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European Equality Law Network

European network of legal experts in gender equality and non-discrimination

2014 Seminar - Enforcement of equality and anti-discrimination law

On 28 November 2014 the seventh annual legal seminar of the European Network of Legal Experts in the Non-discrimination Field was organised in cooperation with the European Network of Legal Experts in the field of Gender Equality (managed by the Faculty of Law at Utrecht University). The seminar attracted 141 participants, including representatives of the European Commission, of EU Member States governments, of Equality Bodies and of EU-umbrella organisations. The seminar also brought together a number of high level academics from across the European Union.

The feedback from the participants, collected through a satisfaction survey (PDF 201 kB) resulted in a good rating.

The objective of the Legal Seminar was to provide the participants with an opportunity to exchange views on the transposition and, particularly, the implementation and effective enforcement of the EU equality and anti-discrimination Directives, to discuss particular issues of discrimination and to share practices and experiences. Current legal developments and future prospects in the area of non-discrimination and gender equality were widely discussed. The programme (PDF 186 kB) of this year’s one-day seminar included both plenary sessions and parallel workshops.

To introduce the 2014 Legal Seminar, Ms.Jenny Goldtschmidt, professor emeritus in Human Rights Law at the Utrecht University School of Law addressed a keynote speech to the participants, drawing from her extensive experience to provide insight into the necessary elements for anti-discrimination and equality law to be effectively enforced and implemented. In addition to strong legal instruments, the mobilization of civil society and empowerment of victims are crucial, as is the availability of multiple instruments such as medication, equality bodies and positive obligations to ensure equality.

Presentation Ms. Jenny Goldschmidt:

In each workshop of this year’s legal seminar two speakers made presentations, including one legal practitioner presenting a specific case-study to be discussed by the participants, raising the main issues of relevance within the particular field of interest in the workshop. The key issues discussed during the workshops, as reported back at the closing plenary session were:

  • Update on European case law
  • Parental leave and the reconciliation of work and family life
  • Self-employment
  • Burden of proof
  • Sexual orientation

Workshop - Update on European case law

The following issues were discussed:

  • The interrelation of different legal systems of protection against discrimination, especially EU law and the ECHR. Are there different approaches, conceptual frameworks or policy decisions discernible in the different systems?
  • How is religion treated in anti-discrimination law?
  • Is unequal treatment on the ground of religion or justification of unequal treatment because of religion predominantly framed as a matter of freedom of religion under the ECHR and as a matter of discrimination law under the EU regime? If so, what are the consequences? Is the EU system stricter? What consequence will accession of the EU to the ECHR have?
  • Is there a (new) hierarchy of protection against discrimination? Are certain grounds privileged? Is religion special or are other grounds of paradigmatic importance, especially sex?
  • Is coherence of the different legal regimes, especially of the ECHR and the EU an important aim? Does lack of coherence create possibilities for legal innovation?

The questions of religion and equality were of particular interest for the participants in both sessions of the workshop.

Workshop - Parental leave and the reconciliation of work and family life

The following issues were discussed:

  • The implementation of the Directive 2010/18 seems to cause few problems in the ‘technical’ sense, as the national provisions mostly fulfil the requirements.
  • Yet, maternity leave and parental leave (and paternity leave where in use) are not used in a sequential manner implied by the EU legislation; there are lacunae and complicated rules in national law, as demonstrated by a case study presented in the session.
  • Often the requirements of the Directive 2010 are fulfilled by a leave that may be taken by either parent, but is called ‘maternity leave’, which may reinforce the tendency that mothers always use parental leave when it is transferable; a need for a more integrated leave system was discussed.
  • The right to leave and the right to benefit/pay form two separate systems and thus the two sides of the parental leave may follow different logics; where there is no pay or benefit the leave is not used.
  • The use of the family related leaves is related to other parts of reconciliation of work and family life, especially provision of day care.

Workshop - Self-employment

The following issues were discussed:

  • Question of scope – both personal and material scope – of Directive 2010/41. The material scope is very unclear both to whom it applies and to what.
  • The Directive has little impact. It is not visible and needs to be better publicised.
  • It would be helpful if the CJEU would develop a clear concept of what self-employment means as it leaves too much discretion to the states.
  • It would be helpful if national courts would award higher damages.
  • The issue of overlap between Directives: it is unclear which Directive would apply in certain situations and there is a risk that people will fall between the gaps.

Workshop - Burden of proof

The following issues were discussed:

  • The different practicing of the burden of proof rule in member states begs standard setting by the CJEU as there is imperfect understanding of how the rule applies regarding establishing the prima facie cases that shifts the burden of proof.
  • The issue of stereotypes and how to deal with these: is there a difference if statements have been stated publicly or not?
  • A failure of the theory around work on the burden of proof - cannot translate into tort law.
  • The practice of the courts in several member states (Austria and Germany) is problematic as the courts demand that a prima facie case has to be proven by evidence, which undermines the efficiency of the burden of proof rule. The balance of probabilities is not considered. In relation to Austria – is an infringement case a viable option in order to secure national implementation?
  • Is making guidelines on the burden of proof a job for the Commission, similar to the questionnaire procedure to secure access to information in order to establish prima facie case?

Workshop - Sexual orientation

The following issues were discussed:

  • When dealing with sexual orientation, is it more useful to stress positive measures (positive action) or adapting/using the concept of reasonable accommodation?
  • Are there any examples of good practice regarding positive measures on sexual orientation?
  • How helpful can freedom of movement provisions be in overcoming different levels of recognition of same-sex marriage or adoption within EU.
  • How far will ethos-based organisations – especially religious ones – be allowed to bend the protection against discrimination based on sexual orientation?
  • Will the exception for ethos-based employers in conjunction with the claim for genuine and determining occupational requirements allow them to create a heteronormative setback?
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