BRUSSELS — The national bodies responsible for combating discrimination across the European Union are to receive stronger guarantees of independence, resources and investigative capacity under two directives formally adopted by the Council on Tuesday.
It sounds institutional, and it is. But the real test of this legislation will not be institutional at all. It will be the person who believes he or she has been discriminated against and needs somewhere credible to turn.
Equality bodies already exist throughout the EU, charged broadly with promoting equal treatment, providing assistance to victims and dealing with discrimination based on grounds covered by European law. What they can actually do, though, varies substantially from one member state to the next — their powers, their independence, their accessibility, their resources. The two new EU directives establish common minimum standards intended to narrow those differences: greater protection from external influence, an obligation on member states to provide sufficient human, technical and financial resources, enhanced powers to conduct inquiries and participate in dispute resolution in accordance with national legal systems, and consultation by public institutions on discrimination-related matters. One of the two directives strengthens their role in employment discrimination involving religion or belief, disability, age and sexual orientation, alongside other areas of EU equality legislation.
Why should an ordinary complainant care about institutional independence? Consider the employee who believes she was denied promotion because of her religion, the worker alleging age discrimination, the person with a disability who believes an employer failed to provide necessary accommodation. Knowing that discrimination is prohibited is the easy part. Understanding where to go, obtaining advice, gathering information and challenging the conduct of a powerful employer or institution — those are different problems, and a functioning equality body can shrink the distance between a legal right and the ability to use it.
Whether it does so depends on unglamorous things: whether it is sufficiently accessible, has trained staff, can investigate a complaint, and is independent enough to act even when the alleged discriminator is a public authority. That is why the EU rules are aimed as much at institutional capacity as at legal principle.
The directives will not make all equality bodies identical — national legal traditions and procedures will continue to matter — and no equality body replaces the courts where judicial proceedings are necessary. What they set is a common floor beneath national systems that have until now differed significantly. Member states will have two years after the directives enter into force to adapt their domestic legislation, so the immediate experience of a victim of discrimination in Madrid, Paris, Warsaw or another European city will not change overnight.
The direction, though, is significant. For years, European equality law has concentrated heavily on defining discrimination and establishing the areas in which unequal treatment is prohibited. This legislation addresses the other half of the equation: what happens after someone believes those rules have been broken. Rights are most visible when they appear in legislation; their effectiveness often lives in less visible places — an office that answers the telephone, an investigator who can request information, specialists who understand the law, an institution capable of acting without political or financial pressure. For people experiencing discrimination, those details may ultimately matter as much as the legal prohibition itself. The Council’s official adoption notice summarises the new standards.
