Specialised bodies to promote equal treatment and non-discrimination: EU legislation and guidelines

10 April 2001

Specialised bodies to promote equal treatment and non-discrimination: EU legislation and guidelines¹

With regard to a specialised body on equal treatment and non-discrimination, the EU Race Equality Directive provides in article 13² that member states must designate a body or bodies that:

• may be part of agencies charged at a national level with the defence of human rights or safeguarding individuals’ rights;
• has the competence to:
  
  • provide independent assistance to victims of discrimination, pursuing complaints about discrimination;
  • conduct independent surveys on discrimination;

  • publish independent reports and make recommendations on any issues relating to discrimination.

The EU Directive does not require that the body as such is independent from the government or any other organisation, institution or agency. It does, however, clearly require that it functions independently in the exercise of its competencies and powers.

The EU Directive provides these minimal requirements for the specialised body to be entrusted by the member state with the promotion and protection of equal treatment and non-discrimination. The Directive does not specify how the specialised body should execute its functions, what procedures are to be used or mode of operation.

ECRI general policy recommendation No. 2

The European Commission against Racism and Intolerance (ECRI), a Council of Europe body, adopted in 1997 “ECRI general policy recommendation No.2: Specialised bodies to combat racism, xenophobia, antisemitism and intolerance at national level”. This document provides more guidance on the establishment, the functioning and the execution of powers of specialised bodies in the field of equal treatment and non-discrimination.³

The recommendation has no legally binding force, but Member States of the Council of Europe must consider the recommendations in good faith. The recommendation is likely to become the main point of reference for the establishment of specialised bodies in this field, including those bodies that will be set up under the EU Directive.

The ECRI recommendation contains a set of seven basic principles for the establishment of a specialised body.

Principle 1 states that the terms of reference of the specialised body must be clearly outlined in a constitutional or other legislative text. The terms of reference need to cover composition, areas of competence, statutory powers, accountability and funding.

Principle 2 provides that specialised bodies can take different forms in different countries, to fit the legal and administrative tradition of the country. Principle 2 offers various examples of the forms the body may take: national commission for racial equality, ombudsman, centre to combat racism, etc., and provides that such institutions may even be included in bodies that have the objective of promotion and protection of human rights in general, not just equal treatment and non-discrimination.

Principle 3 sums up functions and responsibilities:

• to work towards the elimination of various forms of discrimination and promote equality of opportunity and good relations between various groups in society;
• to monitor the content and effect of legislation and executive acts and make recommendations where these are deemed necessary;
• to advise legislative and executive authorities on how to improve regulations and practices;
• to assist victims in securing their rights before institutions and in courts;
• to have recourse to the court and judicial authorities when necessary;
• to hear complaints and petitions and seek settlement through conciliation or even binding and enforceable decisions;
• to have powers to obtain evidence and information in relation to hearing complaints;
• to provide information and advice to all relevant bodies, including those of the state;
• to issue advice on standards of anti-discrimination practice in specific areas, having either a binding or non-binding character;
• to promote and contribute to training key groups;
• to promote awareness among the general public of equal treatment and discrimination;
• to support and encourage organisations with similar objectives, taking account of or reflecting the concerns of such organisations where appropriate.

Principle 4 establishes that specialised bodies best take the form of commissions reflecting society at large and its diversity.

Principle 5 sets out the requirements for independence and accountability:

• funding needs to be sufficient to carry out functions and needs to be approved annually by parliament;
• functioning should be without interference from the state and with guarantees of independence such as freedom to appoint staff, management of own resources, and freedom to express views publicly;
• operations should include the ability to provide independent reports on the actions of the body, which can be the basis for parliamentary or public debate;
• terms of reference need to specify the provisions of appointment of members and contain safeguards against arbitrary dismissal or arbitrary non-renewal of mandate.

Principle 6 requires that there be easy access for the beneficiaries and the establishment of local offices, when necessary, for improving access and effectiveness of education and training functions.

Principle 7 provides an outline for style of operation:

• Bodies must operate in such a way as to maximise quality of research and advice, to enhance credibility with authorities and direct and potential beneficiaries;
• Governments need to keep open communication, give access and provide the necessary information to enable the body to carry out its functions;
• The specialised body should be insulated from political concerns.

Like the EU Directive, the ECRI Recommendations do not require a specific form ofspecialised body, giving the country a lot of leeway to adapt the form to the legal and administrative modus operandi of the country. The recommendation does, however, like the EU Directive, put a strong emphasis on:

• independent performance of functions, and describes some minimal safeguards that need to be put in place, such as safeguards against arbitrary dismissal, protections on independent management of staff and budget, and the guarantee that terms of reference are enshrined in law;
• accessibility for beneficiaries;
• a sufficiently wide range of tasks and responsibilities in order to be effective;
• the requirement that bodies be sufficiently resourced (i.e., with expertise, staff, and adequate budgetary means);
• the scope to earn credibility through high quality work.

The outline of the features of the specialised body arising from both the EU Directive and the ECRI Recommendations is that of a commission that is not part of the system of the judiciary. At the same time, it should function in practice very much like a judicial court, because the guarantees of its independence are very much those of a court.

Endnotes:

1. This piece is a part of a report written by Marcel Zwamborn, a Dutch consultant on “specialised bodies on equal treatment and non-discrimination” in the framework of the Phare project “Improvement of the Rroma situation in Romania”. The full report compares such independent bodies in Belgium, the Netherlands, Sweden and the UK. The project is carried out by MEDE European Consultancy (the Netherlands) and the Minority Rights Group (UK) under the responsibility of the Government of Romania. The project is funded by the European Commission. One of the aims of the project is to assist the Romanian government in bringing domestic legislation on equal treatment and non-discrimination in line with its obligations under international law.
2. Article 13
   1. Member States shall designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin.  These bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals’ rights.
   2. Member States shall ensure that the competencies of these bodies include:
   • without prejudice to the right of victims and of associations, organisations or other legal entities referred to in Article 7(2), providing independent assistance to victims of discrimination in pursuing their complaints about discrimination,
   • conducting independent surveys concerning discrimination,
   • publishing independent reports and making recommendations on any issue relating to such discrimination.
3. ECRI general policy recommendation no. 2: Specialised bodies to combat racism, xenophobia, anti-semitism and intolerance at national level, CRI (97) 36 of 13 June 1997.