Enforcing the law: National Equality Bodies Sophie Latraverse June 2009.

Enforcing the law: National Equality Bodies

Sophie Latraverse

June 2009

National Equality Bodies

I- European Equality bodies

II- The French example: Halde

→I- The European Equality Bodies

European Equality Bodies

→ Duty imposed :

• Article 13 of EC Directive 2000/43 ( race, ethnic origin)• Article 8 Bis of EC Directive 2002/73 (gender)

→ Inspired by pre-existing Equality Bodies in:• The UK• Belgium• Ireland

→ In Canada and USA : bodies created by law• Similar missions powers and challenges

European Equality bodies

1. Member States shall designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin. These bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals' rights.

2. Member States shall ensure that the competences of these bodies include: - without prejudice to the right of victims and of associations, organizations or other legal entities referred to in Article 7(2), providing independent assistance to victims of discrimination in pursuing their complaints about discrimination, - conducting independent surveys concerning discrimination, - publishing independent reports and making recommendations on any issue relating to such discrimination.

Single grounds and multiple grounds bodies

→ Implementation of the directives has spread the tendency towards multiple grounds bodies:• UK• Norway• Belgium• Newly created bodies

→ Some countries have chosen to isolate the ground of sex in a single body:• Finland, Romania, Lettonia, Belgium

Obligation to assist all individuals

→ Wide scale of assistance• Information on legal rights• Assistance• Mediation• Representation before the court• Quasi-judicial

→ Investigation powers• Some rely on cooperation ( Slovenia, Belgium, Denmark)• Access to documents, premisses, statements under oath

– Sweden, Greece and Lithuania – sanction of refusal to cooperate)

→ Must be independant (Paris principles)

Strategic litigation

→ Constraint of case load:

• Preliminary assessment and differenciated treatment?

• Strategic litigation

– Take in consideration public interest – Treatment of other cases

Other powers

→ Formal investigations and inquiries• Address a sector of activity or a theme

– UK– Ireland– Estonia

→ Amicus Curiae Applications• Relies on plaintiff’s ability to sue• No control on strategy or settlement• *Ireland pleads its standing in this regard on the basis of article

7(2) of Directive 2000/43

Other powers-Non case oriented

Positive Duties

Requirement to promote equality in a pro-active manner and monitor progress or results with impact assessment

– UK – Slovenia – Sweden- Estonia- Northern Ireland– Gender- Ethnicity- Religion

Code of Practice

Standard to evaluate conformity of a situation to the requirement of non discrimination

UK Ireland- Romania – AustriaDisability –Gender- Ethnicity

Other powers-Non case oriented

Good Practices

Research

Advice to Government

Training

Communication: sensibilisation - prevention

Local buros – Half of the National Equality Bodies

Conclusion

This combination of powers and missions give a central role to NEBs on the following issues in many countries:

→ Construction of legal approach and precedents→ Research and Statistic construction→ Consultation of civil society→ Formal Partnerships→ Development of specific mainstreaming methods

Resources are a central factor:In Europe from 200 000€ and 3 agents to 300 000€ and 500 agents

II- The French Example: HALDE

Haute autorité de lutte contre les discriminations

et pour l’égalité

HALDE

→ Created by the Law of December 30, 2004

→ Jurisdiction over all discriminations prohibited by French law and international conventions duly ratified by France

→ In France, 19 grounds of discrimination prohibited by Law:• Various protections according to prohibited grounds• Multicriterium approach• French Law covers all areas of activites:

– Goods and services– Access to public service– Private and public employment– Health

OrganisationCreated by Law in 2005

General Directorate

Legal Affairs

Presidency

Administration andFinancial Ressources

RegionalAction

College11 Members

Consultative Commitee

18 Members

Promotion Of

Equality

The Halde : a New Equality Body

→ Multiple grounds→ Investigating powers→ Power of recommendation→ Power of mediation→ Intervention before the courts→ Penal transaction

The Context

→ New legal regime→ Multiple grounds→ A lack of experience→ Limited resources→ A need to show results

Managing Reality

→ An ever increasing number of complaints→ An absence of pre-existing judicial practice→ A reluctance of judges→ A need for judicial determination in a multiplicity of legal

issues→ The scrutiny of civil society

Litigation strategy and objectives at stake

→ Development of investigation practices

→ Development of judicial practice

→ Development of jurisprudence

Investigation Powers

→ To collect information from claimant

→ To collect information from any third party private or public

→ Interrogation of any person public or private

→ In situ inspection

→ Sworn statements by Halde agents

Claims and ConstraintsPer year

1 410 claims in 20054 058 claims in 20066222 claims in 2007

Evolution:

From 117 claims per month in 2005 to 338 réclamations per month in 2006, and 900 claims per month at the end of 2008.

In 2008: 8300 claims for 6414 files closedSince 2005 19478 claims and 15446 files closed

Allocation of claims by ground of discrimination

Decisions of the College in 2005- 2006- 2007

2005 20062007

Interventions before the Courts 1 48 115

Recommendations 29 151 332

Transmission to Public Prosecution 14 42 2

Mediations 1 33 49

Penal Transactions 0 20 28

Settlements 59 197 279

→ Total 166 541 873

Follow-up of Cases

69 % of the Recommendations followed 83 % of the Observations presented before the Courts

followed 60 % Successfull Mediations 79 % Public Prosecution after transmission to the

Prosecutor 98 % of the Penal Transactions have been validated by

the Public Prosecution

2/ Promotion of Equality

..identifies and promotes good practices

…pursues independent studies and supports research

…recommendslegislative evolutionsand gives advice on draft legislation

..pursues training and awareness raising

…pursues communication and awareness raising campaigns

Article 15 of the Law of 30

December 2004

…promotes and public private initiative

HALDE :

Advice to Governement

Regional Action

→ 6 regional offices : four on the metropolitan territory(Nord Pas-de-Calais, PACA, Ile de France, Rhône-Alpes) and two in Overseas Territories (Réunion, Antilles-Guyane).

Mission : To coordinate a network of volounteers informing the public

→ 100 volonteer delegates, objective of 125 by the end of 2009:• Reception of claimants• Help to the constitution of the file or re-orientation• Rapid local dispute resolution