An online survey focusing on gathering additional data directly from national EBs was also conducted as part of Phase 1. Through this questionnaire, the national EBs were asked to assess their functioning. Overall, 32 equality bodies have completed the survey. Furthermore, four written contributions were collected from EU stakeholders.

An Open Public Consultation (‘OPC) was launched by DG JUST to which 182 stakeholders replied. Overall, 16 academic research institutions, three business associations, 66 EU citizens, three non-EU citizens, 38 NGOs, 38 public authorities 132 and four trade unions contributed to the consultation, with 14 other types of stakeholders contributing as well.

Three workshops were organised to inform the retrospective analysis and assessment of possible measures with national and EU level stakeholders. One workshop (44 participants) focused on gathering feedback on collecting and/or obtaining equality data. The second one (39 participants) focused on possibilities to ensure proper monitoring of the activities of EBs and ensure their effective functioning, namely different monitoring or accreditation systems. The third workshop focused on discussing the powers that EBs should have in order to adequately perform their role (60 participants).

In addition, as part of the prospective analysis, an online survey was carried out with EBs, to assess the possible measures (53 respondents). To complement this survey, interviews were carried out with selected EBs to collect the cost information needed for the analysis of the adequacy of resources and to understand further the cost impacts of the different policy options. Two costs interviews were carried out while three written responses to the interview questionnaire were received.

A final conference took place on 4 April 2022 to present the preliminary results of the study and the main measures considered for future EU legislation on the topic of binding minimum standards for EBs, and to gather participants’ feedback in relation to these. In total, 88 representatives from national administrations, EBs, EU and international institutions and bodies, academia, and civil society participated in the conference.

Finally, a Youth Policy Dialogue entitled “Equality bodies that work for all of us” was organised by Commissioner Dalli on 24 May 2022 with young activists in the field of equality 133 .

The table below provides an overview of the different stakeholder consultations.

Overview of stakeholder consultation

Main stakeholder feedback per consultation activity

Interviews

Stakeholders from 26 MS have participated in the interviews. No stakeholder from LV was available for an interview, therefore, additional desk research was conducted. Stakeholders from AT, EE, EL, ES and HR were particularly well represented with at least six stakeholders consulted in each of these countries.

Stakeholders interviewed and Member States representation

Interviews were mostly conducted with equality bodies (39), NGOs (27) and academics (11), and to a smaller extent with NHRIs, public authorities and practitioners.

Type of stakeholders interviewed

Although the online survey conducted for the retrospective analysis was the main basis used to analyse the current state of play, interviewees were asked complementary questions on the EBs’ mandate, powers, independence, resources, stakeholder engagement, data collection and accreditation. These responses were analysed along with the result of the online survey and the desk research to draw a comprehensive state of play regarding the functioning of EBs.

Open public consultation

See the overall summary results published on Have your Say at Equality bodies – binding standards (europa.eu)

Potential future changes for equality bodies

The overwhelming majority of respondents (97.2%) consider that establishing strong and effective equality bodies is (very) important. 81.3% consider that adopting new binding minimum standards for equality bodies would have a positive impact for them.

Stakeholders’ assessment of importance of establishing strong and effective EBs (total 177 responses)

Stakeholders rated as follows the current functioning of equality bodies. Only 34.7 % of respondents consider the current resources of their national equality bodies as sufficient.

More than 79% of respondents consider that each of the following additional rules are (very) necessary:

Online surveys

Respondents’ profiles

Altogether 32 equality bodies from 26 Member States provided their answers in the first survey (retrospective analysis). No response was received from the Equality body in Denmark. In the Member States where there is more than one equality body not all equality bodies submitted their responses, and some equality bodies did not provide responses to all questions (e.g. EL, HU, IE, RO, SE).

Altogether 53 equality bodies from 25 Member States provided their answers to the second survey (prospective analysis). Not all equality bodies submitted their responses, and some equality bodies did not provide responses to all questions.

Mandate

The retrospective online survey looked at three aspects related to the mandate of EBs: grounds of discrimination and fields covered by EBs, and functions of EBs. With the exception of ES and PT, the EBs of all 27 MS cover all grounds of discrimination. Additionally, EBs in 10 MS 134 do not cover nationality as a ground of discrimination. Equality bodies in all MS cover all fields with the exception of Ireland, where the equality body does not cover social advantages for any grounds of discrimination. EBs from 13 MS have a single equality mandate, while the rest are multi-mandate bodies 135 .

Powers

The retrospective online survey looked at six aspects related to the powers of EBs:

·Independent assistance: EBs in all Member States, except for Ireland 136 , receive individual complaints, while in the large majority of MS (20+), they also receive collective complaints, provide legal advice and legal assistance to victims of discrimination, and are involved in mediation or conciliation activities.

·Decision-making function: EBs rarely have legally-binding decision-making functions (only in 6 MS 137 : BG, CY, LT, HU, PT and SI).

·Policy advisory role: In almost all MS (24), EBs are consulted by the government on legislation, while in approximately half of the MS, EBs are consulted on other elements such as policy (17), procedures (13), programmes (18), practices (13). EBs from 25 MS can issue recommendations to governments.

·Independent surveys and reports: EBs from all MS have the power to conduct surveys and pursue research activities. The frequency of the surveys and research activities depend on the Member State. In around half of the MS (14), EBs can request follow-ups on their recommendations, while the other half does not have such power.

·Support and good practice: EBs from all MS can provide training, while in the large majority of MS, EBs can also provide guidance and support to stakeholders (25) and set standards for good equality practice to relevant stakeholders (21).

·Communication role: EBs from all MS have capacity to provide information on rights under equal treatment legislation and how to exercise these rights. Except in Hungary, EBs from almost all MS also have capacity to engage in public and political debate to promote equality and non-discrimination.

Independence

The online survey looked into four aspects related to the independence of EBs:

·Legal status and place in the administrative structure: In a large majority of MS (20) 138 , EBs are situated separately from governmental structures, and in all MS, EBs have a mandate provided by law. In addition, EBs from 24 MS are able to reject direct or indirect external influences and undue interference, while EBs from three MS (EE, MT, and SI) stated that they are unable to do so.

·Budgetary independence: EBs from 25 MS have specific budgets (although in majority these are not multiannual budgets). Mechanism to prevent disproportionate budget cuts to EBs’ budgets are rare in the EU.

·Appointment process for leadership: EBs from 22 MS have an individual as a leader, while in eight MS EBs have a leadership in the form of a board. In 19 MS national law ensures that there is a public/open call for leadership position, with public and transparent position requirements and transparent procedures to select and appoint their leadership.

·Accountability requirements: In all MS, EBs are subject to public service laws, and to the financial accountability and expenditure rules that apply to public authorities. In some of the MS, EBs are scrutinised by the government or a governmental department or ministry (9) and/or scrutinised by the parliament (12). EBs from all MS produce and make annual activity reports available to the public, although one of the two ES EBs does not.

Management of Resources

The online survey looked into three criteria related to the management of resources of EBs:

·Appropriateness of human resources: EBs from six MS have taken a balanced approach regarding their personnel’s expertise between legal, communication, and research while EBs from 11 MS did not. In addition, EBs in eight MS have a gender balance among their employees, whereas EBs from 14 MS do not. Regarding the representation of other groups experiencing discrimination in the personnel of EBs, EBs in nine Member have employed people from such groups, while EBs from five Member do not collect such information.

·Adequacy of financial resources: Stakeholders from most MS (20) stated that their corresponding EBs do not have the necessary resources to operate and conduct the activities provided by EU and national legislation, while few (5 MS) reported that the resources are adequate.

·The scope, detail, and cost of the activities of EBs is consistent with their objectives: EBs from 18 MS devote proportional budget to all grounds of discrimination, while EBs from eight MS do not. In terms of programming of the activities and functions of EBs, EBs from 24 MS indicated that they do adopt a programme on their priorities.

Accessibility for victims of discrimination

The online survey looked into three aspects related to the accessibility for victims of discrimination:

·Complaint submission: The means of submission of complaints are diverse: online option (in 24 MS), paper submission of complaints (in 26 MS), complaints submitted in person (in 23 MS), submission procedures accessible for persons with disabilities (in 20 MS). All equality bodies in almost all or all MS allow for the submission of complaints in both the official languages of the state and in languages beyond the official ones (26) and provide the complaint submission without cost (27). EBs in 21 MS provide confidentiality to witnesses and whistle-blowers of complaints, while EBs in four MS do not.

·Physical presence across the territory: In all MS, EBs’ facilities are visible and open to the public, except for one equality body. EBs in 19 MS have local and regional levels through cooperating with civil society organisations or other type of organisations.

·Accommodation and reflection of diversity: EBs in 24 MS ensure accessibility for persons with disabilities, while EBs from two MS do not. With regard to processes for the accommodation of other circumstances such as literacy issues, scheduling issues, transportation issues, translation needs, EBs in 13 MS provide such accommodations, while EBs in ten MS do not.

Stakeholder engagement

The online survey also looked at the aspect ‘Engagement and cooperation with relevant stakeholders’. In terms of the existence of mechanisms for engagement of EBs with national authorities, EBs from 21 MS stated that there is such a mechanism, while EBs from four MS stated there is not such mechanism available (CY, EE, PT, and NL).

Data collection

The online survey looked at five aspects related to the data collection frameworks of EBs:

·Regulation of equality data: In 16 MS, national law requires EBs to collect data, while in 3 MS there is only a non-binding guideline regarding this issue. The data collected can include data on the EBs’ own activities (in all MS), on current situation regarding equality (in 11 MS) and on narrow subjects regarding specific grounds of discrimination in specific circumstances (in 8 MS). EBs in 16 MS collect both primary and secondary data, in AT and EL EBs collect only primary data, while in five MS EBs collect secondary data.

·Validity of equality data: EBs from 14 MS conduct consultations with the groups concerned to agree on definitions used for a study, while EBs from six MS do not. In addition, EBs from 16 MS provide self-definition as an option in the collection of data, while EBs from two MS do not.

·Reliability of equality data: Regarding the issue of common definitions in equality data collection, the picture is mixed. EBs in ten MS stated that they collect data nationwide following common definitions, while in eight MS they do not. The regularity of general data collection and data collection on activities varies among EBs.  

·Comprehensiveness of equality data: The data collected can be in fields covered by the EU Equality Directives (in between 18 and 21 MS, EBs collect data in each relevant fields), fields beyond the ones entailed in the directive (in 12 MS), data on the EBs’ activities (in more than 20 MS data is collected on discrimination complaints, discrimination cases decided by EBs and outcomes of these discrimination cases). Lastly, EBs from 20 MS collect data on all grounds of discrimination of Articles 18 and 19 TFEU.

·Publication and dissemination of equality data gathered: The dissemination of data by the EBs is conducted through various ways: through the equality bodies websites (in 21 MS), through networks of relevant stakeholders (in 15 MS), through ministerial websites (in 4 MS) and through other means such as annual reports, social media accounts, websites of the department of statistics, press conferences, press releases, TV interviews, seminars, and other types of educational events.

Workshops

The three workshops organised aimed at gathering the views of stakeholders with regards to data collection, monitoring/accreditation and powers of equality bodies. All workshops included breakout room sessions during which the stakeholders brainstormed in small groups the topics of the workshops. A wide range of stakeholders, including European and national public body representatives, EBs, NGOs, academics and national human rights institutions, participated in these workshops.

Regarding data collection, the majority of stakeholders highlighted the need to introduce provisions in the new legislation on that topic. They took the view that EBs should collect data on their own activities and be able to access equality data collected by others. They should also provide some advice to public and private entities on their data collection activities.

Regarding the monitoring/accreditation mechanism, all the stakeholders agreed that the preliminary list of possible indicators presented in the workshop was comprehensive and useful. They however argued that some indicators could be refined. Equality bodies stressed that they should not be made responsible for Member States’ failure to provide them with the necessary independence and resources to accomplish their tasks.

When it comes to the setting-up of an accreditation system, overall, opinions among stakeholders were negative with significant questions about the value added of such a system, the burden it would impose on EBs and the way it would work in practice (e.g. what would happen if an EB fails?). They were also against a system that would generate competition between EBs while they currently cooperate well with one another. Such a system would also need to work alongside other accreditation systems e.g. for EBs that are multi-mandated (e.g., the ones that are also NHRIs).

The majority of stakeholders took the view that a monitoring system under the responsibility of the Commission would be the best option. All stakeholders agreed that the monitoring results should be made public.

Regarding the powers of EBs, on the minimum combination of powers needed to effectively support victims of discrimination, conditions/challenges and possible national legal barriers, litigation powers and legal standing for EBs were prominently mentioned by participants as necessary powers. Aspects like collective action, being able to represent victims of discrimination in court and being able to litigate even if there is no identifiable victim of discrimination were mentioned frequently. Investigative powers, such as access to information, documents and the right to launch ex-officio investigations, appeared very prominently as well. Most participants were also in favour of amicable settlements mechanisms, even if one stressed that they worked better for unintentional discrimination. There was some ambivalence regarding the power to issue binding decisions; many arguing it would go against the structure of their judicial and administrative systems and that no single-model approach should be imposed. The follow-up of decisions and recommendations, and the power to give opinions, including to courts, were considered an important issue. Participants stressed the need for independence and appropriate resources and mentioned some current limitations in national law. Examples of other possible obstacles were the current organisational structure in some MS that may pose an impediment to legal standing. In addition, participants stressed that overlap of powers between State bodies should be avoided (e.g. between EBs and labour inspectorates). On the powers needed to prevent discrimination, stakeholders argued that EBs should engage in awareness raising and training activities and should play a promoting and supervisory role in equality mainstreaming and equality duties, including equality planning. The need for complete and accurate equality data was also stressed as well as being able to access data from public authorities. Other important points in this context were conducting studies and cooperation with academia and other EBs. Participants also stressed that EBs should be involved and consulted in the law- and policy-making process. Strategic litigation was also mentioned in this context.

Conference

The participants were asked to discuss the possible measures for a legislative initiative on binding standards for equality bodies. The policy options were divided into four areas – powers, independence, promotion and prevention, and resources. The overwhelming majority of participants expressed preference for more ambitious combination of measures in all areas. In fact, participants stressed that raising the minimum standards should be the objective of any future legislation. Nevertheless, throughout the discussion it was pointed out that the different types of equality bodies need to be recognised and the diversity among them needs to be taken into account when drafting future legislation.

With regard to the powers, participants preferred the more ambitious combination of measures presented 139 (52 participants) rather than the less ambitious option 140 (17 participants). One of the biggest challenges repeated throughout the conference regarding powers is a lack of resources, both human and financial, as well as the way the proposed combination of measures would fit into existing legislation and the legal system in the different Member States.

In the independence area, 50 participants chose the more ambitious combination of measures 141 , and seven participants opted for the alternative 142 . While stakeholders welcomed the proposed options, they were also sceptical about its realisation, citing a lack of political will and a lack of resources as challenges. In particular, regarding budgetary independence, a participant mentioned that budgetary independence is difficult to define. Participants also expressed that it might be problematic to have non-renewable, one-term leadership, especially in small countries where there may not be enough candidates, as it might disrupt continuity.

Regarding promotion and prevention, the participants were divided as regards their preference: 15 stakeholders chose the less 143 and 27 chose the more 144 ambitious combination of measures. In general, the stakeholders welcomed the possible measures in the area of promotion and prevention; in fact a participant even noted that the reason the more ambitious package of measures was better was because it deepens preventive measures. However, they also mentioned that a lack of resources could hinder promotion and prevention activities.

In the resources area, participants were also more divided regarding the two options proposed - out of 35 respondents, 10 participants opted for the less 145 , and 25 for the more ambitious 146 combination of measures. Although the stakeholders agreed on the importance of ensuring adequate resources, they also shared some concerns. Regarding the point about using artificial intelligence to detect discrimination cases and enforce non-discrimination, many participants stressed the need for sufficient expertise on the AI tools, while others also pointed out that using artificial intelligence does not seem feasible in general. Additionally, participants expressed their doubts over AI being used to fight discrimination, when it has been known to sustain discriminatory behaviour (e.g., with face recognition). Participants noted that the ensuring territorial representation – as listed in Option 2 – could include online presence as opposed to on-the-ground presence, which would require more resources that could be better used elsewhere. Stakeholders suggested that territorial representation could also be ensured via regular contact with local authorities.

Annex 4: Overview of the structure and functioning of equality bodies in Member States

Information in this Annex is largely based on the study by VVA. Since the situations of equality bodies across the Member States are very diverse, and no common indicators have been defined and used yet, the accuracy and comparability of data is not always perfect. The present legislative initiative aims to address this issue in the future.

This overview was put together before Spain adapted its legislation in July 2022. The changes brought about by the new legislation are not reflected in the tables below.

When interpreting the results of the tables below, it is important to note that the information displayed in the tables in this Annex has been obtained through a stakeholder survey among equality bodies.

Resources

Adequacy of financial resources

* This response was indicated by only some of the equality bodies in a country with multiple equality bodies.

Scope, detail, and cost of the activities of equality bodies are consistent with their objectives

* This response was indicated by only some of the equality bodies in a country with multiple equality bodies.

Independence

Legal status and place in the administrative structure