Report on Gender Equality Bodies

By the Network of legal experts on the application of Community law on equal treatment between women and men

15 October 2004

INTRODUCTION

Directive 76/207 as amended by Directive 2002/73 provides:

Article 8a

1. Member States shall designate and make the necessary arrangements for a body or bodies for the promotion, analysis, monitoring and support of equal treatment of all persons without discrimination on the grounds of sex. These bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals' rights.

2. Member States shall ensure that the competences of these bodies include:

(a) without prejudice to the right of victims and of associations, organisations or other legal entities referred to in Article 6(3), providing independent assistance to victims of discrimination in pursuing their complaints about discrimination;

(b) conducting independent surveys concerning discrimination;

(c) publishing independent reports and making recommendations on any issue relating to such discrimination.

This report seeks to give an overview of the gender equality bodies in the 25 Member States, the candidate countries (Bulgaria and Romania) and the EEA countries (Iceland, Liechtenstein and Norway).

1. Existence of gender equality bodies

A number of States, such as Malta, Portugal, Romania, Spain, have established a gender equality body or amended their existing gender equality body in a way that implements Article 8a of Directive 2002/73 (e.g. Ireland). Some States, such as Sweden, the Netherlands or the United Kingdom already had a working gender equality body which implemented the Directive adequately. Some have established some form of gender equality body which to various degrees implements the Directive. However, not all States have yet established such a body. Some further problems relating to the existence and the establishment of gender equality bodies should also be highlighted.

A few Member States do not have a gender equality body at this stage. In France for instance the legislator is in the process of establishing such a gender equality body with a view to adopt legislation by November 2004.

In Germany, although no equality body exist at the federal level, some equality bodies do exist on Länder and local levels. These, however, do not fully implement the requirements laid down in Directive 2002/73. A proposal is presently being discussed with a view to adopt a general federal equality body implementing Directive 2002/73 together with Directive 2000/43 (the Race Directive) and Directive 2000/78 (the Framework Directive). Similarly, in Luxembourg, numerous gender equality bodies exist at governmental, parliamentary, communal and regional level, but no overall gender equality body has been created to implement Directive 2002/73. Although the government has stated its commitment to implement fully the Directive in its July 2004 manifesto, so far no legislative proposal has been presented. In Norway, a number of gender equality bodies already exist, but the government has issued a proposal to fully implement Directive 2002/73, which has been out for public consultation. The final proposal of legislation has not yet been adopted. In Slovakia, the legislation setting a gender equality body will be adopted in 2005 in order to implement Directive 2002/73.

In some States, the necessary legislation establishing a gender equality body has been adopted but the actual body is not yet running. For instance, in Bulgaria, the legislation establishing a gender equality body entered into force in 1 January 2004, however, the actual personnel supposed to run the equality body has not yet been appointed. As a result the rules of proceeding for the functioning of the equality body have not been adopted. In other words, the Bulgarian gender equality body exists only on paper. This is also the case in Estonia, where, although the law entered into force in May 2004, the Gender Equality Representative is only expected to be appointed in the autumn 2004.

Some States, such a Denmark, have established a gender equality body but its setting does not fully implement the obligations laid down by the Directive. In Greece and in Romania for instance, the existing bodies cannot be said to implement the obligations of competence and of independence set by the Directive. In Italy, the existing bodies still need to be amended to be fully in line with the requirement of Article 8a of Directive 2002/73.

Other States have established an equality body, not in accordance with the standards and obligations set in Directive 2002/73 but in response to Human Rights international agreements. As a result the bodies in question are not specifically and exclusively addressing the issue of gender equality in the workplace as per Directive 2002/73. Instead, these bodies adopt a more general Human Rights approach to gender equality. This is the case for instance in Latvia where the Latvian National Human Rights Office existing since 1995 combine its function as a general Human Rights body with the implementation of the obligations set under the Directive 2002/73. In Cyprus, the Human Rights based body functions broadly satisfactorily with regards to the implementation of Directive 2002/73. It is even recommended that the specific existing gender equality body be removed and its powers transferred to the Human Rights based body which performs generally better. In Slovakia, the competencies of the Human Rights body were recently amended to allow for the body to also address gender equality and the Article 13 grounds of discrimination. Interestingly, in the United Kingdom, the government has decided to broaden the mandate and incorporate Human Rights functions into the equality body.

Finally, most of the equality bodies implementing Directive 2002/73 are exclusively addressing the issues of gender equality (for instance Belgium, Italy, Malta, Sweden). They are set as separate and exclusive bodies on gender equality. However, a number of Member States have set equality bodies which deal with a multiplicity of grounds of discriminations in implementation of all Article 13 Directives (for instance Bulgaria, Ireland, the Netherlands and the proposed equality body in France). In Lithuania, the gender equality body will be responsible for all Article 13 grounds of discrimination as from 1 January 2005 and this is happening in Slovenia in 2004.

2. Purposes of the equality bodies

The purposes of the equality bodies are multiple. The outline hereunder is only intended to give some States as example and is not exhaustive.

Some States such as Estonia, Liechtenstein, and Poland for instance have set exclusively advisory bodies while others have established bodies with more powers.

Broadly, it is possible to divide the activities of the gender equality bodies in four categories: (a) judicially related purpose, (b) legislative related purpose, (c) research and information, and (d) collaborative work.

(a) Judicially related purposes

- Some equality bodies have power to hear complaints on sex equality and provide assistance to victims of discrimination (Bulgaria, Estonia, Belgium, Iceland, Latvia, Lithuania, Malta, Romania, Slovakia, Spain, United Kingdom). The Danish equality body has exclusively the power to hear complaints. In the Netherlands and in Norway, although the equality bodies have the power to hear complaint, they cannot issue binding decision or award compensation.

- In Ireland, Italy, Latvia, Lithuania, Malta, the United Kingdom the equality body also has the power to conduct inquiries and to refer cases to the court.

- The Italian gender equality body also proposes solution to collective disputes.

(b) Legislative related purposes

- Almost all equality bodies are set to monitor national legislation and measures and to evaluate the implementation of the principle of equality (Belgium, Finland, Ireland, Lithuania, Estonia, Latvia, Malta, the Netherlands, Portugal, Romania, Slovakia, Slovenia, Spain, United Kingdom).

- Many equality bodies also can propose legislation and help the legislator with new legislation or the amendment of existing legislation (Finland, Czech Republic, Belgium, Lithuania, Malta, Slovenia). In Ireland and Italy, for instance, the equality body also presents draft codes of practices to the government.

- Most equalities bodies have a responsibility to promote of gender equality and conduct research in the area of gender equality (Belgium, Estonia, Finland, Iceland, Italy, Latvia, the Netherlands, Portugal, Slovakia, Slovenia, Spain, United Kingdom). Additionally, a number of gender equality body are dedicated to collate and publish statistical and qualitative data (Belgium, Ireland, Lithuania)

- Some equality bodies have a duty to publish reports or to present them to the government and/or parliament (Ireland, Latvia, Lithuania)

- Training and education is also part of some equality bodies (the Netherlands, Poland, Slovakia).

(d) Collaborative work

- Many equality bodies are designed to work with NGOs, associations pursuing equality between men and women or foreign bodies (Belgium, Ireland, Lithuania, Malta, the Netherlands, Portugal, Slovenia, Spain). The Italian gender equality body works in particular with the social partners towards the implementation of positive actions measures.

3. Strengths and weakness of the existing structure

The existence or the assessment of the work done by the gender equality bodies at national level is generally viewed as a positive step even when the body concerned does not fully implement the Directive. In the Czech Republic the role of the equality body is viewed as a positive step forwards even if the competences of the Council are limited by their advisory nature. Despite years of difficulties, the Italian gender equality body is now generally regarded as a model for the other equality body acting of other grounds of discrimination. Further, the Portuguese body has had particular success with regard to research and dissemination of information in the area of pregnancy. The Spanish equality body is noted for its success in the area of gender mainstreaming. Although in Sweden the equality body has had many successes, over the past couple of years, it has been criticised for being inadequate to address in particular the issue of the gender pay gap.

· The question of “Independence”

It appears that the independence of the bodies or at least their capacity to perform their tasks independently is one of the major concerns. When gender equality bodies exist, most experts such as in Austria, Greece, Liechtenstein, Poland, Portugal, Romania, Spain raise the issue of their lack of independence and autonomy. Even the German expert expresses her concern about the future independence of the proposed equality body as it is presently discussed by the legislator.

The issue is that equality bodies are appointed by, under the power of, or dependant on the government (e.g. Italy).

In Austria, for instance, the appointments of the Ombudspersons are made by the government. Although their independence is guaranteed by law the Austrian expert feels that it is not enough and the independence of the Ombudspersons should be guaranteed by constitutional law. This makes the Ombudspersons vulnerable from receiving order from the government. Further, many equality bodies operate as part of a ministry such as the National Machinery for Women’s Rights in Cyprus. In Belgium, although there are strict criteria regulating fairly the appointment of the equality body’s members, political affiliations were the key factor for the distribution of the seats. Finally most equality bodies’ budgets are financed directly by the government (see for instance the Czech Republic), which makes them vulnerable to the will of the government.

However, the dependence on the government is counter-balanced in some States such as the Czech Republic, Ireland and Portugal by the inclusion in these bodies of trade unions, employers, NGO and other independent persons.

The independence of gender equality bodies can also be guaranteed when they are not being appointed by the government. This is the case for Lithuania and Latvia for instance, where the equality body is appointed by the Parliament and not by the government.

The law also guarantees independence in some States. In Malta and in Slovakia the equality body is clearly intended by the law to act autonomously as it is declared to have a legal personality separate from the government. The Swedish equality body’s independence is guaranteed by the Constitution.

The lack of autonomy comes also often in the form of a lack of financial and/or human resources. In Austria for instance since 2004 three persons only work in the equality body which covers all the grounds of discrimination of Directive 2002/73, the Race and the Framework Directives. In Finland, budgeting restrictions prohibit the effectiveness of the Equality Ombudsman. The same holds true for the equality body in Latvia. Interestingly, although the Maltese equality body is said to have inadequate funding and human resources, it complements its budget by raising funds from outside sources.

The Greek expert draws attention to the “Paris principles”, i.e. minimum standards laid down at the 1st international meeting of the National Institutions for the Promotion and Protection of Human Rights (Paris 7-9 October 1991), as possible criteria to judge the independent nature of the equality bodies, namely:

· independence guaranteed by a constitutional or legislative framework;

· autonomy from government;

· pluralism, including pluralism of composition;

· a broad mandate;

· adequate powers of investigation;

· sufficient resources.”

These could be used as a way to monitor the level of independence of equality bodies.

· Other criticism

In some States, it is difficult to evaluate the success or the weakness of the performance of the equality body because it has either not yet started to work (Belgium) or it has not been working for long enough (Finland). In Estonia, the gender equality body is not being used. This results in a lack of cases being brought to justice.

In some countries such as Ireland or the Netherlands, the main weakness of the equality body is its very success. In Ireland, for instance, the equality body is over worked mostly because it deals with to many grounds of discrimination. In the Netherlands and in Norway most cases are being brought in front of the gender equality body instead of the judicial system. As a result, judges and lawyers rarely deal with gender discrimination cases. This means that their knowledge of the law in this area is poor and when a case finally is brought before them, the outcome is rarely well informed.

In a number or States, the system is very complex. In some countries numerous bodies perform the tasks by Directive 2002/73 either complementarily (Austria, Finland, Greece, Iceland, Luxembourg, Liechtenstein, Norway, Spain, the United Kingdom) or in competition with one another (Cyprus).