Changes from plenary report to adopted text

RemovedDRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

AddedP9_TA(2024)0196

Changedon the proposal for a directive of the European Parliament and of the Council on standardsStandards 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/EUoccupation

Removed(COM(2022)0688 – C90409/2022 – 2022/0400(COD))

AddedCommittee on Employment and Social Affairs and Committee on Women’s Rights and Gender Equality

AddedPE749.992

AddedEuropean Parliament legislative resolution of 10 April 2024 on the 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)0688 – C9-0409/2022 – 2022/0400(COD))

▸7 unchanged paragraphs

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2022)0688),

– having regard to Article 294(2) and Article 157(3) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90409/2022),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the reasoned opinions submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Italian Senate and the Czech Senate, asserting that the draft legislative act does not comply with the principle of subsidiarity,

– having regard to the opinion of the European Economic and Social Committee of 22 March 2023,

Added– having regard to the provisional agreement approved by the committees responsible under Rule 74(4) of its Rules of Procedure and the undertaking given by the Council representative by letter of 20 December 2023 to approve Parliament’s position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

▸7 unchanged paragraphs

– having regard to Rule 59 of its Rules of Procedure,

– having regard to the opinion of the Committee on Civil Liberties, Justice and Home Affairs,

having regard to the joint deliberations of the Committee on Employment and Social Affairs and the Committee on Women’s Rights and Gender Equality under Rule 58 of the Rules of Procedure,

– having regard to the report of the Committee on Employment and Social Affairs and the Committee on Women's Rights and Gender Equality (A9-0354/2023),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Change 1

RemovedRecital 1: (1) The Treaties and the Charter of Fundamental Rights of the European Union recognise the right to equality and the right to non-discrimination as essential values of the Union57. The Union has already adopted several Directives on the prohibition of discrimination, but has yet to adopt a horizontal Equal Treatment Directive outside the field of employment and occupation, covering all protected grounds.

AddedP9_TC1-COD(2022)0400

Change 2

ChangedRecital 2: (2) Pursuant to Article 157(3)Position TFEU,of the European Parliament andadopted theat Councilfirst shallreading adopton measures10 toApril ensure2024 thewith applicationa ofview to the principleadoption of equalDirective opportunities(EU) and2024/… equalof treatmentthe ofEuropean menParliament and womenof inthe mattersCouncil ofon employmentstandards andfor occupation,equality includingbodies in the principlefield of equal paytreatment forand equal workopportunities orbetween workwomen ofand equalmen value,in takingmatters intoof accountemployment multipleand occupation, and intersectionalamending discrimination.Directives 2006/54/EC and 2010/41/EU

Change 3

RemovedRecital 2 a (new): (2a) The Court of Justice of the European Union (the ‘Court of Justice’) has held that the scope of the principle of equal treatment of men and women cannot be confined to discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, that principle also applies to discrimination arising from gender reassignment of a person.

Added(As an agreement was reached between Parliament and Council, Parliament's position corresponds to the final legislative act, Directive (EU) 2024/1500.)

RemovedRecital 2 b (new): (2b) In some Member States, it is currently possible for persons to legally register as having a third, often a neutral, gender. This Directive does not affect relevant national rules giving effect to such recognition.

RemovedRecital 2 c (new): (2c) Article 21 of the Charter of Fundamental Rights of the European Union (the ‘Charter’) prohibits any discrimination, inter alia, on the grounds of sex. Article 23 of the Charter provides that equality between women and men must be ensured in all areas. It is important to point out that in a number of Member States, equality bodies also have competences in promoting equality and tackling discrimination on the grounds of gender identity and expression and sex characteristics.

RemovedRecital 3: (3) The purpose of this Directive is to lay down minimum requirements for the functioning of equality bodies to improve their effectiveness and guarantee their mandate, competences, independence and autonomy in order to strengthen the application of the principle of equal treatment as enshrined in the Treaty on European Union (TEU), the Treaty on the Functioning of the European Union (TFEU) and the Charter and as derived from Directives 2006/54/EC58 and 2010/41/EU59 .

RemovedRecital 6: (6) Directives 2006/54/EC and 2010/41/EU require Member States to designate one or more bodies for the promotion of equal treatment, including the analysis, monitoring and support of equal treatment of all persons without discrimination on the grounds covered by the respective Directives (hereinafter ‘equality bodies’). They require Member States to ensure that the competences of these bodies include providing independent assistance free of charge to persons who have experienced discrimination, conducting independent surveys concerning discrimination, publishing independent reports and making recommendations on any issue relating to such discrimination. They also require Member States to ensure that the tasks of these bodies include the exchange of information with corresponding European bodies, such as the European Institute for Gender Equality and the European Union Agency for Fundamental Rights. The provisions relating to the designation of equality bodies set out in Directives 2006/54/EC and 2010/41/EU should be replaced by the provision related to the designation of equality bodies set out in this Directive. Equality bodies designated under this Directive should exercise the competences laid down therein. This Directive is without prejudice to the competences of labour inspectorates, other enforcement bodies and the social partners.

RemovedRecital 7: (7) Directive 2000/43/EC60 of the Council and Directive 2004/113/EC61 of the European Parliament and the Council also provide for the designation of equality bodies for the promotion, analysis, monitoring and support of equal treatment of all persons, without discrimination on grounds of sex, race or ethnic origin.

RemovedRecital 9: (9) Directives 2006/54/EC and 2010/41/EU leave a wide margin of discretion to Member States as regards the structure and functioning of equality bodies. This results in significant differences between the equality bodies established in the Member States, in terms of the bodies' mandates, competences, structures, resources and operational functioning. This, in turn, means that protection against discrimination differs from one Member State to another, resulting in unequal protection for persons who have experienced discrimination across the Union and the inadequate implementation of the legal acts of Union concerning equal treatment. In order to ensure holistic, effective and comprehensive protection against discrimination, Member States should promote and fund equality bodies to cover all grounds of discrimination covered by Article 21 of the Charter. Levels of discrimination remain high, awareness among persons who have experienced discrimination of their rights remains low and underreporting is still a considerable problem. Public awareness about and knowledge of discrimination remain limited and a lack of sufficient powers and resources hampers equality bodies’ ability to assist persons who have experienced discrimination effectively or to prevent and address the development of discrimination, such as discrimination based on gender identity or health or socio-economic status.

RemovedRecital 10: (10) To ensure that equality bodies can effectively contribute to the enforcement of Directives 2006/54/EC and 2010/41/EU by promoting equal treatment, preventing discrimination and offering assistance to all individuals, such as young people, families in all their diversity, and all groups that are discriminated against to access justice across the Union, it is necessary to adopt binding minimum standards for the functioning of those bodies. The new standards should draw on the lessons learnt through the application of Commission Recommendation 2018/95163, building on some of its provisions and laying down new rules where necessary. They should also draw from other relevant instruments, such as the General Policy Recommendation N°264 on equality bodies adopted by the European Commission against Racism and Intolerance (ECRI) and the Paris Principles65 adopted by the United Nations and applicable to national human rights institutions.

RemovedRecital 12: (12) This Directive should apply to equality bodies’ action as regards the matters covered by Directives 2006/54/EC and 2010/41/EU. The standards should concern the functioning and the competences of equality bodies. In order to ensure the application of the principle of equal opportunities and equal treatment of men and women, equality bodies address grounds of discrimination such as gender, gender identity and gender expression and take due account of the combination of such grounds with the grounds listed in Article 21 of the Charter, 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. Equality bodies should therefore adopt an inclusive approach in countering multiple and intersectional discrimination as well.

RemovedRecital 14: (14) Directive (EU) 2023/970 of the European Parliament and of the Council69 should be considered lex specialis to the enforcement provisions of Directive 2006/54/EC that will be replaced by this Directive. Higher minimum standards established by the Directive (EU) 2023/970 for equality bodies in matters relating to equal pay for the same work or work of equal value, including in pay transparency, as compared to those set out in this Directive, should prevail over those set out in this Directive. Member States are expected to transpose Directive (EU) 2023/970 without any delay, including by establishing good practices and codes of conduct in matters relating to equal pay for the same work or work of equal value based on that Directive. / 69 Directive (EU) 2023/970 of the European Parliament and of the Council of 10 May 2023 to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms (OJ L 132, 17.5.2023, p. 21).

RemovedRecital 15: (15) In promoting equal treatment, preventing discrimination and assisting persons who have experienced discrimination, equality bodies should pay particular attention to multiple and intersectional discrimination based on several of the grounds protected by Directives 79/7/EEC, 2000/43/EC, 2000/78/EC, 2004/113/EC, 2006/54/EC and 2010/41/EU, acknowledging that discrimination often affects persons on more than one ground and creates a specific disadvantage. In implementing this Directive, Member States should take into account provisions relating to intersectional discrimination set out in the Directive (EU) 2023/970 in order to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms.

RemovedRecital 16: (16) Equality bodies can only effectively play their role if they are able to act with complete independence without being subject to any external influence, such as religious, political or financial influence. For that purpose, Member States should take into account a number of criteria that ensure the independence of equality bodies. Equality bodies should not be set up as part of a ministry or body taking or seeking instructions directly from the government or working to achieve governmental objectives. Any permanent or temporary staff member or person holding a managerial position – for example as member of a board managing the equality body or the head or deputy head of the equality body – should be independent, qualified for their position, and selected through a transparent, participatory and competence-based process. The primary safeguard for securing independent leadership of equality bodies is to select the people for leadership positions by means of a transparent and competency-based process with safeguards to prevent any influence by the executive in any stage of the selection process, in particular during the nomination, pre-selection or selection phase of candidates and during the decision-making phase. The transparency of such processes should be ensured by, for example, publishing vacancy notices publicly and consulting, during the staff selection process, experts working with groups exposed to discrimination. Equality bodies should be able to decide their int…

RemovedRecital 17: (17) To ensure that equality bodies can exercise all their competences and fulfil all their tasks, Member States should ensure that the internal structure of equality bodies allows the independent exercise of their various competences. Particular attention should be paid to situations where bodies are required both to be impartial and to offer support to persons who have experienced discrimination. This is particularly relevant where the equality body holds binding decision-making powers requiring impartiality or is part of a multi-mandate body where another mandate requires impartiality. An internal structure ensuring a strict separation between the relevant competences and tasks should guarantee that the equality body can effectively exercise them.

RemovedRecital 18: (18) The lack of adequate and stable human, material, technical and financial resources is a key issue hampering the ability of equality bodies to fulfil their tasks effectively. Therefore, Member States should ensure that equality bodies receive adequate funding, can hire the necessary number of qualified staff and have appropriate premises and infrastructure to carry out each of their tasks effectively, within reasonable time and within the deadlines established by national law. Equality bodies should be independent in the management of their finances in accordance with the principle of budgetary and financial autonomy. Their budgetary allocation should be stable and planned on a multi-annual basis. Where there is an increase in the competences of equality bodies, Member States should ensure that their resources and budget are adjusted accordingly. Member States should ensure that equality bodies’ budgets allow them to cover costs that may be difficult to anticipate such as costs linked to litigation. To ensure that equality bodies are provided with adequate and stable resources, their annual growth should at least be pegged to the average growth in funding to other entities and should take into account national inflation rates. Resources should increase proportionally if equality bodies’ tasks and mandate are expanded, and they should be sufficient to enable equality bodies to collect data, conduct research and carry out their tasks relating to promotion and awareness-rais…

RemovedRecital 19: (19) Automated systems, including artificial intelligence, represent a useful tool to identify discrimination patterns, but might also lead to algorithmic discrimination, which risks replicating and exacerbating existing inequalities and discrimination and contributing to exclusion and poverty. Equality bodies should therefore have access to qualified staff or services, able to use automated systems for their work on the one hand and to assess them as regards their compliance with non-discrimination rules by addressing algorithmic discrimination, preventing its potential consequences on individuals and providing support to persons who have experienced this form of discrimination. Particular attention should be devoted to equipping equality bodies with appropriate digital resources and training and expertise, be it directly or by way of subcontracting. Automated systems are to comply with the accessibility requirements for persons with disabilities set out in Annex I to Directive (EU) 2019/882 of the European Parliament and of the Council1a. / 1a Directive (EU) 2019/882 of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services (OJ L 151, 7.6.2019, p. 70).

RemovedRecital 20: (20) Equality bodies, alongside other actors and, in particular, the social partners and civil society organisations have a key role to play in the prevention of discrimination and the promotion of equality. To address the structural aspects of discrimination and to contribute to social change, equality bodies should be empowered to carry out activities to prevent discrimination and to promote equal treatment. They should promote equality duties, good practices, positive action and equality mainstreaming among public and private entities, and provide them with relevant training, information, advice, guidance and support. They should communicate with, and provide information to, public and private entities, in particular labour inspectorates, the social partners, civil society organisations and groups at risks of discrimination in order to ensure an intersectional approach and to combat underreporting. They should also engage in public debate in order to combat stereotypes and raise awareness about diversity and its benefits, a key pillar of the Union’s equality strategies.

RemovedRecital 20 a (new): (20a) To ensure that equality bodies actively consider the objective of equality between women and men, in all their diversity, when implementing provisions in the areas referred to in this Directive, Member States should actively promote gender mainstreaming and gender budgeting, as internationally recognised tools to reach gender equality.

RemovedRecital 21: (21) Beyond prevention, a central task of equality bodies is to provide assistance free of charge to persons who have experienced discrimination and their mandated trade union representatives. This assistance should at least include the provision to complainants of legal advice, of advice targeted to their specific needs and of key information, such as information concerning procedural aspects, including the procedures for bringing a case before the courts and other available remedies. That assistance should also include the provision to the complainant of a first consultation on their case. Equality bodies should be able to establish the arrangements of such initial consultations. This Directive does not prevent persons who have experienced discrimination from being supported and represented by persons, bodies or organisations with expertise related to the discrimination they have experienced throughout the process in which they receive assistance from the equality bodies. For the purposes of this Directive, a person who has experienced discrimination is to be understood as a person who might have been subjected to discrimination, regardless of that person’s potential legal status as a victim of discrimination.

RemovedRecital 22: (22) To ensure that all persons who have experienced discrimination are able to complain, it should be possible to submit complaints in various ways, including orally, in writing and by digital means. Member States should also pay due regard to Commission Recommendation 2018/951 under which submission of complaints should be possible in a language of the complainant's choosing which is common in the Member State where the equality body is located, with the assistance of an interpreter if needed. Similarly, assistance in submitting complaints in accessible formats for persons with disabilities should also be ensured. To address one of the causes of underreporting, namely, fear of reprisals, and without prejudice to Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law 70, confidentiality should be offered to witnesses and whistle-blowers, and as far as possible, to complainants and alleged perpetrators.

RemovedRecital 22 a (new): (22a) The obligations placed on Member States and the tasks of equality bodies under this Directive in relation to assistance to victims should be considered in conjunction with the Member States’ obligations and the victims’ rights set out in Directive 2012/29/EU.

RemovedRecital 23: (23) To offer a possibility for a quick, affordable, out of court resolution of disputes, Member States should provide for the possibility for parties to resolve their disputes by means of alternative dispute resolution, including within the framework of a conciliation and mediation structure. Such alternative dispute resolution should be led by the equality body or another existing, independent, dedicated entity which is not related to the government. They should define the modalities of the amicable settlement process according to national law. Engaging in a conciliation and mediation process should be subject to the agreement of the parties and should not prevent a party from exercising the right of access to court where that party does not accept the decision issued within the framework of the conciliation and mediation structure. The conciliation and mediation structure should consist of experts in human rights law from both parties. Decisions issued within the framework of the conciliation and mediation structure should be legally binding, provided that both parties to the dispute agree. Member States should ensure a sufficient limitation period to guarantee that the parties to a dispute have access to court where they do not reach an agreement at the end of the conciliation and mediation process.

RemovedRecital 25: (25) Evidence is key in determining whether discrimination has taken place and it is often in the hands of the alleged perpetrator. Equality bodies should therefore be able to access the necessary information and documents to establish discrimination and cooperate with the relevant public services – such as labour inspectorates, education inspectorates and the social partners. Member States should establish an appropriate framework for the exercise of this competence, in accordance with national rules and procedures. Where they consider it useful and necessary for the proper conduct of investigations, equality bodies should be able to entrust other competent bodies with the power to investigate whether breaches of the principle of equal treatment have occurred.

RemovedRecital 26: (26) On the basis of the evidence gathered, either voluntarily or through an investigation, equality bodies should be able to provide their assessment to the complainant and the alleged perpetrator. Member States should determine, in consultation with other entities, such as the social partners and civil society organisations, the legal value of this assessment that can be a non-binding opinion or a binding enforceable decision. Both should state the reasons for the assessment and include, where necessary, measures to remedy any breach found and to prevent further occurrences. To ensure the effectiveness of equality bodies’ work, Member States should adopt appropriate measures for the follow-up of non-binding opinions and the enforcement of binding decisions.

RemovedRecital 27: (27) To promote their work and equality law, equality bodies should be able to publish their opinions and decisions, including summaries thereof, without disclosing personal data. Equality bodies should be able to disclose in their opinions and decisions the personal data of the parties concerned where provided for, and in accordance with the conditions laid down by national law, in particular for the purpose of enforcing their decisions.

RemovedRecital 28: (28) Equality bodies should have the right to act and to be present and heard in any proceedings in civil or administrative law matters in order to contribute to ensuring the respect of the principle of equal treatment laid down in Directives 2006/54/EC and 2010/41/EU. While those court proceedings should be subject to national procedural law, including national rules on admissibility of actions, such rules, and in particular any condition of legitimate interest, cannot be applied in a way so as to undermine the effectiveness of the equality bodies’ right to act. The powers of investigation and decision-making and the right to act in court proceedings given to equality bodies by this Directive will facilitate the practical implementation of the current provisions of Directives 2000/43/EC, 2000/78/EC, 2004/113/EC and 2019/1158/EU on the burden of proof and defence of rights. Under the conditions provided for in this Directive, equality bodies will be able to establish facts “from which it may be presumed that there has been direct or indirect discrimination”, thereby fulfilling the conditions provided for in Article 9 of Directive 2000/43/EC, Article 10 of Directive 2000/78/EC, Article 9 of Directive 2004/113/EC and Articles 12 and 15 of Directive 2019/1158/EU. Their support will therefore facilitate access to justice for persons who have experienced discrimination.

RemovedRecital 29: (29) Legal standing allows equality bodies to act on behalf or in support of victims, allowing them to access justice where procedural and financial barriers or a fear of victimisation often deters them. Legal standing also allows equality bodies to strategically select the cases they decide to pursue in front of national courts, and to contribute to the proper interpretation and application of equal treatment legislation, as well as to make proposals to improve and update existing legislation.

RemovedRecital 30: (30) Some instances of discrimination are difficult to fight because there is no complainant pursuing the case themselves. In its judgment in Case C-54/07 (Feryn)71, which was brought by an equality body in its own name, the Court of Justice confirmed that discrimination can be established even in the absence of an identified person who has experienced discrimination, as for instance in cases of structural or institutional discrimination. It is therefore important that equality bodies can act and initiate court proceedings in their own name, to defend the public interest where discrimination has been detected, without the presence of an individual, identified person who has experienced discrimination. It is also important that they can act in cases where collective redress is used. When an equality body initiates or participates in proceedings on behalf or in support of one or several persons who have experienced discrimination, that person or those persons should be able to withdraw their tacit approval prior to the court proceeding.

RemovedRecital 30 a (new): (30a) This Directive also aims to address instances of structural and systemic discrimination involving procedures, norms, routines and internal structure of any private or public organisation, including law enforcement authorities that contribute to reinforcing inequalities for some particular groups of the population. Equality bodies should be able to step up measures to prevent such discrimination and should develop systemic remedies that enable a coherent response to structural or systemic discrimination across all sectors.

RemovedRecital 31: (31) Equality bodies should also be able to submit oral or written statements to the courts, as a third party or as an expert, as an additional way to support cases with their expert opinion.

RemovedRecital 32: deleted

RemovedRecital 34: (34) The provisions on the equality bodies’ right to act in court proceedings do not alter the rights of persons who have experienced discrimination and of associations, organisations or other legal entities that enforce the rights of persons who have experienced discrimination which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that Directives 2006/54/EC and 2010/41/EU are complied with, as laid down in those Directives. The role of equality bodies in court proceedings should be clearly specified in order to avoid a needless overlap with the tasks of other monitoring bodies, assuring a balanced approach to discrimination, and to avoid overlapping measures.

RemovedRecital 35: (35) The effectiveness of equality bodies’ work also depends on giving groups at risk of discrimination full access to their services. In a survey conducted by the European Union Fundamental Rights Agency 72, 71% of members of ethnic or immigrant minority groups reported to be unaware of any organisation offering support or advice to persons who have experienced discrimination. A key step to support this access is for each Member State to provide information in all of its official languages, to ensure accessibility for people with disabilities and to provide key information in English in order to ensure that people know their rights and are aware of the existence of and services offered by equality bodies. This is particularly important for disadvantaged groups and groups whose access to that information can be hindered, for example by their health or socio-economic status, age, disability, literacy, nationality, membership of a national minority, language, residence status, remote or rural geographic location or their lack of access to online tools.

RemovedRecital 36: (36) Access to equality bodies’ services and publications on an equal basis for all should be guaranteed, including online. For that purpose, potential barriers to access to equality bodies’ services should be identified and addressed. Services should be free of charge for complainants. Member States should also make sure that the services of equality bodies are available to all persons who have potentially experienced discrimination throughout their territory, for example through the establishment of local and regional offices, including mobile ones, the establishment of accessible and user-friendly digital tools and platforms for contacting equality bodies, the organisation of local campaigns or cooperation with local delegates, local governments, the social partners, including trade unions, or civil society organisations that are adapted to local needs. Special attention should be paid to the most vulnerable groups. Educational campaigns on human rights and anti-discrimination should be planned and addressed to children and young people at school, starting from an early age. The social partners and civil society organisations should be included in conducting such educational campaigns and in the preparation and dissemination of information as part of such educational campaigns.

RemovedRecital 36 a (new): (36a) To guarantee access to their services on an equal basis, equality bodies must acknowledge that some occupations, performed mainly by women, are historically devalued and taken as natural. Statistics on the pay gap between men and women often do not include the vast number of women who, across the Union, are not properly paid due to their involvement in informal work. If unpaid domestic and care work were accounted for, gross domestic product would increase in many Member States. Invisibility of domestic and care work contributes directly to the discrimination against women in matters of employment and occupation. If these women engaged in many forms of informal work were included in statistics, the relative disadvantage of women in the labour market would be much more evident, as well as their inability to benefit from labour market regulation, in particular anti-discrimination provisions. Equality bodies must play a key role in making these occupational discriminations visible, namely by collecting data, promoting reports and recommending public policies to make clear that domestic and care work are real occupations involving millions of Union workers.