EUROPEAN COMMISSION Brussels, 7.12.2022 SWD(2022) 386 final COMMISSION STAFF WORKING DOCUMENT Analytical document Accompanying the documents Proposal for a

COUNCIL DIRECTIVE on standards for equality bodies in the field of equal treatment between persons irrespective of their racial or ethnic origin, equal treatment in the field of employment and occupation between persons irrespective of their religion or belief, disability, age or sexual orientation, equal treatment between women and men in matters of social security and in the access to and supply of goods and services, and deleting Article 13 of Directive 2000/43/EC and Article 12 of Directive 2004/113/EC



























and



























Proposal for a











DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL



























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 {COM(2022) 689 final} - {SWD(2022) 387 final}



Contents 1.Introduction 1.1.Political and legal context 1.2.Analysis in preparation of this initiative 2.Problem definition 2.1.What are the problems? 2.2.What are the problem drivers? 3.Why should the EU act? 3.1.Legal basis 3.2.Subsidiarity: necessity of EU action 3.3.Subsidiarity: Added value of the EU intervention 4.Objectives: what is to be achieved? 4.1.Objectives 4.2.Operational objectives 5.What are the policy options? Description of possible measures 6.Assessment of the possible measures 7.Preferred combination of measures 8.How will actual impacts be monitored and evaluated?

Annex 1: List of equality bodies in the EU Member States Annex 2: Procedural information Annex 3: Stakeholder consultation (synopsis report) Annex 4: Overview of the structure and functioning of equality bodies in Member States Annex 5: Retrospective analysis report 1.Introduction 2.What was the expected outcome of the intervention? 2.1.Description of the intervention and its objectives 2.2.Point(s) of comparison 3.How has the situation evolved over the period examined by the retrospective analysis? 4.Analysis of findings 4.1.To what extent was the intervention successful and why? 4.1.1.Effectiveness 4.1.2.Efficiency 4.1.3.Coherence 4.2.How did the EU intervention make a difference? 4.3.Is the intervention still relevant? 5.Conclusions Annex A: Retrospective analysis matrix and questions Annex B: Overview of benefits and costs





1.1. Introduction 1.1.1.1. Political and legal context This analytical document accompanies two proposals of directives on standards for equality bodies. It includes a retrospective analysis of the EU framework applicable to equality bodies, identifying current challenges, as well as an assessment of the policy options considered in preparation of these proposals to address them. This initiative was exempted from the obligation to conduct a fully-fledged impact assessment. Equality is a fundamental value of the European Union, laid down in Article 2 of the Treaty on European Union (TEU). In accordance with Article 19(1) of the Treaty on the Functioning of the European Union (TFEU), the Council can take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. In addition, Article 157 TFEU provides for the principle of equal pay for male and female workers for equal work or work of equal value. Equality bodies established under EU equality legislation have a key role to play in ensuring implementation of these principles. This has also been acknowledged by the European Parliament, which adopted several resolutions in this regard. The current list of equality bodies in EU Member States is annexed (see Annex 1). In 2016, the Council adopted conclusions calling on the European Commission and Member States to reinforce and continue to support the activities of national equality bodies and of the European Network of Equality Bodies (Equinet). In its Recommendation of 12 March 2021 on Roma equality, inclusion and participation, the Council also stressed the importance of supporting equality bodies so that they can, within the scope of their mandates, function effectively and independently and cooperate with all relevant actors. In 2022, the Council also adopted conclusions on combating racism and antisemitism inviting Member States to support robust equality bodies and adopt a legislative framework enabling them to carry out their role independently, and provide them with the necessary resources to carry out their tasks effectively. In 2021, the European Parliament called on the Commission to propose legislation on equality bodies, with the aim of ‘providing them with a stronger mandate and adequate resources to safeguard the equal treatment of persons with disabilities, and to ensure accessible information dissemination for all’. In the EU anti-racism action plan, the EU Roma strategic framework for equality, inclusion and participation, the LGBTIQ Equality Strategy, the Strategy for the Rights of Persons with Disabilities and the EU Strategy on Combating Antisemitism and Fostering Jewish Life as well as in its application report on the ‘Racial Equality Directive’ and on the ‘Employment Equality Directive’, the Commission announced that it intended to propose measures to strengthen the role and independence of equality bodies. This commitment was confirmed in the Commission work programme 2022. Equality bodies were first established by Directive 2000/43/EC (‘Racial Equality Directive’). They were entrusted with the promotion of equal treatment through the following tasks: assisting victims of discrimination; conducting independent surveys; publishing independent reports and making recommendations on discrimination matters. As regards the prohibition of discrimination based on sex, equality bodies were first introduced through a 2002 amendment of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Directive 76/207/EEC was later repealed and replaced by Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (‘Gender Equality Directive in the field of employment’). Two additional equality directives entrusted equality bodies with the same responsibilities in their respective field: Directive 2004/113/EC (‘Gender Equality Directive in the field of goods and services’), and Directive 2010/41/EU (‘Gender Equality Directive in the field of self-employment’). Directives 2006/54/EC and 2010/41/EU have added the additional responsibility for equality bodies to exchange information with corresponding European bodies, such as the European Institute for Gender Equality (‘EIGE’). Finally, Article 15 of Directive (EU) 2019/1158 on work-life balance for parents and carers provides that Equality bodies under Directive 2006/54/EC have competence for issues relating to discrimination falling under its scope. The rationale behind the establishment of equality bodies and the tasks assigned to them was to (i) ensure that (potential) victims are aware of their rights and the existence of equality bodies; (ii) ensure assistance and redress for victims; (iii) improve factual knowledge about the state of discrimination; (iv) better inform policymaking; and (v) improve the behaviour and awareness of companies and the general public about matters of discrimination. There are also two more Equality Directives that do not contain provisions on equality bodies: Directive 79/7/EEC (‘Gender Equality Directive in the field of social security’) and Directive 2000/78/EC (‘Employment Equality Directive’). Two further proposals put forward by the Commission recently contain references to equality bodies, namely the proposal for a Pay Transparency Directive and the proposal for a Directive on combatting violence against women and domestic violence. The proposed Equal Treatment Directive, being negotiated since 2008, also includes provisions on equality bodies. The proposal intends to cover discrimination based on religion or belief, disability, age or sexual orientation in the fields of social protection, including social security and healthcare, social advantages, education and access to and supply of goods and other services that are available to the public, including housing. In 2018, the Commission issued a Recommendation on standards for equality bodies (‘2018 Recommendation’). This non-binding instrument contains suggestions regarding the mandate and independence of equality bodies and cooperation and coordination between them and with other relevant authorities. In 2021, the Commission examined the implementation of the 2018 Recommendation in its report on the application of the Racial Equality Directive and the Employment Equality Directive (‘2021 application report’) and the accompanying dedicated staff working document (‘2021 Staff Working Document’). The 2021 application report indicated that, in most cases, equality bodies have proved to be key to promoting and enforcing equal treatment legislation. Equality bodies are essential for ensuring that individuals and groups facing discrimination can enjoy their right in full. They have emerged as necessary and valuable institutions for change at the level of individuals, institutions and society at large. They should therefore be able to effectively perform the tasks assigned to them under EU law. However, challenges remain. Divergences in terms of their mandate, powers, structure, leadership, independence, resources and effectiveness have led to an unequal enforcement of the Directive across Member States, as regards the level and nature of protection and the promotion of equality and awareness-raising among the general public and national institutions. While many Member States pointed to the important work of equality bodies at national and local level to tackle discrimination and address underreporting, few people would, according to surveys, report an incident of discrimination to such bodies. Reasons for not reporting cases of discrimination may include doubt about chances of success, unawareness of rights and/or of the existence of equality bodies, difficulties to provide evidence; and/or fear of retaliation. Other concrete problems that may hamper access to justice (which particularly affect the most vulnerable or marginalised groups) include the costs, complexity and length of proceedings, and uncertainty as to the outcome of the case. The 2021 Staff Working Document concluded that a limited and unequal level of implementation of the 2018 Recommendation continues to hinder some equality bodies in effectively exercising their role, leading to different levels of protection against discrimination across the EU. A key cross-cutting issue negatively affecting the execution of the responsibilities and activities of equality bodies is the inadequacy of their resources in terms of funding and staff. Other major challenges include a limited awareness of the equality bodies’ existence, limited independence (or insufficient legal safeguards to independence) and limited legal standing. In addition, not all equality bodies are competent for all the fields and grounds put forward by the Recommendation.

1.2.1.2. Analysis in preparation of this initiative To further substantiate the findings of the 2021 Staff Working Document and get a complete picture of the current state of play as regards equality bodies, a retrospective analysis has been conducted to inform this analytical document. The retrospective analysis focuses on all 27 Member States and covers the period from 29 June 2000, the adoption date of the first Directive that introduced equality bodies, namely the Racial Equality Directive. However, it is worth noting that some Member States joined the EU after this date; for these Member States, the period examined by the retrospective analysis starts from the date of their accession (1 May 2004 , 1 January 2007 and 1 July 2013 ). For the retrospective study and this analytical document, the term ‘EU framework’ is used to refer to the provisions concerning equality bodies in the equality directives as well as the 2018 Recommendation on standards for equality bodies. The analysis is built on findings and conclusions of research conducted by an external contractor (‘VVA’). Its results, and the retrospective analysis it contains, are summarised below. A full analysis is included in Annex 5. The research was conducted before Spain reformed its anti-discrimination legislation in July 2022. The information presented in this analytical document presents the situation in Spain before the reform. Evaluation criterion Overall assessment Detailed assessment EFFECTIVENESS Limited regarding fight against and prevention of discrimination Progress in countries where equality bodies did not yet exist. Some Member States have established well-functioning equality bodies Ongoing high levels of discrimination Victims remain mostly unaware about their rights. Underreporting remains a considerable problem. Current EU framework is too general and narrow in scope to establish effective equality bodies. The overall capacity of the EU framework to contribute to the set up equality bodies that are fully enabled to fight and prevent discrimination has been assessed as limited: -public awareness about and knowledge of discrimination remains limited. -many equality bodies are not properly equipped to assist victims effectively. EFFICIENCY Limited/Inconclusive Many equality bodies are not properly resourced. Inconclusive on costs and benefits due to lack of available data. COHERENCE Overall positive at all levels Coherence with the EU Treaties and the Charter of Fundamental Rights of the EU (‘the Charter’) is high. EU Directives and international instruments are consistent with each other, the latter only being more detailed due to their different nature. EU ADDED VALUE Positive with limitations EU framework led to the set-up of equality bodies in about half of the then EU-15 Member States which did not yet have such bodies in place. EU intervention provides added value, but would need to be more detailed and concrete. RELEVANCE Positive with limitations EU framework`s original objectives still meet current needs. Original legal framework for equality bodies was too narrow and vague. Assessment categories: very positive positive limited negative inconclusive The EU framework’s effectiveness has been assessed as limited regarding progress on the fight against, and prevention of, discrimination. Some progress has been made, especially in countries where equality bodies did not exist before the EU intervention; however, the desired effects were not fully achieved. The retrospective analysis has shown that levels of discrimination remained high, while victims’ awareness about their rights remained low. Underreporting is still a considerable problem and public awareness about and knowledge of discrimination remains limited. Even if some Member States have established well-functioning equality bodies, the EU framework is too general and narrow in scope to establish effective equality bodies generally. Many equality bodies are not properly equipped to assist victims effectively. Efficiency has been assessed as inconclusive on costs and benefits, mainly due to limited data availability. This situation has not been mitigated by the more detailed 2018 Recommendation given its non-binding nature. The retrospective analysis has shown that equality bodies’ resources are a considerable problem in this context, as they vary greatly between Member States and, for a majority of equality bodies, are insufficient to fulfil all their tasks. Coherence has been assessed as generally positive at EU level and overall positive at other levels. The retrospective analysis has shown that coherence with the EU Treaties and the Charter of Fundamental Rights of the EU are high, as the EU framework intends to enhance equality and non-discrimination, which are among the founding values of the EU. Non-discrimination is also a fundamental right protected by the Charter. While international instruments, such as the Paris Principles and Recommendation No 2, of the European Commission against Racism and Intolerance, are more detailed due to their different legal nature, there is no inconsistency on substance between them and the EU Directives in force. They are also consistent with the 2018 Recommendation. EU added value has been assessed as positive. The retrospective analysis has shown that before the EU framework was put in place, only about half of the (EU-15) Member States had an equality body, and with a limited mandate. Stakeholders also confirmed that equality bodies would not have been set up in all Member States without the EU taking action. The consistently high levels of discrimination throughout the Member States show that there is still added value from having EU action on equality bodies, but also that it would benefit from being more detailed and concrete. Relevance of the EU framework’s original objectives in view of the initial and current needs has been assessed as positive. However, the original approach (the legal framework for equality bodies) has been considered as too narrow and vague. This view is generally shared by all stakeholders. The retrospective analysis has shown that there is broad support for taking further action to tackle the issues identified above and to make sure that equality bodies have the resources to address new issues, such as those related to automated systems. Overall, the retrospective analysis concluded that the framework’s ambition of ensuring implementation and enforcement of EU law on combating unequal treatment and discrimination and increasing prevention had not been fully achieved. 2.2. Problem definition 2.1.2.1. What are the problems? Despite the EU rules in force to fight discrimination and increase prevention, discrimination persists and remains a considerable problem still today. Equality bodies were set up to help ensure implementation and enforcement of EU law on combating discrimination and to increase prevention. However, as the retrospective analysis demonstrated, they were only partially successful in doing so. The retrospective analysis has shown that there are a range of underlying problems that led to this situation. In the equality directives in force, the provisions referring to equality bodies are very vague and broad, the directives do not include provisions on the functioning of equality bodies, and they fail to address more specific issues. Notably, while the EU provisions on equality bodies mandate them to assist victims of discrimination, they do not specify what this entails. As a result, the scope of services that equality bodies provide to victims of discrimination may not match their needs and not be equivalent in all Member States. For example, some equality bodies do not provide legal advice and others do not provide it for free. Some do not engage in mediation and/or conciliation activities. Equality bodies from less than half of Member States can represent victims, intervene in support of them in court or engage in strategic litigation. In a third of Member States, they can launch collective complaints or bring proceedings to a court without an identifiable victim. Half of the Member States allow equality bodies to act as amicus curiae. The retrospective analysis has shown that the grounds and fields covered by the Employment Equality Directive and the Gender Equality Directive in the field of social security are highly relevant since many of the cases of discrimination that occur fall under the scope of those Directives. However, in the absence of an obligation in these directives, the mandate of some equality bodies does not cover those grounds and fields. The retrospective analysis has also shown that many victims still do not know to whom they can turn if they have been discriminated against. Some do not come forward because they fear negative consequences for themselves. The same may be true not only for victims, but also for witnesses and whistle-blowers. Others do not seek assistance or redress because they are unaware of the existence of equality bodies and laws that protect them against discrimination in the first place. Lack of accessibility may also be a problem for some victims, due to factors such as remoteness (e.g. if the victim lives in a rural area and the equality body has only one office in the capital). The same may be true for victims who are computer-illiterate or those who have a disability. Fees charged by the equality body for providing assistance may pose an obstacle as well. When providing assistance to victims, some equality bodies do not take aspects of prevention into account, which would add a more macro-level dimension beyond the individual case at hand. The use of strategic litigation would serve similar ends. This is in line with some of the objectives of the original intervention, namely (i) improved factual knowledge about the state of discrimination, (ii) better informed policymaking and (iii) improved behaviour and awareness of companies and the general public. However, the retrospective analysis has shown that fostering such public knowledge and awareness was not fully successful. Many equality bodies do not (or do not have the competencies to) engage in equality mainstreaming and/or the promotion of equality and non-discrimination. Their level of activity in conducting surveys, pursuing research and publishing reports also varies; this would however be key in order to address the still continuing lack of knowledge on the state of equality and discrimination. To that end, equality bodies also need to collect and/or have access to primary and secondary data. Taking into account equality bodies’ knowledge and insights is also important to increase the quality of policymaking in the area of equality and non-discrimination and compliance by duty bearers. The current provisions on cooperation between stakeholders in the relevant EU equality directives are very narrow. To better foster public knowledge and awareness about equality and non-discrimination, efficient cooperation and knowledge exchange between relevant stakeholders, such as other equality bodies and civil society, would be important. The same is true for exchanges at national, European and international level. Currently, this is not always the case. Equality bodies currently often lack a long-term perspective in the planning of their activities. Another issue concerns the follow-up of recommendations issued and decisions taken by equality bodies, which are at the moment not always implemented. Generally, the rules provided for by the existing EU framework are not always properly enforced. This is due either to their broad and vague nature (those in the directives) or to the fact that they are non-binding and therefore not enforceable (those provided in the 2018 Recommendation). 2.2.2.2. What are the problem drivers?

Even though most problems have specific underlying drivers that will be discussed below, the retrospective analysis has shown that there are also some drivers that are common to the majority of problems addressed above. These are the lack of independence, lack of resources and inability to focus sufficiently on the equality mandate that some equality bodies face. Overall, it can be said that many of the drivers are the lack or ambiguity of existing rules on various aspects of equality bodies’ tasks. More specifically, the fact that not all existing EU equality directives contain provisions on equality bodies means that in some Member States, equality bodies do not cover all the grounds and fields addressed by those directives and consequently do not offer assistance to victims on the grounds and in the fields concerned. The vagueness of existing provisions and the fact that they do not cover the full scope of assistance to victims results in the divergences and wide diversity of powers attributed to equality bodies in different Member States, as addressed above. While some level of divergence between Member States can be explained by different legal systems and traditions, the retrospective analysis has shown that differences in levels of protection go beyond that and result in differing levels of protection of the fundamental right to non-discrimination. The lack of awareness of equality bodies and equality law among certain groups in some Member States is also due to the fact that Member States do not fully ensure that people are informed about the existence and tasks of equality bodies. The reason why some equality bodies do not engage in equality mainstreaming and/or the promotion of equality and non-discrimination is also because the role attributed to them in this field is not explicit. In many Member States, there is a lack of data on the activities of equality bodies and a lack of access by equality bodies to equality data. Since the rules on surveys and reports are very unclear, they are interpreted very differently. The existing rules on cooperation are either non-existent or very narrow. In addition, there is also no official consultation requirement of equality bodies in the policy-making process. Finally, the absence of a requirement for strategic planning often results in the lack of a long-term perspective of equality bodies activities. Recommendations and decisions of equality bodies are not always implemented, in part because there is no obligation for decisions to be enforceable and for recipients of recommendations to provide feedback to the equality body. Also, the ambiguity of the current provisions on equality bodies significantly limits their enforceability. The basic monitoring system in the current directives consists of general reporting by Member States on the implementation of the equality directives as a whole every five years. This does not offer sufficient insight into how equality bodies perform their tasks. 3.3. Why should the EU act? 3.1.3.1. Legal basis The initiative covers six equality directives, four of which currently contain provisions on equality bodies (the Racial Equality Directive (2000/43/EC), the Gender Equality Directive in the field of goods and services (2004/113/EC), the Gender Equality Directive in the field of employment (2006/54/EC) and the Gender Equality Directive in the field of self-employment (2010/41/EU)), and two of which do not currently include provisions on equality bodies to cover their grounds/fields (the Employment Equality Directive (2000/78/EC) and the Gender Equality Directive in the field of social security (79/7/EEC)). The initiative consists of two proposals identical in substance, one based on Article 19(1) TFEU and one based on Article 157(3) TFEU to match the legal bases for the above acts. Article 19(1) TFEU provides the legal basis for secondary legislation, such as directives, to take action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 157(3) TFEU provides the legal basis for measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value. The proposal based on Article 19(1) TFEU will cover the following four directives: the Racial Equality Directive (2000/43/EC), the Gender Equality Directive in the field of goods and services (2004/113/EC), the Employment Equality Directive (2000/78/EC) and the Gender Equality Directive in the field of social security (79/7/EEC). The second proposal, based on Article 157(3) TFEU, will cover the following two directives: the Gender Equality Directive in the field of employment (2006/54/EC) and the Gender Equality Directive in the field of self-employment (2010/41/EU). 3.2.3.2. Subsidiarity: necessity of EU action The present initiative does not introduce legislation in a new area, but only revises or complements already existing legislation in order to increase its effectiveness. The aim of this intervention is to set common minimum standards for equality bodies across the EU, taking into account the diversity of legal traditions in the Member States and fully respecting their institutional autonomy. Since the co-legislators already passed EU legislation on equality bodies, the assumption is that the principle of subsidiarity is respected if the EU takes action in this area. In the explanatory memorandum to the Racial Equality Directive, the Commission underlined the importance of providing access to redress in order to reinforce the fundamental values on which the EU is founded, such as equality, non-discrimination, fundamental rights and tolerance, and to contribute to the development of the EU as an area of freedom, security and justice. It also stressed the goal to help strengthen economic and social cohesion by ensuring that people in all Member States enjoy a basic level of protection against discrimination, with comparable rights to redress, while taking account of the cultural diversity of Member States. The same reasoning is also valid for the grounds and fields covered by the other directives. The same is also true in cross-border situations if citizens who reside in one Member State experience discrimination in another Member State. Under Article 3 TEU, the fight against social exclusion and discrimination, and the promotion of social justice and protection, and of equality between women and men are amongst the EU’s objectives. Non-discrimination is also a fundamental right laid down by Article 21(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’). Article 23 of the Charter stipulates that equality between women and men must be ensured in all areas, including employment, work and pay. In order to safeguard citizens’ and workers’ rights to freedom of movement, access to both protection from discrimination and redress mechanisms has to be ensured throughout the EU. The strengthening of equality bodies serves as a means to this end. This is in line with strengthening economic and social cohesion, as outlined above. In this regard, the present initiative pursues the same goals as the original provisions on equality bodies in the equality directives. As the retrospective analysis annexed to this analytical document shows, existing provisions on equality bodies have, due to their vagueness, proven not to be successful enough in reaching their objectives or in contributing towards the EU’s common goals of the listed in the Treaties, as outlined above. While all Member States struggle with continuing discrimination, the specific levels vary from Member State to Member State. Currently, great discrepancies exist in the structure, tasks, powers and mandate of equality bodies in the Member States. This also hinders the effective implementation and enforcement of existing EU equality law. The conclusion, therefore, is that EU action is warranted to remedy the situation. In preparing this initiative, the Commission conducted extensive consultations. A great majority (more than 80%) of stakeholders at national, regional and local level supported the introduction of minimum binding standards for equality bodies. Member States have particularly stressed the importance of respecting diverse legal traditions. 3.3.3.3. Subsidiarity: Added value of the EU intervention

The analysis of the situation before the establishment of equality bodies clearly demonstrated the added value of the EU intervention. Prior to it, equality bodies existed in only a few Member States and their setup varied – and continues to vary - greatly. Indeed the framework left considerable leeway to Member States, which prevented reaching the objectives to a satisfactory extent. This is why further EU action is warranted and expected to bring a clear added value. Strengthened standards for equality bodies will ensure that all Member States provide sufficient powers and resources to their equality bodies for effectively fighting and preventing discrimination, and for ensuring assistance and access to redress for victims of discrimination. The rules will be enforceable at EU level. They are expected to lead to a reduction in the prevalence of discrimination. In turn, this will lead to a reduction of the costs associated with discrimination. EU-level action in this context is also relevant to the functioning of the single market. The single market is built on fundamental freedoms, such as the freedom of movement for workers. To safeguard this principle, it is important to guarantee the fundamental right of non-discrimination as laid down by the Charter and to ensure access to protection from discrimination and to redress mechanisms in all Member States and for all grounds and fields covered by the equality directives. As outlined above, equality bodies are a means to contribute to this goal.

4.4. Objectives: what is to be achieved? Taking into account all of the above, the Commission identified the following objectives for this initiative on equality bodies. 4.1.4.1. Objectives This initiative has 21 objectives to tackle the problems and drivers identified above. Those can be grouped under three main thematic areas. Minimum standards to deal with cases of discrimination/provide assistance to victims – mandate, powers, accessibility •O1: Assist those victims who are currently outside the scope of protection on the grounds and fields that are covered by the Employment Equality Directive and Gender Equality Directive in social security. •O2: Ensure victims have access to information and advice targeted to their situation. •O3: Ensure that victims have access to amicable settlement mechanisms. •O4: Ensure that victims can make their case in court proceedings and receive appropriate assistance to have a fair chance of winning. •O5: Offer assistance to more victims, also to those who may be unaware that they are discriminated against. Address cases of discrimination that would otherwise not be tackled. •O6: Improve the knowledge of the general population, with particular attention to individuals and groups at risk of discrimination, on the rights under the Equality Directives and where they can get assistance in cases of discrimination. •O7: Ensure confidentiality for witnesses, whistle-blowers and complainants. •O8: Ensure that victims, including those in particularly vulnerable situations and those with disabilities, can submit claims and receive proper support. •O9: Ensure that victims of discrimination can access assistance regardless of their financial means. •O10: Support victims in remote areas and those who are not IT literate. •O11: Ensure that all equality bodies may suggest measures to prevent the same situation from arising again in the future when assisting victims. •O12: Elicit social, legal and policy changes via strategic litigation.

Minimum standards to foster public knowledge and awareness about equality and non-discrimination •O13: Improve the knowledge base about equality and discrimination as well as mutual learning between equality bodies and with other stakeholders. •O14: Promote equality and non-discrimination. •O15: Improve the knowledge on the concrete activities of equality bodies and on the state of discrimination in general. •O16: Improve statistical evidence on equality and proper analysis of relevant data. •O17: Ensure that equality bodies can provide their insights on equality and non-discrimination policies and practices to policymakers and public and private entities. Minimum standards on monitoring and enforcement •O18: Ensure coherent actions of equality bodies on a long-term perspective. •O19: Ensure that, if equality bodies issue opinions there is an incentive for recipients to give appropriate feedback. •O20: Ensure that, if equality bodies have binding decision-making powers, their decisions are enforced and subject to judicial review. •O21: Ensure that the provisions on equality bodies are clear enough to be enforceable and that there are clear monitoring and reporting obligations regarding their implementation. 4.2.4.2. Operational objectives As shown by the retrospective analysis and already discussed above, three underlying drivers seem to cause most problems, which is why addressing them would contribute greatly to reaching the objectives set out above. •OO1: Ensure that equality bodies are free from external influence so that they can exercise all their tasks independently. •OO2: Ensure that all equality bodies have the necessary resources to perform all their tasks. •OO3: Ensure that, if an equality body is part of multi-mandate body, there is an internal structure that guarantees sufficient independence, focus and resources for the equality mandate. Intervention logic (colour codes are to be used horizontally. They show links between drivers/problems/objectives/outputs) 5.5. What are the policy options? The initiative was exempted from the obligation to conduct an impact assessment, building on the 2018 Commission Recommendation on standards for equality bodies. This is explained by the absence of simplification potential and the fact that the impacts of the provisions envisaged are expected to be only partially identifiable and very difficult to measure. Non-legislative options have already been tested without producing the desired result to address all the issues identified. These options were (i) the set-up of an active network of equality bodies financed by the Commission (Equinet); (ii) the non-binding 2018 Recommendation; (iii) exchanges of best practices; and (iv) direct funding through the Commission’s Rights, Equality and Citizenship Programme (‘REC’).

Those measures would also remain in place if no specific further action in the area of equality bodies were to be taken (i.e. status quo). Furthermore, negotiations on three proposals that also contain provisions on equality bodies are currently ongoing and may be finalised, which would extend the mandate of equality bodies. For the reasons outlined above and addressed in the evaluation, new binding legislation remains the only option. The question that remains therefore is which measures should be implemented through such legislation; this is what is examined in this section. Description of possible measures Of the various identified measures that could be included in a legislative act to help reach the 21 objectives presented above, 48 were selected for further analysis, falling under 11 thematic areas: mandate, powers, access, cooperation, surveys, data collection, monitoring, enforcement, independence, resources and structure. Dealing with cases of discrimination and providing assistance to victims of discrimination As regards the mandate, there are two possible measures that could be taken. These would be to extend the scope to the two directives that currently do not contain provisions on equality bodies. These are the Employment Equality Directive and the Gender Equality Directive in the field of social security. A. Possible measures addressing mandate 1 Entrust equality bodies with the grounds covered by the Employment Equality Directive: religion or belief, sexual orientation, age and disability in the field of employment and occupation. 2 Entrust equality bodies with the ground and field covered by the Gender Equality Directive in the field of social security. Both measures A.1 and A.2 address objective 1, which is to assist those victims who are currently outside the scope of protection in the grounds and fields that are addressed by the Employment Equality Directive and the Gender Equality Directive in the field of social security. The retrospective analysis has shown that levels of discrimination in the fields and on the grounds concerned remain high throughout the EU. Therefore, it would be important to ensure that all equality bodies in all Member States cover them. For powers, the picture is more diversified; also, a broader variety of measures could be implemented. B. Possible measures addressing powers 1 Ensure that equality bodies can receive individual and collective complaints and provide relevant information and advice as part of their assistance to victims. 2 Ensure that equality bodies have the possibility to provide or recommend amicable settlement mechanisms. 3 Ensure that equality bodies can submit oral or written statements (i.e. amicus curiae) to the courts in individual and collective discrimination cases. 4 Allow equality bodies to litigate (in their own name, on behalf or in support of one or several victim(s), with their approval, even in the absence of identified victim(s)). 5 Ensure that equality bodies have effective rights to access information which is necessary to establish whether discrimination has occurred (investigation powers). 6 Require that Member States adopt a strategy to raise awareness of the general population, with particular attention to individuals and groups at risk of discrimination, on the rights under the Equality Directives and the existence of equality bodies. 7 Ensure that, when equality bodies issue decisions or opinions on a case, they include measures to prevent (re)occurrences of discrimination as part of the outcome, where relevant. 8 Ensure that equality bodies publish a summary of their opinions/decisions without disclosing personal data. The retrospective analysis has shown that, while all equality bodies can receive individual complaints, not all of them currently provide legal advice to victims of discrimination. Measure B.1 aims to address this issue in order to fulfil objective 2, which is to ensure that victims have access to information and advice targeted to their situation. The same is true for providing or recommending amicable settlement mechanisms, which is to be addressed by measure B.2. The aim is to implement objective 3, which is to ensure that victims of discrimination have access to amicable settlement mechanisms. There are several possible measures that could be implemented in order to achieve objective 4, which is to ensure that victims can make their case in court and receive appropriate assistance to have a fair chance of winning. One aspect is covered by measure B.3, which is to ensure that equality bodies can submit oral or written statements (i.e. amicus curiae) to the courts on individual and collective discrimination cases. As the retrospective analysis has shown, half of the Member States currently allow equality bodies to act as amicus curiae. Another possible aspect in this context is covered by measure B.4 and involves allowing equality bodies to litigate (in their own name, on behalf or in support of one or several victim(s), with their approval, even in the absence of identified victim(s)). Currently, equality bodies in around half of the Member States can represent victims , intervene in support of them in court or engage in strategic litigation . In a third of Member States, equality bodies can launch collective complaints or bring proceedings in front of a court without an identifiable victim . This measure would also serve to achieve further objectives, namely objective 5, which is to assist more victims, also those who may be unaware that they are discriminated against and objective 12, which is to elicit social, legal and policy change through strategic litigation. Measure B.5, ensuring that equality bodies have effective rights to access information that is necessary to establish whether discrimination has occurred, would also serve to fulfil objective 4 to ensure that victims can make their case in court and receive appropriate assistance to have a fair chance of winning. Measure B.6 aims to address the continuing lack of awareness of equality bodies and equality law in some Member States and among some groups(especially minorities). Adopting a strategy to raise awareness of the general population, with particular attention to individuals and groups at risk of discrimination, on the rights under the equality directives and the existence of equality bodies should help improve the knowledge of the general population, and in particular of potential victims, about where they can get assistance in cases of discrimination, which is objective 6. The focus of the current directives that contain provisions on equality bodies is mainly on damage control, once discrimination has occurred, but they do not sufficiently address the prevention of discrimination. Measures B.7 and B.8 are possible options in order to tackle this issue. This is in line with objective 11, which is to ensure that all equality bodies take aspects into account that could prevent the same situation from arising again in the future when assisting victims. The decision whether to entrust equality bodies with binding decision-making powers is left to the discretion of Member States. Implementing this measure at EU level has not been considered as an option because it would not be in line with the principle of procedural autonomy. Besides, the majority of stakeholders were against this measure, which would imply significant changes in most Member States, some of which have a well-functioning equality body. For access and accessibility, several possible measures were considered. C. Possible measures addressing access and accessibility 1 Ensure that there are no barriers to complaint submission to an equality body (providing different means of submission), that there is access to equality bodies outputs, procedures, and services on equal basis for all and accessibility for persons with disabilities. 2 Ensure that equality bodies provide their services to complainants free of charge. 3 Ensure that equality bodies create a solidarity fund for access to justice by victims of discrimination in case it is not envisaged in another national mechanism. Fines and sanctions collected in cases of discrimination could feed this fund. 4 Guarantee that equality bodies ensure, where needed, confidentiality of witnesses and whistle-blowers, and as far as possible, of complainants. 5 Ensure that equality bodies are physically represented throughout the territory. 6 Ensure that equality bodies’ services are available to all potential victims throughout the territory of their Member States The retrospective analysis has shown that not all equality bodies currently take all aspects of accessibility into account that could be relevant for all groups of victims. Measures C.1 and C.2 aim to tackle this issue by ensuring that there are no barriers, physical or digital, to complaint submission to an equality body (providing different means of submission), that there is access to equality bodies outputs, procedures, and services on an equal basis for all, including for persons with disabilities, and that the services of equality bodies are free of charge. This corresponds to objective 8, which is to ensure that victims, including those in particularly vulnerable situations and those with disabilities, can submit claims and receive proper support; and objective 9 that is to ensure that victims of discrimination can access assistance regardless of financial means. Measure C.3 also addresses objectives 8 and 9; however, it would go one step further and aim to provide financial assistance to victims of discrimination to litigate. Another aspect of the problem regarding access and accessibility might be the fear of negative consequences if one comes forward to report discrimination, be it as victim, whistle-blower or witness. Measure C.4 aims to address this matter to fulfil objective 7, which is to ensure confidentiality for witnesses, whistle-blowers and complainants. Finally, measures C.5 and C.6 aim to ensure that also victims in remote areas have access to the services offered by equality bodies, which would contribute to the implementation of objective 10.

Fostering public knowledge and awareness about equality and non-discrimination As regards cooperation and coordination, the following measures could be implemented. D. Possible measures addressing cooperation and coordination 1 Ensure that equality bodies cooperate and coordinate their actions with other equality bodies within the same Member State. 2 Ensure that equality bodies engage in dialogue exchange and cooperate with relevant public and private entities (including NGOs and trade unions). 3 Ensure that equality bodies engage with international and supranational institutions and equality bodies from other countries. 4 Ensure that equality bodies promote equality duties and mainstreaming among public and private entities/sectors. 5 Ensure that equality bodies are consulted by the government, through timely and transparent procedures, on draft legislation related to equality and non-discrimination. 6 In addition to legislation as referred to above, ensure that equality bodies are consulted by the government and other institutions, through timely and transparent procedures, on policy, procedure, programmes, and practices related to equality and non-discrimination. Ensure that equality bodies have the right to make recommendations on those matters, to publish them and to require feedback. 7 Establish a mandatory frequency of consultations between equality bodies and the government and other institutions. Provisions on cooperation in the directives currently in force are either non-existent or very narrow. Several measures could be implemented to improve cooperation between equality bodies and other stakeholders. Measure D.1 aims to ensure that equality bodies cooperate and coordinate their actions with other equality bodies within the same Member State. The goal of measure D.2 is to ensure that equality bodies engage in dialogue exchange and cooperate with relevant public and private entities (including NGOs and trade unions). Measure D.3 has a similar aim, which is to ensure that equality bodies engage with international and supranational institutions and equality bodies from other countries. All three measures would contribute to objective 13 to improve the knowledge base about equality and discrimination, as well as mutual learning. The lack of focus on prevention in the current legislative framework is also relevant to this point. It means that equality bodies currently have no duty to engage with relevant stakeholders to foster public knowledge and awareness of equality and non-discrimination. Likewise, stakeholders have no obligation to consult equality bodies when drafting and/or implementing policies or legislation. Measures D.4, D.5 and D.6 are possibilities to tackle these issues in order to implement objective 14 to promote equality and non-discrimination. There is also a strong link between these measures and measures B.7 and B.8 that address the prevention of discrimination. Measures D.5, D.6 and D.7 also aim to implement objective 17 to ensure that equality bodies can provide their insights on equality and non-discrimination policies and practices to policymakers and public and private entities. The area of surveys and reports is related. Even though it is addressed by provisions in the current EU legislation, those are so broad that they have been interpreted very differently in Member States in practice. Concretising them may therefore help to better achieve objective 15 to improve the knowledge on the concrete activities of equality bodies and on the state of discrimination in general. Measure E.1 would contribute to implementing the first aspect of objective 15, while measure E.2 is focused on the second. E. Possible measures addressing surveys and reports 1 Ensure that equality bodies produce and make available to the public their annual activity reports. 2 Require equality bodies to publish a report, with recommendations, at least every four years, on the state of discrimination in their Member State, including on structural discrimination. This report shall be communicated to the Commission. Another aspect of high relevance for fostering public knowledge and awareness about equality and non-discrimination is data collection. The approaches taken by Member States in this regard currently vary greatly. The measures listed in the box below would aim to address this matter. F. Possible measures addressing data collection 1 Ensure equality bodies collect data on their activities, disaggregated by grounds and fields covered by the directives, and in accordance with the indicators developed to monitor the implementation of the Directive. 2 Ensure equality bodies can access statistics necessary to fulfil their mandate and tasks, from and/or collected by, public authorities, trade unions, companies, and civil society organisations. 3 Provide for an obligation for equality bodies to publish a report, with recommendations, at least every four years, on the state of discrimination in their Member State in all the fields and grounds, including potential structural issues. This report shall be communicated to the Commission. 4 Ensure that equality bodies can make recommendations, in accordance with their mandate, to public authorities, trade unions, companies and civil society organisations on their data collection activities. Measure F.1 intends to ensure that equality bodies collect data on their activities, disaggregated by grounds and fields covered by the directives, and in accordance with the indicators developed to monitor the implementation of the directive. The goal of measure F.2 is to ensure that equality bodies can access data necessary to fulfil their mandate and tasks, from and/or collected by, public authorities, trade unions, companies, and civil society organisations. Measure F.4 is to ensure that equality bodies can make recommendations, in accordance with their mandate, to public authorities, trade unions, companies and civil society organisations on their data collection activities. All three measures aim to fulfil the first aspect addressed by objective 16, which is to improve statistical evidence on equality. Measure F.3, which is identical to measure E.2 above, provides for an obligation for equality bodies to publish a report, with recommendations, at least every four years, on the state of discrimination in their Member State, including on structural discrimination. This addresses the second aspect mentioned in objective 16, which is to improve the proper analysis of relevant data. Expanding the scope of primary data collection for equality bodies beyond collecting data on their own activities was considered at an early stage, but discarded, as the main responsibility in this regard should remain with the relevant statistical offices. This view was widely supported by stakeholders. Monitoring and enforcement In the area of monitoring, the following measures could be envisaged. G. Possible measures addressing monitoring 1 Ensure that equality bodies adopt a multiannual programme setting out their priorities and prospective activities. 2 Establish a list of common indicators to assess the practical effects and implementation of the equality bodies Directives and draw up a Commission monitoring report every 5 years, on the basis of the information provided by the Member States in accordance with the indicators 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. 3 Put in place a system of accreditation through peer review, according to procedures and criteria agreed upon by the Member States, within 5 years of the adoption of the Directive. To ensure consistent actions on a long-term perspective, which is objective 18, measure G.1 would ensure that equality bodies adopt a programme setting out their priorities and prospective activities. There are two options for the monitoring of the new Directives and implementation of the framework for equality bodies. In the first option, measure G.2, the Commission would monitor the implementation of the equality bodies directives by establishing a list of common indicators to assess their practical effects and implementation and drawing up a monitoring report every 5 years. The report would be based on the information provided by Member States in accordance with the indicators and additional relevant data collected at national and EU level, in particular from stakeholders, by the European Union Agency for Fundamental Rights and the European Institute for Gender Equality. The list of indicators would cover the resources, independent functioning, activities and effectiveness of equality bodies, as well as evolutions in their mandate, powers or structure. The second option, measure G.3, would be to put in place a system of accreditation through peer review, based on procedures and criteria agreed upon by the Member States, within 5 years of the adoption of the directive. Both would aim to fulfil objective 21 to ensure that the provisions in the future directives are clear enough to be enforceable (which is also a general overarching objective applicable to all provisions) and to ensure that there are clear monitoring and reporting obligations regarding their implementation. For the area of enforcement, the measures considered mainly concern the enforcement of actions taken by equality bodies; the enforcement of the directives in general is a matter closely linked to monitoring which is covered by objective 21. H. Possible measures addressing enforcement 1 Ensure that when equality bodies issue opinions, they can request a mandatory feedback from the recipients. 2 Member States shall introduce effective measures applicable in case a natural or legal person does not comply with the mandatory feedback obligation. 3 Ensure, when equality bodies are entrusted with binding decision-making powers, that their decisions are enforced and subject to judicial review. 4 Ensure that the rights of defence of natural and legal persons involved in any procedure in front of an equality body are duly protected. 5 If equality bodies have various powers that could interfere with each other (e.g. support to victims and quasi-judicial powers), ensure that they adopt an internal structure that guarantees the independent exercise of their powers. To ensure that if equality bodies issue recommendations, there is an incentive for recipients to give them appropriate feedback (objective 19), measure H.1 would ensure that when equality bodies issue opinions, they can request mandatory feedback from the recipients. Measure H.2 would go a step further and ensure that measures are put in place in case of non-compliance with the mandatory feedback requirement. Measure H.3 addresses objective 20 to ensure that when equality bodies are entrusted with binding decision-making powers, their decisions are enforced, subject to judicial review, and that the right of appeal must be guaranteed. Measure H.4 ensures that the rights of defence of natural and legal persons involved in any procedure in front of an equality body are duly protected. Another aspect that could be related to situations in which equality bodies have binding decision-making powers is to put in place a ‘firewall’ to ensure that the conditions to exercise that power do not conflict with other powers equality bodies have, such as assistance to victims. This aspect is addressed by measure H.5, where if equality bodies have various powers that could interfere with each other (e.g. support to victims and quasi-judicial powers), one has to ensure that they adopt an internal structure that guarantees the independent exercise of their powers. Independence, resources and structure

As the retrospective analysis has shown, issues with independence, resources and structure are underlying challenges that in many cases lead to problems addressed by the objectives. Therefore, improvements in this area would contribute to the fulfilment of the objectives. Several aspects could be taken into account to ensure equality bodies’ independence, which is operational objective 1. I. Possible measures addressing independence 1 Ensure budgetary independence from the government. 2 Establish transparent rules and safeguards on the selection, appointment and dismissal of the staff of equality bodies to guarantee their competence and independence. 3 Ensure that equality bodies can manage their resources, including their staff, independently. 4 Ensure that equality bodies are a legal entity separate from the government. 5 Ensure that rules are in place that limit the ability of the leadership to engage in other professional and/or political activities. 6 Ensure that rules are in place that limit the possibility to revoke the leadership of equality bodies. 7 Ensure that rules on equality bodies’ accountability do not jeopardise their independence. As regards resources, the following aspects are of relevance to achieve operational objective 2 to ensure that all equality bodies have the necessary resources to perform all their tasks. J. Possible measures addressing resources 1 Ensure that each equality body is provided with the human, technical and financial resources, necessary to perform all its tasks and exercise its powers effectively in all the grounds and fields they are entrusted with. 2 Ensure that equality bodies are provided with the resources to enable them to use automated systems to detect discrimination cases and enforce non-discrimination rules. In the area of structure, operational objective 3 is to ensure that, if equality bodies are part of multi-mandate bodies, there is an internal structure that guarantees sufficient independence, focus and resources for the equality mandate. K. Possible measures addressing structure 1 Ensure that, when equality bodies are part of a multi-mandate body, the latter adopts an internal structure that guarantees sufficient independence, focus and resources on the equality mandate. 2 Ensure that equality bodies adopt an internal structure that guarantees the independent exercise of their various powers (e.g., support to victims and quasi-judicial powers should be exercised independently). 6.6. Assessment of the possible measures This section aims to look further at the proposed measures and assess them along the five criteria of effectiveness, efficiency, coherence, EU added value and relevance. While the assessment of EU added value, relevance and coherence looks more at a macro-level and is therefore done for the proposed legislative initiative as a whole, the assessment of effectiveness and efficiency will be done per thematic area, examining individual proposed measures. However, for some measures, a full assessment may not be possible due to limited availability of data or methodological constraints, above all the difficulties of quantifying equality and non-discrimination, in particular in monetary terms, as outlined above. This is especially true for assessing efficiency. The assessment of policy options takes into account some data on the benefits of fighting discrimination. As highlighted in the retrospective analysis, a 2018 report issued by the European Parliamentary Research Service (EPRS) on the cost of non-Europe showed that reducing levels of discrimination by 5% through EU action could lead to an increase in GDP of between EUR 247 million and EUR 703 million. The report also illustrates the considerable impacts that racial and ethnic discrimination have on individuals, societies and economies. In financial terms, these translate into lost earnings ranging from EUR 1.8 billion to EUR 8 billion annually for individuals, and losses ranging from EUR 2.4 billion to EUR 10.7 billion annually for society. Also, there has been strong support from stakeholders for further action in relation to equality bodies. An overwhelming majority of respondents (97.2%) to the open public consultation considered that setting up strong and effective equality bodies is important. 81.3% replied that adopting new binding minimum standards for equality bodies would have a positive impact for the respondents. Stakeholders also expressed strong support for taking ambitious action, during other consultation activities, such as workshops and a conference. Global assessment of possible measures – EU added value, relevance and coherence As the retrospective analysis has shown, Member States’ action alone is not sufficient to achieve a satisfactorily high level of protection against discrimination throughout the EU. This is however essential to guarantee citizens’ and residents’ rights in line with the founding values and objectives of the Treaties. The initial intervention clearly provided EU added value, leading to the set-up of equality bodies in about half of the EU-15 Member States that did not have such bodies in place when it was adopted. However, the retrospective analysis has demonstrated that it left too much leeway to Member States, which resulted in not fulfilling the objectives to a satisfactory level. The retrospective analysis also demonstrated that the 2018 Recommendation could not mitigate this situation due to its non-binding nature. Since the proposed directives will be binding and will be more detailed, they are expected to tackle the problems that the existing instruments could not address and to close the gaps in the EU added value identified by the retrospective analysis. Similarly, the retrospective analysis has also shown that the proposed intervention remains highly relevant, since levels of discrimination are consistently high throughout Member States and the objectives of the initial intervention have not been achieved satisfactorily due to the vagueness of the existing provisions. Several levels have to be examined when assessing coherence. The coherence with the Treaties and the Charter of all the measures being examined is high, as the proposal intends to increase equality and non-discrimination, which are among the founding values of the EU. Article 2 of the Treaty on European Union states that the EU is founded, on the respect for human dignity and equality, and that the values common to all Member States include non-discrimination, tolerance and equality between women and men. One of the reasons for setting up the EU is to promote its values. The creation of the single market has as one of its objectives combating discrimination and promoting equality between women and men (Article 3(3) TEU). Article 8 TFEU states that the EU must aim to eliminate inequalities and promote equality, including between women and men, in all its activities. Article 10 TFEU requires the EU to combat discrimination based on sex, racial or ethnic origin, religion or belief, age or sexual orientation, in defining and implementing its policies and activities. The EU Charter of Fundamental Rights, which applies when Member States implement EU law, contains provisions on equality under Title III (Articles 20-26). Of particular relevance is Article 21 of the Charter, which prohibits any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion, or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation. This is a wide-reaching prohibition (‘any discrimination’ based on ‘any ground’) that goes beyond the grounds covered by the existing directives and this initiative. However, since this difference is due to the scope provided for by the Treaties for adopting secondary legislation in the area of equality, this cannot be regarded as inconsistent with the proposal. Article 19(1) TFEU provides for the possibility of adopting secondary legislation to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. However, currently, the full scope of Article 19(1) is not covered by secondary legislation. As outlined above, the proposal for an Equal Treatment Directive is still being negotiated. As a consequence, pending its adoption by the legislator, this initiative will not cover the scope addressed by the proposal for an Equal Treatment Directive.

As regards existing EU secondary legislation, not all EU Equality Directives currently contain provisions on equality bodies. The fact that the Gender Equality Directive in Social Security and the Employment Equality Directive do not contain provisions on equality bodies, although they pursue very similar objectives, has been identified as an incoherence in the retrospective analysis. This could be mitigated by implementing the proposed measures addressing the equality bodies’ mandate (measures A.1 and A.2, see below.) There are two important international instruments which are relevant for equality bodies, the Paris Principles and the General Observations (addressed to National Human Rights Institutions), and the European Commission against Racism and Intolerance (‘ECRI’) Recommendation No 2. The proposed measures are in line with those instruments, despite variations in the level of detail that can be explained through the different legal nature of the instruments. Detailed assessment of possible measures – Effectiveness and efficiency () Providing assistance to victims of discrimination The common goal of all possible measures in this area is to improve different aspects of assistance to (potential) victims of discrimination. As regards the mandate of equality bodies, there are two possible measures that could be taken; those are extending the scope of equality bodies’ actions to the Employment Equality Directive Directives, and extending the scope of equality bodies’ actions to the Gender Equality Directive in the field of social security, both directives that currently do not contain provisions on equality bodies. As the table below illustrates, most Member States have already done this. Therefore, the overall impact in terms of costs for Member States and national equality bodies is expected to be low. In addition, discrimination has a cost, which will be mitigated if the mandate of equality bodies is extended. However, since the retrospective analysis has shown that levels of discrimination in the fields and on the grounds concerned remain high throughout the EU, the effectiveness of this measure is still expected to be considerable. Measures The measures are already fully in place The measures are already partly in place The measures are not yet in place Mandate A.1 Entrust equality bodies with the grounds covered by the Employment Equality Directive: religion or belief, sexual orientation, age and disability in the field of employment and occupation. BE*, BG, CZ, DK, DE, EE, IE, EL, FR, HR*, IT*, CY, LV, LT, LU, HU*, MT, NL, AT*, PL, RO, SI, SK, FI*, SE. PT. ES. A.2 Entrust equality bodies with the ground and field covered by the Gender Equality Directive in the field of social security. BE*, BG, CZ, DK, DE, EE, IE, EL, ES*, FR, HR*, IT*, CY, LV, LT, LU, HU, MT*, NL, AT*, PL, PT*, RO, SI, SK, FI*, SE. Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three equality bodies. Source: online survey conducted by VVA. For powers, the picture is more varied; some measures have however already been implemented by some Member States, as illustrated in the table below. Measures The measures are already fully in place The measures are already partly in place The measures are not yet in place Powers B.1 Ensure that equality bodies can receive individual and collective complaints and provide relevant information and advice as part of their assistance to victims. BE, BG, DE, EE, EL, ES*, FR, HR*, IT, CY, LT, LU, HU, MT*, PT, RO, SI, SK, FI. CZ, DK, IE, ES*, HR* LV, MT*, NL, AT, PL, SE. B.2 Ensure that equality bodies have the possibility to provide or recommend amicable settlement mechanisms. BE, BG, DK, DE, EL, ES*, FR, HR*, IT, CY, LV, LU, HU, MT, AT, PT*, RO, SI, SK, FI, SE. CZ, EE, IE, LT, NL, PL. B.3 Ensure that equality bodies can submit oral or written statements (i.e. amicus curiae) to the courts in individual and collective discrimination cases. BE, LV. BG, DK, ES*, FR, HR*, IT, HU, MT*, NL, AT*, PL, PT*, RO, SI, SK, FI*, SE. CZ, DE, EE, EL, CY, LU B.4 Allow equality bodies to litigate (in their own name, on behalf or in support of one or several victim(s), with their approval, even in the absence of identified victim(s)). BE, BG, DK, IE, FR, HR*, IT*, LV, LU, HU, MT*, AT*, PL, SI, SK, FI*, SE. CZ, EE, EL, ES, CY, LT, PL, RO, SE. B.5 Ensure that equality bodies have effective rights to access information which is necessary to establish whether discrimination has occurred (investigation powers). FR*, LT, FI, SE. BG, DK, EL, IT, CY, LV, LU, HU, MT, NL, AT*, PL, PT, RO, SI, FI*. BE, CZ, DE, EE, IE, ES, SK. B.6 Adopt a strategy to raise awareness of the general population, with particular attention to individuals and groups at risk of discrimination, on the rights under the Equality Directives and on the existence of equality bodies. BE, EE, ES*, FR, HR*, IT, CY, LV, LT, HU, MT, NL, AT*, PT, RO, SI, FI. BG, CZ, DE, EL, LU, AT*, SK, SE. Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three equality bodies. Source: online survey conducted by VVA. Expanding equality bodies’ powers is expected to increase costs due to increased activity and workload for equality bodies. However, it is also expected to be very effective in protecting victims of discrimination, which will support the implementation of the objectives of this intervention, of the equality directives and the founding principles of the EU Treaties. Among the proposed measures, litigation may be especially costly, though the exact costs will vary significantly between Member States. Litigation may be a particular powerful tool, also expected to be effective at macro-level, beyond the resolution of individual cases, especially if used strategically, to elicit social, legal or policy change. 59% of respondents to the open public consultation considered litigation powers for equality bodies very necessary and 22% stated they are necessary. Strategic litigation is also expected to help increase public awareness, which is a goal of the initiative also addressed under the objective of developing public knowledge and awareness about equality and non-discrimination. A related matter with strong links to prevention and awareness-raising is the systemic inclusion of aspects addressing prevention when assisting victims. 54% of respondents to the open public consultation replied that additional measures to promote equality and prevent discrimination are very necessary; 28% considered them necessary. Though some additional resources will be needed (which will generate additional costs), such measures are, on the long run, expected to help reduce the number of instances of discrimination. As a result, the equality body would need to assist fewer victims, which would save costs in the long run. Litigation costs may however pose significant obstacles for individual victims of discrimination who come disproportionally often from lower income backgrounds. That is why providing amicable settlements mechanisms is also expected to be effective in encouraging a higher proportion of victims to take action against the discrimination they have experienced. Stepping up possibilities for victims to access legal redress after experiencing discrimination may also mean that potential perpetrators are more likely to be caught, convicted and/or sanctioned. This could result in a deterrent effect that may, in the long run, contribute to social, legal and policy changes and reduced levels of discrimination. Allowing equality bodies to litigate in support of several victims would be new for those Member States that have no tradition of collective redress mechanisms. Collective action is currently only possible, in discrimination cases, in seven Member States. This measure is also included in the Commission’s proposal for a Pay Transparency Directive. Such a measure would be essential to assist groups of victims, and in particular all victims who would not go to court on their own, due to the cost, length and/or complexity of the procedure. Letting equality bodies act in their own name where there is no identified victim would also be in line with the jurisprudence of the Court of Justice of the European Union which recognises that EU law prohibits discrimination even where there is no identifiable individual victim. Similarly, some Member States do not have a strong tradition of amicable settlement mechanisms. However, Member States are obliged by the Directive on alternative dispute resolution for consumer disputes to provide such mechanisms to consumers, meaning that they now exist in some form in all Member States. As outlined above, two thirds of Member States already have such measures in place for discrimination cases. Awareness of the equality bodies’ existence is also an important factor in encouraging a higher proportion of victims to come forward and in deterring potential perpetrators. 54% of respondents to the open public consultation stated that such awareness by the general population was very necessary, 31% said it was necessary, while 69% and 21% respectively said such awareness was very necessary or necessary for groups at risk of discrimination. For access and accessibility (), many measures have already been at least partially implemented in some Member States, as outlined in the table below.

Measures The measures are already fully in place The measures are already partly in place The measures are not yet in place Access and accessibility C.1 Ensure that there are no barriers to complaint submission to an equality body (providing different means of submission), that there is access to equality bodies outputs, procedures, and services on equal basis for all, and accessibility for persons with disabilities . BE*, CZ, DE, EE, ES*, IT*, LU, MT*, AT, RO, SI, FI*. BE*, BG, DK, IE, EL, ES*, FR, HR, IT*, CY, LV, LT, HU, MT*, NL, PL, PT, SK, FI*, SE. C.2 Ensure that equality bodies provide their services to complainants free of charge . BE, BG, DK, DE, EE, IE, EL, ES, FR, HR, IT, CY, LV, LT, LU, HU, MT*, NL, AT, PL, PT, RO, SI, SK, FI, SE. MT*. C.4 Guarantee that equality bodies ensure, where needed, confidentiality of witnesses and whistle-blowers, and as far as possible, of complainants . BE, CZ, DE, EE, EL, ES*, HR, IT, CY, LV, LT, LU, HU, MT, NL, AT, PT, SK, FI*, SE. BG, RO, SI, FI*. Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three equality bodies. Source: online survey conducted by VVA. Putting appropriate measures in place to ensure all victims have access to assistance provided by equality bodies is essential in order to fulfil the objectives of this intervention and also to guarantee the universal fundamental rights to which all victims are entitled to. In this respect, the measures listed are expected to address specific aspects of accessibility effectively. 69% of respondents to the open public consultation considered it very necessary to be able to submit easily; 22% considered this necessary. Compliance with accessibility requirements was considered very necessary by 62% of respondents; 25% rated it necessary. When asked about concrete measures to improve accessibility, respondents mentioned the following. Source: Open Public Consultation, N=178 (multiple replies allowed) Although not possible to quantify in exact terms, the expected costs for this area of possible measures vary significantly. While ensuring that equality bodies guarantee, where needed, confidentiality of witnesses and whistle-blowers, and as far as possible, of complainants, does not imply significant costs, mandatory physical representation throughout the territory may, depending on the structure and size of the Member State, be very costly. Under some circumstances, alternative measures to reach out to certain groups in certain areas may be more cost efficient, such as using already existing structures, for example local NGOs or mobile offices in buses. This view has been shared by stakeholders during consultation activities. Fostering public knowledge and awareness about equality and non-discrimination The possible measures listed in this section entail cooperation between relevant stakeholders, conducting analyses of the current state of play in terms of levels of discrimination in Member States based on reliable statistical data and providing advice based on this information. As regards cooperation and coordination, the current state of implementation of possible measures in the Member States is as follows. Measures The measures are already fully in place The measures are already partly in place The measures are not yet in place Cooperation and coordination D.1 Ensure that equality bodies cooperate and coordinate their actions with other equality bodies within the same Member State. All MS with several EBs (BE, ES, HR, IT, MT, AT, PT, FI) have some mechanisms in place, but the framework varies greatly. D.2 Ensure that equality bodies engage in dialogue exchange and cooperate with relevant public and private entities (including NGOs and trade unions). BE, BG, DK, DE, IE, EL, ES, FR, HR, IT, CY, LV, LT, MT*, NL, AT*, PL, PT, RO, SI, SK, FI*, SE. CZ, EE, LU, MT*, AT*, FI*. D.3 Ensure that equality bodies engage with international and supranational institutions and equality bodies from other countries. BE, BG, CZ, DK, DE, EE, IE, EL, ES, FR, HR, IT, CY, LV, LT, HU, MT, NL, AT, PL, PT, RO, SI, SK, FI, SE. LU. D.5 Ensure that equality bodies are consulted by the government, through timely and transparent procedures, on draft legislation related to equality/discrimination. BE, CZ, DK, DE, EL, ES*, FR, HR, IT, CY, LV, LT, HU, MT*, NL, PL, PT, RO, SI. FI*, SE. BG, EE, IE, LU, AT, SK. D.6 Ensure that equality bodies are consulted by the government and other institutions, through timely and transparent procedures, on legislation, policy, procedure, programmes, and practices related to equality/discrimination. Recommendations of equality bodies may be published BE, DK, HR*, IT, CY, LT, MT*, NL, PL, SE. BG, CZ, DE, EL, ES*, FR, LV, HU, PT, RO, FI*, SE. EE, IE, LU, MT*, AT, SK. Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three equality bodies. Source: online survey conducted by VVA. Ensuring cooperation and knowledge exchanges between equality bodies and other relevant stakeholders at national, EU and international level is expected to improve current practices in equality bodies and draw their attention to matters that may otherwise go unnoticed. It is also expected to increase the level of awareness about the existence of equality bodies due to engagement with a wider audience. As a result, more people will be reached, including both (potential) victims, duty bearers and (potential) perpetrators of discrimination. 43%, 55% and 42% of respondents to the open public consultation considered cooperation with national public authorities, national stakeholders and EU/international stakeholders very necessary; 38%, 29% and 38% respectively stated that it was necessary. Ensuring that equality bodies are consulted by governments and other institutions on a variety of matters related to discrimination would improve relevant public policy and legislation. This would help to create targeted, appropriate instruments that decrease levels of discrimination and increase public awareness of the problem. Due to their experience and insights, equality bodies are likely to have very valuable input in that regard. Increased cooperation may lead to increased costs through additional work; however, new synergies are also expected to lead to cost savings. Similarly, increased consultations of equality bodies create additional work, thus additional costs, but should lead to better law and policy making, which is expected to reduce levels of discrimination in the long run. The majority of equality bodies already publish an annual activity report, as outlined in the table below. Measures The measures are already fully in place The measures are already partly in place The measures are not yet in place Surveys and reports E.1 Ensure that equality bodies produce and make available to the public their annual activity reports. BE, BG, CZ, DK, DE, EE, IE, EL, ES*, FR, HR*, IT*, CY, LV, LT, LU, HU, MT, NL, AT, PL, PT, RO, SI, SK, FI, SE. ES*. Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three equality bodies. Source: online survey conducted by VVA. Conducting surveys and publishing reports on a regular basis is expected to help prevent discrimination by increasing public knowledge. Even though this increases costs in the short term, it is expected to lead to fewer cases of discrimination in the future, which means savings for equality bodies in the long term, and benefits for society more broadly.

Some of the measures proposed for the area of data collection are quite specific and are therefore not yet in place in any Member State; however, many Member States already ensure that equality bodies collect data on their activities, as illustrated in the table below. Measures The measures are already fully in place The measures are already partly in place The measures are not yet in place Data collection F.1 Ensure equality bodies collect data on their activities, disaggregated by grounds and fields covered by the directives, and in accordance with the indicators developed to monitor the implementation of the Directive. BE*, DE, EL, ES, HR, IT, CY, LV, LU, MT, NL, AT*, PT, RO, SI, SK, FI. BG, FR, LT, HU. EE, IE. Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three equality bodies. Source: online survey conducted by VVA. Common rules on data collection and access to statistical data for equality bodies for analytical purposes are key to improving statistical evidence on equality and non-discrimination and ensuring a proper analysis of relevant data. This is crucial in enabling policymakers to take well-founded, informed decisions; furthermore, it is essential for the public discourse and awareness to have reliable information on current levels of discrimination in Member States. Since equality bodies are experts in the field of equality and non-discrimination, they are expected to be able to conduct sound in-depth analyses if provided with the necessary data. Respondents to the open public consultation largely shared this view, 54% rated it very necessary and 27% considered it necessary. Increased data collection activities will require more resources and will therefore increase costs; however, they will also significantly contribute to increased knowledge about equality and non-discrimination, which is crucial in order to fulfil the objectives of the intervention. Monitoring and enforcement Since the possible measures for monitoring the implementation of the future directives are specifically connected to these directives, they cannot yet be in place in any Member State. However, equality bodies in many Member States have already implemented a related measure, namely strategic planning, as outlined in the table below. Strategic planning requires some resources, which means it will create costs; however, it should also lead to savings through better planning of activities. Furthermore, it is expected to result in more coherent action and enable a better policy steering through developing a long-term vision. Measures The measures are already fully in place The measures are already partly in place The measures are not yet in place Monitoring G.1 Ensure that equality bodies adopt a programme setting out their priorities and prospective activities. BE*, BG, CZ, DE, EE, IE, EL, ES, FR, HR, IT*, CY, LV, LT, HU, MT, NL, AT*, PT, SI, SK, FI, SE. LU. AT*, RO. Note: Entries marked with ‘*’ mean that this response was provided by only one of the equality bodies in countries that have two or three equality bodies. Source: online survey conducted by VVA. The retrospective analysis has shown that the basic monitoring system in the current Directives (e.g. an application report by the Commission based on the information provided by Member States) is not sufficient to ensure a thorough knowledge of the implementation of the provisions related to equality bodies. This is also an impediment to enforcing these provisions. Proper enforcement is, however, crucial in order for the proposed directives to achieve the desired results. A better monitoring system is expected to mitigate this situation. A large proportion of respondents to the open public consultation agree: 52% consider monitoring of the functioning of equality bodies across the EU very necessary; 27% stated it was necessary. There are several options for what such a monitoring system could look like. The first option would be that the Commission will monitor the implementation of the directives by publishing a report every five years, based on data from Member States (including equality bodies) collected in accordance with harmonised indicators drawn up after consulting all relevant stakeholders. The second option would be to put in place a system of accreditation through peer review, based on procedures and criteria agreed upon by Member States, within 5 years of the adoption of the Directive. The first option would create costs for equality bodies and Member States in collecting data according to a predefined list of indicators. It is however expected to also create synergies with other data collection activities and improve knowledge of the implementation of the Directives. For the second option, operational costs would depend on who carries out the accreditation procedure. For peer accreditation, significant additional costs for equality bodies can be expected. The measures envisaged in the area of enforcement - beyond the enforcement of the future Directives themselves (which is addressed under monitoring) - aim to ensure that actions taken by equality bodies within the limits of the powers attributed to them are enforceable and may be followed up on. One example is that, while this initiative does not intend to prescribe binding decision-making powers for equality bodies, in order to respect the principle of procedural autonomy, if Member States decide to attribute such powers to equality bodies, these should be enforceable. Similarly, equality bodies should be able to request feedback from the recipients on their opinions. Measures should be put in place to tackle non-compliance with the mandatory feedback requirement. While there are no direct costs associated to these measures, ensuring proper enforcement is generally regarded as a highly effective tool in ensuring that rules are complied with. Respondents to the open public consultation agreed with this view: 59% considered the enforcement of appropriate sanction very necessary, 22% stated it was necessary. However, this is a procedural area, where the autonomy of Member States has to be taken into account: the provisions should therefore leave Member States in charge of taking appropriate measures to that effect. Equality bodies should adopt an internal structure that guarantees the independent exercise of their powers, if they have various powers that could interfere with each other (e.g. powers to support victims and quasi-judicial powers). While this may lead to additional one-off and recurrent costs to put in place and keep an appropriate structure, it is needed to ensure equality bodies’ impartiality when taking binding-decisions and safeguard the procedural rights of those that are subject to such decisions. Independence, resources and structure This thematic area corresponds to the needs identified in operational objectives 1-3. The potential impacts generated by the possible measures under independence vary depending on the measure and on the structure(s) in place in each Member State. As outlined above, ensuring that equality bodies can carry out their tasks independently is a crucial prerequisite for their effectiveness. This has also been confirmed by stakeholders in consultation activities such as the open public consultation, the stakeholder survey and the participatory workshop. 73% of respondents to the open public consultation rated general independence of equality as very necessary, 16% considered it necessary. Measures to ensure equality bodies' independence, notably as regards their legal structure, accountability, budget, staffing and organisational matters, may lead to one-off costs for Member States depending on the current situation. There are several possible approaches to ensuring that equality bodies can act independently. The suitability and the impact of such measures may vary greatly between Member States, depending on their respective situation and system. Respondents to the open public consultation shared this view and expressed support for a variety of measures, as shown in the box below. Future provisions should nevertheless not be too prescriptive in order to respect the principle of procedural autonomy.

In your opinion, what are essential criteria to guarantee the independence of an equality body? Source: Open public Consultation, N=176 This is in principle also true for measures relating to resources. Ensuring that each equality body is provided with the human, technical and financial resources necessary to carry out all its tasks and exercise its powers effectively, in all the grounds and fields they cover is a crucial prerequisite for the effectiveness of equality bodies. At the same time, this entails increased costs, varying between Member States. These findings have been confirmed by stakeholders during consultation activities. 71% rated sufficient resources as very necessary, 19% considered it necessary. Similar points can be made about structure. If the equality body is part of a multi-mandate body, an internal structure to guarantee sufficient focus, independence and resources for the equality mandate is crucial so that it can exercise its tasks effectively. This may lead to one-off costs for putting a new structure in place in countries where this is currently not the case. Increased costs may also occur if increased resources are needed. As outlined above, this is however a crucial prerequisite for the effectiveness of equality bodies. The expansion of the equality mandate in multi-mandate bodies should not be done at the expense of the other mandates. 7.7. Preferred combination of measures This section presents the possible measures taken on board in the final Commission’s proposal and discuss the rationale behind this choice. The proportionality of the envisaged measures is described as well. The majority of measures presented in the previous section have been taken up in the final proposal. Stakeholders have expressed very strong and consensual support for an ambitious package of measures that will be fit to properly tackle all the objectives identified for this intervention.



Overview of the preferred combination of measures A. Measures addressing mandate 1 Entrust equality bodies with the grounds covered by the Employment Equality Directive: religion or belief, sexual orientation, age and disability in the field of employment and occupation. 2 Entrust equality bodies with the field covered by the Gender Equality Directive in the field of social security. B. Measures addressing powers 1 Ensure that equality bodies can receive individual and collective complaints and provide relevant information and advice as part of their assistance to victims. 2 Ensure that equality bodies have the possibility to provide or recommend amicable settlement mechanisms. 3 Ensure that equality bodies can submit oral or written statements (i.e. amicus curiae) to the courts in individual and collective discrimination cases. 4 Allow equality bodies to litigate, in their own name, on behalf or in support of one or several victim(s), with their approval, even in the absence of identified victim(s). 5 Ensure that equality bodies have effective rights to access information which is necessary to establish whether discrimination has occurred (investigation powers). 6 Require that Member States adopt a strategy to raise awareness of the general population, with particular attention to individuals and groups at risk of discrimination, on the rights under the Equality Directives and the existence of equality bodies. 7 Ensure that, when equality bodies issue decisions or opinions on a case, they include measures to prevent (re)occurrences of discrimination as part of the outcome, where relevant. 8 Ensure that equality bodies publish a summary of their opinions/decisions without disclosing personal data. C. Measures addressing access and accessibility 1 Ensure that there are no barriers to complaint submission to an equality body (providing different means of submission), that there is access to equality bodies outputs, procedures, and services on equal basis for all, including for persons with disabilities. 2 Ensure that equality bodies provide their services to complainants free of charge. 4 Guarantee that equality bodies ensure, where needed, confidentiality of witnesses and whistle-blowers, and as far as possible, of complainants. 6 Ensure that equality bodies’ services are available to all potential victims throughout the territory of their Member States. D. Measures addressing cooperation and coordination 1 Ensure that equality bodies cooperate and coordinate their actions with other equality bodies within the same Member State. 2 Ensure that equality bodies engage in dialogue exchange and cooperate with relevant public and private entities (including NGOs and trade unions). 3 Ensure that equality bodies engage with international and supranational institutions and equality bodies from other countries. 4 Ensure that equality bodies to promote equality duties and mainstreaming among public and private entities/sectors. 5 Ensure that equality bodies are consulted by the government, through timely and transparent procedures, on draft legislation related to equality and non-discrimination. 6 In addition to legislation as referred to above, ensure that equality bodies are consulted by the government and other institutions, through timely and transparent procedures, on policy, procedure, programmes, and practices related to equality and non-discrimination. Recommendations of equality bodies may be published. Ensure that equality bodies have the right to make recommendations on those matters, to publish them and to require feedback. E. Measures addressing surveys and reports 1 Ensure that equality bodies produce and make available to the public their annual activity reports. 2 Require equality bodies to publish a report, with recommendations, at least every four