The long process of levelling up the capacity of EU member states’ equality bodies is accelerating to a conclusion.
The institutions of the European Union are moving, under the Belgian presidency of the Council of the EU, towards hibernation and subsequent renewal via the elections to the European Parliament in June. This might be expected to be a time for pause and reflection but on an important dimension of equality—standards for national equality bodies—there has been frenetic activity.
The European Commission has long recognised equality bodies in the member states as playing ‘an essential role in implementing Union legislation effectively and enforcing it comprehensively and consistently’ and as ‘valuable institutions for the sustained development of equal and inclusive democratic societies’. The EU institutions have now collaborated to progress two directives on standards for such bodies, first proposed by the commission in December 2022 (two directives for technical treaty reasons). Comprehensive standards, with the force of a legal foundation, will represent a timely innovation.
In June 2023, the council published its general approach to these two directives: one relating to the domain of gender equality in employment; the other to that of religion or belief, disability, age or sexual orientation in employment and gender equality beyond employment. In November, the parliament published its stance on the former directive, where it had a role, leading to a position being agreed with the council in December. The parliament has scheduled approval for this directive in April.
The latter directive received immediate attention from the Belgian presidency when it began on January 1st. A position was agreed at the committee of permanent representatives of member states, with a general approach subsequently endorsed by the Foreign Affairs Council. Both directives now await final approval and enactment.
The directives as configured are not perfect, yet they will enhance the effectiveness and independence of equality bodies, achieve a coherent approach across member states and create conditions for the bodies to realise their full potential.
Effectiveness
The most significant impediment faced by equality bodies has been inadequate resourcing. A 2018 study concluded that ‘few equality bodies have a level of funding that is adequate to make a real impact’. Article 4 of the directives will require member states to ‘ensure that each equality body is provided with the human, technical and financial resources necessary to perform all its tasks and to exercise all its competences effectively’.
Another barrier to effectiveness has been limited competences, particularly vis-à-vis litigation. The 2018 study found that ‘nearly one in two equality bodies do not have legal standing to bring cases before, and act in cases before the courts’. Article 9 will require member states to ‘ensure that equality bodies have the right to act in court proceedings’.
This competence is to include the right to submit observations, to act as a party in proceedings on the enforcement, or judicial review, of binding decisions made by an equality body, and at least one of the following: to ‘initiate proceedings on behalf of one or several victims; participate in proceedings in support of one or several victims; or initiate court proceedings in its own name, in order to defend the public interest’.
Many equality bodies also complain of a lack of responsiveness to their policy advice as a barrier to effectiveness. Article 13 will require member states to put in place procedures to ensure government and relevant public authorities consult them on relevant legislation, policy, programmes and procedures. Member states must further ensure that ‘equality bodies have the right to make recommendations on those matters, to publish the recommendations and to request follow-up regarding such recommendations’.
Independence
Independence is an issue for many equality bodies, in terms of their legal status, appointments and accountability. Article 3 of the directives will require member states to take ‘measures to ensure that equality bodies are independent and free from external influence, and do not seek or take instructions from the government or from any other public or private entity’. Member states will be specifically required to ‘provide for transparent procedures concerning the selection, appointment, revocation and potential conflicts of interest’ of those in leadership positions.
The 2018 study found that in nearly one in three cases the equality mandate falls to a broader organisation, which includes ombudsperson and/or human-rights roles. It concluded that the equality mandate can be ‘constrained in ambition and approach’ and suffer a ‘lack of visibility … and investment of resources’ in such contexts. Article 3 will require member states to ‘ensure that the internal structure of multi-mandate bodies guarantees the effective exercise of the equality mandate’, while article 4 clarifies that the requirements on adequate resources will apply to the equality mandate ‘where the equality bodies are part of multi-mandate bodies’.
Policy implementation is always a challenge when it comes to equality. Article 16 will require the commission to ‘establish a list of common indicators on the functioning of the equality bodies’. These are to cover ‘the human, technical and financial resources, independent functioning, accessibility and effectiveness of equality bodies, as well as developments in their mandate, powers or structure’.
Member states
Member states will be required to report to the commission every five years on the application of the directives and the commission will in turn report on ‘the independent functioning and the effectiveness of equality bodies in the Member States based on the indicators established’. The commission is already moving to convene an expert group to define these indicators, putting flesh on the bones provided by the directives.
The EU institutions have delivered on their promise. The member states must match this by transposing the directives when approved. Equality bodies must prepare to occupy creatively the new space afforded them. Equinet, the European network of equality bodies, played a central role in contributing to the progress made and is gearing up to ensure these challenges are met.
Niall Crowley is an independent consultant on equality and human rights, at a European level and in Ireland, where he was chief executive of the Equality Authority for ten years from its establishment in 1999.