Eugenia Caracciolo di Torella, Associate Professor, Leicester Law School, presented the results of her research that will be published in a thematic report in 2022.
The aim of the report was twofold. First, to take stock of the Directive and its implementation in the Member States in order to highlight its achievements and shortcomings, as well as identifying the reasons for them. Second, to suggest measures that can (and should) be introduced in order to address these shortcomings. In order to inform this thematic report, a questionnaire was distributed to the national gender experts in the European network of legal experts in gender equality and non-discrimination, covering all the 27 European Union Member States plus the UK and 3 EFTA countries.
At the end of her presentation, Eugenia Caracciolo di Torella concluded that Directive 2004/113/EC is a forgotten directive with a great deal of potential. It is a key instrument to enhance social inclusion, fight damaging stereotypes, build a ‘culture of rights’, and further promote the meaningful participation of all (many) groups to society and ultimately to the economy. It is the ‘forgotten’ piece of the sophisticated EU equality jigsaw that can support other EU equality legal instruments to ensure that the principle of gender equality is not merely applied in the working environment.
Last but not least, it can go a long way to address the challenges posed by an increasingly digitalised society.
The speaker at this workshop was Niall Crowley, an Equality and Human Rights expert from Ireland. He presented the results of his research which were published in the European Equality Law Review (July 2021).
In his presentation he set out the relevant European standards for independent assistance competences of equality bodies. In applying the standards, he made use of the indicators being developed by Equinet, the European Network of Equality Bodies, to measure implementation of these standards. He discussed the importance of independent assistance competences, European standards on the independent assistance competences of equality bodies and issues for equality bodies in relation to their independent assistance competences. A set of recommendations and possible questions for discussion concluded his presentation. He recommended the European Commission to develop and agree with the Member States, on a body of indicators for these competences to measure implementation of the standards set out in its Recommendation. Also, the European Commission should build some leverage behind the implementation of the standards at Member State level.
At this workshop, Sara Benedí Lahuerta, Assistant Professor at the Sutherland School of Law, University College Dublin (UCD), presented the results of her research, which were published in the European Equality Law Review (November 2021).
This article analyses the legislation and experiences of three jurisdictions which already have pay transparency measures in place (Belgium, Denmark and Iceland), with reference to key features of the Recommendation and the Directive Proposal, where relevant. After introducing the EU and national regulatory context, Sara Benedí Lahuerta discussed the best practices and implementation challenges encountered in the selected jurisdictions focusing on four key features of proactive pay transparency measures, i.e. requirements to assess the relative value of work, duties to report and analyse pay data and to take evidence-based action to address pay gaps; the role of worker participation; social partners and collective bargaining and the clash between pay transparency measures and data protection. She concluded by presenting the key takeaways from the comparative analysis of the three countries, e.g. that measures should facilitate comparability inside and outside the organisation, and the importance of a strong enforcement system with dissuasive and proportionate sanctions.
The workshop was presented by Sara De Vido, Associate Professor of International Law, Ca' Foscari University of Venice, Italy and Lorena Sosa, Assistant Professor of International Law, Utrecht University (SIM/UCERF), the Netherlands.
The basis for this workshop was their thematic report Criminalisation of gender-based violence against women in European States, including ICT-facilitated violence published in November 2021. The aim of the report is to carry out a comparative analysis of the criminal law provisions that are applied to gender-based violence against women, including domestic violence and online violence, at national level in Europe. It explores whether gender-based violence against women (GBVAW) is defined as a form of discrimination or a violation of the principle of equality. The report identifies and defines ICT-facilitated violence and takes as examples two forms: non-consensual dissemination of intimate/private/sexual images, and hate speech based on gender. It also examines general aspects of enforcement and sanctioning that are particularly salient in the context of combating gender-based violence against women and domestic violence.
The main finds of their research, which were presented at the workshop, are:
the great diversity of approaches in the way states criminalise (different forms of) GBVAW;
the trend towards criminalisation with regard to some crimes, either in response to the Istanbul Convention or in response to the increasing use of ICT;
the lack of recognition of GBVAW as gender inequality/discrimination;
the use of gender-neutral definitions;
reliance on general offences and the gender-neutral approach;
the fact that a digital dimension of the crimes is mainly included as an aggravating circumstance;
the inefficient prohibitions and insufficient protection.
The speakers concluded with the question as to whether there is a need for more EU law.
Romaniţa Iordache is a Human Rights researcher and Iustina Ionescu a Human Rights lawyer, both from Romania. They are the authors of a thematic report that will be published in 2022 on promising practices in the effective enforcement of the Racial Equality and Employment Equality Directives.
This report aims to consider the encouraging and promising practices developed in relation to existing enforcement mechanisms for the system of protection against discrimination based on the Equality Directives, by also looking at remedies and, in particular, innovative solutions throughout the 27 Member States and the 3 EFTA countries.
In the workshop the authors presented the aims of their report; the definitions of ‘effective enforcement’ and ‘promising or encouraging practices’ they applied; the methodology of their research; their main conclusions and promising practices in unexpected places.
The main conclusions of this report – of a seemingly complex and colourful puzzle of measures and provisions to address discrimination across the European Union – are twofold: firstly, innovative, promising elements can be identified in every single Member State and secondly, even when such promising elements seem to be small and country-specific, all these elements taken together form the foundations of a potential giant leap at the European level, if the goodwill, exchange of good practices and inspiration prevail. A third conclusion is also apparent and more sobering: while in some Member States the initial impetus for adopting progressive anti-discrimination legislation leads to promising practices developed from a victim-based perspective, such positive elements cannot be taken for granted and need to be consistently used and championed, otherwise the risk of dilution and regress or of sham compliance is very real.
Janneke Gerards is a Professor of Fundamental Rights Law at Utrecht University, the Netherlands. Her presentation dealt with the recent non-discrimination case law of the European Court of Human Rights. She discussed important judgments of the Court on discriminatorily motivated acts; pregnancy discrimination; secondary victimisation; disability discrimination and age discrimination.
The cases she presented dealt with legal questions such as:
whether the respect for private life of Article 8(1) of the European Convention for Human Rights also covers the identity and self-worth of groups rather than just individuals;
whether the financial obligations imposed on the State during a woman’s pregnancy by themselves constitute sufficiently weighty reasons to justify difference in treatment on the basis of sex; and
whether a decision of the government to provide additional social assistance to families constituted of persons of a younger age can, in and of itself, be seen as manifestly without reasonable foundation.
Colm O’Cinneide, Professor of Constitutional and Human Rights Law at University College London (UCL), noted that the number of discrimination cases (broadly defined) that reach the Court of Justice of the EU, continues to fall. However, over the last year, there has nevertheless been a steady stream of significant judgments handed down by the CJEU, in particular on issues such as reasonable accommodation; religious symbols; and the right to a remedy. The provisions of the Charter of Fundamental Rights of the European Union are also increasingly featuring in the Court’s judgments, albeit not always in a substantive matter. He discussed a selection of the most important CJEU judgments of 2021, including cases dealing with age discrimination; discrimination on the basis of disability, gender, race and ethnicity, and religion or belief.
He concluded that the CJEU’s equality jurisprudence continues to evolve, including inter alia significant advances in the Court’s reasonable accommodation case law; clarification of the potentially important issue of whether disability discrimination can arise between two different groups of disabled persons; and new precision to the Court’s ‘headscarf’ jurisprudence. One overarching trend should be immediately obvious: the growing salience of Charter rights, even if so far they feature more as judicial rhetoric than as substantive law.
Helena Dalli, Commissioner for Equality of the European Commission, welcomed the participants on behalf of the European Commission and the organisers of the seminar. Adam Bodnar, Law professor at the University of Social Sciences and Humanities, Warsaw, Poland, provided the keynote speech. The programme included five workshops in which relevant topics were discussed which tied in with the network’s work in 2021. The organisers and a representative of the Commission provided closing remarks.
After welcoming the participants, Commissioner Dalli presented the three main goals of the Commission in the field of gender equality: the eradication of gender-based violence and domestic violence; equal pay for men and women and gender balance on company boards; and the legislative initiatives the Commission is taking in these fields. She also mentioned the Commission’s comprehensive set of tools to support Member States in advancing equality and stepping up the fight against discrimination. She called on the participants to use the seminar to speak up, to share one’s thoughts and ideas, and to take home today’s reflections.
On behalf of the organisers of the legal seminar, Linda Senden, Specialist Coordinator for Gender Equality Law and Professor of EU Law at Utrecht University, shared the observations that were key to the discussion at the seminar. In the keynote speech and in the workshops, the importance of effective enforcement and monitoring of EU and national equality was given great emphasis. She referred to the keynote speech of Adam Bodnar which stressed the importance of individual litigation, the independent protection mechanisms and EU legislation. In the workshops the enforcement of equality and non-discrimination law was also a central element of the presentations and the discussion, for example, the promising practices in the effective enforcement of the Racial Equality and Employment Equality Directives, and the potential of the Goods and Services Directive 2004/113/EC to ensure that the principle of gender equality is not merely applied in the working environment.
Finally, Irena Moozova, Director for Equality and Union Citizenship, DG JUST, European Commission, stressed the importance of the role of human rights defenders in the protection of equality rights and the shared responsibility of the EU and the Member States for the Union of Equality. She also connected the topics that were discussed at the seminar with (legislative) initiatives that the Commission is taking or intends to take, e.g. to strengthen the position of equality bodies; to eradicate gender-based violence against women; to ensure equal pay for men and women; and to improve the support from equality bodies for victims of discrimination.
Adam Bodnar has a long track record in the field of human rights and anti-discrimination. He is well known as the Polish Ombudsman for Citizens’ Rights from 2015 until 2021. During his tenure he brought a number of local governments to court for their introduction of the controversial LGBT-free zones. He also worked for the Polish Helsinki Foundation for Human Rights and was a member of the board of directors of the UN Fund for Victims of Torture.
In his inspiring keynote speech he wanted to give the participants food for thought to consider the applicability of anti-discrimination law in Europe, by discussing the developments in Poland. He gave an overview of the applicable equality and non-discrimination laws and their application in the EU and its Member States, in which he referred to the fact that e.g. in Poland the government never undertook any actions to undermine laws that Poland had passed as implementation of the EU directives. He presented the dangers of the present illiberal pressure for democratic societies and for the protection of vulnerable groups. In his opinion, independent institutions are crucial to enforce anti-discrimination law. Any pressure on these institutions has an impact on the protection of rights. In Poland and other countries there is discriminatory legalism which results e.g. in unequal enforcement of the law in discrimination cases and lack of sufficient protection of victims by state institutions. To counteract this, equality bodies should e.g. support NGOs and victims of discrimination. After his presentation of the case study of the ‘LGBT-Free Zones’, he presented his perspectives on equality law in the EU. He inter alia emphasised the importance of the need for a new directive to strengthen the independence of equality bodies and the need for a ‘horizontal directive’ which would offer a more symmetric protection to victims of discrimination.