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dossier	COM(2022)689 - Standards for equality bodies in the field of equal treatment between persons irrespective of their racial or ethnic origin, ...
document	COM(2022)689
date	December 7, 2022

(1) The Treaties and the Charter of Fundamental Rights of the European Union recognise the right to equality and the right to non-discrimination as essential values of the Union ⁶⁴ , and the Union has already adopted several Directives on the prohibition of discrimination.

(2) Pursuant to Article 19 (1) TFEU, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation, without prejudice to the other provisions of the Treaties and within the limits of the powers conferred upon the Union.

(3) The purpose of this Directive is to lay 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 Council Directives 79/7/EEC ⁶⁵ , 2000/43/EC ⁶⁶ , 2000/78/EC ⁶⁷ and 2004/113/EC ⁶⁸ .

(4) Directive 79/7/EEC prohibits discrimination based on sex, in matters of social security.

(5) Directive 2000/43/EC prohibits discrimination based on racial or ethnic origin.

(6) Directive 2000/78/EC prohibits discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment, occupation and vocational training.

(7) Directive 2004/113/EC prohibits discrimination based on sex in access to and supply of goods and services.

(8) Directives 2000/43/EC and 2004/113/EC require Member States to designate one or more bodies for the promotion of equal treatment, including the analysis, monitoring and support of equal treatment of all persons without discrimination on the grounds covered by the respective Directives (hereinafter ‘equality bodies’). They require Member States to ensure that the competences of these bodies include providing independent assistance to victims, conducting independent surveys concerning discrimination, publishing independent reports and making recommendations on any issue relating to such discrimination.

(9) Directives 2006/54/EC ⁶⁹ and 2010/41/EU ⁷⁰ of the European Parliament and of the Council also provide for the designation of equality bodies.

(10) All Member States have established equality bodies pursuant to Directives 2000/43/EC and 2004/113/EC. A diverse system of equality bodies has been put in place, and good practices have emerged. However, many equality bodies face challenges, in particular concerning the resources, independence and powers necessary to perform their tasks ⁷¹ .

(11) Directives 2000/43/EC and 2004/113/EC leave a wide margin of discretion to Member States as regards the structure and functioning of equality bodies. This results in significant differences between the equality bodies established in the Member States, in terms of the bodies' mandates, competences, structures, resources and operational functioning. This, in turn, means that protection against discrimination differs from one Member State to another.

(12) Although Directives 79/7/EEC and 2000/78/EC do not require Member States to designate equality bodies to deal with the matters covered by those Directives, such bodies do have competence for those matters in most Member States, where required by national law. However, that is not the case in all Member States, which leads to differing levels of protection against discrimination as regards the matters covered by those Directives across the Union.

(13) To ensure that equality bodies can effectively contribute to the enforcement of Directives 79/7/EEC, 2000/43/EC, 2000/78/EC and 2004/113/EC by promoting equal treatment, preventing discrimination and offering assistance to all individuals and groups that are discriminated against to access justice across the Union, it is necessary to adopt binding minimum standards for the functioning of those bodies, and to extend their mandate to the matters covered by Directives 79/7/EEC and 2000/78/EC. The new standards should draw on the lessons learnt through the application of Commission Recommendation 2018/951 ⁷² , building on some of its provisions and laying down new rules where necessary. They should also draw from other relevant instruments, such as the General Policy Recommendation N°2 ⁷³ on equality bodies adopted by the European Commission against Racism and Intolerance (ECRI) and the Paris Principles ⁷⁴ adopted by the United Nations and applicable to national human rights institutions.

(14) The same binding minimum standards for the functioning of equality bodies as regards the matters covered by Directives 2006/54/EC and 2010/41/EU are provided for in Directive (EU) …/… [on standards for equality bodies in the field of equal treatment and equal opportunities between women and men in matters of employment and occupation, and deleting Article 20 of Directive 2006/54/EC and Article 11 of Directive 2010/41/EU] ⁷⁵ .

(15) This Directive should apply to equality bodies’ action as regards the matters covered by Directives 79/7/EEC, 2000/43/EC, 2000/78/EC and 2004/113/EC. The standards should only concern the functioning of equality bodies and should not extend the material or personal scope of those Directives.

(16) In promoting equal treatment, preventing discrimination and assisting victims of discrimination, equality bodies should pay particular attention to discrimination based on several of the grounds protected by Directives 79/7/EEC, 2000/43/EC, 2000/78/EC and 2004/113/EC.

(17) Equality bodies can only effectively play their role if they are able to act with complete independence without being subject to any external influence. For that purpose, Member States should take into account a number of criteria that contribute to the independence of equality bodies. Equality bodies should not be set up as part of a ministry or body taking instructions directly from the government. Any staff member or person holding a managerial position – for example as member of a board managing the equality body, head of the equality body, deputy or in case of interim – should be independent, qualified for their position, and selected through a transparent process. Equality bodies should be able to manage their own budget and resources, including by selecting and managing their own staff, and be able to set their own priorities.

(18) To ensure that equality bodies can exercise all their competences and fulfil all their tasks, Member States should ensure that the internal structure of equality bodies allows the independent exercise of their various competences. Particular attention should be paid to situations where bodies are required both to be impartial and to offer support to victims. This is particularly relevant where the equality body holds binding decision-making powers requiring impartiality or is part of a multi-mandate body where another mandate requires impartiality. An internal structure ensuring a strict separation between the relevant competences and tasks should guarantee that the equality body can effectively exercise them.

(19) The lack of appropriate resources is a key issue hampering the ability of equality bodies to adequately fulfil their tasks. Therefore, Member States should ensure that equality bodies receive sufficient funding, can hire qualified staff and have appropriate premises and infrastructure to carry out each of their tasks effectively, within reasonable time and within the deadlines established by national law. Their budgetary allocation should be stable, except in case of increase in competences, planned on a multi-annual basis, and allow them to cover costs that may be difficult to anticipate such as costs linked to litigation. To ensure that equality bodies are provided with sufficient resources, their budget should for instance not suffer cuts that are significantly higher than the average cuts to other public entities; similarly, their annual growth should at least be pegged to the average growth in funding to other entities. Resources should increase proportionally if equality bodies’ tasks and mandate are expanded.

(20) Automated systems, including artificial intelligence, represent a useful tool to identify discrimination patterns, but algorithmic discrimination is also a risk. Equality bodies should therefore have access to qualified staff or services, able to use automated systems for their work on the one hand and to assess them as regards their compliance with non-discrimination rules on the other hand. Particular attention should be devoted to equipping equality bodies with appropriate digital resources, be it directly or by way of subcontracting.

(21) Equality bodies, alongside other actors, have a key role to play in the prevention of discrimination and the promotion of equality. To address the structural aspects of discrimination and to contribute to social change, they should promote equality duties, good practices, positive action and equality mainstreaming among public and private entities, and provide them with relevant training, information, advice, guidance and support. They should communicate with public and private entities and groups at risks of discrimination and engage in public debate in order to combat stereotypes and raise awareness about diversity and its benefits, a key pillar of the Union’s equality strategies.

(22) Beyond prevention, a central task of equality bodies is to provide assistance to victims of discrimination. This assistance should always include the provision of key information to complainants and a preliminary assessment of their complaint, based on the initial information gathered from the parties on a voluntary basis. Member States should be in charge of defining the modalities under which the equality body would issue this assessment, such as the timeframe of the process or procedural safeguards against repetitive or abusive complaints.

(23) To ensure that all victims are able to complain, it should be possible to submit complaints in various ways. Member States should also pay due regard to Commission Recommendation 2018/951 under which submission of complaints should be possible in a language of the complainant's choosing which is common in the Member State where the equality body is located. To address one of the causes of underreporting, namely fear of reprisals, and without prejudice to Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law ⁷⁶ , confidentiality should be offered to witnesses and whistle-blowers, and as far as possible, to complainants.

(24) To offer a possibility for a quick, affordable, out of court resolution of disputes, Member States should provide for the possibility for parties to seek an amicable resolution to their disputes, by the equality body or another existing dedicated entity. They should define the modalities of the amicable settlement process according to national law.

(25) Where the equality bodies suspect a possible violation of the principle of equal treatment laid down by Directives 79/7/EEC, 2000/43/EC, 2000/78/EC or 2004/113/EC, they should be able to act further following a complaint or on their own initiative.

(26) Evidence is key in determining whether discrimination has taken place and it is often in the hands of the alleged perpetrator. Equality bodies should therefore be able to access the necessary information to establish discrimination and cooperate with the relevant public services – such as labour inspectorates or education inspectorates. Member States should establish an appropriate framework for the exercise of this competence, in accordance with national rules and procedures.

(27) On the basis of the evidence gathered, either voluntarily or through an investigation, equality bodies should provide their assessment to the complainant and the alleged perpetrator. Member States should determine the legal value of this assessment that can be a non-binding opinion or a binding enforceable decision. Both should state the reasons for the assessment and include, where necessary, measures to remedy any breach found and to prevent further occurrences. To ensure the effectiveness of equality bodies’ work, Member States should adopt appropriate measures for the follow-up of opinions and the enforcement of decisions.

(28) To promote their work and equality law, equality bodies should be able to publish a summary of their opinions and decisions without disclosing personal data.

(29) Equality bodies should have the right to act in court proceedings in civil or administrative law matters in order to contribute to ensuring the respect of the principle of equal treatment laid down in Directives 79/7/EEC, 2000/43/EC, 2000/78/EC and 2004/113/EC. While those court proceedings should be subject to national procedural law, including national rules on admissibility of actions, such rules, and in particular any condition of legitimate interest, cannot be applied in a way so as to undermine the effectiveness of the equality bodies’ right to act. The powers of investigation and decision-making and the right to act in court proceedings given to equality bodies by this Directive will facilitate the practical implementation of the current provisions of Directives 2000/43/EC, 2000/78/EC and 2004/113/EC on the burden of proof and defence of rights. Under the conditions provided for in this Directive, equality bodies will be able to establish facts “from which it may be presumed that there has been direct or indirect discrimination”, thereby fulfilling the conditions provided for in Article 8 of Directive 2000/43/EC, Article 10 of Directive 2000/78/EC and Article 9 of Directive 2004/113/EC. Their support will therefore facilitate access to justice for victims.

(30) Legal standing allows equality bodies to act on behalf or in support of victims, allowing them to access justice where procedural and financial barriers or a fear of victimisation often deters them. Legal standing also allows equality bodies to strategically select the cases they decide to pursue in front of national courts, and to contribute to the proper interpretation and application of equal treatment legislation.

(31) Some instances of discrimination are difficult to fight because there is no complainant pursuing the case themselves. In its judgment in Case C-54/07 (Feryn) ⁷⁷ , which was brought by an equality body in its own name, the Court of Justice confirmed that discrimination can be established even in the absence of an identified victim. It is therefore important that equality bodies can act in their own name, to defend the public interest.

(32) Equality bodies should also be able to submit oral or written statements to the courts - e.g. amicus curiae – as a lighter way to support cases with their expert opinion.

(33) Equality bodies’ rights to act in court must respect the principles of fair trial and equality of arms. Therefore, except where the equality body acts as a party in proceedings on the enforcement or judicial review of an own decision or acts as amicus curiae, the equality body should not be allowed to submit in court proceedings evidence obtained through previous investigations of the same case which the alleged perpetrator or any third party was legally bound to provide.

(34) To ensure the respect of individual rights, Member States should frame the powers of equality bodies with appropriate procedural safeguards, ensuring that key principles such as the right of defence, the right to judicial review and the right to confidentiality are appropriately protected.

(35) The provisions on the equality bodies’ right to act in court proceedings do not alter the rights of victims and of associations, organisations or other legal entities that enforce the rights of victims which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that Directives 2000/43/EC, 2000/78/EC and 2004/113/EC are complied with, as laid down in those Directives.

(36) The effectiveness of equality bodies’ work also depends on giving groups at risk of discrimination full access to their services. In a survey conducted by the European Union Fundamental Rights Agency ⁷⁸ , 71% of members of ethnic or immigrant minority groups reported to be unaware of any organisation offering support or advice to victims of discrimination. A key step to support this access is for Member States to ensure that people know their rights and are aware of the existence of and services offered by equality bodies. This is particularly important for disadvantaged groups and groups whose access to that information can be hindered, for example by their economic status, their disability, their literacy or their lack of access to online tools.

(37) Access to equality bodies’ services and publications on an equal basis for all should be guaranteed. For that purpose, potential barriers to access to equality bodies’ services should be identified and addressed. Services should be free of charge for complainants. Member States should also make sure that the services of equality bodies are available to all potential victims throughout their territory, for example through the establishment of local offices, including mobile ones, the organisation of local campaigns or cooperation with local delegates or civil society organisations.

(38) The Union and all Member States are parties to the UN Convention on the Rights of Persons with Disabilities ⁷⁹ (UNCRPD) which includes the obligation to prohibit discrimination on the basis of disability and to guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. This Directive should be interpreted in a manner consistent with the UNCRPD. To guarantee equal and effective legal protection and access for persons with disabilities to all services and activities of equality bodies, it is necessary to ensure accessibility, in accordance with requirements set out in Directive (EU)2019/882, and reasonable accommodation. Equality bodies should ensure physical and digital ⁸⁰ accessibility by preventing and removing the barriers that persons with disabilities may face in accessing their services and information, and provide reasonable accommodation, taking necessary and appropriate modification and adjustments where needed in a particular case.

(39) Enabling equality bodies to regularly coordinate and cooperate at different levels, on a long-term basis, is key for mutual learning, coherence and consistency, and it may broaden the outreach and impact of their work. Equality bodies should cooperate, in particular, with other equality bodies in the same Member State and in other Member States – including in the framework of the European Network of Equality Bodies (Equinet) – and with public and private entities at local, regional, national, Union and international level, such as civil society organisations, data protection authorities, trade unions, labour and education inspectorates, law enforcement bodies, agencies with responsibility at national level for the defence of human rights, authorities managing Union funds, National Roma Contact Points, consumer bodies, and national independent mechanisms for the promotion, protection and monitoring of the UNCRPD. Such cooperation should not involve the exchange of personal data (i.e. equality data in the form that individuals can be identified).

(40) Equality bodies cannot fully play their role as experts in equal treatment if they are not consulted sufficiently early during the policymaking process on matters related to rights and obligations derived from Directives 79/7/EEC, 2000/43/EC, 2000/78/EC and 2004/113/EC. Therefore, Member States should establish transparent procedures to ensure that consultation in a timely manner. They should also allow equality bodies to make recommendations and publish them.

(41) Equality data are crucial for raising awareness, sensitising people, quantifying discrimination, showing trends over time, proving the existence of discrimination, evaluating the implementation of equality legislation, demonstrating the need for positive action, and contributing to evidence-based policymaking ⁸¹ . Equality bodies have a role to play in contributing to the development of relevant equality data for those purposes, for example by organising regular roundtables gathering all relevant entities. They should also collect and analyse data on their own activities or conduct surveys and should be able to access and make use of statistical information collected by other public or private entities – such as the national statistical offices, national courts, labour and education inspectorates, trade unions or civil society organisations - concerning the matters they are entrusted with under Directives 79/7/EEC, 2000/43/EC, 2000/78/EC and 2004/113/EC. That statistical information should not contain any personal data.

(42) In addition to publishing an annual report on their activities, equality bodies should regularly publish a report featuring an overall assessment of the situation regarding discrimination falling under their mandate in the Member States. That report should provide information for public and private entities and serve as a guide to determine the equality bodies’ priorities for the future. Reports should not contain any personal data.

(43) To determine their vision for the future and identify their organisation's goals and objectives, equality bodies should adopt a multi-annual programme. This should allow them to ensure the coherence of their different strands of work over time and address systemic issues of discrimination falling under their mandate as part of a long-term action plan.

(44) In order to assess the effectiveness of this Directive it is necessary to establish a mechanism to monitor its application and, in addition to monitoring compliance, assess its practical effects. The Commission should be in charge of that monitoring and regularly draw up an application report. In order to ensure uniform conditions for the implementation of Member States’ reporting obligations pursuant to Article 16(2) as regards the practical effects of this Directive, implementing powers should be conferred on the Commission to establish a list of relevant indicators, on the basis of which data should be collected. This monitoring should not involve the processing of personal data.

(45) This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State.

(46) This Directive builds on the rules laid down in Directives 2000/43/EC and 2004/113/EC by introducing strengthened standards for the functioning of equality bodies. Previous provisions on equality bodies in Article 13 of Directive 2000/43/EC and Article 12 of Directive 2004/113/EC should therefore be deleted.

(47) This Directive aims at ensuring the functioning of equality bodies according to minimum standards, with a view to improving their effectiveness and guaranteeing their independence, to strengthen the application of the principle of equal treatment. Since the objective of this Directive cannot be sufficiently achieved by the Member States and should therefore be achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive, which limits itself to setting minimum standards, does not go beyond what is necessary to achieve that objective.

(48) Any processing of personal data by equality bodies under this Directive should be carried out in full compliance with Regulation (EU) 2016/679. Member States should ensure that the tasks of equality bodies are clearly laid down in law, in accordance with Article 6(1), point (e), of Regulation (EU) 2016/679, read in conjunction with Article 6(2) and (3) of that Regulation. Equality bodies should process personal data only to the extent necessary to fulfil their tasks under this Directive which aims to enforce the fundamental rights and obligations derived from Directives 79/7/EEC, 2000/43/EC, 2000/78/EC and 2004/113/EC. Individuals whose personal data are processed should be informed about their rights as data subjects, including the remedies available to them at national level.

(49) Where the fulfilment of the tasks of equality bodies requires the processing of special categories of personal data, namely data on racial or ethnic origin, religion or belief, disability or sexual orientation, Member States should also ensure that national law respects the essence of the right to data protection and provides for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject, in accordance with Article 9(2), point (g), of Regulation (EU) 2016/679. Such safeguards should include for example internal policies and measures to ensure data minimisation, including through anonymisation of personal data, where possible; to apply pseudonymisation and encryption to personal data; to prevent unauthorised access and transmission of personal data; and to ensure that personal data is not processed longer than is necessary for the purposes for which they are processed.

(50) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered an opinion on [date].