Legal provisions of COM(2022)688 - Standards for equality bodies in the field of equal treatment and equal opportunities between women and men in matters of employment and occupation

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dossier COM(2022)688 - Standards for equality bodies in the field of equal treatment and equal opportunities between women and men in matters of ...
document COM(2022)688 EN
date December  7, 2022

Contents

Article 1 - Purpose, subject matter and scope

1. This Directive lays down minimum requirements for the functioning of equality bodies to improve their effectiveness and guarantee their independence in order to strengthen the application of the principle of equal treatment as derived from Directives 2006/54/EC and 2010/41/EU. 

2. The obligations placed on Member States and the tasks of equality bodies under this Directive shall cover the rights and obligations derived from Directives 2006/54/EC and 2010/41/EU.

Article 2 - Designation of equality bodies

Member States shall designate one or more bodies (hereinafter referred to as ‘equality bodies’) to exercise the competences laid down in this Directive.

Equality bodies may form part of agencies with responsibility at national level for the defence of human rights or the safeguarding of individuals' rights.

Article 3 - Independence

1. Member States shall take measures to ensure that equality bodies are independent and free from external influence in performing their tasks and exercising their competences, in particular as regards their legal structure, accountability, budget, staffing, and organisational matters.

2. Member States shall provide for transparent rules and safeguards concerning the selection, appointment, revocation and potential conflict of interest of the staff of equality bodies, in particular persons holding a managerial position, in order to guarantee their competence and independence.

3. Member States shall ensure that appropriate safeguards are in place, in particular in the internal structure of equality bodies, to guarantee the independent exercise of their competences, notably where some require impartiality and others focus on support to victims.

4. Member States shall ensure that appropriate safeguards are in place in the internal structure of multi-mandate bodies to guarantee the autonomous exercise of the equality mandate.

Article 4 - Resources

1. Member States shall 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, on all the grounds and in all fields covered by Directives 2006/54/EC and 2010/41/EU including in the event of increases in competences, increases in complaints, litigation costs and the use of automated systems.

2. Where equality bodies are part of a body in charge of several mandates, paragraph 1 shall apply specifically to the equality mandate and its support staff and systems.

Article 5 - Prevention, promotion and awareness raising

Member States shall:

(a)adopt a strategy to raise awareness of the general population, throughout their territory, with particular attention to individuals and groups at risk of discrimination, on the rights under Directives 2006/54/EC and 2010/41/EU and on the existence of equality bodies and their services;

(b)ensure that equality bodies engage in the prevention of discrimination and in the promotion of equal treatment, and adopt a strategy defining how they will engage in public dialogue, communicate with individuals and groups at risk of discrimination, provide training and guidance, and promote equality duties, equality mainstreaming and positive action among public and private entities.

In doing so, Member States and equality bodies shall take into consideration the most appropriate communication tools and formats for each target group. They shall focus in particular on disadvantaged groups whose access to information can be hindered, for example by their economic status, age, disability, literacy, nationality, residence status or their lack of access to online tools.

Article 6 - Assistance to victims

1. Member States shall ensure that equality bodies are able to provide assistance to victims as set out in paragraphs 2 to 4.

2. Equality bodies shall be able to receive complaints of discrimination, orally, in writing and online.

3. Equality bodies shall provide assistance to victims, initially by informing them on the legal framework, including advice targeted to their specific situation, on the services offered by the equality body and related procedural aspects, as well as on available remedies, including the possibility to pursue a case in court.

Equality bodies shall also inform victims about the confidentiality rules applicable, on the protection of personal data and on the possibilities to obtain psychological or other types of relevant support from other bodies or organisations.

4. Equality bodies shall issue a preliminary assessment of a complaint based on information voluntarily submitted by the parties involved. Member States shall define the precise modalities under which the equality body will issue such preliminary assessment.

Equality bodies shall inform the complainants of their preliminary assessment and whether it will close their complaint or whether there are grounds to pursue it further, including via the procedures laid down in Articles 7, 8 and 9.

Article 7 - Amicable settlements

Equality bodies shall be able to offer the parties the possibility to seek an amicable resolution to their dispute. That process shall be subject to the agreement of the parties and may be led by the equality body itself or by another existing dedicated entity, in which case the equality body may formulate observations to that entity. Engaging in such a process shall not prevent the parties from exercising their right of access to court.

Article 8 - Opinions and decisions

1. Member States shall ensure that where, following a complaint or on their own initiative, equality bodies consider that the principle of equal treatment laid down in Directives 2006/54/EC and 2010/41/EU may have been breached, those bodies are empowered to further investigate the case.

2. Member States shall provide for a framework which enables equality bodies to carry out fact-finding.

In particular, that framework shall provide equality bodies with effective rights to access information which is necessary to establish whether discrimination has occurred. It shall also provide for appropriate mechanisms for equality bodies to cooperate with relevant public bodies for that purpose.

3. Member States may also provide that the alleged perpetrator and any third party is legally bound to provide any information and documents requested by equality bodies.

4. Member States shall ensure that equality bodies record in writing their assessment of the case, including establishing the facts and a reasoned conclusion on the existence of discrimination. Member States shall determine whether this is to be done by means of non-binding opinions or by means of binding enforceable decisions.

Where appropriate, opinions and decisions shall include specific measures to remedy any breach found and to prevent further occurrences. Member States shall establish appropriate mechanisms for follow-up to opinions, such as feedback obligations, and for enforcement of decisions.

Equality bodies shall publish summaries of their opinions and decisions, without disclosing personal data.

Article 9 - Litigation

1. Member States shall ensure that equality bodies have the right to act in court proceedings in administrative and civil law matters relating to the implementation of the principle of equal treatment laid down in Directives 2006/54/EC and 2010/41/EU in accordance with paragraphs 2 to 5, without prejudice to national rules on the admissibility of actions.

2. The right to act in court proceedings shall include:

(a)the right of the equality body to act as a party in proceedings on the enforcement or judicial review of a decision taken pursuant to Article 8(4);

(b)the right of the equality body to submit observations to the court as amicus curiae;

(c)the right of the equality body to initiate or participate in proceedings on behalf or in support of one or several victims; in this case, the approval of the victims shall be necessary.

3. Member States shall ensure that the equality body can initiate court proceedings in its own name, in particular in order to address structural and systematic discrimination in cases selected by the equality body because of their abundance, their seriousness or their need for legal clarification.

4. Member States shall ensure that, except in cases referred to in paragraphs 2(a) and (b), the equality body does not submit in court proceedings evidence that it has obtained through the exercise of powers pursuant to Article 8(3).

5. Member States shall ensure that no investigations pursuant to Article 8(2) to (4) are initiated or continued while court proceedings on the same case are pending.

Article 10 - Procedural safeguards

Member States shall ensure that, in the procedures referred to in Articles 6, 7, 8 and 9, the rights of defence of natural and legal persons involved are duly protected. Member States shall ensure that equality bodies guarantee confidentiality of witnesses and whistle-blowers, and as far as possible, of complainants.

Decisions referred to in Article 8(4) shall be subject to judicial review, in accordance with national law.

Article 11 - Access, accessibility and reasonable accommodation

1. Member States shall guarantee access to equality bodies’ services and publications on an equal basis for all and ensure that there are no barriers to submission of complaints.

2. Member States shall ensure that equality bodies provide all their services at no cost to complainants, throughout their territory, including in rural and remote areas.

3. Member States shall ensure accessibility and provide reasonable accommodation for persons with disabilities to guarantee their equal access to all services and activities of equality bodies, including assistance to victims, complaint handling, amicable settlement mechanisms, information and publications, and prevention, promotion and awareness-raising activities.

Article 12 - Cooperation

Member States shall ensure that equality bodies have appropriate mechanisms in place to cooperate, within their respective fields of competence, with other equality bodies within the same Member State, and with relevant public and private entities, including civil society organisations, at national, regional, local level as well as in other Member States and at Union and international level.

Article 13 - Consultation

Member States shall put in place transparent procedures to ensure that the government and other public institutions consult equality bodies on legislation, policy, procedure, programmes, and practices related to the rights and obligations derived from Directives 2006/54/EC and 2010/41/EU in a timely manner.

They shall ensure that equality bodies have the right to make recommendations on those matters, to publish them and to require feedback from the authorities concerned.

Article 14 - Data collection and access to equality data

1. Member States shall ensure that equality bodies collect data on their activities, with a view to producing the reports referred to in Article 15, points (b) and (c).

2. The data collected shall be disaggregated by grounds and fields covered by Directives 2006/54/EC and 2010/41/EU, and in accordance with the indicators referred to in Article 16. The personal data collected shall be anonymised and, where not possible, pseudonymised.

3. Member States shall ensure that equality bodies can access statistics related to the rights and obligations derived from Directives 2006/54/EC and 2010/41/EU collected by public and private entities including public authorities, trade unions, companies, and civil society organisations where they deem such statistics necessary to make an overall assessment of the situation regarding discrimination in the Member State, and for drawing up the report referred to in Article 15, point (c).

4. Member States shall allow equality bodies to make recommendations on which data is to be collected in relation to the rights and obligations derived from Directives 2006/54/EC and 2010/41/EU, to public and private entities including public authorities, trade unions, companies and civil society organisations. Member States shall also allow equality bodies to play a coordination role in the collection of equality data. 

5. Member States shall ensure that equality bodies may conduct independent surveys concerning discrimination.

Article 15 - Reports and strategic planning

Member States shall ensure that equality bodies:

(a)adopt a multi-annual programme setting out their priorities and prospective activities, including the strategy referred to in Article 5, point (b);

(b)produce and make available to the public an annual activity report, including their annual budget, staff and financial reporting;

(c)publish a report, with recommendations, at least every four years, on the state of equal treatment and discrimination, including potential structural issues, in their Member State.

Article 16 - Monitoring

1. The Commission shall, by means of an implementing act, establish a list of common indicators to measure the practical effects of this Directive. When preparing the indicators, the Commission may seek advice from the European Union Agency for Fundamental Rights and the European Institute for Gender Equality. Those indicators shall cover the resources, independent functioning, activities, and effectiveness of equality bodies, as well as evolutions in their mandate, powers or structure, ensuring the comparability, objectivity and reliability of the data collected at national level.

2. By [5 years after the date of transposition], and every 5 years thereafter, Member States shall provide the Commission with all relevant information regarding the application of this Directive, including data on its practical effects collected on the basis of the indicators referred to in paragraph 1 of this Article, and in particular taking into account the reports drawn up by the equality bodies under Article 14, points (b) and (c).

3. The Commission shall draw up a report on the application and practical effects of this Directive, based on the information referred to in paragraph 2 and additional relevant data collected at national and Union level, in particular from stakeholders, by the European Union Agency for Fundamental Rights and the European Institute for Gender Equality.

Article 17 - Minimum requirements

1. Member States may introduce or maintain provisions which are more favourable than the minimum requirements laid down in this Directive.

2. The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the matters covered by this Directive.

Article 18 - Processing of personal data

1. Member States shall ensure that equality bodies may collect personal data only where necessary for the fulfilment of a task under this Directive. 

2. Member States shall ensure that when equality bodies process special categories of personal data, namely data on racial or ethnic origin, religion or belief, disability or sexual orientation, suitable and specific measures are provided to safeguard the fundamental rights and the interests of the data subject.

Article 19

Article 20 of Directive 2006/54/EC and Article 11 of Directive 2010/41/EU are deleted.

References to the bodies for the promotion of equal treatment referred to in those Articles shall be construed as references to the equality bodies referred to in Article 2 of this Directive.

Article 20

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [18 months] at the latest. They shall immediately inform the Commission thereof.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 21

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 19 shall apply from [date referred to in Article 20(1)].

Article 22

This Directive is addressed to the Member States.