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A Toothless Lion? Enforcing (EU) Anti-Discrimination law

A Toothless Lion? Enforcing (EU) Anti-Discrimination law. Lilla Farkas, Equal Treatment Advisory Board, HU farkas.lilla@cfcf.hu. Models of equality enforcement. Individual justice model: Roma Rambos and GI Janes in court

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A Toothless Lion? Enforcing (EU) Anti-Discrimination law

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  1. A Toothless Lion? Enforcing (EU) Anti-Discrimination law Lilla Farkas, Equal Treatment Advisory Board, HU farkas.lilla@cfcf.hu

  2. Models of equality enforcement • Individual justice model: Roma Rambos and GI Janes in court • Group justice model: indirect discrimination, actio popularis or class action (see also environment & consumer protection) • Equality as participation: prevent discrimination by granting protected groups right to participate in decision making • How to tackle structural, systemic, institutional discrimination?

  3. Sanctions: EPD? To be effective, remedies and sanctions must achieve the desired outcome; to be proportionate, they must adequately reflect the gravity, nature and extent of the loss and/or harm; and to be dissuasive, sanctions must deter future acts of discrimination. Whatever may be written into national laws or procedures, sanctions will be none of these if there are no effective, simple, swift and sustained mechanisms for enforcement.

  4. 4 tier enforcement system in EU • Pioneers: UK & NI: ADL since 1965, tried individual & group justice (formal investigations and non-discrimination notices) NOW part’ry model:+ duty to promote equal treatment. • Early birds: NL & Sweden: relatively long standing equality bodies with solid case law • Good students: FR, BG, HU: strong equality body, procedural novelties: actio popularis • Bad students: MS lagging behind with transposition, weak equality bodies, focus on individual justice

  5. Group justice at procedural level: actio popularis action • no need for individual victims, case is brought by int’d NGOs • focus on patterns, trends and scenarios of discrimination • ideal in tackling institutional, structural, or de facto discrimination • minimal risk of victimisation – no individual client • perennial costs, such as maintaining contact with client or maintaining a client service for case selection can be saved • ECtHR,D.H. II, if a case is not about the violation of the rights of an individual victim, then remedies ought also to be tailored accordingly, i.e. they have to tackle ‘system failures’. • In Feryn UK argued RED does not require actio popularis • No actio popularis standing under UK law (despite TU advocacy)

  6. Remedies in HU public education • Structural remedies for structural discrimination: desegregation plans imposed by legislation or by courts, ETA? • Publicity: (threat of) naming and shaming • Playing on need for (EU) funds?

  7. Desegregation plans • Financial incentive since 2003: integration subsidy • Localities under duty to review their schools and ensure equal distribution of socially underprivileged children – many of them Roma, NB: ethnicity is sensitive data! • Consultation with local Roma representatives or interested NGOs not a requirement. • Since 2006 precondition for access to EU and int’l funds: Equal opportunities action plans. • EOAP: severe lack of data. • No duty to include church and private schools in EOAP.

  8. Cases in HU • Hajdúhadház, Miskolc, Nyíregyháza, Győr, Kaposvár, Jászladány, Taktaharkány • CFCF v Tiszavasvári:1. finding of segregation, 2. ETA ordered town to prepare EOAP and report back about follow upwithin time limit. • CFCF v Ministry of Education: seeking 1. finding that Ministry’s failure to enforce ADL contributes to segregation, 2. order to act. Lawsuit allowed. Will result in structural changes?

  9. Individual remedies for segregation before ECtHR • DH and others v Czech Republic II, Sampanis and others v Greece and Orsus and Others v Croatia II. (16 March 2010) • Note: actio popularis action is not allowed in Strasbourg! • Similar to HU, naming and shaming prior to final judgements forced respondent states to introduce remedies? Amendment to Czech public education law, evening school for Croatian Roma. • ERRC critiques non-enforcement by Cee of Ministers and MSs

  10. EU funds and discrimination • HU system to avoid spending EU funds on discrimination: EOAP • General failure to monitor and sanction non-compliance => system is inadequate, segregation is on the rise • The situation of other protected groups has not improved either, eg disability • No need for further strategies re protected groups: Enforce ADL, take action!

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