Closing Address: Standard-Setting and Implementation in EU Equality Law

1. Closing address Christopher McCrudden Queen’s University, Belfast/University of Michigan/Blackstone Chambers

2. Introduction • Distinguish: • Standard -setting • New norms • Interpretation of existing norms • Standard -implementation • Effectiveness in practice • Voluntary action • Enforcement • Role of EU • Comparative approach

3. Standard-setting

4. Additional standard-setting developments needed? • What are the shortcomings and gaps in the substantive coverage of EU equality law? • Initiatives already on the table • Maternity leave • Gender balance on company boards • Ratification of gender violence convention • Horizontal directive on discrimination in goods and services on grounds other than gender and race • Further development of LGBT rights • Harmonization of coverage on discrimination against self employed • Ratification of the Migrant Workers Convention • International law obligations regarding comprehensive coverage? • Development of new “grounds” of discrimination? Social status: vertical as well as horizontal inequalities to be included? Is anti-discrimination law the appropriate mechanism for both?

5. Standard-setting • Won’t be dwelling on these, but some key Issues are: • To what extent should those shortcomings and gaps be addressed? • How far should other considerations limit the expansion of the coverage of EU equality law? • Economic considerations? • Political considerations? • Human rights considerations? • Clash of (equality) rights? • Trade-off between expanding coverage, and effective implementation of existing standards?

6. Standard implementation

7. Absence of detailed guidance on implementation in Directives • General provisions in Directives • Regarding equality bodies • Regarding individual remedies • Issue of “effectiveness” • Distinguish two approaches to “effectiveness” • Ambitious: Whether the Directives and any enforcement activity have any actual effect on the wider society • More modest: Whether the national procedures are “fit for purpose”, in the sense of “fit for achieving the objectives of the relevant European Union law”

8. Objectives of European Union Equality Law • Prevention of social dumping • “Advancing the innate dignity of all persons” What does this mean? • Securing individual justice (equality, vulnerability, and discrimination) • Securing “group justice” (equality, poverty, and social rights) • Directives appear to want to achieve both individual and group justice • Need for equality laws that work in practice • Mismatch between the objectives and the enforcement tools provided to achieve those objectives?

9. Comparison of national machinery used for enforcement purposes • Extremely heterogeneous set of approaches: • Litigation by individuals • Litigation by government/equality body • Investigation by an equality body • Could also add to the list • Collective bargaining, involving social partners • Governmental incentive policies, e.g. use of public procurement

10. Concerns about the effectiveness of national mechanism to achieve individual justice • Confusion over direct and indirect discrimination • “Individual enforcement paradox” • Lack of awareness about legislation/remedies among most vulnerable individuals • Inadequacy of institutional assistance to, and representation of individual litigants • Lack of trained and motivated lawyers and other representatives • Inadequacy of remedies provided • Inadequate knowledge of EU law principles by representatives and judges • Difficulty of proof of discrimination • Lack of information made available to plaintiffs • Delays in the operation of the judicial process

11. Concerns about the effectiveness of national mechanism to achieve group justice • Lack of involvement by unions in addressing equality issues • Absence of mechanisms for tacking institutional discrimination • Remedies that don’t adequately address the group dimensions of the problem • Absence of adequate aggregate information regarding the group • Concentration in litigation on the individual victim • Absence of public bodies with specific mandate to adopt a strategic approach • Under-staffed, ill-equipped, badly resourced equality bodies

12. Good practice examples • Unfortunately, nothing new in these lists – they go back to the mid 1980s in the gender equality context. Problem of consistently reinventing the wheel of “effectiveness”. • Caveats: • Not easy • Don’t underestimate the potential effect of using procedures of doubtful utility (Defrenne) • Even good practice mechanisms have risks and disadvantages • “Don’t put all your eggs in one basket” • So, what is to be done? • Role of European Parliament, Council of Ministers, Court of Justice. Will focus on European Commission

13. Role of the Commission • Context • existing equality law is challenged • the role of the CJEU has been called into question • the role of the Member States is increasingly stressed at the expense of Union institutions, • there is a Right-ward political shift in several European Member States • In this context, should we argue that the Commission should become more interventionist in scrutinizing the effectiveness of the domestic enforcement of European equality law? • In my view, ‘yes’: • Even closer Commission (and Court) assessment of national procedures and remedies should now take place.

14. Commission’s options, focusing on effectiveness of Equality Bodies • Funding of Equinet (and of the Legal Network too, I hope) • Political support for Equality Bodies • Infringement proceedings, relating to enforcement of existing Equality Bodies provisions • Legislation? • Equality Bodies to be required across all grounds and in all areas • a comprehensive Remedies Directive in the equality context? • Failing this, soft law initiatives? Should we be aiming for a Commission Recommendation in the area • Need for Commission to retain a capacity to engage in serious legal analysis on equality issues, and legal enforcement action. • Doesn’t the legal unit dealing with equality in the Commission need more than “almost 10” lawyers?

15. Role of Equality Bodies • Need for Equality Bodies clear (e.g. Economic and Social Committee reliance) • Strong statement by Commissioner for Justice, Consumers and Gender Equality: • “Equality bodies are key to combatting discrimination and ensuring the effective implementation of equal treatment legislation. For more inclusive societies throughout Europe, it is vital to have independent and effective equality bodies with the powers and resources to ensure that our rights to equality are applied on the ground and made accessible to all. The European Commission is determined to help strengthen equality bodies and create conditions in which they can reach their full potential.”

16. Equinet Working Paper • Need for reinforcement of the functions and operations of Equality Bodies • Equinet working paper a major achievement in carrying the debate forward. “Gold standard”

17. Some difficult issues for the future debate on standards • What is “independence” and what does it require? In particular in the context of the budget and appointments processes? • What is the appropriate relationship between the different functions of Equality Bodies? E.g. between investigation, litigation, and participation in governmental policy consideration? • Is the ”core task” of equality bodies assistance to victims of discrimination? How should this relate to the use of investigations and general reports? • Is there an trade-off between independence and effective involvement in policy making? • What is the appropriate relationship between Equality Bodies and Enforcement Bodies? • Are Equality Bodies being overwhelmed with tasks, and would it be better to have slimmer, leaner bodies with fewer, more powerfully directed tasks? • What should the relationship be between possible Commission-produced standards for Equality Bodies, and initiatives being taken by ECRI, OHCHR? • Is there a need in the longer term for the development of further legally-based standards?

18. Conclusions? • Basic issue addressed was the effective implementation of European equality law by the Member States, and in particular the effectiveness of the national procedures and remedies. • Argued that the aim should be for the national legal systems to take on more of the implementation of European equality law than seems to be the case at the moment. • Diversity of approach between Member States to be welcomed as allowing experimentation and the opportunity to learn from different experiences. • The aim of Community action should be not to suppress diversity of approach but to learn from it and to encourage Member States to learn from good practices in the other Member States.

19. Conclusions? • It was clear, however, that this prospect was unlikely in several countries. Indeed, even if some countries currently lagging behind in this field were to introduce significant amounts of good practice into their legal system, the problem of the remaining states who did not would remain. • Closer Commission and ECJ assessment of national procedures and remedies was advocated in several ways, building on existing firm ECJ principles, but developing them in the depth and consistency of the scrutiny to be adopted. • Equality bodies have a critical role to play, both in engaging with European institutions, at the national level, and with each other. • Development of standards of good practice regarding Equality Bodies should be considered by the Commission.

20. Thank you • Christopher McCrudden • Contact details: • chris.mccrudden@qub.ac.uk • Website: • http://pure.qub.ac.uk/portal/en/persons/christopher-mccrudden(46b7cbf4-98d2-4b7d-8cec-1aec8d9b16a7).html