Equality Bodies in the spotlight: Independent and effective actors for change?

Almost 20 years after the adoption of EU legislation to eradicate discrimination, the reality for immigrants, ethnic groups and many other minorities in Europe is far from discrimination-free. As the EU Fundamental Rights Agency’s EU-MIDIS II survey shows, discrimination is still widespread and it is therefore crucial that concrete action is taken on national and European level to step up the fight.

38% of respondents felt discriminated against because of their ethnic or immigrant background, skin colour or religion in daily life, in the five years preceding the survey. (EU-MIDIS II 2017)

Luckily, EU law requires each EU Member State to designate a specific authority—an equality body—to promote equal treatment, provide assistance to victims and make recommendations. Problem solved?

Unfortunately, rather than setting standards for the level of independence and the statutory powers of equality bodies, EU law only provides a short list of undefined competences—leaving a wide margin of manoeuvre to the Member States. Equality bodies are required to exercise their competences independently but not to actually be independent.

As a result, equality bodies are particularly diverse. The spread of mandates, functions and competences is brought to light in a recent report by the European network of legal experts in gender equality and non-discrimination. Building upon the efforts of Equinet, the European network of equality bodies, to push for standards for equality bodies, this new report provides a detailed overview of the current state of affairs among 43 equality bodies set up in 31 European countries. These bodies range from tribunal-type bodies imposing sanctions and awarding compensation, to NGO-type bodies fighting to make an impact with extremely limited resources, to bodies that form part of Government Ministries, trying their best to exercise their mandate without causing too much of a stir with their Government.

Equality bodies need greater resources for a wide variety of activities, including enforcement of rights, promotion of good practice, communication, research, and stakeholder engagement. Independence and effectiveness are also major challenges. Problems with the independence of equality bodies can be found in their legal structures, appointment and accountability, structures, and even their day-to-day operations. In some countries, equality bodies are appointed by the government or actually form part of the Ministry. The main problem undermining the effectiveness of these bodies is inadequate funding to make a real impact. For example, the report finds that none of the 43 bodies enjoy fully adequate resources for the full range of activities they are expected to fulfil.

This new report comes at the very moment when the European Commission has published a Recommendation encouraging Member States to improve equality bodies’ independence and effectiveness. With the soft law approach of a non-binding Recommendation, the Commission is gently nudging Member States to extend the powers and broaden the scope of equality bodies far beyond the requirements of EU law currently in force. The Commission hopes to circumvent the political blockage in Council where the proposed Equal Treatment Directive has been pending for the past 10 years. The report goes even further in its recommendations with more precise proposals for changes in practice rather than merely the legal requirements.

The Commission’s Recommendation, combined with this new independent report, will hopefully set the stage for follow-up work to improve the conditions for equality bodies. The great potential of equality bodies is unfortunately still wasted in a number of countries that deny them the means to fulfil their mission: to eradicate discrimination, one step at a time.