1. Equinet Legal Seminar 1 July 2010 New Equinet report: Influencing the Interpretation of the Law – Powers and Practices of Equality Bodies Nanna Margrethe Krusaa The Danish Institute for Human Rights

2. Background and Objective Initiated by the Working Group on Dynamic Interpretation The purpose of this report is to provide a source of evidence for the members of Equinet and external stakeholders in regard to how equality bodies are involved in interpreting the EU anti-discrimination directives in practice and to examine what changes in legislation, policies or practices that may be appropriate either at national level or in the ECJ procedures in order to strengthen the ability of the equality bodies to have an impact on the development of the law.

3. Method and Scope (2) the report generally apply to all grounds covered by equality bodies in practice. the report apply to both the areas of employment and the areas outside of employment. However, where it is argued that the equality bodies should be allowed to participate in national legal proceedings concerning the interpretation of the EU anti-discrimination directives on account of their mandate as specialised bodies as required under EU law, this only covers the areas within which it is a EU law requirement to establish equality bodies, i.e. in regard to gender, race and ethnic origin.

4. The powers of the equality bodies (1) - in regard to being able to influence the interpretation of the law International recommendations: –representing or supporting victims of discrimination in legal proceedings –reviewing complaints and making legal decisions or non-legal recommendations

5. The powers of the equality bodies (2) - in regard to being able to influence the interpretation of the law EU Law: –No power to participate in legal proceedings can be inferred directly from EU anti- discrimination directives –The indirect effect of the EU law requirement to establish equality bodies

6. Participating in Legal Proceedings (1) The majority of the equality bodies have some power to participate in legal proceedings, but many of the equality bodies do not make use of this power in practice –approx 50% of equality bodies with power to represent individuals in legal proceedings did not make use of this power in 2008-2009 –more than 50% of equality bodies did not make use of their power to take legal action in their own name in 2008-2009 –only 3 out of the 13 equality bodies with power to intervene in legal proceedings reported that they have made use of this power in practice in 2008-2009.

7. Participating in Legal Proceedings (2) Recommendations –equality bodies are given adequate resources to make use of their powers to participate in legal proceedings (most often mentioned barrier) –Where necessary, equality bodies should make use of strategic litigation –equality bodies without express powers to participate in legal proceedings should seek to clarify whether they are capable of doing so under national rules of civil procedure relying on the argument that they, as designated specialized bodies for the promotion of equal treatment, should be allowed to initiate and/or intervene in legal proceedings concerning the use of EU anti- discrimination law.

8. Making Decisions or Recommendations (1) The majority of the equality bodies have the power to review individual complaints –4 equality bodies can make legally binding decisions –13 equality bodies can make non-legally binding recommendations

9. Making Decisions or Recommendations (2) Recommendations –Accordingly, it is recommended that equality bodies with power to hear complaints from individuals and make legally binding decisions about whether discrimination has taken place seek to establish whether they can refer questions to the ECJ for preliminary rulings, and, if so, that they make use of this mechanism in practice

10. The ECJ’s Preliminary Rulings (1) TFEU Article 267 (ex Article 234 TEC) –By any ”court or tribunal” Who can take part in the ECJ preliminary ruling procedure under the ECJ Statute –“Parties” to the national proceedings –Member States –EU Commission –that a body may be allowed to submit statements to the ECJ where the issue referred to the ECJ concerns a decision made by that body

11. The ECJ’s Preliminary Rulings (2) The equality bodies actual participation in –Only 4 equality bodies reported that they have ever taken part in national proceedings where a reference was made to the ECJ. –the amount of cases reported that the equality bodies have taken part in where a reference was made to the ECJ for a preliminary ruling is remarkably low compared to their ability to participate in legal proceedings. –This makes it relevant to examine how the equality bodies can provide input to the ECJ’s preliminary ruling procedure in alternative ways.

12. Alternative means of participation before ECJ (1) the equality bodies may seek influence on the ECJ’s preliminary rulings by submitting their observations on the interpretation of anti-discrimination law to the EU Commission or to their national governments with the request that the Commission or the national governments communicate these observations to the ECJ. Recommendation: –In this regard, the equality bodies may consider engaging in a dialog with the EU Commission about the possibility of referring submissions to the EU Commission for its use in ECJ’s preliminary rulings in cases about EU anti-discrimination law. –Further, the equality bodies may consider to request their governments that they automatically are heard when the governments are given the objection to submit statements to the ECJ for preliminary rulings concerning interpretation of the anti- discrimination directives.

13. Alternative means of participation before ECJ (2) Where an equality body takes part in an ECJ preliminary ruling procedure, for example because it is part of the national proceedings in the dispute, other equality bodies may assist this equality body and also enhance their own ability to influence the interpretation of the EU anti-discrimination directives by submitting information on how the directives are employed in their Member States in practice to the equality body that takes part in the ECJ preliminary procedure. According to the Survey, the majority of the equality bodies are interested in making use of this approach. As pointed out by one equality body, Equinet is an appropriate forum for this exchange of information. Recommendation –Accordingly, it is recommended that Equinet facilitates that an equality body, which takes part in ECJ preliminary ruling procedure on the interpretation of the EU anti-discrimination directives, coordinates the evidence from other equality bodies on the use of the directives in their Member States.

14. Alternative means of participation before ECJ (3) As pointed out by the equality bodies in the Survey, the equality bodies have a statutory remit under the EU anti-discrimination directives to promote equal treatment in the Member States and they have unique expertise on the application of the provisions of the directives in the Member States, which the EU legal system can benefit from. The majority of the equality bodies (18), therefore, are of the opinion that they generally should be allowed to make submissions to the ECJ in preliminary ruling procedures concerning the interpretation of the EU anti-discrimination directives, even where they are not a party to the national proceedings in which the interpretation of EU law is in dispute. Recommendations –Accordingly, the EU institutions should consider enacting amendments to the Statute of the ECJ to permit equality bodies to intervene before the ECJ in all cases concerning the interpretation of the anti-discrimination directives.