National Equality Institutions and the Domestication of EU Non-Discrimination Law
| DOI | 10.1177/1023263X1101800108 |
| Author | Bruno de Witte |
| Published date | 01 March 2011 |
| Date | 01 March 2011 |
| Subject Matter | Article |
18 MJ 1–2 (2011) 157
NATIONAL EQUALITY INSTITUTIONS
AND THE DOMESTICATION OF
EU NON-DISCRIMINATION LAW
B W*
ABSTRACT
e recent evolution of European Union equality law, and the equality law of European
countries more generally, is marked by the increase d attention given to the procedural and
institutional preconditions for the e ective protection of equal treatment. e creation of
public bodies, speci cally tasked with the a dvancement of equality law and equality policies
(equality institutions), is an important element of this evolution . Within Europe, they were
rst experimented with in the United Kingdom and then g radually adopted in a small
number of other countries. In 2000 and subsequent years, though, the creation of equality
institutions was imposed on all EU Member States b y means of three anti-discrimination
Directives. e concrete shape and scope of activity of those institutions is still ver y
di erent from country to countr y, though. e development of new equality institutions
in Europe was facilitated by other legal tradit ions and processes: the separate ombudsman
tradition developed in Scandinavia but with a strong in uence also in Southern Europe;
the international movement towards the creation of national human rights institutions;
and endogenous development s of EU law, such as its increased concern for the institutional
dimension of the e ective application of EU law, and its experimentation with new mod es
of governance.
Keywords: equality bodies; migration of legal ideas; legal convergence; enforcement of
EU rights; new modes of governance
* Professor of Europea n Union law, Maastricht University; Par t-time professor at the Robert Schuma n
Centre of the Europe an University Institut e (Florence).
Bruno de Witte
158 18 MJ 1–2 (2011)
§1. I N TRODUC TION
In the post-war period, there emerged in Western Europe w hat may be called a common
constitutional principle of equality. In all post-war Constitutions, and later in the new
democratic constitutions of Greece, Portugal, Spain, t his principle was recogn ized and
given a prominent place.1 A er the fal l of the Berlin Wall, the former communist states
of Central and Eastern Europe followed suit.2 In many of these constitutional equal ity
clauses, the abstract principle is followed by an o en long list of ‘suspect grounds’, in
connection with which t he term ‘discrimi nation’ is frequently used. For example, Art icle
14 of the Spanish Constitution states that ‘Spaniards are equal before the law and no
discriminat ion whatsoever may prevail on account of birth, race, sex, religion, opinion
or any other personal or socia l condition or circumstance’. e e ective enforcement
of the right to equal treatment is entrusted to the cour ts, including the constitutional
courts, who face everywhere a large stream of individual complaints of discrimination
by public authorit ies.
In a few cases, national constitutions also impose on the state authorities a duty to
take positive action in order to gu arantee substantive equality for dis advantaged groups.
For example, Article 3, parag raph 2, of the Italian Constitution, al ready in 1947, made it
a duty of public aut horities to promote e e ctive equality. e public authorities cha rged
with this duty to take positive steps towards ensuring equality were essentially the
government and parliament. Nowhere did it occur to t he constitution-maker or legislator,
in those times, that the e ective enforcement of the principle of equality would requi re
the creation of special qua si-autonomous public bodies, acting independently from the
parliament and government. Yet, today, the Member States of the Eu ropean Union (and
many other European count ries as well) have all put in place such bodies, w hich I will cal l
‘equality bodie s’ or ‘equalit y institutions’. e immediate reason for this qu ick spread of
equality institutions is that their creation was mandated by European Community law,
rst by Directive 2000/43 on racial equality,3 and soon a er by Directive 2002/73 on
1 e prominence is visua lized by the fact that equa lity clause s are o en among the rst articles of a
Constitution : for example, Article 1 i n France and in the Net herlands, Art icle 2 in Sweden, Artic le 3 in
Germany and i n Italy, Article 4 in Greec e.
2 On equality provis ions in post-communist Eu ropean states, and t heir application by the con stitutional
courts, se e W. Sadurski, Rights Befo re Courts. A Study of Co nstitutional Cour ts in Postcommunist St ates
of Central and Eas tern Europe (Springer, Dordrecht 20 05), chapter 8.
3 Directive 200 0/43 implementing the princ iple of equal treatment b etween persons irre spective of racia l
or ethnic orig in, [2000] OJ L 180/22.
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