REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the application of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘the Racial Equality Directive’) and of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (‘the Employment Equality Directive’)
Date: 2021-03-19
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: age discrimination, application of EU law, discrimination based on disability, discrimination on the basis of sexual orientation, equal treatment, ethnic discrimination, gender mainstreaming, harassment at work, racial discrimination, religious discrimination, sexual discrimination

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 19.3.2021  COM(2021) 139 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the application of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘the Racial Equality Directive’) and of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (‘the Employment Equality Directive’)              {SWD(2021) 63 final}  
 
 
1. 

INTRODUCTION 

Equality is one of the EU’s founding values1. The Commission has taken important steps 
to promote and mainstream it and build a true Union of equality. With the support of its 
internal  Task  Force  on  Equality,  created  in  2019,  the  Commission  is  integrating  an 
equality dimension in all EU policies and major initiatives. To take recent examples, the 
2020-2025 gender equality strategy2, the 2020-2025 EU anti-racism action plan3, the new 
Roma  strategic  framework  for  equality,  inclusion  and  participation4,  the  2020-2025 
LGBTIQ equality strategy5, the EU Strategy to strengthen the application of the Charter6, 
the  2021-2030  strategy  for  the  rights  of  persons  with  disabilities7  and  the  action  plan 
implementing  the  European  Pillar  of  Social  Rights8  all  stress  the  importance  of 
preventing  and  tackling  discrimination  (e.g. by  fighting  stereotypes  and  biases), 
enforcing EU law and principles in this field and improving data collection. 

This report focuses on the application of two EU Directives on equality: 

 

 

the Racial Equality Directive9, which requires that people be treated equally in 
the  areas  of  employment  and  vocational  training,  education,  social  protection 
including  social  security,  social  advantages,  access  to  and  supply  of  goods  and 
services (including housing) regardless of their racial and ethnic origin; and 

the  Employment  Equality  Directive10,  which  requires  that  people  be  treated 
equally  in  employment  and  vocational  training  regardless  of  their  religion  or 
belief, disability, age and sexual orientation.  

1   Article 2 of the Treaty on European Union. Article 10 of the Treaty on the Functioning of the European 
Union provides: ‘In defining and implementing its policies and activities, the Union shall aim to combat 
discrimination  based  on  sex,  racial  or  ethnic  origin,  religion  or  belief,  disability  age  or  sexual 
orientation’. 
2   COM(2020) 152 

https://ec.europa.eu/info/policies/justice-and-fundamental-rights/gender-

final; 

equality/gender-equality-strategy_en   

3   COM(2020) 565 

final;  https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-

discrimination/racism-and-xenophobia/eu-anti-racism-action-plan-2020-2025_en 

4   See  full  package  at:  https://ec.europa.eu/info/publications/new-eu-roma-strategic-framework-equality-

inclusion-and-participation-full-package_en 

5   COM(2020) 698 

final;  https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-

discrimination/lesbian-gay-bi-trans-and-intersex-equality/lgbtiq-equality-strategy-2020-2025_en 

6    COM(2020) 711  final;  https://ec.europa.eu/info/aid-development-cooperation-fundamental-rights/your-

rights-eu/eu-charter-fundamental-rights/application-charter/eu-strategy-strengthen-application-
charter_en. The EU Charter, in its Article 21(1), provides the following: ‘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 shall be prohibited’. 

7   COM(2021)101 final; 
   https://ec.europa.eu/social/main.jsp?catId=738&langId=en&pubId=8376&furtherPubs=yes 
8   COM(2021)102 

https://ec.europa.eu/info/european-pillar-social-rights/european-pillar-social-

final 

rights-action-plan_en  
In addition to all initiatives mentioned in the list, an EU Strategy against antisemitism is announced to 
be adopted by the Commission in 2021. 

9   Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between 

persons irrespective of racial or ethnic origin (OJ L 180, 19.7.2000, p. 22).  

10   Council  Directive  2000/78/EC  of  27  November  2000  establishing  a  general  framework  for  equal 

treatment in employment and occupation (OJ L 303, 2.12.2000, p. 16). 

1 

 
 
 
 
 
 
 
                                                 
Both Directives require the Commission to report every five years on their application11. 
Since 2014, the Commission has opted to provide a joint report on these two Directives, 
as their regulatory approach and the content of many of their provisions are identical. 

In  order  to  have  a  good  understanding  of  the  situation  on  the  ground,  the  Commission 
regularly  conducts  ‘Eurobarometer’  opinion  surveys  on  discrimination  in  the  EU12. 
Surveys from the European Union Agency for Fundamental Rights (FRA) also produce 
useful figures and information on trends13.  

There  seems  to  be  a  general  sentiment  that  little  progress  has  been  made  in  the  fight 
against discrimination since 2014. The general population recognises that discrimination 
is  widespread  in  the  EU14  and  discrimination  is  also  experienced  frequently  in  most 
Member States. Surveys found that almost one in four people from ethnic or immigrant 
minority groups (24%) had felt discriminated against in the previous 12 months in one or 
more areas of daily life because of their background15. In a 2019 Eurobarometer survey, 
about one in five respondents (21%) who had felt discriminated against on one or more 
grounds in  the previous  12 months said  that this had happened at  work  and 13% when 
looking for work16.  

Against this background, it is crucial that the legislation based on EU non-discrimination 
rules is properly enforced at national level17. Following on from previous reports on the 
application of the Directives in 200618, 200819 and 201420, this report: 

  assesses the current situation and developments since 2014; 

 

identifies the main issues and challenges stemming from developments in the area 
of non-discrimination; 

  highlights a number of good practices and initiatives; 

  shows how cases before the Court of Justice of the European Union (CJEU) have 

clarified how the Directives should be interpreted;  

11   Article 17 of Directive 2000/43/EC and Article 19 of Directive 2000/78/EC. 
12   Most recently, Special Eurobarometer 493 on Discrimination in the EU (October 2019); 

https://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/Survey/getSurveyDetail/instruments/SP
ECIAL/surveyKy/2251 

13   This  report  mainly  draws  on  survey  data  from  the  2019  Eurobarometer  and  various  FRA  surveys, 

dating from before the COVID-19 crisis. 

14   2019 Eurobarometer. For instance, 59% of Europeans believe discrimination based on ethnic origin is 
widespread in their country (compared to 64% in 2015). For sexual orientation, religion, disability and 
age, the numbers are 53%, 47%, 44% and 40% respectively. 

2017); 

15   Second  European  Union  minorities  and  discrimination  survey  —  main  results  (FRA  EU-MIDIS II 
https://fra.europa.eu/en/publication/2017/second-european-union-minorities-and-

Survey, 
discrimination-survey-main-results  
FRA  data  from  2008  showed  that  about  one  in  three  (30%)  felt  discriminated  against  in  these  areas 
because of their ethnicity. 

16   2019 Eurobarometer. Many respondents felt that discrimination persists in recruitment  – as a result of 
being  considered  too  young  or  too  old  (47%),  disability  (41%),  being  Roma  (38%),  ethnic  origin  in 
general (32%), expressing a religious belief (28%), sexual orientation (22%). 

17   The  Commission  received  a  number  of  complaints  by  citizens,  the  great  majority  of  which  concern 
individual  cases  of  alleged  discrimination  rather  than  a  Member  State’s  incorrect  transposition  or 
application of the Directives. In such cases, remedies must primarily be sought at national level. 

18   COM(2006) 643 final (on the Racial Equality Directive). 
19   COM(2008) 225 final (on the Employment Equality Directive). 
20   COM(2014) 2 final (joint report on the two Directives). 

2 

 
 
 
                                                 
 
 
 

looks  into  the  implementation  of  the  Commission’s  2018  Recommendation  on 
standards  for  equality  bodies21,  in  line  with  the  LGBTIQ  equality  strategy,  the 
Roma  strategic  framework  for  equality,  inclusion  and  participation  and  the  EU 
anti-racism action plan (see in particular the annex on equality bodies); 

  presents,  as  indicated  in  the  EU  anti-racism  action  plan,  potential  gaps  in  the 

protection offered by the Racial Equality Directive. 

The  report  builds  on  information  sent  to  the  Commission  by  Member  States22  and 
consultations  with  the  European  Network  of  Equality  Bodies  (Equinet)23,  the  FRA24, 
social  partners25  and  civil  society  organisations26.  It  also  draws  on  the  Commission’s 
work in helping with the application of the Directives27 and on relevant publications28. It 
takes due account of relevant European Parliament resolutions29 and studies30. 

2. 

ISSUES COMMON TO BOTH DIRECTIVES 

The  Directives  contain  similar  provisions  on  the  concept  of  discrimination  and  on 
remedies and enforcement.  

Most Member States and stakeholders consulted did not highlight any major difficulties 
regarding the interpretation of those provisions. However, some indicated that a number 
of issues (continue to) pose challenges31, in particular as regards: 

 

 

the scope of the concept of ‘discrimination’ (see Section 2.1.); and  

the enforcement of rights (see 2.2.), e.g. when it comes to:  

21   C(2018) 3850 final.  
22   Article 17 of the Racial Equality Directive and Article 19 of the Employment Equality Directive require 
the  Member  States  to  communicate  to  the  Commission  every  5  years  all  the  information  it  needs  to 
draw up a report.  All but two Member States (HR and SE) replied to the dedicated questionnaire the 
Commission had sent out for this purpose. No questionnaire was addressed to the United Kingdom. 

23   For Equinet’s input, based on replies to a questionnaire sent to all national equality bodies, see:  

https://equineteurope.org/2020/a-perspective-from-the-work-of-equality-bodies-on-european-equality-
policy/  

24   Referred to in this report as ‘FRA’s submission’. 
25   A contribution was received from BusinessEurope. 
26   Contributions  were  received  from  Age  Platform  Europe,  Amnesty  International,  European  Disability 

Forum, European Roma Rights Centre and European Union of the Deaf. 

27   Such as responding to complaints  from individuals, petitions and  written questions in particular from 
the  European  Parliament  and  organising  the  work  of  the  High  Level  Group  on  Non-Discrimination, 
Equality  and  Diversity  including  its  Subgroup  on  Equality  Data  (in  which  the  Commission  brings 
together officials of Member  States and the European Economic  Area countries  in order to exchange 
information  and  views  on  policy  developments  in  the  areas  of  non-discrimination,  equality  and 
diversity). 

28   Including by the European Network of Legal Experts in the Non-Discrimination Field, which assists the 

Commission in the field of anti-discrimination law; see https://www.equalitylaw.eu/publications 

29   E.g. own-initiative  Resolution  of  15  September  2016  on  the  application  of  Directive 2000/78/EC 
(P8_TA-PROV(2016)0360); Resolution of 10 March 2021 on the implementation of Council Directive 
2000/78/EC  establishing  a  general  framework  for  equal  treatment  in  employment  and  occupation  in 
light of the UNCRPD (P9_TA-PROV(2021)0075). 

30   Tymowski,  J.,  The  Employment  Equality  Directive  —  European  implementation  assessment  (2016), 
https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU(2016)536346; 
Anglmayer,  I.,  ‘Implementation  of  the  Employment  Equality  Directive  in  light  of  the  UN  CRPD  - 
European Implementation Assessment’, 2020, at: 
https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU(2020)654206) 
31   This  was  confirmed  by  evaluations  of  national  anti-discrimination  legislation.  Such  evaluations  took 

place in BE, DE, FR, NL, AT, PL, SK, FI and SE. 

3 

 
 
                                                 
o 

reporting complaints (see 2.2.1.); 

o  proving a case (see 2.2.2.);  

o  being protected against victimisation (see 2.2.3.); and  

o  applying adequate sanctions (see 2.2.4.).  

Awareness-raising  and  dialogue  with  social  partners  and  civil  society  organisations  are 
key  for  the  effective  implementation  of  the  Directives  (see  2.3).  The  work  of  national 
equality bodies (see 2.4.) and the availability of equality data (see 2.5.) are cross-cutting 
issues,  crucial  for  assisting  victims  of  discrimination  and  supporting,  monitoring  and 
promoting equality and non-discrimination law. 

2.1.  The concept of ‘discrimination’ 

The  concept  of  ‘discrimination’  covers  direct  and  indirect  discrimination,  and  includes 
harassment32. 

Some stakeholders point to a limited awareness and application of indirect discrimination 
in domestic judicial practice. In addition, some Member States stress that national courts 
pay insufficient attention to harassment on grounds other than sex. 

Recent  CJEU  case  law  has  provided  useful  clarifications  on  the  concept  of  indirect 
discrimination33.  The  European  Network  of  Legal  Experts  in  the  Non-Discrimination 
Field will issue a report on the application of this concept in 2021, updating its previous 
(2008) report34. 

The  CJEU  has  not  yet  ruled  on  the  interpretation  (and  the  boundaries)  of  harassment 
under the two Directives. In national (case) law, the concept is used in relation to several 
types  of  conduct,  including  physical  and  psychological  violence,  intimidation,  bullying 
and hate speech35.  In some EU countries, the  concept  seems  underexplored by national 
courts. 

In relation to the concept of ‘discrimination’, the CJEU provided useful clarification on 
various situations or concepts: 

  discrimination on a combination of grounds – In 2016, the CJEU acknowledged 
that  ‘discrimination  may  indeed  be  based  on  several  of  the  grounds’  protected 
under  EU  law.  Nevertheless,  it  also  held  that  ‘…  no  new  category  of 
discrimination resulting from the combination of more than one of those grounds 

32   See  Article 2(2)(a) and (b) of each Directive on direct and indirect discrimination and Article 2(3) on 
harassment.  The  Directives  allow  for  harassment  to  be  defined  in  accordance  with  national  laws  and 
practices.  To  establish  discrimination  (including  harassment),  it  is  not  necessary  to  demonstrate 
intention; this is generally applied at national level. 

33   Judgment of 16 July 2015 in ‘CHEZ Razpredelenie Bulgaria’ AD (C-83/14, EU:C:2015:480); judgment 

of 14 March 2017 in Achbita (C-157/15, ECLI:EU:C:2017:203). 

34   https://www.migpolgroup.com/_old/portfolio/limits-and-potential-of-the-concept-of-indirect-

discrimination/ 

35   In  some  EU  countries,  a  repetition  of  acts  may  be  required  to  establish  harassment.  One  country  has 
reported  about  the  concept  of  psychological  harassment  (at  work)  referring  to  a  process  comprising 
several behaviours spanning over a specific period of time. Another country has reported national law 
on  harassment  relating  to  the  grounds  covered  by  the  two  Directives  requiring  a  repetition  of  acts 
(contrary to sexual harassment, which would require only one act). 

4 

 
 
                                                 
… may be found to exist where discrimination on the basis of those grounds taken 
in isolation has not been established’36. 

Since  ‘intersectional  discrimination’  is  about  discrimination  based  on  an 
inseparable  combination  of  protected  grounds,  rather  than  one  of  the  grounds 
taken  separately,  the  Court  did  not  recognise  intersectional  discrimination  as  a 
protected ground, as it currently has no clear legal basis in the Directives37. Some 
stakeholders nevertheless stressed the importance of both intersectionality and the 
need to fight multiple discrimination more effectively38.  

The  Commission  acknowledged  the  importance  of  intersectional  discrimination 
and the need to address this phenomenon in all its equality strategies39. It has also 
offered  its  support  for  the  effective  recognition  of  multiple  discrimination  at 
national  level  by  commissioning  studies40  and  co-organising  a  seminar  where 
government  officials  were  able  to  explore  challenges  and  good  practices  in 
addressing it in legislation and policymaking41; 

 

‘discrimination  by  association’  (where  a  person  or  group  is  disadvantaged 
because of their association with a person or group who possesses the protected 
characteristic)  –  The  CHEZ  case  showed  that  a  person  who  was  not  of  Roma 
origin  could  benefit  from  protection  even  though  she  was  not  ‘a  member  of  the 
[protected]  group  concerned’,  but  ‘nevertheless  suffer[ed]  less  favourable 
treatment or a particular disadvantage on one of those grounds’42. It follows from 
the case that a finding  of discrimination  does not  depend on the existence of an 
intimate  or  close  relationship  between  the  alleged  victim  and  the  group  with 
which he or she is associated43. Many Member States indicate that discrimination 
by association is covered in national (case) law. 

The CJEU has yet explicitly to address the issue of ‘discrimination by perception’ 
or ‘discrimination by assumption’, i.e. when the different treatment follows from 
an incorrect belief or an incorrect perception that a person -himself or herself- has 
one  of  the  protected  characteristics.  In  several  EU  countries,  although  fewer 
compared to discrimination by association, there is an explicit protection against 
discrimination by assumption provided for in national (case) law. 

36   Judgment of 24 November 2016 in David L. Parris (C-443/15, EU:C:2016:897), paragraph 80. 
37   Discrimination may be based on one protected characteristic or on a combination of (multiple) grounds 
operating separately (‘additive discrimination’) or interacting with each other at the same time in such a 
way that they are inextricable (‘intersectional discrimination’).  
has 
The  European 
(https://eige.europa.eu/thesaurus/terms/1297) 
(https://eige.europa.eu/thesaurus/terms/1492). 
Recital  3  of  the  Employment  Equality  Directive  and  recital  14  of  the  Racial  Equality  Directive 
acknowledge the existence of ‘multiple discrimination’. 

discrimination’ 
‘intersectionality’ 

for  Gender  Equality 

‘multiple 

Institute 

defined 

and 

38   Some Member States (e.g. DK, EL and ES) referred to studies and surveys on this issue. 
39   For an overview, see the first paragraph of this report. 
40   See,  for  example:  https://www.equalitylaw.eu/downloads/3850-intersectional-discrimination-in-eu-

gender-equality-and-non-discrimination-law-pdf-731-kb 

41   The  seminar  was  organised  in  cooperation  with  the  Greek  Ministry  of  Labour,  Social  Security  and 
the  EU  High-Level  Group  on 

the  members  of 

Social  Solidarity  and  brought 
Non-Discrimination, Equality and Diversity on the issue. 

together 

42   CHEZ judgment (footnote 33), paragraphs 49 and 56, citing judgment of 17 July 2008 in  S. Coleman 

(C-303/06, ECLI:EU:C:2008:415). 

43   Despite  recognising  discrimination  by  association,  some  national  practices  may  still  be  restrictive  on 

this specific point. 

5 

 
 
                                                 
 
 
2.2.  Remedies and enforcement 

2.2.1.

  Defence of rights 

Under the Directives, Member States have to provide all those who consider themselves 
to be victims of discrimination with adequate means of legal protection44. 

Besides  general  awareness-raising  campaigns  on  non-discrimination,  several  Member 
States  have  indicated  specific  initiatives  to  facilitate  reporting.  Some  are  aimed  at 
alleviating the financial burden of proceedings, e.g. by: 

 

reducing court fees for discrimination cases45; 

  creating tax incentives46; and  

  setting up funds that provide victims of discrimination with advance coverage of 

legal costs47.  

Other good practices include: 

  enabling online reporting48;  

 

improving 
intermediary or community organisations49;  

the  capacity  and  accessibility  of 

local  authorities  and 

local 

  setting up easily accessible dispute settlement bodies50;  

  providing for specialised legal advice clinics;51 and  

  establishing networks of police officers and magistrates trained in discrimination 

issues52.  

Reporting  on  discrimination  and  the  number  of  complaints  increased  slightly  since  the 
2014 report53, but under-reporting remains a problem. Surveys show that those who felt 
discriminated  against  would  not  easily  report  the  incident54.  As  a  consequence,  many 

44   See  Article  7(1)  of  the  Racial  Equality  Directive  and  Article  9(1)  of  the  Employment  Equality 
Directive.  In  all  Member  States,  discrimination  disputes  can  be  brought  to  court.  In  some,  cases  can 
also  be  treated  by  non-judicial  or  quasi-judicial  procedures,  e.g. through  the  intervention  of 
inspectorates  or  specialised  bodies,  such  as  ombudspersons,  National  Human  Rights  Institutions 
(NHRIs) or equality bodies. Some Member States also propose mediation and conciliation. 

45   E.g. CZ and DK. 
46   E.g. BE and RO. 
47   E.g. IT. 
48   E.g. FR. 
49   E.g. BE and FI. 
50   E.g. in July 2017, Lithuania established a labour dispute commission that can hear labour disputes on 

discriminatory grounds in an easily accessible, not over-formal and quick procedure. 

51   E.g. IE. A legal clinic is a place where one can obtain legal advice and assistance, paid for by legal aid. 
52   E.g. FR. 
53   FRA’s submission. 
54   For instance, 14% of LGB respondents to FRA’s 2018 EU LGBTI II survey reported the last incident of 
discrimination 
at: 
https://fra.europa.eu/en/project/2018/eu-lgbti-survey-ii).  The  FRA  EU-MIDIS  II  Survey  showed  that 
12%  of  those  who  felt  discriminated  against  on  grounds  of  racial  or  ethnic  origin  reported  the  most 
recent incident of discrimination to anybody. Based on the EU-MIDIS II survey, most complaints were 
made to an employer (36%), some 13% of incidents were reported to trade unions and staff committees 
and 17% to the police when related to entering a night club or a bar. Only 4% of reports were made to 

employment 

submission; 

anybody 

(FRA’s 

also 

and 

see 

to 

in 

6 

 
 
                                                 
 
incidents may pass ‘under the radar’, leaving victims without any form of redress55. This 
negatively affects  access to  justice, as  well as the effectiveness  of the Directives, more 
generally. While many Member States point to the important work of equality bodies at 
national and local level to tackle discrimination and address underreporting, few people 
would, according to the surveys, report an incident of discrimination to such bodies56.  

Reasons for not reporting cases of discrimination may include57: 

  doubt that there are serious chances of success; 
  unawareness of rights and/or of the existence of equality bodies58; 

  difficulties to provide evidence; and/or  

 

fear of retaliation.  

Other  concrete  problems  that  may  hamper  access  to  justice59  (which  particularly  affect 
the most vulnerable or marginalised groups), include: 

 

 

short legal time limits for bringing action; 

the costs, complexity and length of proceedings; 

  uncertainty as to the outcome of the case; and  

 

the prospect of a low level of compensation60. 

Organisations  such  as  trade  unions  and  equality  bodies  can  help  victims  to  seek 
individual  redress,  especially  when  they  have  legal  standing61.  They  can  also  play  an 

an equality body. Similarly, findings of the 2019 FRA Roma and Travellers Survey (undertaken in six 
countries)  show  that  only  about  5%  of  respondents  who  felt  discriminated  against  reported  the  last 
incident  to  an  equality  body.  One  out  of  six  Roma  and  Travellers  (17%)  reported  it  to  the  police 
(https://fra.europa.eu/en/project/2018/roma-and-travellers-survey-2018-2019).  According  to  the  2019 
Fundamental Rights Survey, 9% of general population respondents reported the most recent incident of 
discrimination in employment on any ground. Of those respondents who reported such incidents, 12% 
reported to an equality body or national human rights institution and 24% to a trade union.  The 2019 
Eurobarometer (targeting the  general population)  found that 12% of respondents,  when  discriminated 
against,  would prefer  to report discrimination on any of the  grounds  surveyed to an equality body or 
ombudsperson. 35% would prefer to report to the police and 20% to a friend or family member.  

55   The right to an effective remedy is provided for in Article 47 of the EU Charter on Fundamental Rights. 
56   See footnote 54. 
57   It follows from several FRA surveys that the main reason for not reporting a discriminatory incident is 

the belief that nothing would happen or change as a result (FRA’s submission). 

58   On information and rights’ awareness, see Chapter 2.3.1.  
59   To improve access to justice throughout the EU, the Commission has set up a European e-justice portal 

to  overcome 

(https://e-justice.europa.eu/home.do). 
See  also  the  annex  to  the  2014  report:  Know  your  rights  —  guidance  to  victims  of  discrimination;  
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014SC0005&from=EN 
On FRA’s work on clarifying obstacles to access to justice and on providing evidence-based advice on 
how 
them,  see  https://fra.europa.eu/en/themes/justice-victims-rights-and-judicial-
cooperation 
60   See point 2.2.4. 
61   ‘Legal standing’ refers to the right or ability to bring a legal action to a court of law or to appear in a 
court. Under Article 7(2) of the Racial Equality Directive and Article 9(2) of the Employment Equality 
Directive,  associations,  organisations  or  other  legal  entities  with  a  legitimate  interest  in  combating 
discrimination  should  be  allowed,  with  the  approval  of  the  complainant,  to  engage  in  discrimination 
disputes on behalf or in support of the  complainant.  Member States have discretion in setting criteria 
and conditions for the legal standing of those entities and the legal frameworks vary among countries. 

7 

 
 
                                                                                                                                                 
important  role  in  supporting  ‘strategic  litigation’62  and/or  seeking  collective  redress63, 
particularly as the CJEU has long recognised that  EU law also  prohibits  discrimination 
where there is no identifiable individual victim64, e.g. in the case of an employer’s public 
statement of an intent to discriminate65.  

Some Member States reported that organisations’ legal standing plays a decisive role in 
cases  of  collective  discrimination  harming  people  who  are  not  directly  or  immediately 
identifiable66.  Some equality bodies or organisations assisting victims of discrimination 
have also brought cases before the CJEU. 

2.2.2.

  Burden of proof 

To ease the challenges faced in  proving discrimination claims67, the  Directives provide 
for a shift in the burden of proof68. Where a complainant establishes facts from which a 
prima  facie  case  of  discrimination  can  be  presumed,  it  falls  to  the  respondent  to  prove 
that there has been no breach of the principle of equal treatment69. 

Some  Member  States’  higher  courts  provided  clarification  in  this  area70  and  other 
Member  States  amended  their  legislation71.  However,  some  stakeholders  reported  that 
national courts still do not always apply the rules correctly or consistently, and standards 
of proof may vary in practice. 

There  are  some  situations  in  which  it  is  especially  difficult  to  establish  prima  facie 
evidence, e.g. for claims of indirect discrimination, where the claimant needs to establish 
facts  from  which  it  can  be  presumed  that  a  certain  measure  or  practice,  which  seems 
neutral,  puts  certain  persons  at  a  particular  disadvantage  compared  to  others.  The 
collection  of  such  facts  is  even  more  complicated  where  the  alleged  discrimination 
follows  from  the  use  of  artificial  intelligence72.  Moreover,  even  where  indirect 

62   ‘Strategic litigation’ refers to the use of litigation strategies to elicit social, legal or policy change and is 

often carried out by civil society organisations and/or lawyers as a form of activism. 

63   ‘Collective redress’ refers to a legal mechanism that:  

(i)  allows two or more natural or legal persons, or an entity entitled to bring a representative action, 

collectively to claim cessation of illegal behaviour; 

(ii) allows  two  or  more  natural  or  legal  persons  claiming  to  have  been  harmed  in  a  mass  harm 
situation,  or  an  entity  entitled  to  bring  a  representative  action,  collectively  to  claim 
compensation.  

See  Commission  Recommendation  2013/396/EU  on  common  principles  for 
injunctive  and 
compensatory  collective  redress  mechanisms  in  the  Member  States  concerning  violations  of  rights 
granted under Union Law (OJ L 201, 26.7.2013, p. 60). 

64   Organisations acting in the public interest on their own behalf may bring actio popularis claims without 

a specific victim to support or represent. 

65   See judgment of 10 July 2008 in Feryn (C-54/07, ECLI:EU:C:2008:397), paragraph 15. 
66   E.g. IT. 
67   Claimants  would  have  to  establish  not  only  that  they  were  treated  unfavourably,  but  also  that  a 

protected characteristic was the reason for such treatment. 

68   Article  8  of  the  Racial  Equality  Directive  and  Article  10  of  the  Employment  Equality  Directive.  The 
reversed  burden  of  proof  applies  to  any  judicial  and/or  administrative  procedure  (regardless  of  who 
brings the case) and to all forms of discrimination covered by the Directives. 

69   For CJEU case law on the matter, see the 2014 report. 
70   E.g. as reported by CZ, IT and HU. 
71   E.g. BE, BG, ES, FR, SI, SK and FI. 
72   Several Member States (e.g. BE, DK, DE, FR, LT and NL) pointed to risks of discrimination stemming 
from the use of  AI.  AI systems can be opaque  and very complex, thus  hampering access to evidence 
and,  more  generally,  the  verification  of  compliance  with  non-discrimination  legislation;  see  the 
Commission’s  white  paper  on  Artificial  intelligence  —  a  European  approach  to  excellence  and  trust 

8 

 
 
                                                 
 
discrimination  can  be  established  on  the  basis  of  statistical  evidence73,  stakeholders 
pointed to difficulties in the availability and accessibility of relevant statistical data, and 
how courts take them into account. 

2.2.3.

  Victimisation 

National  legal  systems  have  to  ensure  protection  against  victimisation74  and  offer 
adequate legal measures against retaliation; this is vital for the effective implementation 
of the right not to be discriminated against75. 

However,  in  a  few  Member  States,  such  protection  seems  to  be  limited  in  practice.  It 
appears that protection against victimisation applies mainly in the field of employment. 
Member  States  have  different  legal  requirements  when  it  comes  to  determining  who  is 
entitled  to  protection  –  some  cover  claimants,  victims  and  witnesses  only,  while  the 
CJEU  extends  protection  to  anyone  who  could  be  affected  by  the  reaction  of  the  party 
subject to a complaint or to proceedings76. Other Member States reported a broad scope 
of protection at national  level, e.g. covering individuals other than the victim77, such as 
witnesses, those helping or supporting the victim, anyone treated less favourably because 
of  a  refusal  to  discriminate,  and  people  who  suffer  victimisation  by  presumption  or 
association78. 

The Commission monitors the implementation of the victimisation provision in the light 
of the CJEU’s Hakelbracht judgment79. The infringement proceedings80 launched against 
Belgium  for  not  correctly  transposing  that  provision  (among  others)  in  both  Directives 

(COM(2020) 65 
final). 
https://ec.europa.eu/info/sites/info/files/commission-white-paper-artificial-intelligence-feb2020_en.pdf 
73   Recital 15 of the Racial Equality Directive says that rules of national law or practice ‘… may provide in 
particular for indirect discrimination to be established by any means including on the basis of statistical 
evidence’. For more on equality data collection, see Section 2.5. 

74  This  means  Member  States  have  to  protect  individuals  from  any  adverse  treatment  or  adverse 
consequence  as  a  reaction  to  a  complaint  or  to  proceedings  aimed  at  enforcing  compliance  with  the 
principle of equal treatment.  

75   Article  9  and  recital  20  of  the  Racial  Equality  Directive;  Article  11  of  the  Employment  Equality 

Directive. 

76   In relation to Article 24 on victimisation of Directive 2006/54/EC of the European Parliament and of 
the  Council  of  5  July  2006  on  the  implementation  of  the  principle  of  equal  opportunities  and  equal 
treatment of men and women in matters of employment and occupation (OJ L 204, 26.7.2006, p. 23), 
the CJEU issued an interpretation – that may be relevant for the understanding of ‘victimisation’ in both 
Directives – clarifying that ‘… the category of employees who are entitled to the protection … must be 
interpreted broadly and include all employees who may be subject to retaliatory measures taken by an 
employer  in  response  to  a  complaint  of  discrimination …,  without  that  category  being  otherwise 
delineated ... Article 24 does not limit the protection solely to employees who have lodged complaints 
or  their  representatives,  or  to  those  who  comply  with  certain  formal  requirements  governing  the 
recognition of a certain status, such as that of a witness’. See judgment of 20 June 2019 in Hakelbracht 
and Others (C-404/18, ECLI:EU:C:2019:523), paragraphs 26-30. 

77   E.g. BG, DE, EE, IT, LT, PL and SI. 
78   E.g. in  Bulgaria  (2004  Protection  Against  Discrimination  Act,  Additional  Provision  §1.3.), 

victimisation is defined as:  

a)   less  favourable treatment of a person  who  has taken, is presumed to have taken or is likely to 

take any action for protection against discrimination;  

b)  less  favourable  treatment  of  a  person  where  a  person  associated  with  them  has  taken,  is 
presumed to have taken or is likely to take any action for protection against discrimination; or 

c)   less favourable treatment of a person who has refused to discriminate. 

79   Hakelbracht judgment (footnote 76). 
80   Cited in the 2014 report. 

9 

 
 
                                                                                                                                                 
were later closed, but another procedure is still ongoing in relation to a similar provision 
in Directive 2006/54/EC81. 

2.2.4.

  Sanctions 

Member  States  must  provide  for  effective,  proportionate  and  dissuasive  sanctions 
applicable to  breaches  of national  provisions  prohibiting discrimination  in line with the 
Directives82. The Directives do not prescribe specific measures and allow Member States 
to decide on suitable remedies for achieving the objectives pursued83. Depending on the 
legal  avenue  chosen,  these  can  take  various  forms,  such  as  a  fine,  compensation,  an 
injunction  for  the  wrongdoer  to  perform  or  refrain  from  certain  action,  publicising  the 
wrongdoing, requiring an apology or imposing criminal sanctions84. 

The CJEU has issued guidance on how to interpret the legal requirements on sanctions, in 
particular: 

 

remedies must: 

o 

respect the principle of proportionality; 

o  guarantee real and effective judicial protection85; and 

o  ensure a genuinely deterrent effect and prevent further discrimination; this 
involves imposing penalties even in the absence of an identifiable victim86; 

  any pecuniary reparation must be: 

o  adequate in relation to the loss and damage sustained;  

o  not subject to a pre-determined upper limit87; and 
  a purely symbolic sanction cannot be considered sufficient88. 

In  practice,  some  difficulties  in  the  implementation  of  the  Directives  seem  to  persist, 
e.g. in  relation to  compensation  ceilings and  cases without  an identifiable victim. Some 
national courts tend to establish rather moderate levels of damages, favour non-monetary 
compensation  or  offer  amounts  of  compensation  at  the  lower  end  of  the  scale.  Such 
tendencies may discourage victims from taking legal action or from asking for pecuniary 
compensation in court. 

81   See footnote 76 for the full name of the Directive. 
82   Article 15 of the Racial Equality Directive; Article 17 of the Employment Equality Directive. 
83   See,  inter  alia,  judgment  of  31  May  2013  in  Asociaţia  Accept  (C-81/12,  ECLI:EU:C:2013:275), 
paragraph 61; judgment of 17 December  2015 in  Arjona Camacho (C-407/14 ECLI:EU:C:2015:831), 
paragraph 30. 

84   Sanctions may thus comprise financial compensation, but can also be non-pecuniary in nature. See, for 

instance, Asociaţia Accept judgment (footnote 83), paragraph 68. 
85   See, inter alia, Asociaţia Accept judgment (footnote 83), paragraph 63. 
86   See  Feryn  judgment  (footnote  65),  paragraph  38;  Asociaţia  Accept  judgment  (footnote  83), 
paragraph 62.  In  several  Member  States  (e.g. AT,  BE,  CZ,  IT,  LT,  LU,  LV,  RO  and  SI),  national 
legislation provides that (under some conditions) penalties may be imposed in the absence of a specific 
victim. 

87   See judgment of 2 August 1993 in Marshall (C-271/91, ECLI:EU:C:1993:335), paragraphs 30-32. 
88   See Asociaţia Accept judgment (footnote 83), paragraph 64. 

10 

 
 
                                                 
The Commission continues to monitor the standards applied in the use of sanctions and 
remedies in the Member States, although detailed information at national level is difficult 
to gather and often not available. Equinet also carries out important work on this issue89. 

2.3. 

Information, dialogue and gender mainstreaming 

2.3.1.

  Information 

The Directives require Member States to bring their provisions to the attention of those 
concerned90. Many Member States, equality bodies, civil society organisations and social 
partners  acknowledge  the  importance  of  raising  awareness  and  are  quite  active  in  this 
respect,  e.g. preparing  brochures,  guides  and  studies,  carrying  out  general  and  targeted 
campaigns, and providing training. 

Nevertheless, low awareness of the anti-discrimination legislation and of the existence of 
equality bodies that assist victims remain major challenges in fighting discrimination. For 
instance, 71% of members of ethnic or immigrant minority groups report to be unaware 
of any organisation offering support or advice to victims of discrimination91. In contrast, 
awareness  among  the  general  population  of  the  existence  of  an  institution  offering 
support for victims of discrimination at work is relatively high (61%)92. 

To  contribute  to  awareness-raising,  in  2019-2020  the  Commission  carried  out  an 
information campaign on combating discrimination in the workplace93. This consisted of: 

 

a  general  strand  raising  awareness  of  people’s  rights  and  obligations  under  EU 
anti-discrimination legislation; and  

 

a targeted strand addressing employers and disability; this involved: 

o 

running seminars in eight Member States; and  

o  producing  a  good  practice  guide  for  companies  across  the  EU  seeking  to 

accommodate workers with disabilities94.  

As  another  example,  the  Commission,  between  2015  and  2016,  supported  local 
authorities  in  targeted  communication  activities  to  fight  anti-Roma  discrimination  and 
stereotypes95. 

The Commission  also continued to  encourage information  activities through its support 
for  Equinet96  and  the  European  Equality  Law  Network97,  which  publish  flashes, 
brochures, reports and studies on key issues relating to the Directives. 

89   See  Wladasch,  K.,  The  sanctions  regime  in  discrimination  cases  and  its  effects  (Equinet,  2015); 
https://equineteurope.org/publications/the-sanctions-regime-in-discrimination-cases-and-its-effects/ 

90   Article 10 of the Racial Equality Directive; Article 12 of the Employment Equality Directive. 
91   FRA EU-MIDIS II Survey.  
92   FRA’s submission. 
93   https://ec.europa.eu/social/EUvsDiscrimination 
94   https://ec.europa.eu/social/main.jsp?catId=738&langId=en&pubId=8341&furtherPubs=yes 
95   https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-discrimination/roma-

eu/communication-activities-fight-discrimination-against-roma_en 

96   https://equineteurope.org/equinet-at-a-glance/equinet-activities/ 
97   https://www.equalitylaw.eu/ 

11 

 
 
                                                 
In  addition,  the  Commission  supports 
training  for  judges,  lawyers  and  other 
professionals  in  the  interpretation  and  application  of  the  Directives,  familiarising  them 
with the key concepts, proof-related issues and sanctions for violations98. 

2.3.2.

  Dialogue 

In several Member States, civil society organisations and social partners are consulted or 
actively  involved  in  the  preparation  or  implementation  of  equality  legislation,  action 
plans  and  strategies.  Some  Member  States  provide  by  law  for  regular  dialogue  or 
negotiations  on  equality  with  civil  society  organisations.  Several  have  established 
advisory committees within their national equality bodies that bring together civil society 
organisations and/or social partners99. 

At  the  same  time,  civil  society  organisations  in  some  Member  States  alleged  that 
dialogue  is  usually  limited  or  even  lacking.  Others  reported  difficulties  in  working 
properly  in  a  few  Member  States,  as  a  result  of  restrictive  legislation100  and  problems 
with access to funding, but also harassment. 

Social partners play a crucial role in fighting discrimination and promoting equality and 
diversity in the workplace101. Trade unions and employers’ associations work together by 
concluding  collective  agreements,  issuing  joint  texts  and  guidelines,  and  carrying  out 
projects102. 

2.3.3.

  Gender mainstreaming 

Both  Directives  contain  a  requirement  for  the  Commission  to  report  on  the  impact  of 
measures on women and men103, in accordance the principle of gender mainstreaming104. 

Some  Member  States  report  a  general  gender  mainstreaming  obligation  in  their 
legislation.  Others  explain  that  gender  is  a  factor  in  their  overall  approach  to 
intersectionality105.  Accordingly,  they  pay  special  attention  to  the  more  vulnerable 

98   See, for example, Commission Communication on  Ensuring justice in the EU  — a European judicial 
training strategy for 2021-2024 (COM(2020) 713 final). The Commission also supports the Academy 
of European Law (ERA); see: https://www.era.int 

99   E.g. DE, IE, EL, ES, RO and FI. 
100  See  judgment  of  18  June  2020  in  Commission  v  Hungary  (C‑ 78/18,  ECLI:EU:C:2020:476)  on  a 
Hungarian  law  requiring  civil  society  organisations  that  receive  support  from  abroad  to  register  as 
‘foreign-funded organisations’. 

101  The  Commission  also  supports  EU  Platform  of  Diversity  Charters  efforts  to  enable  civil  society 
organisations, public bodies and private companies to share experience and good practices on national 
diversity 
charters; 
https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-discrimination/tackling-
discrimination/diversity-management/eu-platform-diversity-charters_en 
102  Study on Role of social partners in tackling discrimination at work, 2020,  

https://www.eurofound.europa.eu/publications/customised-report/2020/role-of-social-partners-in-

at: 
tackling-discrimination-at-work;  
Study  on  Trade  union  practices  on  non-discrimination  and  diversity,  2019,  at:         
https://ec.europa.eu/info/sites/info/files/final_report_tu_print_version.pdf 

103  Article 19(2) of the Employment Equality Directive; Article 17(2) of the Racial Equality Directive. On 

multiple and intersectional discrimination, see Section 2.1. 

104  ‘Gender  mainstreaming’  involves  assessing  the  impact  of  EU  action  on  both  women  and  men  and 
taking  responsibility  for  any  readjustment  necessary,  so  that  women  and  men  benefit  equally  and 
inequality is not perpetuated; https://ec.europa.eu/info/sites/info/files/strategic_engagement_en.pdf 

105 E.g. DK, IE, IT, LT, HU, PT and SI. 

12 

 
 
                                                 
situation  of,  for  instance,  Roma  women  and  girls,  migrant  women  and  women  with 
disabilities. 

2.4.  Equality bodies 

In accordance with the Racial Equality Directive, all Member States have designated one 
or  more  specialised  bodies  to  be  responsible  for  the  promotion  of  equal  treatment 
regardless of racial and ethnic origin. A number of Directives of the EU equal treatment 
legislation106 have played a major role in this respect, as only 11 (of 27) Member States 
had  established  such  a  body  prior  to  their  adoption.  While  the  Employment  Equality 
Directive does not provide for the creation of an equality body, nearly all Member States’ 
bodies107 also have competence in relation to the scope of that Directive. 

The Racial Equality Directive leaves Member States a wide margin of discretion on the 
functioning of equality bodies. Article 13 requires only that they have certain minimum 
competences:  

  providing victims of discrimination with independent assistance in pursuing their 

complaints; 

 

conducting independent surveys on racial discrimination; and  

  publishing  independent  reports  and  making  recommendations  on  any  issue 

relating to such discrimination.  

Because Member States are responsible for the actual implementation of the provisions, 
there  are  divergences  between  equality  bodies  in  terms  of  their  mandate108,  powers, 
structure, 
these 
divergences 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. 

independence,  resources  and  effectiveness.  In 

leadership, 

turn, 

Nevertheless,  in  most  cases,  equality  bodies  have  proved  to  be  key  to  promoting  and 
enforcing  equal  treatment  legislation.  They  have  emerged  as  necessary  and  valuable 
institutions for change at the level of individuals, institutions and society at large. 

On 22 June 2018, the Commission adopted a Recommendation on standards for equality 
bodies109,  in  order  for  them  all  to  achieve  their  full  potential.  In  June  2019,  to 
complement this, it co-organised a good practice seminar with government officials110.  

106  See  Article  13  of  the  Racial  Equality  Directive,  Article  12  of  Council  Directive  2004/113/EC 
implementing the principle of equal treatment between men and women in the access to and supply of 
goods and services, Article 20 of Directive 2006/54/EC of the European Parliament and of the Council 
on the implementation of the principle of equal opportunities and equal treatment of men and women in 
matters of employment and occupation (recast) and Article 11 of Directive 2010/41/EU of the European 
Parliament and of the Council on the application of the principle of equal treatment between men and 
women  engaged  in  an  activity  in  a  self-employed  capacity  and  repealing  Council  Directive 
86/613/EEC.  

107  With the exception of ES, FI and PT. 
108  For  instance,  in  some  EU  countries,  the  equality  body  may  be  part  of  a  National  Human  Rights 

Institution (NHRI). 
109  C(2018) 3850 final. 
110  The  seminar  was  organised  in  cooperation  with  the  Swedish  government  and  brought  together  the 
members  of  the  EU  High-Level  Group  on  Non-Discrimination,  Equality  and  Diversity,  the  FRA, 

13 

 
 
                                                 
 
Equality  bodies  are  essential  for  ensuring 
that  individuals  and  groups  facing 
discrimination can enjoy their right in full. They should therefore be able to effectively 
perform  the  tasks  assigned  to  them  under  EU  law.  The  Commission  committed111  to 
examine  in  more  details  to  which  extent  Member  States  have  followed  the  2018 
Recommendation,  with  a  particular  focus  on  the  role  and  independence  of  equality 
bodies.   

Over  2  years  after  the  adoption  of  the  Recommendation,  four  Member  States  have 
declared an intention to amend their national provisions on equality bodies to follow-up 
on some of the recommendations and around ten Member States have already done so for 
example by an increase in budget. However, the majority report either no change at all or 
no major reform.  

The Staff Working Document attached to this report provides such a detailed analysis of 
the implementation of the Recommendation. It concludes that a limited and unequal level 
of implementation  of the Recommendation continues to  hinder some equality bodies in 
effectively  exercising  their  role.  In  practice,  this  leads  to  different  levels  of  protection 
against discrimination across the EU. Continuing to share good practice and/or guidance 
at  EU  level  and  raising  awareness  will  be  very  beneficial  to  strengthen  the  role  of 
equality  bodies.  However, 
the 
the  experience  with 
Recommendation shows that this is not sufficient. The Commission will therefore assess 
whether to propose possible legislation to strengthen the role of national equality bodies 
by 2022. 

implementation  of 

the 

2.5.  Data collection   

Equality  data  are  crucial  for  raising  awareness,  sensitising  people,  quantifying 
discrimination,  showing  trends  over  time,  proving  the  existence  of  discrimination, 
evaluating the implementation of equality legislation, demonstrating the need for positive 
action112, and contributing to evidence-based policymaking113. 

There is no general requirement under the Directives to collect, analyse and use equality 
data114.  However,  the  Racial  Equality  Directive  requires  that  equality  bodies  conduct 
independent surveys, publish independent reports and make recommendations on issues 
relating to racial discrimination (see above)115. 

The following important steps have been taken at EU level to address the lack of equality 
data and the need for practical guidance on equality data collection116: 

Equinet  and  some  national  equality  bodies.  It  offered  support  for  a  shared  understanding  of  the 
Recommendation and established good practices for its implementation. 

111  In  the  2020-2025  EU  anti-racism  action  plan,  the  new  EU  Roma  Strategic  Framework  of  equality, 

inclusion and participation, and the 2020-2025 LGBTIQ Equality Strategy. 

112  Article 5 of the Racial Equality Directive; Article 7 of the Employment Equality Directive. 
113  As  announced  in  the  EU  anti-racism  action  plan,  the  Commission  will  launch  action  to  drive  a 
consistent approach on equality data collection, in particular as regards data disaggregated  by racial or 
ethnic origin.   

114  For  a  full  definition  of  equality  data,  see  Guidelines  on  improving  the  collection  and  use  of  equality 
data  (High-Level  Group  on  Non-discrimination,  Equality  and  Diversity,  Subgroup  on  Equality  Data, 
July 2018), p. 4;  
https://ec.europa.eu/info/sites/info/files/final_guidelines_4-10-18_without_date_july.pdf 

115  Article 13(2) of the Racial Equality Directive. 
116  This need was identified in the 2014 report. 

14 

 
 
                                                                                                                                                 
 
 

 

the Commission presented a series of studies on equality data117 

the  Commission  supported  the  work  of  the  Equality  Data  Subgroup  of  the  EU 
High-Level  Group  on  Non-Discrimination,  Equality  and  Diversity118,  which 
issued: 

o  guidelines on improving the collection and use of equality data at national 
level119  –  these  underline  that  the  General  Data  Protection  Regulation 
(GDPR)120  does  not  prevent  equality  data  collection,  including  when 
disaggregated  by  racial  and  ethnic  origin,  if  it  is  done  in  an  appropriate 
way121; 

o  a ‘compendium of promising practices’122; and 

o  a diagnostic mapping tool123 

 

the  Commission’s  ‘rights,  equality  and  citizenship’  (REC)  programme  listed  the 
improvement of equality data collection among its priorities124. 

Many Member States reported good practices on equality data collection125, including: 

 

involving  (and  coordinating  between)  a  range  of  relevant  actors,  e.g. statistical 
offices,  public  departments  and  agencies,  inspectorates,  universities,  research 
centres,  civil  society  organisations,  data  protection  authorities  and  the  private 
sector126; 

  publishing  data  on  complaints  received  by  equality  bodies,  the  police,  public 

services, inspectorates and the judiciary, and on judgments127; 

117  https://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=112035 
118   The Subgroup brings together representatives of Member States and Norway, the Commission, Eurostat 
and the FRA. It aims to help countries in their efforts to improve the collection and use of equality data. 

119  https://ec.europa.eu/info/sites/info/files/final_guidelines_4-10-18_without_date_july.pdf 
120  Regulation  (EU)  2016/679  of  the  European  Parliament  and  of  the  Council  of  27  April  2016  on  the 
protection of natural persons with regard to the processing of personal data and on the free movement 
of such data, and repealing Directive 95/46/EC (OJ L 119, 4.5.2016, p. 1). 

121  See, in particular, Article 9(2)(a), (g) and (j) and recital 26 GDPR. See also pp. 7-8 of the Subgroup’s 

guidelines (cited above in footnote 114). 

122  https://fra.europa.eu/en/promising-practices-list?page=3 
123  https://fra.europa.eu/en/themes/equality-non-discrimination-and-racism/about-compendium#diagnostic-

tool 

124  For the most recent calls, see annexes to the  Commission Implementing Decision on the financing of 
the Rights, Equality and Citizenship Programme and the adoption of the work programme for 2019 and 
2020  (see  respectively,  C(2018) 7916  final,  29.11.2018,  p. 20  and  C(2019) 7824  final,  5.11.2019,  p. 
33).  For  both  2019  and  2020,  five  projects  have  signed  grant  agreements  under  the  ‘data  collection’ 
priority’ covering maximum EU contributions between 100,000 euro and 200000 euro for each project.  
125  In  addition,  many  Member  States  reported  extensively  on  qualitative  and  quantitative  research 

undertaken at national level on topics relating to non-discrimination and equality. 

126  About half of the replies received from the Member States mentioned good practices in this respect. 
127  Reported, for example, by: 

the Netherlands (on complaints to equality bodies, the police and antidiscrimination services); 

 
  Slovakia (on courts reporting on discrimination disputes); and 
  Poland (on labour inspection authorities publishing the number of discrimination complaints).  
In general, Member States often reported data on complaints and/or decisions in relation to the work of 
equality  bodies,  but  much  less  on  the  (publication  of)  data  on  complaints  received  by  the  police  or 
complaints  and/or  decisions  received  by  or  delivered  by  courts.  Czechia  informed  of  a  specialised 
report by its equality body on discrimination victims’ access to justice, including numbers and data on 

15 

 
 
                                                 
 
  using the FRA’s expertise on data collection128; 

 

fostering the collection and use of equality data through dedicated projects129; 

  using  equality  data  to  examine  and  evaluate  the  impact  and  effectiveness  of 

non-discrimination legislation130; 

  using  ‘mystery  shopping’  and  situation 

testing 

to  examine  patterns  of 

discrimination131; 

 

involving minority organisations in collecting and disseminating equality data132; 

  developing statistical data that can serve as proof of indirect discrimination133; and 

 

collecting disaggregated equality data in population censuses134.  

Nevertheless, many Member States still consider the lack of equality data as a problem at 
national level. There is particular room for improvement in relation to the regularity and 
comparability  of  the  data135,  the  collection  of  data  on  complaints  and  on  cases  of 
discrimination  (including  on  sanctions  issued),  the  gathering  of  data  disaggregated  by 
racial or ethnic origin, the collection of data by private actors (including employers), and 
as regards cooperation among all those concerned. 

3. 

ISSUES SPECIFIC TO THE RACIAL EQUALITY DIRECTIVE 

A comprehensive system of legal protection against discrimination requires ensuring that 
there  are  no  gaps  in  this  protection.  Twenty  years  after  the  adoption  of  the  Racial 
Equality  Directive,  in  line  with  the  EU  anti-racism  action  plan,  potential  gaps  in  the 
protection offered by the Directive are also presented.  

Under-reporting  on  discrimination  remains  an  issue136  and  the  collection  of  data  on 
complaints  and  on  cases  of  discrimination  is  still  to  be  improved137.  This  makes  it 
difficult  to  conduct  a  thorough  assessment  of  the  areas  of  life  where  incidents  of 
discrimination materialise on the ground. 

Surveys of the FRA show that people across the EU regularly experience high levels of 
discrimination because of their racial or ethnic origin. Of the areas covered by the Racial 
Equality Directive, FRA data make clear that employment is that in which discrimination 

court  cases.  Luxembourg  reported  annual  figures  for  judicial  authorities’  convictions  in  relation  to 
racial discrimination, without clarifying whether these data had been published. 

128  Slovakia  consulted  the  FRA  on  the  development  of  a  questionnaire  on  discrimination.  Finland  found 
guidance in FRA’s activities  for harmonising its questioning  for purposes of equality data  collection. 
Portugal analysed its national data in the light of findings from FRA surveys. 

129  Belgium mentioned a REC-funded project aimed at using new tools to collect and use equality data. 
130  E.g. BE and FI. 
131  Reported by Belgium. Situation testing is a method helping to bring to light discrimination on the basis 
of  a  pair-comparison  testing  e.g.  matched  pairs  test  application  for  a  job  vacancy,  using  an  identical 
application differing solely as regards a particular characteristic under examination (e.g. age). 

132  E.g. FI and IT. 
133  E.g. LT. 
134  Poland’s 2021 National Census of Population and Housing covered characteristics such as nationality, 

ethnicity and disability. Ireland’s 2021 census included a question on ethnicity. 

135  Algorithms could be helpful for detecting discrimination, e.g. by showing patterns of disadvantages. 
136  See above under Chapter 2.2.1. on Defence of rights. 
137  See above under Chapter 2.5. on Data collection. 

16 

 
 
                                                                                                                                                 
based on ethnic or immigrant background is experienced most138. This covers situations 
in which people are ‘looking for work’ or ‘in the workplace’. 

3.1.  The notion of ‘ethnic and racial origin’ 

The Racial Equality Directive does not define the concept of ‘racial or ethnic origin’139. 
The  CJEU  has  offered  guidance  on  interpreting  the  notion  of  ‘ethnic  origin’140;  more 
specifically, the CHEZ judgment recognised that ‘the concept of “ethnicity” has its origin 
in the idea of societal groups marked in particular by common nationality, religious faith, 
language,  cultural  and  traditional  origins  and  background’141.  Whether  racial  or  ethnic 
origin is at play can thus be determined on the basis of diverse characteristics, including 
language, religion, origin, skin colour and nationality. As FRA data show that a person’s 
skin  colour and/or religion  represent  specific triggers of ethnic or racial  discrimination, 
this is of important practical relevance142. 

In  Jyske  Finans,  the  CJEU  stressed  that  a  person’s  country  of  birth  could  also  be 
considered  a  relevant  factor143.  However,  it  clarified  that  this  cannot  be  accepted  as  a 
sufficient criterion. A person’s country of birth ‘is only one of the specific factors which 
may  justify  the  conclusion  that  a  person  is  a  member  of  an  ethnic  group  and  is  not 
decisive  in  that  regard’144.  According  to  the  Court,  different  treatment  by  a  credit 
institution solely on the basis of a person’s country of birth (in the absence of any other 
factor)  is  insufficient  to  support  a  claim  of  discrimination  based  on  ‘ethnic  origin’. 
Therefore,  to  establish  indirect  discrimination,  one  would  have  to  identify  a  specific 
ethnic group that has been disadvantaged, as compared with other groups. In the Court’s 
view, a claim that a person’s country of birth ‘is generally more likely to affect persons 
of a “given ethnicity” than “other persons” cannot be accepted’145. 

The CJEU confirmed its approach in its judgment in the Maniero case, which concerned 
an educational scholarship available only to individuals who had passed a German state 
law examination and not to those who had passed an equivalent exam in other countries. 

138  For more information, see FRA EU-MIDIS II survey, p.34.  

When  it  comes  to  accessing  the  labour  market,  some  Member  States  have  also  reported  particular 
concerns for people of African descent. 

139  The Directive offers protection to everyone, including non-EU nationals. At the same time, it states that 
differences  of  treatment  on  the  basis  of  nationality  and  arising  from  the  legal  status  of  non-EU 
nationals and stateless persons are not covered (see Article 3(2) and recital 13). 

140  Such guidance does not exist when it comes to the interpretation of the notion of ‘racial origin’. Some 
Member States do not refer to ‘race’ or ‘racial origin’ in domestic legislation, in order to avoid harmful 
group generalisations. This concern also underlies recital 6 of the Directive, which states that the EU 
‘… rejects theories which attempt to determine the existence of separate human races’.  

141  CHEZ judgment (footnote 33), paragraph 46. See also judgment of 6 April 2017 in  Jyske Finans A/S 
(C-668/15, EU:C:2017:278), paragraph 17. In developing this definition, the CJEU took account of the 
definitions  used  in  the  case  law  of  the  European  Court  of  Human  Rights,  more  particularly  in  the 
judgments  of  Nachova  and  Others  v.  Bulgaria [GC],  nos.  43577/98  and  43579/98,  ECHR  2005-VII, 
and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, §§ 43 to 45 and 
50, ECHR 2009 (see CHEZ judgment, paragraph 46). 

142  FRA’s submission. 
143  Jyske Finans judgment (footnote 141), paragraph 18. This case concerned a credit institution asking a 
Danish  citizen  born  in  Bosnia  and  Herzegovina  to  provide  additional  proof  of  identify,  without 
requiring this of Danish citizens born in Denmark. 

144  Jyske Finans judgment (footnote 141), paragraphs 18 and 20. 
145  Jyske Finans judgment (footnote 141), paragraphs 34-35. 

17 

 
 
                                                 
In line with its reasoning in Jyske Finans, the Court argued that no specific ethnic group 
could be considered as being disadvantaged, as compared with others146. 

When  reporting  on  the  application  of  the  Racial  Equality  Directive,  several  Member 
States drew attention to the protection offered at national level against discrimination on 
grounds such as skin colour, place of birth, language, descent or national origin. Grounds 
such as colour, language and birth, among others, are explicitly mentioned in Article 21 
of  the  Charter  of  Fundamental  Rights  of  the  European  Union147.  The  Charter  applies 
within  the  scope  of  EU  law  and  its  Article  21  has  been  recognised  as  having  direct 
horizontal effect148. When interpreting the notion of ethnic origin, the CJEU has relied on 
the  importance  of  ensuring  effective  protection  for  the  right  to  equality  and 
non-discrimination, as set out in Article 21 of the Charter149. While it ruled that the scope 
of the Directive cannot be defined restrictively, it however made it clear that it may not 
be  extended  to  discrimination  on  grounds  other  than  those  listed  exhaustively  in  the 
Directive150. 

3.2.  Scope 

In this context, it is relevant to recall that Article 19 of the Treaty on the Functioning of 
the European Union (TFEU), which forms the legal basis of the Directive, empowers the 
Union legislator to combat discrimination only within the limits of the powers conferred 
by the Treaties upon the Union. 

Article  3  of  the  Racial  Equality  Directive  refers  to  employment  and  occupation,  social 
protection/advantages, education and access to and supply of goods and services that are 
available to the public, including housing.  

Within that scope, the Directive also applies to discrimination resulting from the use of 
artificial intelligence151.  

As  regards  employment,  the  Directive  applies  to  conditions  for  access  to  employment, 
self-employment  and  occupation,  to  access  to  all  types  and  to  all  levels  of  vocational 
guidance and training and to employment and working conditions, including dismissals 
and  pay.  There  is  however  an  exception  whereby  a  difference  of  treatment  based  on  a 
characteristic related to racial or ethnic origin shall not constitute discrimination where it 
corresponds to a specific requirement indispensable for a certain professional activity152. 
This  means,  for  example,  that  a  casting  director  may  seek  for  an  actor  of  a  particular 
racial origin for a role in a film. 

146  Judgment  of  15  November  2018  in  Heiko  Jonny  Maniero  (C-457/17  ECLI:EU:C:2018:912), 

paragraphs 47 and 48. 

147  This provision, moreover, includes an open list of discrimination grounds. 
148  See judgment of 25 May 2018 in Vera Egenberger (C-414/16, EU:C:2018:257). 
149  See CHEZ judgment (footnote 33), paragraphs 42, 55 and 56. 
150  See, for example, judgment of 11 July 2006 in Sonia Chacón Navas (C-13/05 ECLI:EU:C:2006:456). 
151  On 19 February 2020, the Commission published the Artificial Intelligence White Paper setting out the 
way  towards  a  legislative  proposal  following  a  human  centric  approach,  which  the  Commission  will 
present in 2021. For more information relating to algorithmic discrimination, see among other relevant 
publications:  FRA  (2020),  ‘Getting  the  future  right  –  Artificial  intelligence  and  fundamental  rights’ 
(https://fra.europa.eu/en/publication/2020/artificial-intelligence-and-fundamental-rights);  FRA  (2018),  
making’ 
‘#BigData: 
(https://fra.europa.eu/en/publication/2018/bigdata-discrimination-data-supported-decision-making) 

Discrimination 

data-supported 

decision 

in 

152  See Article 4 of the Directive. 

18 

 
 
 
 
                                                 
The Directive covers all types of  education, general  and vocational, public and private, 
religious and secular, from pre-school to higher education. In the Maniero judgment, the 
CJEU  clarified  the  coverage  of  ‘education’.  Reading  the  Directive  in  the  light  of  its 
objective of promoting equality, it interpreted the notion widely, as including  access to 
education  and  the  elimination  of  relevant  financial  hurdles.  The  award  of  financial 
benefits  closely  linked  to  an  individual’s  participation  in  educational  projects  thus  falls 
within the scope of the Directive153. 

The Racial Equality Directive covers access to and supply of goods and services, which 
are available to the public. The meaning of the notion of ‘services’ is taken from Article 
57  TFEU  –  they  must  constitute  an  economic  activity,  i.e. normally  be  provided  for 
remuneration  and  include,  in  particular,  activities  of  an  industrial  or  commercial 
character.  

The Directive applies regardless of whether the goods and services available to the public 
are supplied in the public or the private sector. Public services are thus covered, however 
only in as far as they correspond to the meaning of a ‘service’ in the sense of Article 57 
TFEU, as outlined above. 

Services within the meaning of the Directive include, for example, housing154 or supply 
of  electricity155.  Healthcare  is  covered  as  an  aspect  of  social  security  but  may  also  fall 
under  the  scope  of  services,  however  only  if  provided  in  return  for  remuneration  by  a 
profit-making body156.  

The  legislator  did  not  include  in  the  Directive’s  material  scope  of  application 
public-sector actions that entail the ‘exercise of public authority’ (e.g. by the police, by 
fraud detection authorities, criminal and civil justice authorities) without any element of 
‘service  provision’157.    For  example,  the  Directive  is  not  applicable  when  a  person  is 
stopped or harassed by the police because of his or her racial or ethnic background158. 

The reference to goods and services ‘available to the public’ is a concept that sometimes 
raises  questions.  The  condition  of  ‘availability  to  the  public’  includes  situations  where 
the offer to provide a certain good or service has been made in the public domain (e.g. by 
an advertisement in a newspaper or on a publicly accessible website, or on a leaflet on a 
window) but not those offered only to the circle of family members. 

153  Heiko Jonny Maniero judgment (footnote 146). 
154  ‘Housing’ is not defined in the Directive; the boundaries of this term have so far been barely tested. 
155  CHEZ judgment (footnote 33), paragraph 43. 
156  See FRA Handbook on European non-discrimination law, 2018, p. 134, including references to CJEU 

case law. 

157  Judgment  of  12  May  2011  in  Runevič-Vardyn  (C-391/09  ECLI:EU:C:2011:291),  paragraphs  45,  47 
and 48. The Court noted that, in the preparatory work on the Directive, the  Council did not accept an 
amendment proposed by the European Parliament which would extend its scope to ‘the exercise by any 
public body, including police, immigration, criminal and civil justice authorities, of its functions’. 
158 When people from ethnic or immigrant minority groups were surveyed, 14% said they were stopped by 
the police in the 12 months before the survey. Of those stopped during this timeframe, 40% believe that 
the most recent stop was because of their ethnic or immigrant background (FRA EU-MIDIS II survey, 
p. 69). Among respondents  who experienced  hate-motivated harassment,  3%  said that the  perpetrator 
was a police officer or a border guard (FRA EU-MIDIS II survey, p. 17).  

19 

 
 
                                                 
3.3.  Roma people are among the groups most affected by discrimination 

Several  Member  States  and  stakeholders  indicate  that  Roma  people159  are  particularly 
affected by discrimination, mostly in  the areas  of education, access  to  employment and 
housing (this is in line with FRA surveys160). Roma communities also face serious issues 
as  regards  rights  awareness  and  access  to  justice161.  The  COVID-19  pandemic  has 
affected  Roma  disproportionately,  further  aggravating  inequalities,  in  particular  in 
education, healthcare and employment162.  

To tackle these challenges, Member States have reported specific policy actions, research 
and  campaigns.  Following  its  evaluation  of  the  EU  framework  for  national  Roma 
integration strategies up to 2020163, the Commission issued a reinforced and reformed EU 
Roma strategic framework for equality, inclusion and participation for 2020-2030164. In 
a three-pillar structure, it complements socio-economic inclusion of Roma with fostering 
equality and promoting participation. Improved data collection is an important aspect of 
the initiative165. 

The  new  framework  is  accompanied  by  a  proposal  for  a  Council  Recommendation  on 
Roma  equality,  inclusion  and  participation.  One  of  the  key  aims  is  the  effective 
implementation  of  the  Racial  Equality  Directive  by  preventing  and  combating 
tackling 
discrimination  against  Roma  people.  It 
antigypsyism  and  encourages  Member  States  to  step  up  the  involvement  of,  and 
cooperation  with,  national  equality  bodies  and  civil  society  organisations  in  reaching 
these objectives. 

includes  recommendations  for 

Since 2014, the Commission has initiated infringement procedures against three Member 
States for school segregation of Roma children166. These procedures are still ongoing. 

4. 

ISSUES SPECIFIC TO THE EMPLOYMENT EQUALITY DIRECTIVE 

Member  States  did  not  flag  any  major  difficulties  with  regard  to  the  interpretation  and 
application of the provisions of the Employment Equality Directive in 2014-2020, while 
noting some difficulties with concepts common to both Directives167. Some stakeholders 

159  Ireland also refers to ‘Travellers’ (a nomadic indigenous ethnic group whose members maintain a set of 
traditions). Although sometimes assimilated to Roma people, because of (past) nomadic traditions and 
similar levels of discrimination and social exclusion, they are not linguistically related. 

160  A  2020  FRA  survey  undertaken  in  six  countries  show  that  60%  of  Roma  and  Travellers  felt 
discriminated  against  because  of  their  Roma  or  Traveller  background  in  the  five  preceding  years, 
https://fra.europa.eu/sites/default/files/fra_uploads/fra-2020-roma-travellers-six-countries_en.pdf 

161  Stakeholders have reported particularly low levels of rights awareness in the Roma community. 
162  https://fra.europa.eu/sites/default/files/fra_uploads/fra-2020-coronavirus-pandemic-eu-bulletin-

roma_en.pdf 

163  Report  on  the  evaluation  of  the  EU  framework  for  national  Roma  integration  strategies  up  to  2020 

(COM(2018) 785 final). 

164  https://ec.europa.eu/info/publications/new-eu-roma-strategic-framework-equality-inclusion-and-

participation-full-package_en 

165  Progress  in  achieving  the  objectives  of  the  Roma  Strategic  Framework  is  proposed  to  be  monitored 
through  a  common  EU  indicator  framework  that  will  take  into  account  country  specificities.  For  an 
outline  of  a  portfolio  of  such  indicators,  see  FRA  Monitoring  framework  for  an  EU  Roma  Strategic 
Framework 
indicators, 
https://fra.europa.eu/sites/default/files/fra_uploads/2020-portfolio_of_indicators_working-paper_en.pdf 

Participation:  Objectives 

Inclusion 

Equality, 

and 

and 

for 

166  CZ, HU (https://ec.europa.eu/commission/presscorner/detail/en/MEMO_16_1823, point 5); 

SK (https://ec.europa.eu/commission/presscorner/detail/en/INF_19_5950, point 4). 

167  See Chapter 2 above. 

20 

 
 
                                                 
 
focused  in  particular  on  the  issue  of  reasonable  accommodation  of  persons  with 
disabilities including as regards challenges in understanding this concept, applying it in 
practice  and  having  adequate  guidance  in  this  regard.  A  few  stakeholders  proposed  to 
extend  the  obligation  of  reasonable  accommodation  to  cover  discrimination  grounds 
other than disability. 

There  are  currently  no  infringement  proceedings  in  relation  to  the  Directive.  However, 
the  CJEU  issued  an  important  number  of  judgments  in  preliminary  cases  submitted  by 
several Member States’ national courts regarding discrimination on all grounds covered 
by the Directive168. 

4.1.  Scope 

The CJEU handed down several important judgments on the scope of application of the 
Employment Equality Directive.  

It clarified169 that the concept of ‘conditions for access to employment’ in Article 3(1)(a) 
may  cover  an  employer’s  public  statements,  even  in  the  absence  of  a  recruitment 
procedure,  provided  that  they  relate,  in  fact,  to  a  firm’s  recruitment  policy.  The  case 
concerned  a  lawyer’s  public  statements  that  he  would  never  recruit  homosexual 
candidates for employment170. The interpretation is not affected by the possible limitation 
to the exercise of freedom of expression. 

In  another  judgment171,  the  Court  held  that  the  Directive  applies  to  a  taxation  scheme 
designed  to  improve  access  to  vocational  training  for  young  people,  whereby  the  tax 
treatment  of  training  costs  differs  according  to  the  trainee’s  age.  However,  in  another 
context  in  the  case  of  C172,  it  ruled  that  national  legislation  on  a  supplementary  tax  on 
retirement  pension  income  does  not  fall  within  the  substantive  scope  of  the  Directive. 
Such legislation does not concern ‘pay’, but rather the rate of tax, which is external to the 
employment relationship173. 

The Court confirmed its case law that the discrimination grounds set out in Article 1 of 
the Directive are listed exhaustively and do not include the professional  category174 nor 
the nature of the employment relationship175 of the individuals concerned. 

4.2.  Religion 

For  the  first  time  since  the  adoption  of  the  Directive,  the  CJEU  had  the  opportunity  to 
issue important judgments on the provisions relating to discrimination on the grounds of 
religion. 

168 Around 50 judgments since 2014; 10 preliminary cases are still pending. 
169  Judgment  of  23  April  2020 
in  Associazione  Avvocatura  per 

i  diritti  LGBTI,  (C-507/18, 

ECLI:EU:C:2020:289). 

170  The  interpretation  of  this  concept,  as  clarified  by  the  CJEU  in  relation  to  the  Employment  Equality 
Directive, may also be relevant, by analogy, for the interpretation of the Racial Equality Directive, the 
scope of which also covers ‘conditions for access to employment’. 

171  Judgment of 10 November 2016 in de Lange (C-548/15, ECLI:EU:C:2016:850). 
172  Judgment of 2 June 2016 in C (C-122/15, ECLI:EU:C:2016:391). 
173  Judgment of 24 September 2020 in YS v NK AG (C-223/19, ECLI:EU:C:2020:753). 
174   Judgment of 8 October 2020 in FT (C-644/19, ECLI:EU:C:2020:810). 
175   Judgment of 17 March 2017 in Milkova (ECLI:EU:C:2017:198). 

21 

 
 
                                                 
In the Achbita case176, the Court interpreted ‘religion’ in a broad sense covering people’s 
freedom  to  manifest  their  religious  beliefs  in  public.  It  held  that  an  internal  rule  of  a 
private  undertaking  that  prohibits  the  visible  wearing  of  any  political,  philosophical  or 
religious sign does not constitute direct discrimination, provided it applies to all workers 
in  the  same  way.  However,  such  an  apparently  neutral  rule  may  constitute  indirect 
discrimination  unless  it  is  objectively  justified  on  the  basis  of  appropriateness  and 
necessity.  A  policy  of  political,  philosophical  and  religious  neutrality  may  constitute  a 
legitimate objective. 

In the Bougnaoui judgment177, the Court held that, in the absence of a neutrality policy, 
an  employer  cannot  require  a  worker  not  to  wear  an  Islamic  headscarf  at  work  in 
response  to  a  customer’s  wishes.  Such  treatment  does  not  constitute  a  ‘genuine  and 
determining  occupational  requirement’  within  the  meaning  of  Article 4(1)  of  the 
Directive, justified by the nature/context of the worker’s occupational activities. 

Two  other  CJEU  judgments178  concerned  the  interpretation  of  Article 4(2)  of  the 
Directive, which provides for an exception to the non-discrimination principle as regards 
churches  or  other  ethos-based  organisations.  The  Court  held  that  national  courts  must 
subject  occupational  requirements  imposed  by  ethos-based  organisations  to  effective 
judicial  review.  The  requirements  have  to  be  necessary  and  objectively  linked  to  the 
nature/context  of the occupational  activity, taking into account  the organisation’s ethos. 
They  may  not  cover  considerations  foreign  to  that  ethos  or  the  organisation’s  right  to 
autonomy, and must comply with the proportionality principle. 

The Court is expected to refine its jurisprudence further in two pending cases, namely C-
804/18  and  C-344/20179.  The  latter  also  raises  a  question  on  the  concept  of  ‘belief’.  A 
number of Member States have said that they would welcome further clarification of the 
notion through EU case law. 

4.3.  Sexual orientation 

Taking  into  account  the  objectives  and  fundamental  values  underpinning  the  Directive, 
the Court clarified the conditions  under which  homophobic public statements  constitute 
discrimination180. The expression of discriminatory opinions in matters of recruitment by 
an employer is likely to deter individuals from applying for a post. 

In another judgment181, the Court pointed out that the Member States are free to regulate 
marriage between persons of the same sex or an alternative form of legal recognition of 
their relationship, and to lay down the date of effect of such a marriage. It concluded that 
a  rule  in  Ireland,  whereby  the  right  to  a  survivor’s  benefit  was  subject  to  a  civil 
partnership  having  been  entered  into  before  the  member  of  an  occupational  benefit 
scheme  reached  the  age  of  60,  did  not  constitute  discrimination  on  grounds  of  sexual 
orientation, even though national law did not allow civil partnerships before the partners 
reached that age. 

176  See Achbita judgment (footnote 33). 
177  Judgment of 14 March 2017 in Bougnaoui (C-188/15, ECLI:EU:C:2017:204). 
178  See  Vera  Egenberger  judgment  (footnote  148);  judgment  of  11  September  2018  in  IR  (C-68/17, 

ECLI:EU:C:2018:696). 

179  Pending case of Wabe (C-804/18); pending case of S.C.R.L. (C-344/20). 
180  See judgment in Associazione Avvocatura per i diritti LGBTI (footnote 169). 
181  See David L. Parris judgment (footnote 36). 

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4.4.  Disability 

A few stakeholders mentioned some challenges in interpreting the notion of ‘disability’. 
In this regard, the CJEU provided useful clarification by referring to the United Nations 
Convention on the Rights of Persons with Disabilities (UNCRPD), which was approved 
on behalf of the European Community by Council Decision 2010/48/EC and has become 
from  the  time  of  its  entry  into  force  i.e.  3 May  2008,  an  integral  part  of  the  EU  legal 
order.  The  Court  held  that  the  concepts  of  ‘disability’  and  ‘long-term’  limitation  of  a 
person’s  capacity  at  work  must  be  given  autonomous  and  uniform  interpretation 
throughout the EU182. 

The  concept  of  ‘disability’  refers  to  a  limitation  resulting  in  particular  from  long-term 
physical, mental or psychological impairments, which in interaction with various barriers 
may  hinder  a  person’s  full  and  effective  participation  in  professional  life  on  an  equal 
basis  with  other  workers.  The  Court  specified  in  its  Z  judgment183  that  the  inability  to 
have  a  child  by  conventional  means184  does  not  in  itself  constitute  a  hindrance  to  the 
exercise  of  a  professional  activity.  In  the  FOA  judgment185,  it  held  that,  while  obesity 
does not  in  itself constitute a ‘disability’, it may, under certain  circumstances, meet  the 
conditions required by the Directive and thus be covered by it. 

The specific situation and needs of workers with a disability have to be taken into account 
in  assessing  whether  they  are  placed  at  a  disadvantage  in  comparison  with  others  or 
whether  national  measures  satisfy  the  proportionality  test.  Thus,  in  the  Ruiz  Conejero 
case186 the Court held that people with disabilities have the additional risk of being absent 
from work by reason of an illness connected with their disability and run a greater risk of 
accumulating days of absence because of illness, and consequently of reaching the limits 
laid  down  in  the  law.  The  Court  concluded  that  this  is  liable  to  place  workers  with 
disabilities  at  a  disadvantage  and  so  to  bring  about  a  difference  of  treatment  indirectly 
based on disability. Furthermore, in assessing the proportionality of the national measures 
at  issue,  the  Court  held  that  it  should  not  be  overlooked  that  people  with  disabilities 
generally face greater difficulties than people without disabilities in re-entering the labour 
market187. 

In  another  case,  the  Court  held  that,  if  an  employer  did  not  provide  reasonable 
accommodation (Article 5 of the Directive), the dismissal of a worker with a disability on 
the basis of criteria determined by the employer (low productivity, a low level of multi-
skilling and a high rate of absenteeism) constitutes indirect discrimination on grounds of 
disability.  In  this  regard,  the  Court  cited  Article 2  UNCRPD,  under  which  denial  of 
reasonable accommodation is a form of discrimination188. 

182  Judgment of 1 December 2016 in Daouidi (C-395/15, ECLI:EU:C:2016:917). 
183  Judgment of 18 March 2014 in Z (C-363/12, ECLI:EU:C:2014:159). 
184 The case concerned a woman who could not support a pregnancy due to a rare condition. Her employer 
refused to grant her paid leave equivalent to maternity leave or adoptive leave following the birth of a 
baby through a surrogacy arrangement. 

185  Judgment of 18 December 2014 in FOA (C-354/13, ECLI:EU:C:2014:2463). 
186 Judgment of 18 January 2018 in Ruiz Conejero (C-270/16, ECLI:EU:C:2018:17). This case concerned 
national  (Spanish)  legislation  which  permitted,  subject  to  certain  conditions,  the  dismissal  of  an 
employee  by  reason  of  intermittent  absences  from  work,  if  these  absences,  even  where  justified, 
exceeded certain limits laid down in the law. 

187  Judgment of Ruiz Conejero (footnote 186). 
188  Judgment of 11 September 2019 in DW v Nobel (C-397/18, ECLI:EU:C:2019:703). 

23 

 
 
                                                 
In a recent  judgment,  the Court interpreted  the concept  of ‘discrimination’ (Article 2 of 
the  Directive)  and  ruled  that  the  principle  of  equal  treatment  is  intended  to  protect  a 
worker who has a disability against any discrimination on the basis of that disability, not 
only as compared with workers who do not have disabilities, but also as compared with 
other workers with disabilities189. 

4.5.  Age 

The majority of CJEU judgments regarding the Employment Equality Directive concern 
age-related differences of treatment190. While the Member States transposed the Directive 
properly,  several  issues  of  compatibility  arose  with  regard  to  specific  national  laws.  In 
assessing these, the Court examined in particular: 

 

 

 

 

the comparability of situations191; 

the possible existence of an objective, neutral factor that is unconnected to age192; 

the legitimacy of the objective(s) pursued193; and  

the appropriateness/proportionality of the means used194. 

Citing  the  right  to  work  enshrined  in  Article  15(1)  of  the  EU  Charter  of  Fundamental 
Rights,  the  Court  paid  particular  attention  to  the  participation  of  older  workers  in  the 
labour force and thus in economic, cultural and social life, and noted that retaining them 
promotes diversity 195. However, it also acknowledged that Member States may pursue a 
social  or  employment  policy  aiming  at  promoting  young  workers’  access  to  the  labour 
market. It is for the competent authorities of the Member States to find the right balance 
between the different interests involved196. In assessing the proportionality of the national 
legislation  at  issue,  the  Court  accepted  that  account  may  be  taken  of  the  fact  that  the 
exclusion from work affected retired persons, whose professional life has ended and who 
are  in  receipt  of  a  retirement  pension.  It  left  it  to  the  national  court  that  submitted  the 
preliminary case to verify whether such exclusion is appropriate for ensuring attainment 
of the objective pursued and genuinely reflects a concern to attain it in a consistent and 
systematic manner. 

Several  cases  concerned  age  discrimination  with  regard  to  pay.  Some  national  laws  on 
public-sector  salaries  used  age  as  a  proxy  for  years  of  service197.  Others  did  not  take 
account of periods of service before the age of 18 when calculating salaries198. In some 

189  Judgment of 26 January 2021 in Szpital Kliniczny (C-16/19, ECLI:EU:C:2021:64). 
190 See, in this regard Liu, K., and O’Cinneide, C., ‘The ongoing evolution of the case-law of the Court of 
Justice of the European Union on Directives 2000/43 and 2000/78/EC (European Commission 2019)’, 
pages 60 ff. 

191  E.g. judgment of 1 October 2015 in O (C-432/14, ECLI:EU:C:2015:643); judgment of 7 February 2019 

in Vindel (C-49/18, ECLI:EU:C:2019:106). 

192  E.g. the  date  of  recruitment;  see  judgment  of  14  February  2019  in  Horgan  and  Keegan  (C-154/18, 

ECLI:EU:C:2019:113). 

193  E.g. judgment of 19 July 2017 in Abercrombie (C-143/16, ECLI:EU:C:2017:566). 
194  E.g. judgment of 2 April 2020 in CO (C-670/18, ECLI:EU:C:2020:272). 
195 Judgment of CO (footnote 194). 
196  Ibid.  The  case  concerned  national  legislation  that  prohibited,  as  a  general  rule,  public  administrative 

authorities from awarding certain positions to persons who were retired.   

197 E.g. judgment of 19 June 2014 in Specht (joined cases C-501/12 to C-506/12, C-540/12 and C-541/12, 

ECLI:EU:C:2014:2005). 

198  E.g. judgment of 11 November 2014 in Schmitzer (C-530/13, ECLI:EU:C:2014:2359). 

24 

 
 
                                                 
cases,  the  legal  amendments  intended  to  remedy  the  situation  actually  perpetuated  the 
discrimination199. 

The  Court  also  clarified  the  meaning  of  ‘genuine  and  determining  occupational 
requirements’  in  two  cases  concerning  maximum  recruitment  ages  for  police  forces, 
taking into account the specific nature of the jobs in question200. 

5.  CONCLUSIONS AND WAY FORWARD 

The CJEU developed useful guidance on several provisions, thus clarifying some issues 
of interpretation. At both national and EU level, important initiatives have been taken to 
apply the non-discrimination provisions better in practice. 

Those  initiatives  have  led  to  some  positive  developments,  inter  alia  as  regards  data 
collection. At the same time, major concerns remain, such as victims’ fear of retaliation, 
low and diverging levels of compensation, shortage of evidence, and little awareness of 
rights and support mechanisms (e.g. equality bodies). These challenges all contribute to 
the under-reporting of discrimination. 

Follow-up  action  to  address  the  challenges  identified  in  this  report  could  include  the 
following: 

  closer  monitoring  by  Member  States  of  the  implementation  of  the  Directives,  in 
particular  in  relation  to  protection  against  victimisation  and  the  application  of 
effective,  proportionate  and  dissuasive  sanctions.  The  Commission  will  offer 
support in this regard, e.g. by commissioning a study on sanctions; 

  continuing efforts at national and EU level to: 

o  raise awareness among the public at large and among those particularly at 
risk of discrimination, in particular about their rights  and existing support 
mechanisms; 

o  support  projects;  the  Commission  will  continue  to  promote  equality  and 
support  victims  through  EU  funding  channels,  including  through  the 
‘citizens,  equality,  rights  and  values’  (CERV)  programme  and  the  Justice 
programme; and  

o  offer  regular  information  and  training  for  policymakers,  judges  and 
lawyers  on  non-discrimination  law,  including  key  issues  such  as  indirect 
discrimination, harassment, the burden of proof, sanctions, and algorithmic 
discrimination; and 

  encouraging  data  collection  at  national  level,  with  a  focus  on  statistics, 
complaints,  judgments,  sanctions  and  breakdowns  by  equality  factors  (including 
those considered potentially sensitive, such as ethnic or racial origin). To ensure 
data  comparability  over  time  and  between  regions/countries,  a  coordinated 
approach at EU level remains essential201. 

199  E.g. judgment of 8 May 2019 in Leitner (C-396/17, ECLI:EU:C:2019:375). 
200  Judgment  of  13  November  2014  in  Pérez  (C-416/13,  ECLI:EU:C:2014:2371);  judgment  of 

15 November 2016 in Sorondo (C-258/15, ECLI:EU:C:2016:873). 

201 As announced in the EU anti-racism action plan, the Commission will organise a roundtable on equality 

data bringing together key stakeholders. 

25 

 
 
                                                 
In  all  these  endeavours,  equality  bodies  are  key  partners.  A  further  strengthening  of 
their visibility, their role and their effective and independent functioning is crucial  as 
analysed in the Staff Working Document attached to this report. The continuing sharing 
of  good  practices  at  EU  level  and  awareness-raising  will  also  be  very  beneficial, 
including  in  the  field  of  prevention.  In  addition,  and  as  already  announced202,  the 
Commission  will  assess  whether  to  propose  new  legislation  to  strengthen  the  role  of 
national equality bodies by 2022.  

All stakeholders concerned, including trade unions, employers and their associations, and 
civil society organisations, have a role to play in their respective spheres of competence. 
To realise the full potential of the Directives, the Commission will continue to work with 
the  Member  States,  equality  bodies,  the  FRA,  civil  society  organisations  and  social 
partners, in order to ensure the systematic protection of victims of discrimination. 

Circumstances  have  changed  since  the  adoption  of  the  Racial  Equality  Directive  on  29 
June 2000, including due to technological advances. Despite the challenges posed by the 
under-reporting,  experiences of discrimination  on the  grounds of  racial  or ethnic origin 
remain  widespread  in  the  EU,  following  from  a  wide  range  of  causes,  including 
stereotypes  and  bias.  A  further  assessment  would  be  required  to  determine  the 
relationship between the persistence of racial discrimination experienced in the EU and 
possible shortcomings in the enforcement of EU rules. It would also allow looking into 
possible gaps in the scope and coverage of the legislation. Coherence between the Racial 
Equality  Directive  and  other  relevant  EU  instruments  should  also  be  analysed.  Data 
should be gathered on the areas where incidents of discrimination materialise, including 
where  law  enforcement  authorities  may  discriminate.  Such  assessment,  which  would 
need to include a consultation of all relevant stakeholders, would serve to obtain robust, 
good quality data to provide evidence of racial discrimination experienced on the ground.  

202 In the EU anti-racism action plan, the  new EU Roma  Strategic  Framework of equality, inclusion and 

participation and the 2020-2025 LGBTIQ Equality Strategy. 

26