Equinet, the network of European Equality Bodies, has contracted BIM expert Katrin Wladasch to conduct research on the sanctions regimes in discrimination cases and their effects.
An acknowledgement of the need to use sanctions as a tool for fostering the factual implementation of the principles of equal treatment and non-discrimination is rooted in the in the EU equal treatment Directives, obliging Member States to lay down rules on sanctions for cases of infringement of the said principles as defined in the respective Directives, and to take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive (Article 15 of Directive 2000/43/EC, see also Article 17 of Directive 2000/78/EC). Different wording is used in Article 14 of Directive 2004/113/EC (penalties), Article 18 (compensation or reparation) and 25 (penalties) of Directive 2006/54/EC, Art. 10 of Directive 2010/41/EU (compensation or reparation).
The Directives, however, do not provide any guidance regarding the nature of such sanctions, nor do they set a minimum standard or even state the body in charge for issuing such sanctions. They leave the interpretation of what they would consider as ‘effective, proportionate and dissuasive’ to the national legislator. Consequently, the concrete regimes of sanctions and remedies are very diverse throughout Europe.
As a unifying factor, sanctions, penalties and other remedies that have been foreseen in national legislation have been points of criticism in many Member States from the very beginning (of equal treatment legislation in place). The range of criticism ranges from the fact that (minimum) sanctions foreseen are very low, that judges are comparably hesitant in applying sanctions at all, especially in ‘first time cases’ and/or tend to issue sanctions close to the minimum amount rather than trying to establish adequate amounts to the problem, to the fact that in many cases, sanctions lack effectiveness as they are either not complied with or they are too low to stimulate change of attitude.
And even if in the course of the last 15 years (since the adoption of Directives 43/2000 and 78/2000), legislative provisions relating to sanctions and remedies have been improved, effectiveness, proportionality and potential for dissuasiveness still are not guaranteed in practise.
When we presume that the aim of equal treatment legislation on the one hand should be to provide access to justice to those affected of discrimination – and this also would have to include access to a judgement including adequate sanctions and compensation – and on the other, to promote a change of attitude on the side of employers, providers of goods and services and society as such, then we also have to consider effective sanctions as a key part of the equal treatment regime.
With this acknowlegdement in mind, Equinet has commissioned a study with the aim of identifiying different types of sanctions, challenges in implementing them and ways of making them more effective. A specific focus is being given to the (potential) role of equality bodies in strengthening effectiveness, proportionality and dissuasiveness of sanctions’ regimes. The research was conducted in spring/ summer 2015, and research findings will be published as an Equinet paper in autumn/ winter 2015.
Katrin Wladasch, email@example.com