COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the documents Proposal for a COUNCIL DIRECTIVE on standards for equality bodies in the field of equal treatment between persons irrespective of their racial or ethnic origin, equal treatment in the field of employment and occupation between persons irrespective of their religion or belief, disability, age or sexual orientation, equal treatment between women and men in matters of social security and in the access to and supply of goods and services, and deleting Article 13 of Directive 2000/43/EC and Article 12 of Directive 2004/113/EC and Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on standards for equality bodies in the field of equal treatment and equal opportunities between women and men in matters of employment and occupation, and deleting Article 20 of Directive 2006/54/EC and Article 11 of Directive 2010/41/EU
Date: 2022-12-07
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: anti-discriminatory measure, application of EU law, employment policy, equal treatment, fundamental rights, gender equality, goods and services, job access, public institution, social security

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 7.12.2022  SWD(2022) 387 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the documents Proposal for a  COUNCIL DIRECTIVE on standards for equality bodies in the field of equal treatment between persons irrespective of their racial or ethnic origin, equal treatment in the field of employment and occupation between persons irrespective of their religion or belief, disability, age or sexual orientation, equal treatment between women and men in matters of social security and in the access to and supply of goods and services, and deleting Article 13 of Directive 2000/43/EC and Article 12 of Directive 2004/113/EC              and              Proposal for a     DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL          on standards for equality bodies in the field of equal treatment and equal opportunities between women and men in matters of employment and occupation, and deleting Article 20 of Directive 2006/54/EC and Article 11 of Directive 2010/41/EU {COM(2022) 689 final} - {SWD(2022) 386 final}  
 
 
Subsidiarity Grid 

1.  Can the Union act? What is the legal basis and competence of the Unions’ intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

The  aim  of  the  two  parallel  proposals  included  in  this  initiative  is  to  strengthen  the  role  and 
independence  of  equality  bodies  under  the  directives  already  adopted  in  the  field  of  equal 
treatment.  As  these  directives  were  adopted  under  two  different  legal  bases  and  adoption 
procedures, this initiative consists of two essentially identical proposals, based on the following two 
legal bases: Articles 19(1) and 157(3) TFEU. 1 

Article 19(1) TFEU provides the legal basis for secondary legislation, such as directives, to take action 
to  combat  discrimination  based  on  sex,  racial  or  ethnic  origin,  religion  or  belief,  disability,  age  or 
sexual orientation. 

Article 157(3) TFEU provides the legal basis for measures to ensure the application of the principle of 
equal opportunities and equal treatment of men and women in matters of employment and 
occupation, including the principle of equal pay for equal work or work of equal value.  

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

In case of non-discrimination, which is part of the area of freedom, security and justice, the Union’s 
competence is shared.  

2.  Subsidiarity Principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 22: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

Numerous consultation activities have been organised, including with the help of a contractor. There 
was strong support from stakeholders for new EU measures in the field. 

182 respondents (including 66 EU citizens), replied to the Open Public Consultation. The contractor 
conducted around 100 interviews and received 84 replies to specialised online surveys. A total of 239 
stakeholders  participated  in  the  three  participatory  workshops  and  in  the  final  participatory 
conference  to  brainstorm  on  key  topics  and  possible  measures.  In  parallel,  four  meetings  were 
organised to inform and consult Member States representatives. Regular stakeholders’ presentations 

1 One proposal, based on Article 19(1) TFEU, will cover the following 4 Directives: the Racial Equality Directive 
(2000/43/EC), the Gender Equality Directive in the field of goods and services (2004/113/EC), the Employment 
Equality Directive  (2000/78/EC) and the Gender Equality Directive in the field of social security (79/7/EEC).  A 
second  proposal,  based  on  Article  157(3)  TFEU,  will  cover  the  following  2  Directives:  the  Gender  Equality 
Directive  in  the  field  of  employment  (2006/54/EC)  and  the  Gender  Equality  Directive  in  the  field  of  self-
employment (2010/41/EU). 
2 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  

1 

 
 
 
 
 
 
                                                           
were  also made.  A  Youth Policy  Dialogue  entitled  ‘Equality  bodies  that  work  for  all of  us’  was  also 
organised by Commissioner Dalli. 

These activities have been targeted to a very wide range of stakeholders, in order to reach out to all 
interested  parties  and  gather  their  input  and  opinions.  Among  others,  the  following  stakeholders 
have  been  consulted:  all  equality  bodies,  the  European  network  of  Equality  Bodies  (the  EQUINET), 
the  European  Union  Agency  for  Fundamental  Rights  (FRA)  and  the  European  Institute  for  Gender 
Equality (EIGE), representatives of all Member States at ministry level, academics and experts in the 
field  of  anti-discrimination,  civil  society  organisations,  social  partners  including  representatives  of 
employers at the EU level, EU and non-EU citizens. 

2.2 Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the conformity with the 
principle of subsidiarity? 

Both  the  explanatory  memorandum  and  the  analytical  document  contain  a  section  addressing  the 
conformity with the principle of subsidiarity. 

The  initiative  does  not  introduce  legislation  in  a  new  area.  It  revises  already  existing  legislation  in 
order to increase its effectiveness. There is thus already a common agreement that EU-level action is 
necessary in this area and in line with the principle of subsidiarity. 

Equality and non-discrimination are fundamental EU values, inscribed in Article 2 TEU and protected 
by  Article  21  and  23  of  the  Charter  of  Fundamental  Rights  of  the  EU.  They  should  be  sufficiently 
protected everywhere across the EU.  

As  demonstrated  in  the  analytical  document  accompanying  the  proposals,  the  existing  legislative 
measures  are  not  sufficient  to  ensure  implementation  and  enforcement  of  EU  law  combating 
unequal treatment and discrimination and to increase prevention. This results in an insufficient and 
unequal level of protection against discrimination, from one Member State to another. 

The  analysis of  the  situation  before  the  establishment  of equality  bodies  clearly  demonstrated  the 
added  value  of  the  EU  intervention;  prior  to  it,  they  existed  in  only  few  Member  States.  The 
retrospective  analysis  of  the  EU  provisions on equality  bodies  in the  Equality Directives  has  shown 
that they are too narrow and vague. 

The  limited  impact  of  the  2018  Recommendation  on  standards  for  equality  bodies3  clearly 
demonstrates  that only  a binding EU  initiative will ensure  that sufficient progress  is achieved in all 
Member States, and address the differences in the level of protection against discrimination.  

Common  minimum  standards  are  also  relevant  to  the  functioning  of  the  internal  market.  In  the 
context of the freedom of movement of people, it is essential to guarantee the fundamental right of 
non-discrimination  in  a  uniform  way  across  the  EU  and  to  ensure  access  to  protection  from 
discrimination and to redress mechanisms in all Member States. As outlined above, equality bodies 
are a means to contribute to this goal.   

2.3 Based on the answers to the questions below, can the objectives of the proposed action be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

3 As established in the Commission Staff Working Document on equality bodies and the implementation of the 
Commission Recommendation on standards for equality bodies (SWD(2021)63) of 19 March 2021). 

2 

 
 
 
 
 
 
 
 
 
                                                           
The aim of the  present initiative  is  the  protection and promotion of the fundamental right  of non-
discrimination.  Fundamental  rights  are  universal,  therefore,  a  cross-border  element  is  not  a 
precondition for the EU  to take action. The Union is founded on common values,  such as equality, 
non-discrimination, human rights and tolerance. The fight against social exclusion and discrimination 
is  one  of  the  core  objectives  of  the  Treaty.  Given  the  uneven  level  of  protection  against 
discrimination across the EU which affects the fundamental rights and well-being of people living in 
the EU, the absence of EU-level action would be in conflict with the abovementioned objective. 
The 2018 non-binding Recommendation on standards for equality bodies had a limited impact: less 
than  half  of  the  Member  States  reported  taking  measures  as  a  follow-up  to  the  Recommendation 
and only four Member States4 reported that they were working on legislative reforms. 

(a)  Are there significant/appreciable transnational/cross-border aspects to the problems being 

tackled? Have these been quantified? 

As explained above, human rights are universal, therefore, a cross-border element is not a 
precondition for the EU to take action, as the goal is to reinforce the fundamental values on which 
the Union is founded, such as equality, non-discrimination, fundamental rights and tolerance. 

Nevertheless, protection against discrimination and access to redress in cases of discrimination, for 
which  equality  bodies  are  a  tool,  do  contain  cross-border  elements  in  some  cases.  This  may  for 
example be the case if people who reside in one Member State experience discrimination in another 
Member  State.  Due  to  lack  of  data,  it  is  not  possible  to  identify the  precise  share of cases  directly 
linked to cross-border aspects. 

The limited availability of equality data is a challenge that the proposals will contribute to address by 
setting obligations for equality bodies to collect data on their own activities and the possibility to play 
a coordination role in the collection of equality data by other public or private entities. The proposals 
also  include  an  obligation  for  equality  bodies  to  produce  regular  reports  on  the  state  of  equal 
treatment and discrimination in their Member State. 

(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty5 or significantly damage the interests of other Member States? 

The  Union  is  founded on common values,  such  as  equality,  non-discrimination,  fundamental rights 
and tolerance.  The fight  against  social exclusion and discrimination is one of the  core objectives of 
the European Union as laid down in Article 3 (3) of the Treaty on European Union (TEU). 

However, FRA’s fundamental rights report 2021 found that levels of racial and ethnic discrimination 
remain high throughout the EU-276. For example, in a FRA survey covering almost 4,700 Roma and 
Travellers in five EU countries7 and the United Kingdom, almost half of the respondents (45 %) said 
they  felt  discriminated  against  in  the  12  months  before  the  survey8.  Findings  from  representative 
surveys9  and  from  equality  bodies’  reports10  show  a  similar  picture.  Other  surveys  conducted  in 

4PT, ES, MT, LT. Spain has meanwhile adopted a new law (Ley 15/2022 of 12 July 2022). 
5 https://europa.eu/european-union/about-eu/eu-in-brief_en  
6 Fundamental Rights Agency of the European Union, ‘Fundamental Rights Report 2021’, Luxembourg, 2021.  
7 BE, FR, IE, NL, SE.  
8 Fundamental Rights Agency of the European Union, ‘Fundamental Rights Report 2021’, Luxembourg, 2021, p. 
99. 
9 DK, NL. 
10 BE, FR, AT. 

3 

 
 
 
 
 
                                                           
Member  States11  referred  to  in  FRA’s  report  confirmed  that  attitudes  towards  ethnic  minorities 
remained hostile. 

Given  the  consistently  high  occurrences  of  discrimination  throughout  the  Union,  which  affects  the 
fundamental rights and well-being of people living in the EU, the absence of EU-level action would be 
in conflict with the abovementioned objective.  

Member States already take national action in this field. Such national action does not significantly 
damage the interests of other Member States. However, as explained above, due to the large margin 
of discretion left to the Member States, the current rules led to an unequal level of protection 
against discrimination and an unequal enforcement of the Directives from one Member State to 
another which goes against the core Treaty objectives.  

The strengthening of equality bodies will help strengthen economic and social cohesion by ensuring 
that people in all Member States enjoy a common minimum level of protection against 
discrimination, with comparable rights to redress, while taking into account of the diversity of 
Member States systems. 

The EU-level action aims at filling gaps identified at national level and ensuring that Member States 
take  a  minimum  level  of  measures  in  all  relevant  areas.  The  limited  impact  of  the  2018 
Recommendation on standards for equality bodies clearly shows that only a binding EU initiative will 
ensure that sufficient progress is achieved in all Member States. 

(c)  To what extent do Member States have the ability or possibility to enact appropriate 

measures? 

Member States have already established equality bodies. They cover all the grounds and fields of the 
Equality Directives except in two Member States12 for the grounds and fields covered by the 
Employment Equality Directive and the Gender Equality Directive in the field of social security (these 
two Directives do not contain provisions on equality bodies). 

National anti-discrimination legislation sometimes goes beyond the minimum standards set in the 
Directives. However, in many cases, equality bodies have proven not to be effective enough to 
pursue the abovementioned core objectives of the Treaty. This is why the Commission proposes to 
strengthen the minimum standards in place and to extend the mandate of equality bodies to fully 
cover all Equality Directives. In setting minimum standards, the proposals fully respect Member 
States’ competencies and procedural autonomy and leave them discretion to decide how to 
implement the proposed measures and to set more favourable standards for the functioning of 
equality bodies.  

(d)  How does the problem and its causes (e.g. negative externalities, spill-over effects) vary 

across the national, regional and local levels of the EU? 

The existing EU equality Directives do not include provisions on the actual structure and functioning 
of equality bodies, but only require that they have certain minimum competences, and that they act 
independently within the exercise of their remit. Due to the wide margin of discretion left to the 
Member States in implementing these provisions, there are significant differences between equality 

11 BG, CZ, LV, SK.  
12  Meanwhile,  one  of  them  has  changed  its  legislation.  In  other  Member  States,  the  territorial  sharing  of 
competences lead to the absence of coverage of these grounds and fields in some parts of the territory. 

4 

 
 
 
 
 
                                                           
bodies across Member States, in particular as regards their mandate, powers, leadership, 
independence, resources, accessibility and effectiveness. This affects the fulfilment of their 
objectives under EU law. While their differences are partly due to the variety of legal traditions and 
legal systems in Member States, the situation also reflects different levels of ambition and 
achievement in Member States in pursuing the objectives of the Directives. Many equality bodies are 
not properly equipped, in terms of powers and resources, to assist victims effectively.  

Good access to equality bodies has also a physical dimension, determined by the location of the main 
office, its visibility and whether there are local and/or regional representations. In around a third of 
Member States, the equality body’s main premises are reported not to be visible or open to the 
public. Local or regional offices or presence are considered a good practice, where this is necessary 
for geographical or other reasons, as they can bring equality bodies closer to the individuals, offer 
face-to-face contact and ensure local outreach and visibility. They are key to overcoming high levels 
of underreporting by victims.  

Around half of Member States offer a local or regional presence in various set-ups. Some equality 
bodies have a few local offices spread across the national territory. Others have secured a local 
presence through other bodies such as non-governmental organisations which represent them and 
provide some of their services. Some equality bodies organise local outreach activities. However, 
equality bodies in a few Member States have declared that their local presence had decreased in the 
recent years due to insufficient resources. 

Digitalisation is essential to reach the largest population and specific groups across the whole 
territory – especially in the context of crises, such as the COVID-19 pandemic. However, some 
people, especially from vulnerable and discriminated groups, have limited IT-literacy and/or access to 
digital tools. A provision in the proposals refers to the accessibility of the services of equality bodies 
at no cost to complainants, throughout the whole EU territory, including remote and rural areas. 

(e)  Is the problem widespread across the EU or limited to a few Member States? 

The stakeholder’s consultation has shown that the problems identified (e.g. the inadequacy of 
resources of equality bodies in terms of funding and staff, their limited powers and the insufficient 
awareness of the equality bodies’ existence and services) are common to a very large number of 
Member States. Discrimination (or perceptions of discrimination) remains widespread throughout 
the Union until today. A Eurobarometer survey conducted in 2019 showed that 59% of Europeans 
believed that discrimination based on ethnic origin was widespread in their country (compared to 
64% in 2015)13. For other grounds, such as sexual orientation, religion, disability and age, those 
number were 53%, 47%, 44% and 40% respectively14. In 2020, still only 34.4% of self-employed and 
start-up entrepreneurs in the EU were women15. Women are disproportionately affected by work-
related harassment and under-reporting of sex-based work harassment remains a problem 
throughout the Union16. 

The role of Equality bodies in fighting discrimination is central. So, strengthening equality bodies aims 
at lowering this overall level of discrimination, even if many different other factors also come into 

Special  Eurobarometer  493  on  Discrimination  in  the  European  Union,  2019,  available  under 

Special  Eurobarometer  493  on  Discrimination  in  the  European  Union,  2019,  available  under 

13 
https://europa.eu/eurobarometer/surveys/detail/2251.  
14 
https://europa.eu/eurobarometer/surveys/detail/2251.  
15 
https://wegate.eu/womenentrepreneurship-facts-and-figures.  
16 

WEgate,  Women 

entrepreneurship: 

facts 

5 

European Commission, ‘2021 report on gender equality in the EU’, Luxembourg, 2021, p. 10.  

and 

figures, 

2020, 

available 

under 

 
 
 
 
 
 
                                                           
play.  

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

Most Member States will have to spend more resources to ensure the effectiveness of equality 
bodies. For the rest, the scale of reforms will vary depending on the current setting of each equality 
body. Costs will be limited because the reforms build on already existing and functioning bodies.   
Increased cooperation, new synergies, better strategic planning of activities and resources are also 
expected to lead to cost savings.  

(g)  How do the views/preferred courses of action of national, regional and local authorities 

differ across the EU? 

Consultations have shown a very strong, homogeneous, support for strengthening the standards 
applicable to equality bodies. In particular, the overwhelming majority of respondents to the Open 
Public Consultation (97.2%) consider that establishing strong and effective equality bodies is 
important –see Equality bodies – binding standards (europa.eu). Even though the impact of the 
measures will differ depending on the Member States, no diverging views on the main lines of action 
emerged during the preparatory phase.  

2.4 Based on the answer to the questions below, can the objectives of the proposed action be 

better achieved at Union level by reason of scale or effects of that action (EU added value)? 

Targeted EU action will guarantee that the objectives of preventing and fighting discrimination are 
achieved at Union level. Binding minimum standards for equality bodies will ensure that all Member 
States provide for an adequate structure, powers and resources that are considered relevant for 
effectively fighting and preventing discrimination, as well as ensuring assistance and access to 
redress for victims of discrimination. The approach taken leaves flexibility to the Member States in 
maintaining or setting more favourable standards and taking into account features specific to their 
national situations, including national, regional and local circumstances.  

(a)  Are there clear benefits from EU level action?  

Targeted EU action will guarantee that the objectives of preventing and fighting discrimination are 
achieved at Union level. Given the persistently high prevalence of discrimination, measures taken at 
national level under a framework for equality bodies that left considerable leeway for Member 
States have proven insufficient to effectively tackle this phenomenon. Strengthened standards for 
equality bodies will ensure that all Member States provide for an adequate structure, powers and 
resources that are considered relevant for effectively fighting and preventing discrimination, as well 
as ensuring assistance and access to redress for victims of discrimination. Those rules will be 
enforceable at EU level, and enable further measures that are ultimately expected to lead to a 
reduction in prevalence of discrimination, as well as the better safeguarding of the fundamental 
rights of people at risk of discrimination. This will in turn lead to a reduction of the costs associated 
with discrimination. 

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 

benefits per unit cost)? Will the functioning of the internal market be improved? 

While there are no economies of scale as such, the objectives can be more efficiently achieved at EU 
level, setting standards to ensure that people in all Member States enjoy a common minimum level 
of protection against discrimination, with comparable rights to redress. The proposals will facilitate 
the exercise of the right to free movement for people who reside in one Member State and 

6 

 
 
 
experience discrimination in another Member State. The same is true for safeguarding the freedom 
of movement for workers, which is an integral part of the internal market. To do so, it is important to 
guarantee the fundamental right of non-discrimination and ensure access to protection and redress 
mechanisms in all Member States. As mentioned above, equality bodies are an essential instrument 
to reach this goal.  

(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

The proposals guarantee a minimum level of assistance to all victims of discrimination living in the 
EU, with comparable rights to redress. In doing so, the initiative respects Member States’ procedural 
autonomy and leaves flexibility to Member States, who may still provide for a higher level of 
protection.  

This new legislation will be focused on equality bodies (strengthening their role and independence, 
and extending their mandate to the grounds and fields covered by the Employment Equality Directive 
and the Gender Equality Directive in the field of social security). It will amend other provisions of any 
of the existing Equality directives.  

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)? 

Discrimination is still a reality across the EU and the existing legal framework on equality bodies has 
proven not to be efficient enough in contributing towards the desired objectives. The current 
initiative proposes binding minimum standards to fight and prevent discrimination and ensure access 
to assistance and redress in all Member States. This approach respects the national procedural 
autonomy of Member States and leaves them flexibility in maintaining or setting more favourable 
standards and taking into account features specific to their national situations, including national, 
regional and local circumstances.  

(e)  Will there be improved legal clarity for those having to implement the legislation? 

The current EU legal framework on equality bodies is too narrow and vague. It does not include 
provisions on the actual structure and functioning of equality bodies, but only requires that they 
have certain minimum competences, and that they act independently within the exercise of their 
remit. This results in legal uncertainty. The new initiative will provide more legal clarity through more 
precise provisions and descriptions of the measures that are to be implemented.  

3.  Proportionality: How the EU should act 

3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal and a statement allowing appraisal of the compliance of the proposal with the 
principle of proportionality? 

The current provisions on equality bodies and the 2018 Recommendation have not fully achieved the 
objective of ensuring implementation and enforcement of EU law on combating unequal treatment 
and discrimination and increasing prevention. This is due to the large margin of discretion left to the 
Member States on how to apply the provisions on equality bodies of the Directives, the lack of such 
provisions in two equality directives and the non-binding nature of the Recommendation. The 
existing EU equality directives do not include provisions on the actual structure and functioning of 
equality bodies, but only require that they have certain minimum competences, and that they act 

7 

 
 
 
independently within the exercise of their competences. 

Soft measures have not been effective enough to safeguard people’s fundamental right to non-
discrimination. Therefore, binding legislation is necessary to achieve this goal. The proposed initiative 
sets minimum standards, expected to improve the level of protection against discrimination 
significantly, which will have a considerable positive impact on the social situation of (potential) 
victims of discrimination. Except for the dedicated article on equality bodies in four Equality 
Directives, the proposals do not amend other provisions of the Equality Directives. 

In setting minimum standards, the proposals fully respect Member States’ procedural autonomy and 
leaves them discretion to decide if they wish to set more favourable standards for the functioning of 
equality bodies.  

3.2 Based on the answers to the questions below and information available from any impact 
assessment, the explanatory memorandum or other sources, is the proposed action an 
appropriate way to achieve the intended objectives? 

The initiative to adopt binding legislation is a proportionate response to the needs, as demonstrated 
by the persistently high prevalence of discrimination throughout Member States. Non-legislative 
options have already been tested at EU level without fully producing the expected results. This shows 
that only a binding EU initiative will ensure that sufficient progress is achieved in all Member States 
and will address the significant differences in the level of protection against discrimination across the 
EU. 

The initiative proposes strengthened minimum standards, leaving enough flexibility to cater for 
individual situations of Member States. Implementation costs will depend on the situation of existing 
equality bodies in the Member States. Those costs are justified and offset by potential benefits that 
the proposals will bring. 

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 

their own, and where the Union can do better? 

The analytical document has shown that Member States acting on their own was not sufficient to 
achieve the objectives of the initial intervention and safeguard the fundamental right to non-
discrimination, for which equality bodies are an essential instrument. For this reason, EU action is 
justified; the scope of the proposals is targeted to setting minimum standards to strengthen the role 
and independence of equality bodies, and does not go beyond those aspects that Member States 
cannot achieve satisfactorily on their own. 

(b)  Is the form of Union action (choice of instrument) justified, as simple as possible, and 

coherent with the satisfactory achievement of, and ensuring compliance with the objectives 
pursued (e.g. choice between regulation, (framework) directive, recommendation, or 
alternative regulatory methods such as co-legislation, etc.)? 

The instrument chosen takes the form of directives because the provisions that it aims to strengthen 
and complement are laid down in directives. 
The initiative is a proportionate response to the needs, as demonstrated by the persistently high 
prevalence of discrimination throughout Member States. Softer measures to mitigate the situation, 
above all the 2018 Recommendation, have previously been put in place, but, as the retrospective 
analysis has shown, without achieving the desired result. Therefore, binding legislation is necessary.  

8 

 
 
 
 
 
(c)  Does the Union action leave as much scope for national decision as possible while achieving 
satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument or approach?) 

The proposed initiative sets strengthened minimum standards, fully respecting Member States’ 
procedural autonomy and leaving them discretion to decide how to implement the proposed 
measures. For instance, in suspected cases of discrimination, equality bodies will provide a reasoned 
assessment of the case (there is no such obligation at the moment), but Member States can choose 
whether to give them binding decision-making powers or whether their opinion will remain non-
binding. 

(d)  Does the initiative create financial or administrative cost for the Union, national 

governments, regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved? 

The initiative does not create additional costs for the European Commission and its agencies. To 
support the monitoring of the implementation of this Directive, the FRA and the EIGE would collect 
and analyse relevant data. This type of task is already covered by their existing mandates. 

Victims of discrimination will not have any direct cost to bear, as under the proposal the services of 
equality bodies would have to be provided free of charge. 

A small number of Member States already empower their equality bodies with a fairly 
comprehensive set of resources and powers, while most of the others only partially meet the 
objectives of the initiative. Adequate resources in particular are a pre-condition for the effective 
functioning of equality bodies and the fulfilment of their mission. The need for and extent of 
adaptation arising from new EU rules, and the related cost, would therefore vary, for each proposed 
measure, depending on the situation in each Member State as regards the features of their equality 
body (or bodies). 
As the proposed minimum standards are proportionate, the induced costs would also be 
proportionate. Besides, since the aim of this initiative is to enhance the protection of universal 
fundamental rights and contributing towards the founding values of the Union, those costs are 
justified and offset by potential benefits that the proposals will bring. 
A 2018 report issued by the European Parliamentary Research Service on the cost of non-Europe 
showed that reducing levels of discrimination by 5% through EU action could lead to an increase in 
GDP of between EUR 247 million and EUR 703 million17. The report also illustrates the considerable 
impacts that racial and ethnic discrimination have on individuals, societies and economies. In 
financial terms, these translate into lost earnings ranging from EUR 1.8 billion to EUR 8 billion 
annually for individuals, and losses ranging from EUR 2.4 billion to EUR 10.7 billion annually for 
society. 

(e)  While respecting the Union law, have special circumstances applying in individual Member 

States been taken into account? 

The proposals aim at putting in place minimum standards designed to fill existing gaps identified by 
the retrospective analysis, while leaving flexibility to Member States regarding their implementation 
and the possibility to set or maintain higher standards. 

17 Van Ballegooij, W. and Moxom, J., ‘Equality and the Fight against Racism and Xenophobia: Cost of Non-
Europe Report’, 2018, Brussels: European Parliamentary Research Service, p. 41. 

9