Human European Consultancy in partnership with the Migration Policy Group
September 2005
This Chapter contains Substantial Modules for the training. In these moduls,
the sign *** followed by the text in italics indicates that this is an instruction
for the trainer. This could be e.g.
*** Participants should be invited to explore in couples or small groups what
they think an NGO is or should be. They should discuss in particular some
frequently asked common questions such as:...
The modules have been drafted in such a way that the trainers can take the
instructions out of the Manual, and use the text of the modules as material
for the participants to be distributed before or during the training. Clearly,
the trainer may only want to use some of the sections or indeed add sections
of his/her own.
*** This section is meant to provide the participants with an understanding
of the concept of discrimination and of “where” the EU anti-discrimination
Directives come from, which will be helpful in further discussions. The session
does not have to last for more than 45 – 60 minutes. For simplicity, we have
used the term “EU law” throughout this section even though, as a matter of
strictly technical law, this is not entirely correct.
*** Please refer to the Methodology Section to decide HOW to deliver training
on the issues raised by this module.
*** How much emphasis should be placed on the various sections in this session
will depend on the knowledge the participants already have. The trainer may
chose to include some or all of the issues outlined below in the session.
Intended learning outcomes:
● For the participants to gain basic knowledge of the nature of European
Law and Institutions
● For the participants to gain an understanding the concept of discrimination
*** The trainer should begin the session by explaining that the prohibition
of discrimination is one of the fundamental underlying values of the EU, enshrined
in a number of documents (see below at 1.3) and in the case law that the European
Court of Justice in Luxembourg has developed over the years. In order to discuss
the concept of discrimination, and follow on from there by discussing various
ways of combating discrimination, it is vital for the participants to have
some understanding of the European Union itself and its institutions. This
module will therefore start with a brief introduction to the EU.
The European Union comprises of twenty-five Member States: Austria, Belgium,
Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece,
Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands,
Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
There are, at present, four candidate countries: Bulgaria, Croatia, Romania
and Turkey.
There are four principal institutions which are entrusted with carrying
out the tasks of the EU:
A. Council of the European Union
Legislative arm based in Brussels (Belgium)
The Council has six key responsibilities:
○ To pass European laws: in many fields it legislates jointly with the European Parliament;
○ To co-ordinate the broad economic policies of the Member States;
○ To conclude international agreements between the EU and one or more States or international organisations;
○ To approve the EU's budget, jointly with the European Parliament;
○ To develop the EU's Common Foreign and Security Policy; and
○ To co-ordinate co-operation between the national courts and police forces in criminal matters
Consists of representatives of the Member States at ministerial level (one
representative per Member State) who are authorised to commit their governments
Presidency of the Council is held on a rotation basis by Member States for
six month periods
President of the Council represents the EU in international affairs
Executive arm based in Brussels (Belgium)
The European Commission has four main roles:
○ To propose legislation to Parliament and the Council;
○ To manage and implement EU policies (e.g. discrimination policies) and the budget;
○ To enforce Community law (jointly with the Court of Justice); and
○ To represent the EU on the international stage, for example by negotiating agreements between the EU and other countries
Consists of one Commissioner per Member State, appointed by the governments
for five year terms, acting impartially and independently
For some more details of the Commission’s actions in the field of discrimination
see below at 1.3.
The Parliament has three main roles:
○ It shares with the Council the power to legislate;
○ It exercises democratic supervision over all EU institutions, and in particular the Commission. It has the power to approve or reject the nomination of all Commissioners, and it has the right to censure the Commission as a whole; and
○ It shares with the Council authority over the EU budget. At the end of the procedure, it adopts or rejects the budget in its entirety.
# The monthly plenary sessions are held in Strasbourg (France)
- the Parliament's ‘seat’. Parliamentary committee meetings and any additional
plenary sessions are held in Brussels (Belgium), whilst Luxembourg is home
to the administrative offices (the ‘General Secretariat’)
# Members of the European Parliament (MEPs) are directly
elected by universal suffrage every five years; any EU citizen may stand for
election, and EU citizens may vote in whichever Member State they live in
# MEPs may not concurrently serve in a national government
but may hold a seat in a national parliament; they sit in multinational political
parties
# Committees are set up to deal with particular issues.
There is a Committee on Employment and Social Affairs, one on Women’s Rights
and Gender Equality and one on Civil Liberties, Justice and Home Affairs,
but not as yet a Committee dedicated to other equality issues. The Committee
on Petitions responds to petitions submitted by individuals who consider that
their EU protected rights have been violated (see National Context Section
3.2 Administrative and legal channels for challenging violations of anti-discrimination
legislation).
# Main court of the EU, based in Luxembourg
# Consists of one judge per Member State, assisted by eight
Advocate-Generals whose role is to present reasoned opinions on the case to
the ECJ
# Judges appointed by joint agreement of the governments
of the Member States for renewable six year terms
# Main jurisdiction:
○ Requests for a preliminary ruling: if a national court is in
any doubt about the interpretation or validity of an EU law it may, and sometimes
must, ask the ECJ for advice. This advice is given in the form of a ‘preliminary
ruling’; (see further National Context Section 3.2 Administrative and legal
channels for challenging violations of anti-discrimination legislation)
○ Proceedings for failure to fulfil an obligation: The Commission
or Member States can initiate proceedings if they have reason to believe that
a Member State is failing to fulfil its obligations under EU law; (see further
National Context Section 3.2 Administrative and legal channels for challenging
violations of anti-discrimination legislation) and
○ Appeals on points of law only against judgments given on decisions
of European Union institutions by the Court of First Instance, which was created
in 1989 to alleviate the workload of the ECJ, and which is also based in Luxembourg
# Decisions are reached by majority. There are no dissenting
opinions; judgments are signed by all the Judges who took part in the deliberations
and are read in open court.
The EU must act within the limits of its powers as set out in the Treaties.
The principle of subsidiarity regulates the lawfulness of the exercise of
competence: in areas which do not fall within its exclusive competence (i.e.
where competence is shared with the Member States) the EU can only take action
if the objectives of that action cannot be sufficiently achieved by the Member
States.
In cases of conflict, EU law is supreme over national law. This is to ensure
the uniformity of EU law and its interpretation by the national courts. The
ECJ has held that the EU constitutes a new legal order for whose benefit the
Member States have limited their sovereign rights, and that a national court
is under a duty to give full effect to provisions of EU law even if this means
refusing to apply conflicting national law, whether adopted prior or subsequent
to the particular piece of EU legislation.
The sources of EU law can be divided into three categories:
Primary sources: The Treaties between the Member States and agreements with
third countries.
Secondary sources: Regulations, Directives, Decisions, Recommendations and
Opinions.
Other sources: General Principles of EU law developed through the case law
of the ECJ, and “soft law” (e.g. guidelines and resolutions).
*** Below follows a further explanation on the sources of EU law. As the training
is aimed at in various ways examining the protection afforded by the EU anti-discrimination
Directives, the trainer may want to focus only on the legal effect of directives.
However, the fuller explanation might help to provide the trainer and participants
with some more background information.
Treaties
– The EC Treaty and Protocols, as amended by the Merger Treaty 1965 and the
Acts of Accession (1972: UK, Ireland, Denmark; 1979: Greece; 1985: Spain,
Portugal; 1995: Austria, Finland, Sweden; 2003: Cyprus, Czech Republic, Estonia,
Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia; 2005, Bulgaria,
Romania)
– The Euratom Treaty
– Single European Act 1986
– The Treaty on European Union (of Maastricht) 1992
– Treaty of Amsterdam 1998
– Treaty of Nice 2000
Secondary Sources
Article 249 of the EC Treaty states:
“[...]
A regulation shall have general application. It shall be binding in
its entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon
each Member State to which it is addressed, but shall leave to the national
authorities the choice of form and methods.
A decision shall be binding in its entirety upon those to whom it is
addressed.
Recommendations and opinions shall have no binding force.”
Regulations:
● Binding law
● Directly applicable: come into force by virtue of their publication
in the Official Journal of the European Communities, from the date specified
in them, or in the absence thereof, from the twentieth day following that
of their publication
● Do not require any national implementing measures
● Can be relied upon in national courts by individuals
● General application – apply to and in all Member States
Directives
● Binding law in the Member State to whom it is addressed
● Enter into force either on the date specified in them or on the twentieth
day after their publication in the Official Journal of the European Communities
● But require domestic implementing measures within a certain
time period from adoption
● Member States must ensure that they adopt implementing measures before
the expiry of the time deadline so that national law reflects the terms of
the Directive – this process is called transposing the Directive
● Before the expiry of the time period, Directives cannot be relied
upon in national courts
● Once the time period has expired, can be relied upon in national courts
by individuals but only against the State or agents of the State and if certain
conditions are met (see below at 1.6)
● Member States can be liable for non-implementation or for imperfect
transposition of a Directive (see further below at 1.6)
Decisions
● Binding law
● But only on those to whom it is addressed, e.g. a company which has
been found in breach of competition law
● Can be relied upon in national courts by individuals
Other sources
Case law/General principles of EU law
– fundamental human rights (including the European Convention on Human Rights,
see further below at 1.2)
– equality/non-discrimination (see further below at 1.3)
– proportionality
– legal certainty/legitimate expectations/non retroactivity
– the right to be heard
– legal professional privilege
*** This is indeed intended to be very brief, and mainly to point out to
the participants that the European Union and the Council of Europe are two
separate European institutions even though in some limited areas their work
overlap, and to explain about the European Convention of Human Rights in order
to make the participants aware that this instrument also provides protection
against discrimination.
The Council of Europe was created at the end of the Second World War for the
purpose of promoting European unity, protecting human rights and facilitating
social and economic progress. It has 46 Member States, including all EU Member
States and candidate countries. The Council of Europe created the European
Convention for the Protection of Human Rights and Fundamental Freedoms. The
European Court of Human Rights is based in Strasbourg, and oversees the implementation
of the Convention.
Article 14 of the Convention provides some protection against discrimination,
as does the 12th Protocol to the Convention which entered into force on 1
April 2005. At the time of writing this manual (April 2005), out of the 13
countries involved in the present project only Cyprus has ratified and will
therefore be bound by the 12th Protocol.
*** This session is meant to introduce the participants to EU policy and
the concept of discrimination – a more detailed examination of the two discrimination
Directives will take place during the national module.
Background
The principle of non-discrimination is a general principle of EU law. It is
also expressly mentioned in a number of distinct contexts in the Treaties.
The EU Charter of Fundamental Rights was solemnly proclaimed in December 2000
and is as of yet not legally binding. It forms part of the new Constitutional
Treaty, and once this Treaty has been ratified by all 25 Member States, it
will become binding. The process of ratification is going on across the EU
at present. Article 21(1) of the Charter states:
“Any discrimination based on any ground 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 shall be prohibited.”
Further, Article 13 of the EC Treaty states:
“Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”
This is not a direct prohibition, but rather an empowering provision which
enables the EU to take action against the forms of discrimination listed (see
General Principles above). Prior to these developments, there was extensive
EU legislation and case law on the prohibition of discrimination on grounds
of nationality and gender.
The EU has, pursuant to Article 13, put in place a three part strategy to
combat discrimination:
● A Directive to implement equal treatment irrespective of racial
or ethnic origin (Council Directive 2000/43/EC)
● A Directive establishing a framework for equal treatment in employment
and occupation on the grounds of religion or belief, disability, age and sexual
orientation (Council Directive 2000/78/EC)
● The Community Action Programme 2001-2006 (Decision 2000/750/EC) to
combat discrimination on all the grounds listed in Article 13 (other than
sex). The programme has three principal objectives:
# to assist in analysing and evaluating the extent and nature
of discrimination in the EU and the effectiveness of measures to combats it;
# to help to build the capacity of the actors in the Member
States of the EU and at European level who are active in the fight against
discrimination;
# to promote and disseminate to practitioners and opinion-formers
the values and practices underlying the fights against discrimination.
#
The PROGRESS Programme 2007-2013 will bring together a number of existing
European programmes under one heading, including the anti-discrimination programme.
The nature of the existing programmes will be largely unchanged.
*** The trainers might want to draw on the vast existing European and national
case law on gender discrimination where it provides examples and analogies
applicable to other kinds of discrimination. Some references to this case
law is made below.
To discriminate means to differentiate or to treat differently when there
is no relevant difference between two persons or situations, or to treat in
an identical way situations which are in fact different. The two anti-discrimination
Directives, which provide the basis for this training, prohibit both direct
and indirect discrimination and provide the same definition of discrimination.
Direct discrimination has occurred if one person is treated less
favourably than another is, has been or would be treated in a comparable
situation, on any of the grounds on which discrimination is prohibited.
The problem in establishing that direct discrimination has taken place is
that it is not always easy to identify the “correct comparator”. You need
to find someone whose situation you can compare to the situation of the person
who claims to be a victim of discrimination. Only if these are in the same
or similar situations can the comparison take place. Sometimes it will be
impossible to identify an available actual comparator, and a case can then
be made for a hypothetical comparator. This should build on the treatment
of a real person without the relevant characteristics (e.g. someone from a
mainstream religion as opposed from a minority religion) in slightly different
circumstances.
However, once it has been established that two people in the same or similar
situation have been treated differently, it would be hard to show that this
difference was permissible. The Directives provide for certain narrowly and
precisely drawn exceptions. These include genuine occupational requirements,
positive action, reasonable accommodation for disabled persons and specified
exceptions for age discrimination.
For example, if an employer denies a worker a pay rise because of the worker's
sexual orientation, and another worker in the same situation is given the
pay rise, it is likely that this would constitute discrimination in violation
of Employment Framework Directive (2000/78/EC). However, if a worker is denied
a pay rise due to his age, this might be permissible under Article 6, which
allows States to provide that differences of treatment on grounds of age shall
not constitute discrimination if, within the context of national law, they
are objectively and reasonably justified by a legitimate aim, and if the means
of achieving that aim are appropriate and necessary. Such differences may,
according to the Directive, include the fixing of minimum conditions of age,
professional experience or seniority in service for access to employment of
to certain advantages linked to employment (see more on this below).
The Directives also prohibit indirect discrimination. Indirect discrimination
occurs where an apparently neutral provision, criterion or practice
would put persons belonging to a protected group at a particular disadvantage
compared with other persons. This is so unless the provision, criterion or
practice in question is objectively justified by a legitimate aim and
the means of achieving that aim are appropriate and necessary.
As with direct discrimination, identifying correct comparators can be difficult.
An example which has in the past often been given as a possible instance of
indirect discrimination based on sex (which is not covered by the Directives
but by other provisions of EU law) is that of a substantial difference in
pay between full time and part time workers, where the part time workers are
exclusively or predominantly female. Another example can be an apparently
neutral provision in a company's internal rules requesting a particular dress
code if this dress code leads to the exclusion of a person or a group of persons.
The permitted legal justifications must be applied rigorously.
For example, justification may in some cases be valid when an employer demands
high standards of literacy and fluency in the national language. If the job
in question involves tasks where these skills are absolutely necessary, e.g.
for a language teacher or professor of literature, the employer is likely
to be justified in demanding them. However, if the job involves manual labour,
such a requirement is unlikely to be justifiable (see more on genuine and
occupational requirements below at 1.4).
The Directives also proclaim that harassment is a form of discrimination.
Harassment is defined as unwanted conduct related to the grounds on which
discrimination is prohibited with the purpose or effect of violating the dignity
of a person and of creating an intimidating, hostile, degrading, humiliating
or offensive environment. As is clear, the definition of harassment includes
a wide range of unwanted conduct. When making an assessment of whether harassment
has taken place, a comparator does not need to be identified.
The Directives further state that an instruction to discriminate should
be considered as discrimination and is therefore prohibited.
Finally, the Directives include victimisation under the list of prohibited
acts. The Member States need to put in place measures that are necessary to
protect individuals from any adverse treatment (such as dismissal) as a reaction
to a complaint or proceedings aimed at enforcing compliance with the principle
of equal treatment. It is important that not only the person who has been
discriminated against is protected, but also those who provide evidence as
part of a discrimination complaint, or are involved in some other way in the
complaint.
*** The trainer can provide or ask the participants to provide more examples
of instances of direct and indirect discrimination to ensure they have understood
the concepts outlined above.
The Employment Framework Directive (2000/78/EC), Article 3, covers protection
in the following areas:
■ Access to employment, self-employment and occupation (including promotion)
■ Access to vocational guidance and training
■ Employment and working conditions, including dismissal and pay
■ Membership of workers’, employers’ or professional organisations
The Race Directive (2000/43/EC), Article 3, provides much wider protection
against discrimination and includes the following:
■ Access to employment, self-employment and occupation (including promotion)
■ Access to vocational guidance and training
■ Employment and working conditions, including dismissal and pay
■ Membership of workers’, employers’ or professional organisations
■ Education
■ Social protection, including social security and health care
■ Social advantages
■ Access to and supply of goods and services which are available to
the public, including housing
The Directives prohibit discrimination by natural or legal persons in the
public sector and the private sector. This means that an individual owner
of a business has the same responsibility not to discriminate on any of the
protected grounds as does a large private corporation, a municipality or a
government department.
The Directives protect individuals, that is, natural persons, against discrimination.
Additionally the Race Directive (2000/43/EC) provides that protection against
discrimination should also apply to an organisation that has the status of
legal person where the organisation suffers discrimination on grounds of the
racial or ethnic origin of its members, where this accords with national traditions
and practice.
Nationality
The Directives protect any person who is present in a Member State against
discrimination on any of the prohibited grounds (racial or ethnic origin,
disability, religion or belief, sexual orientation and age) regardless of
the person’s nationality. Thus a person of Ukrainian nationality who is discriminated
against in Hungary on grounds of ethnic origin or disability or sexual orientation
is protected in the same way as Hungarian nationals in Hungary who experience
such discrimination. The Directives specifically exclude discrimination on
grounds of nationality, so that if discrimination is on grounds of being Romanian,
or not being Hungarian, the Directives would not apply (please see Race Directive
(2000/43/EC), recital 13 and Article 3.2; Employment Framework Directive (2000/78/EC)
recital 12 and Article 3.2).
Distinct from the anti-discrimination Directives there is, of course, the
EU Treaty right to freedom of movement of workers across the EU, which provides
some protection against nationality discrimination for citizens of EU member
states and their families. There is also other EU legislation concerning the
rights of certain non-EU citizens (third country nationals) who are residing
working in EU member states.
As the purpose of the Directives is to provide a framework for combating
discrimination, the Directives permit discrimination only very exceptionally
and only where certain tests are satisfied.
Genuine occupational requirement
For all prohibited grounds the Directives permit an exception to meet genuine
occupational requirements. Thus an employer may select a person for a particular
post where, due to the nature of the work involved or the context in which
it is carried out, it is a “genuine and determining occupational requirement”
that the person should have a characteristic related to racial or ethnic origin,
disability, religion or belief, sexual orientation or age provided that
the objective is legitimate and the requirement is proportionate. For
example, a film director could insist that only a black actor could play Nelson
Mandela in a movie – in such a situation it would be a genuine occupational
requirement to employ a black person. Applying a genuine occupational requirement
in respect of one ground should not justify discrimination on any other ground;
so in this example, it would not be legitimate to discriminate on grounds
of sexual orientation.
Long-established assumptions about the type of person required to do a particular
job may not meet the test of legitimate objective and proportionality. For
example, an employer is unlikely to be able to demonstrate that to work as
a receptionist a person must be “young and energetic”; such requirement is
likely to be discriminatory on grounds of age and disability.
The Employment Framework Directive (2000/78/EC), Article 6, permits, but
does not require, Member States to include some further exceptions that would
allow differential treatment on grounds of age including:
– setting special conditions on access to employment and training, on employment
and occupation, including dismissal and pay, for young people, older workers
and people with caring responsibilities in order to protect them or to promote
their vocational integration;
– fixing minimum age, experience or seniority for access to employment or
advantages linked to employment;
– fixing maximum age for recruitment, based on the training requirements of
the post or the need for a reasonable period of employment before retirement.
Any such exception must still be objectively and reasonably justified by a
legitimate aim, which could include legitimate employment policy, labour market
or training objectives, and the means of achieving that aim must be appropriate
and necessary.
The Directives recognise that to achieve full equality in practice will require more than prohibiting current or future discrimination; therefore they permit measures to prevent or compensate for the historic disadvantages suffered by groups defined by racial or ethnic origin, religion or belief, disability, sexual orientation or age. If particular groups have never been employed to do particular types of work, positive action could involve training people from such groups to prepare them for such work. It could also involve taking additional, planned, targeted steps, when seeking to recruit new employees, to publicise posts in different ways in order to encourage members of such groups to apply, offering support if necessary.
The Employment Framework Directive (2000/78/EC), Article 5, requires employers
to take appropriate steps where needed in a particular case, to enable a disabled
person to have access to, participate in or advance in employment or to undergo
training unless this would impose a ‘disproportionate burden’ on the employer.
For example:
■ To enable a deaf employee to undergo training her employer could provide
a sign language interpreter.
■ After an accident at work a manual worker is unable to continue in
his manual job; the employer could provide appropriate training and transfer
him to an office job.
■ A wheelchair-user replies to an advertisement for an administrative
assistant. The address is on the 4th floor. If the employer has offices on
several floors including the ground floor, the employer could arrange for
the work of the administrative assistant to be done in the ground floor office
and move another employee who is able to climb stairs to the 4th floor. If,
however, the employer has offices only on the 4th floor and there is no lift,
then there may be no reasonable measures (without disproportionate burden)
the employer can take to enable this person to do this job.
■ To enable a blind person who uses a guide dog to get to work more
easily, the employer could change their working hours so they do not have
to come in the rush hour.
An employer cannot claim that the burden, including financial burden, of providing
reasonable accommodation for a disabled person is ‘disproportionate’ if funding
or other assistance is available to assist employers in such circumstances.
Both directives provide that associations and organisations with a legitimate interest can support victims of discrimination or take legal action on their behalf (with their approval). Criteria defining which organisations have a “legitimate interest” are established by national law.
The Directives require Member States to promote dialogue with social partners
to encourage workplace agreements, codes of conduct, etc. and with NGOs with
a view to promoting the principle of equal treatment.
In the Race Directive (2000/43/EC) only there is an obligation on each Member State to designate a body to promote equal treatment. Their main tasks are to provide independent assistance to victims of discrimination, conduct independent surveys and studies, publish independent reports and make recommendations.
The Directives require Member States to take measures to publicise widely both their existing laws on equal treatment and non-discrimination and any new measures they adopt to bring their laws in line with the directives.
Member States must report to the EU on the application of the Race Directive (2000/43/EC) by 19 July 2005 and on the application of the Employment Framework Directive (2000/78/EC) by 2 December 2005, and every five years thereafter.
In transposing the Directives, Member States must ensure there are sanctions for infringement of their national anti-discrimination laws and that these sanctions are applied. Sanctions for discrimination must be ‘effective, proportionate and dissuasive’; that is they should provide appropriate personal redress for the victim and should deter both the particular respondent and others from comparable acts of discrimination in the future. Sanctions may comprise the payment of compensation, for which no upper limits can be imposed.
Recognising the difficulty of proving discrimination, Article 8 of the Race Directive and Article 10 of the Framework Employment Directive provide for the shift of the burden of proof as follows
“… when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”
The burden of proof cannot be shifted in criminal (petty offence) proceedings.
In some Member States it will not apply to investigative procedures. It is
equally important to note that the shift of the burden of proof is not limited
to court proceedings but that it extends to proceedings before any competent
(i.e. administrative) authority.
The notion of the shift of the burden of proof made its way into EU law through
ECJ case law handed down in connection with equal pay cases - where a woman
could show difference in gender and difference in pay, and the court needed
the employer to provide an explanation. The most frequently cited case in
this regard is Enderby v. Frenchay Health Authority and the Secretary of State
for Health, C-127/92.
There followed Council Directive 97/80/EC on the burden of proof in cases
of discrimination based on sex. The shift of the burden of proof has been
closely linked to the importance of delivering effective judicial protection
against acts of discrimination. The shift of the burden of proof which the
Directives allow is, however, not automatic. The onus of proof does not shift
as soon as a plaintiff simply claims that he was discriminated against but
only after s/he establishes facts from which it may be presumed
that discrimination has occurred. What these facts might be is dependent on
domestic legislation and case law.
The Directives refer to discrimination “on grounds of” racial or ethnic origin,
religion or belief, disability, sexual orientation and age. Case law in countries
like the United Kingdom and national legislation transposing the Directives
has generally clarified that “on grounds of” can include protection against
discrimination where the victim has the actual characteristics in question
or is perceived to have such characteristics or is associated with persons
having such characteristics. For example, if someone is excluded from a restaurant
because the proprietor says “No Roma” this is likely to be direct discrimination
on grounds of racial or ethnic origin, whether the person is in fact Roma
or whether their appearance suggests that they are Roma or because they are
with Roma friends.
Thus, a plaintiff who does not profess himself in court as belonging to the
Roma minority, can at the same time claim that he was discriminated on the
ground of his perceived ethnic origin.
This approach is likely to be particularly important in sexual orientation
cases, since victims will not need to prove that they have a particular sexual
orientation but merely to establish facts to show that they have suffered
less favourable treatment or harassment on grounds of their perceived sexual
orientation or their association with people of a particular sexual orientation.
There are many procedural instruments that can assist victims of discrimination
to establish that discrimination may have occurred. Such instruments include
testing, the use of statistics, video and audio recordings and the so-called
questionnaire procedure. Testing is commonly used in the United States to
prove direct discrimination in employment, housing and access to services.
In Belgium testing is a piece of evidence acknowledged by law. NGOs in Central
and Eastern Europe also use testers – job seekers for instance - who are selected
to stand a comparison in all their characteristics, expect for the one (most
often race) on the basis of which discrimination occurs.
Audio and video recordings can be used as evidence in some countries – e.g.
in the Czech Republic – but not in others. In the United Kingdom the questionnaire
procedure enables rejected job seekers to seek an immediate response from
the employer as to the reasons for their rejection. Courts and tribunals in
the United Kingdom can draw inferences of discrimination from the answers
given to the questionnaire or from the failure of the employer to respond
in time or respond at all.
Both the Race Directive (2000/43/EC) and the Employment Framework Directive
(2000/78/EC) in their preambles expressly mention the use of statistics in
cases of indirect discrimination.
*** Below is an explanation of a State's responsibility for breaches of EU
law. The trainer may wish to introduce the participants to these principles
here, or if more appropriate deal with them during the national section. Again,
the trainer will of course have to make an assessment of how detailed this
section will be based on the background and interests of the participants.
Where a State, which is a member of the EU, has not provided for the full
(and correct) transposition of a Directive (see nature of Directives above)
into national law by the time the date for implementation has passed, an individual
may nevertheless be able to rely on the provisions of the Directives before
national courts. This is known as the principle of “direct effect”. The aggrieved
individual will have to show that the provision relied on is a precise and
unconditional principle which is sufficiently operational to be applied by
a national court and which is therefore capable of governing the legal position
of individuals. However it is generally held that the principle of direct
effect applies only to complaints directed against a public body or “emanation
of the State”.
As such, in relation to litigation between private individuals or entities,
Directives also have so-called “indirect effect”. As discussed above, States
and in particular domestic courts are obliged to do everything possible to
achieve the results outlined in the Directives. Indirect effect therefore
requires domestic courts to interpret existing national law, as far as possible,
in line with the Directive that should have been implemented.
It is ultimately for the ECJ to decide which terms of the anti-discrimination
Directives have direct or indirect effect.
If a State fails to implement a Directive within the time frame provided,
the State is liable for damage that this causes to the individual. This is
referred to as Francovich damages as the principles was first laid down in
the the case of Francovich and Bonifaci v. Italy (Joined Cases C-6/90 and
C-9/90) decided by the European Court of Justice in 1991.
In the Francovich case the ECJ listed three conditions which are both necessary
and sufficient to establish liability under this principle. These are:
# The rule that has been infringed should entail the granting
of rights to individuals;
# The content of such rights must be ascertainable on the
basis of the provisions of the Directive in question; and
# There must be a causal link between the breach of the
State's obligation and the loss and damage suffered by the injured individual.
In addition, the breach of EU law must also be sufficiently serious for the
individual to be entitled to damages.
The Francovich damages remedy has been developed by the ECJ in later cases.
It is now clear that it is available for all breaches of EU law by a Member
State, including failure to implement a Directive properly, in addition to
complete non-implementation.
*** The trainer should identify a situation where either national standards
or national remedies do not fully meet those set out in the anti-discrimination
Directives. One example could be lack of steps taken to ensure disabled access
to buildings which would hinder access to employment.
Materials
The text of the two Directives and possibly summaries (see National Context
Section)
*** This session will provide an introduction to the following sessions on
methods and skills needed to combat discrimination. It is intended that this
session should last for approximately 1,5 hours. Depending on the background
and previous knowledge of the participants, the trainer will have to make
a decision as to how much emphasis should be put on the various parts of this
section.
*** Please refer to the Methodology Section to decide HOW to deliver training
on the issues raised by this section. Clearly, this is a session that will
benefit from small group discussion. See also instructions contained in the
text below.
Intended learning outcomes:
- For the participants to have explored the roles NGOs can and should play
in combating discrimination.
*** Participants should be invited to explore by snowballing or brainstorming
what they think an NGO is or should be They should then be invited discuss
(snowballing or brainstorming, or facilitated group discussion) some frequently
asked questions such as:
● Can an NGO be affiliated to a political party or must it remain rigorously
distant from party politics?
● If an NGO has close links to a political party what happens when that
party gets into government?
● Can a religious organisation, such as a church, be considered as an
NGO?
● How might an NGO’s independence be affected, or compromised, by its
sources of funding?
● Should NGOs be membership organisations whose members decide on policy
and strategy or should policy and strategy be decided by the governing body?
● What sort of people need to be on the governing body? Do they need
to be members of the NGO? Can they just be supporters of its aims?
● Where the NGO has or acquires sufficient funds to pay those who carry
out its work - so that they are employees of the NGO - how must the
NGO and its governing body ensure transparent, non-discriminatory recruitment
and employment practices and good practice in the management of staff?
*** Then go on to use the same methodologies to consider more general criteria
such as:
- Size, geographical specificity
- Organisational structure
- Membership structure
- Funding sources
- Operational areas
*** Only after the participants have explored this for themselves can they
be provided with a statement such as the one below to discuss and to decide
whether they agree with it and consider it relevant to their own experience.
Alternatively, if the trainers prefer, the participants will not be provided
with a statement to discuss, but just come up with a list of key essential
and non essential characteristics - without formulating them into a narrative
definition.
An NGO is a local, national, or international group, with a legally established
constitution, a clear purpose and visible activities with a governing body
which has the authority to speak for its members. It is normally a non-profit
organisation, not affiliated with any Government or private sector entity,
or any political party. Its aims are usually to promote well being by addressing
social and legal problems, and by seeking to play an equal role with other
democratic institutions in the development and progress of civil society.
*** The same methodology should be used for this section as for Part 1, i.e.
the participants should (by snowballing or brainstorming) come up with key
elements of the role of NGOs in combating discrimination. The lists set out
below are not intended to be provided to the trainees before they have explored
the issues for themselves, but are there to assist the trainers in helping
the trainees to explore all the pertinent issues. The trainees will, as in
Part 1, come up with their own list.
When considering what role they can play in combating discrimination, NGOs
should take full advantage of the special roles that has been given to them
under Articles 7 and 12 of Council Directive 2000/43/EC, and Articles 9 and
14 of Council Directive 2000/78/EC.
In order for a country to achieve its goals of peace, democracy, good governance,
health, prosperity and equality NGOs are essential to successful development.
The role of NGOs as instruments of civil society in the fight against discrimination
can include:
● Providing a means for expressing and actively addressing the needs
of people who are discriminated against
● Supporting victims of discrimination in their access to justice
● Promoting diversity and equality in society
● Establishing the mechanisms to influence decision-making
● Mainstreaming non-discrimination and equal treatment in policies
● Challenging authorities and corporations to act against discrimination
● Monitoring , documenting and denouncing discrimination
● Maintaining equality on the political agenda and encouraging mobilisation
*** The participants will need to discuss which of the activities outlined
below they should carry out.
An NGO can
● work in partnership with other NGOs to achieve shared aims;
● empower groups to engage in campaigns, to be self-advocates and to
assert and enforce their rights;
● work, where appropriate, in partnership with Governments to achieve
common aims and objectives;
● work, where appropriate, against Governments when those Governments
are promoting policies which are contrary to the NGO’s objectives;
● deliver services efficiently and effectively within the framework
of Government policies, where appropriate, and to adopt, where appropriate
strategies consulted and negotiated between NGOs and Government;
● deliver services efficiently and effectively outside the framework
of Government policies when this is necessary and appropriate to promote the
NGO’s objectives, and to adopt, where appropriate, strategies contrary to
Government policies;
● ensure the co-ordination of its own services and to engage Government
in discussions on the co-ordination of services between the Government and
NGOs;
● provide properly professionally researched advice to Governments on
issues of concern;
● advocate and campaign for change as a response to need;
● guide and contribute significantly to legislative and policy making
processes, by providing properly researched advice and by briefing politicians
in both Government and opposition and other persons of influence;
● be vigilant "watchdogs" - pointing out where Governments
and corporations are actively discriminating, or failing in their obligations
to combat discrimination or where they need to improve their performance,
and serving to enforce the operation of checks and balances that characterise
democratic society. In this role NGOs must target Government and the business
community by advocacy, lobbying and negotiating functions when required;
● challenge, by appropriately selected mechanisms acts, omissions, administrative
practices or policies which are contrary to the NGO’s objectives;
● keep track of and ensure that advantage is taken of all new developments
in combating discrimination, e.g. new legislation (national, EU and international),
new policies (national, EU and international), new sources of funding, and
landmark judicial decisions (at both national, EU and international level);
● be open, transparent and accountable to their membership and to the
public;
● increase the strength of NGO participation in civil society by forming
networks and coalitions, and promoting original initiatives and solutions.
This can help to reduce prejudice within society, thus favouring equality;
● work openly and in a spirit of collaboration with other NGOs operating
in related fields and to avoid conflicts and disputes between NGOs occurring;
● put pressure on a state to ratify international instruments which
allow for the international spotlight to be shone on Government practices;
● supply national and international bodies with vital and reliable information
which they should draw on when examining a country’s record on discrimination.
In summary, the role of many NGO can be to check, monitor and criticise the
actions of Governments and private bodies, to supplement and complement the
role of Government in combating discrimination and to assist individuals and
groups to assert their rights.
*** Again, the same technique should be used for this session; the participants
should develop their own list with the trainer’s guidance.
The following is a suggested list of activities and services that an NGO can
carry out or provide in order to help combat discrimination on all grounds;
● Awareness Raising;
● Monitoring/Influencing the Development of Policy & Law;
● Support to individual victims and to individuals forming part of a
collective complaint;
● Litigation;
● Alternative Dispute Resolution including mediation;
● Campaigning, advocating changes in practice (as distinct from policy
or law)
Further detail on these areas will be explored in the following sessions.
*** If the participants come up with other (sound) suggestions, the trainers
should be flexible in adapting the programme to include those suggestions.
It is vitally important that good suggestions are not discarded in favour
of a rigid adherence to the programme.
*** Once again, the same technique should be used for this session. The list
will be supplemented by the suggestions of the participants.
● Human Resources
● Skills
● Knowledge
● Expertise
● Openness
● Transparency
● Accountability (NGOs have been at the forefront of debates regarding
accountability and transparency - key issues for voluntary action)
● Funding
● Non discriminatory attitudes within its own organisation
● Appropriate national legislation in place regarding its establishment
and functioning
*** The trainer will discuss with the participants the following suggestions
as well as any other which arise from their snowballing or brainstorming.
Again, these lists are to assist the trainer in facilitating a focused discussion,
rather than being provided to the participants as answers.
● Voluntary organisations play a crucial role in engaging with communities
at the local, regional, national and international level.
● While disaffection with politics grows, engagement in voluntary and
community activities is a way for people to contribute to public life by donating
their time or money and supporting issues which are of concern to them.
● Voluntary organisations have increasingly become places where people
can debate and engage in issues that affect them, and where they feel they
can advocate for change.
*** Here the trainer can ask the participants to give examples of when the
work of their own NGOs has been successful, e.g. new legislation or policies
have been adopted after a campaign or discriminatory practices eliminated
or reduced. The trainer should also be prepared to provide some examples of
this.
*** The same technique should be used for this part – the participants should
first identify for themselves the obstacles from which a list can be compiled.
These are some common problems which NGOs encounter and which can be used
to stimulate the participants’ discussion.
● Complex rules surrounding the requirements that NGOs must meet in
order to be registered. NGOs seeking registration should make sure they have
a detailed familiarity with these rules and have taken the correct steps and
obtained the documents required for compliance.
● Prohibition on organisations carrying out certain activities if not
registered. Organisations have to decide how important this is and whether
or not to register.
● Prohibition on certain activities even after registration. NGOs need
to comply with the national law, or, if it is arbitrary or disproportionate
challenge it by the appropriate mechanism.
● Lack of standing in order to participate in relevant political debates.
NGOs will need to be sure that they brief an individual or organisation that
does have standing.
● Lack of standing in order to bring complaints. NGOs can support and
assist those who do have standing, or seek to reform the rules.
● Perception of affiliation to Government or a political party threatening
acceptance as an impartial advocate of issues. A good NGO needs to be careful
to espouse a cause, not to be affiliated to a political party and steps should
be taken to ensure that this is the case.
● Lack of knowledge and skills, particularly in organisational and financial
management or the use of IT. NGOs should ensure that they understand the importance
of good organisational and financial management. They must either acquire
the services (paid or unpaid) of qualified professionals or undertake appropriate
training (or both).
● Lack of funding and limited resources, lack of information and guidance
on accessing available national, EU and international funds. National equality
commission, NGO co-ordination bodies, local EU representations and regional
international donors should be contacted to identify suitable sources of funding.
● Tax/other relevant laws of the donor or recipient country that may
not be supportive of NGOs. For example, a considerable obstacle to the health
and sustainability of the NGO sector in Japan is the fact that previously,
Japan had not granted tax deductible status to most of its Not for profit
organisations. The US experience on the other hand, has shown that tax benefits
for Not for profit organisations help stimulate contributions from the public
and promotes private charitable giving from the for-profit sector.
● Lack of effective ‘partnership’ between Government and NGOs. The Government,
for-profit community, and NGOs need to recognise each other as being integral
partners, of equal stature, with a distinct and vital role to play in development.
Governments enact and enforce rules and regulations that define the policy
environments needed for NGO activities to take root. For-profit corporations
can offer know-how, resources, and technical assistance, while NGOs offer
practical on-the-ground knowledge, relationships, and implementing networks
needed to get the job done in a way that renders the final product sustainable.
● Under-utilisation of potential support from the business sector. NGOs
should seek to achieve ‘business engagement’. A growing number of NGOs are
now engaging businesses in ‘partnerships’ aimed at collaboratively addressing
key issues.
● Inability to reach some parts of the community due to insensitivity,
imposition of externally chosen legal or political aims, cultural or language
barriers. NGOs should ensure that their own organisations have a a diverse
workforce with personnel trained in discrimination awareness issues, awareness
of the social and political history, including history of exclusion and discrimination
of the groups within the community and, where relevant, a range of language
skills.
● Poor management or employment practices occur frequently in NGOs and
can damage morale and can impede the effectiveness of the NGO. Examples are
lack or absence of an organised infrastructure or hierarchy, and/or in terms
of the lack or absence of a management system. This may be due to a number
of factors including minimal funding, resources, time, resistance to taking
on the role of employer, continuity of personnel (especially in an organisation
where there is a high turnover of enthusiastic volunteers), low staff morale
or downright chaos, and results in NGOs not reaching their full efficiency
potential. This can be overcome by agreed allocation of management roles,
specific management training, competent internal administration and regular
review of administrative and employment matters.
Materials
For converting PDF in TXT or HTML go to:
http://access.adobe.com/access/
For example the Council of Europe document “Fundamental Principles on the
Status of NGOs in Europe” - www.coe.int/T/E/NGO/public/PrincFondam%20en%20engl.pdf
This document exists in English, French, Albanian, Bulgarian, Latvian, Lithuanian, Russian and Serbian.
*** The national session is a very important part of the national training
seminar and should be allocated around 2 - 3 hours of the training time.
*** Please refer to the Methodology Section to decide HOW to deliver training
on the issues raised by this module.
*** It is important to follow the order set out below – the participants need
the opportunity to discuss the less sensitive issues such as transposition
and procedures before moving on to part 3 – societal issues. The discussion
in parts 1 and 2 will facilitate the effectiveness of part 3. It is up to
the trainers to decide how exactly to divide up the time for the different
sections, depending on the background of the participants and the knowledge
that they already have. It is envisaged however, that the main focus will
be on section 3.
Intended learning outcomes:
■ For the participants to be familiar with the national provisions and
procedures which have been/have to be adopted to transpose the Directives,
and to have verified that the transposition has been/can be properly carried
out
■ For the participants to be familiar with the administrative and legal
channels available at national and international level to redress instances
of discrimination, and to have learnt how to use those remedies appropriately
■ For the participants to be able to restate the main principles of
the Directives, and the national implementing provisions, and to have critically
assessed the impact the Directives and the national implementing provisions
have had/will have in their work
■ For the participants to become aware of how the international community
has seen their country's record in the relevant field, and to understand how
to use this information
*** Where ever possible the participants, not the trainers should be providing
the “answers” to these questions – the trainer is only there to ensure that
– at the end of the session – participants are possessed of accurate information.
The difference between a Regulation and a Directive and the latitude given
to Member States as to the manner of transposition (see Key Concepts section)
– what was the national approach to the transposition of the Directives?
Have the Directives been transposed into national law?
Are the participants familiar with the texts of the Directives?
Are the participants aware of the national legislation adopted to comply with
the Directives? Are they familiar with the texts of this national legislation,
or with a layman’s guide to what they mean?
*** If not, and if appropriate, read NOW - allow time for reading. If the trainers feel this is not valuable use of time, a summary of the content of the Directives and of the national law can be provided.
How and when were the Directives transposed?
If appropriate, examine the text of the Directives and compare with the text
of the relevant national law or layperson’s guide. Identify relevant constitutional
provisions, any organic laws, specific provisions of the labour laws etc that
are relevant.
*** Even if the Directives have been transposed verbatim (which might be the
case in some Member States, although this is not the norm) this exercise should
be carried out with an explanation that this is not common practice, and with
a view to identifying discrepancies with pre-existing provisions of national
law. The trainers clearly need to have thoroughly researched these issues
before the training takes place.
Identify any gaps which have been left by the transposition. In countries
which have not yet transposed, identify the gaps in national law which will
need to be filled.
If the Directives were adapted into national law (rather than simply being
adopted as national law) compare the national provisions to the provisions
of the Directives themselves. Identify any discrepancies.
Were (or will) both Directives (be) transposed together?
What public discussion, if any, took place in the Parliament, and/or the media
at the time of transposition? If a discussion took place, what issues did
it focus on?
Was there any difference in the public reaction to the two Directives?
Have the required institution/s for the promotion of equal treatment regardless
of racial or ethnic origin been set up in accordance with Article 13 of Council
Directive 2000/43/EC? What is the scope of their competence? How do those
institutions measure up to the intention of the Directives?
*** Participants can also be asked if their Member State has set up other
bodies to combat discrimination.
Identify and list the specific differences which the Directives have introduced
into the whole system for national protection against discrimination.
In which cases are the Directives broader than previous national protection?
In which cases does the pre-existing national protection exceed the requirements
of the Directives?
The Directives do not outlaw all forms of discrimination. Identify and list
the aspects of discrimination commonly occurring in the country which are
NOT covered by the Directives (this is a “trailer” for the section on societal
issues and does not have to be very deep at this stage).
Are the participants aware of and familiar with the examination of national
reports by the Committees of CEDAW, CERD, ICCPR and CoRoC as well as material
from the ILO? (see materials below)
*** If the participants are not aware of these reports, the trainers should
briefly explain the procedure to point them in the right direction. If appropriate,
allow time to read carefully selected comments.
What have those Committees said about discrimination in the national context?
Are they familiar with the possibility of “shadow reporting” (NGO reports
that complement and where necessary correct the information provided by Governments
to these bodies) or of feeding information to larger NGOs for inclusion in
their shadow reporting?
What has been the public reaction of the Government, if any, to these comments?
What opinion polls, if any, or comparable assessments have been taken to identify
the extent of the impediment which public opinion will prove to be, to the
effective implementation of the Directives?
What measures, if any, have been taken by the Government to address this?
What are the national NGOs doing to address this? (See also Section on Role
of NGOs.)
What research, if any, is being carried out in national academic institutions
on the kinds of discrimination covered by the Directives?
*** The trainer will have to check with the universities to provide an accurate
answer to this question.
*** In this section the participants will familiarise themselves
with the administrative and legal channels and remedies which exist at national
and international level to guarantee the promotion and protection of equality.
According to the Directives, there is a requirement that their implementation
shall in no circumstances be grounds to reduce the level of protection already
provided for under national law.
The European Court of Human Rights and the European Court of Justice (see
section on Key Concepts) have made it clear that the protection of fundamental
rights must be “practical and effective not theoretical and illusory”.
*** The trainers will have to ensure that they are themselves familiar
with both the theoretical and practical aspects of utilising all the channels
described below. If they have no practical familiarity (for example of Petitioning
the European Parliament), they will have to have researched these mechanisms
in order to acquire at least a theoretical knowledge of how they work.
Where national procedures with which they are unfamiliar are concerned they
need to have acquired not only theoretical information but also practical
knowledge from colleagues with the necessary experience.
The various channels described below have been divided into eleven subsections,
A-K.
1. Identify the remedies which exist at local or national level for challenging employment and occupation related discrimination on the grounds of race and ethnic origin,religion or belief, disability, age or sexual orientation as set out in national laws giving effect to Council Directives 2000/43/EC and 2000/78/EC.
# informal resolution
# collective bargaining by trade union
# employer's internal grievance procedures
# administration channels including referrals to the labour
inspectorate
# legal remedies including
(i) civil law remedies
(ii) administrative law remedies
(iii) private criminal prosecutions
(iv) public criminal prosecutions
# complaints to ombudsperson(s)
# complaints to Equality Commission
# other channels such as local councils, parliamentary investigation
etc (specify)
# collective action
If the administrative and legal remedies are different depending on
# whether a public authority or private body is accused
of discrimination, or
# the situation in which discrimination has occurred
specify the different channels that must be used for pursuing complaints relating
to discrimination
2. Identify applicable situations, e.g.
- advertising of posts
- recruitment procedures
- selection
- terms and conditions
- pay
- discrimination in the workplace
- dress codes
- working hours
- suspect groups e.g. part time workers
- workplace disciplinary procedures
- promotion
- allowances and bonus payments
- dismissal (procedural and substantive)
- social security payments (in as much as they are classified in EU law as
“pay”)
- occupational pensions
- issue of permits and licences (in as much as they are covered by common
Article 3)
- access to vocational training, including vocational training in prisons
(in as much as it is covered by common Article 3)
3. Which internal or administrative remedies (if any) have to be exhausted before recourse can be had to the remedies set out at (5) to (9) above?
1. Identify the remedies which exist at local or national level which are appropriate for challenging discrimination on the grounds of race or ethnic origin as set out in national legislation giving effect to Council Directive 2000/43/EC.
# informal resolution
# administrative channels
# legal remedies including
(i)civil law remedies
(ii) administrative law remedies
(iii) private criminal prosecutions
(iv) public criminal prosecutions
# complaints to ombudsperson(s)
# complaints to Equality Commission
# other channels such as local councils, parliamentary investigation
etc (specify)
# collective action
If the administrative and legal remedies are different depending on
# whether a public authority or private body is accused of discrimination, or
# the situation in which discrimination has occurred
specify the different channels that must be used for pursuing complaints
relating to discrimination
2. Identify applicable situations (see Article 3 of the Directives)
- social protection including social security and health care
- social advantages (give examples)
- education
- housing
- access to services provided to the public, including welfare services, banking,
insurance etc
- access to premises open to the public, e.g. restaurants, hotels, leisure
facilities
3. Which internal or administrative remedies (if any) have to be exhausted before recourse can be had to the remedies set out at (3) to (7) above?
Identify the purpose of making the complaint.
– Identify the criteria that should be used by NGOs to select the mechanism
appropriate to the identified purpose(s).
● what outcome does complainant want?
● object of complaint – is it justice for the individual or raising
awareness of discrimination?
● urgency of resolution of complaint and time likely to be taken for
procedures to be completed
● time limits applicable to different procedures and whether the complainant
can comply with them
● possibility of quashing the adverse decision complained of
● whether or not a legally binding solution is sought and required,
and available
● assessment of facts - matching facts to requirements of remedies
● assessment of available evidence - appropriateness and sufficiency
of evidence for mechanism to be used
● whether or not legal representation is required or highly desirable
● availability of legal assistance
● possibility of financial compensation for victim(s)
● possibility of re-instatement or re-engagement (if desired in employment
cases)
● suitability of complaint for awareness raising
● impact on public opinion of different mechanisms
● possibility of group complaints
● possible costs and fees incurred by using a particular mechanism
This section should not only indicate what procedures have to be
followed but also what factual information is mandatory to be included
in the submission of the complaint under national rules.
What are the time limits applicable to the remedy?
Specify any formal requirement (e.g. notarisation of documents, sworn statements,
whether documents have to be originals, copies or certified copies etc).
What "soft" specific or general evidence can be included - e.g.
specific or background newspaper reports?
Check whether the national Equality Commissions have already produced guidance
to assist in relation to taking complaints to them or to other bodies.
Provide names, addresses, telephone numbers and email addresses of the appropriate
individuals to contact in each body, plus the same information for possible
sources of assistance (e.g. NGOs).
Impediments/obstacles can include e.g.:
- lack of legal aid
- lack of pro bono legal assistance
- lack of familiarity with the Directives and/or national anti discrimination
provisions on the part of judges, ombudspersons, administrative review bodies
- costs (which may be court costs or risk of costs if the case is lost)
- access to courts and court procedures (physical access – where are the courts
in relation to where the complainant lives, what facilities for disabled access,
for interpreters, etc.)
Support can include e.g.:
- possibility of being represented by trained NGO or trade union advice worker
or lawyer
- resources which national Equality Commissions have available to support
individual complaints
Where there is a disputed issue of EU law, a referral can be made
by a national court to the European Court of Justice in Luxembourg under Article
234 of the Treaty. The parties to the proceedings can ask the national judge
to grant a request for such a referral, or the judge can decide spontaneously
to refer the case. Any court may make a referral, but only the national court
of last instance is obliged to do so.
This may be a highly effective procedure because:
# Requesting a referral can concentrate the mind of the
presiding judge and ensure that s/he gives proper consideration to the complaint,
especially to the fact that it raises issues of European rights.
# National bodies, particularly public bodies, are impressed
by its high profile and may take steps to avoid the exposure of discrimination
at national level to pan-European scrutiny.
# The European Court is the only body that can give a definitive
interpretation of the terms used in the Directives.
However this is a specialised procedure and expert EU lawyers familiar with
its use need to be retained. In addition, it is important to note that the
national case is "stayed" (put aside) until the ECJ has decided
the issue before it, and this delay of sometimes two years can have serious
consequences for the complainant.
The Committee on Petitions of the European Parliament can receive petitions from Citizens of the Union who wish the Committee to investigate their complaint/s that their rights under European Union law are not being properly respected.
It is also possible to write directly to the Commission, which
may often be a quicker process than that outlined above under 3.2.G. This
could be done with a view to encouraging the Commission to initiate infringement
proceedings against the offending State.
The Commission and the Parliament are bound by the EU Charter of Fundamental
Rights’ provision on the right to good administration (Article 41):
# Every person has the right to have his or her affairs
handled impartially, fairly and within a reasonable time by the institutions
and bodies of the Union.
# This right includes
- the right of every person to be heard, before any individual measure which
would affect him or her adversely is taken;
- the right of every person to have access to his or her file, while respecting
the legitimate interest of confidentiality and of professional and business
secrecy;
- the obligation of the administration to give reasons for its decisions.
# Every person has the right to have the Community made
good any damage caused by its institutions or by its servants in the performance
of their duties, in accordance with the general principles common to the laws
of the Member States.
# Every person may write to the institutions of the Union
in one of the languages of the Treaties and must have an answer in the same
language.
In addition, when all effective national legal remedies have been
exhausted, a person may, if the case concerns issues covered by the European
Convention on Human Rights, apply to the European Court of Human Rights in
Strasbourg (see Key Concepts section).
This can be done under Article 14 of the Convention provided another Article
is also engaged or, if the country has ratified it, under Protocol 12 to the
Convention.
Collective complaints can also be made under the Council of Europe’s European
Social Charter.
Where the state is a party to the 1st Optional Protocol to the
International Covenant on Civil and Political Rights, or has accepted the
right of individual petition under the Convention on the Elimination of all
forms of Racial Discrimination or the Convention on the Elimination of Discrimination
Against Women, complaints can be brought to those Committees.
NGOs should also ensure that they alert the Committees which examine the State’s
periodic reports under the ICCPR, CERD, CEDAW and the Convention on the Rights
of the Child to instances of discrimination.
Everyone in a NGO who takes up the case of an individual or a group of individuals must be aware of the need to observe high standards of professionalism, including confidentiality and efficient management of case files. For individuals whose cases the NGO is not able to assist with, the NGO should be able to provide relevant information and, wherever possible, referrals to another agency that is able to provide further advice and support.
Discuss the concepts of tolerance and plurality in the context
of the issues which exist nationally. Discuss the need to be willing to face
sensitive and difficult issues.
Identify the suspect groups and suspect situations in the national context
– *** the participants may wish to voice their own prejudices, or the prejudices
they perceive to be prevalent, anonymously at this point - moving on
to more open discussion once the sensitive issues have been brought out into
the open anonymously. The national trainers will decide whether this anonymity
is necessary/appropriate.
Describe the specific areas in which the suspect groups are at risk of suffering
discrimination (employment for the specified categories, race across the board).
Recognise, and ensure that those being trained recognise, that apparently
liberal NGOs often harbour their own prejudices.
Identify, in the national context, the groups who are discriminated against,
not only by mainstream society, but also by the other groups which
are discriminated against, e.g. some religious groups may be viewed with intolerance
by lesbian and gay rights groups and vice versa; disabled rights groups may
be racially intolerant; all groups may have unconscious prejudice against
the elderly or the young; within a broad grouping e.g. disability, there may
be disputes as to the claims of certain people to be entitled to claim to
be disabled.
*** In this part of the seminar it is essential that the delegates from particular
interest groups should be asked (in group work, see Methodology Section) to
identify suspect groups other than their own, and the problems they face.
*** Their findings should then be critiqued by the interest groups concerned
with the rights of the suspect group in question.
Materials
*** All training materials for this session will have to be produced in the
national language(s). They should include, as a minimum:
The texts of the two Directives and relevant national legislation, and where
available non legal summaries (see Section 1)
Extracts from media and parliamentary coverage of their adoption
Extracts from the relevant parts of the examination of the national
periodic reports to the CEDAW, CERD, CoRoC, and ICCPR Committees, as well
as material from the ILO
National Materials on the European Social Charter including details of ratification
of the revised Charter
Extracts from other research carried out on the relevant discrimination in
the national context
Extracts from any national academic literature on the subject
*** This session will provide the participants with an opportunity to discuss
various methods that can be used to combat discrimination. Depending on the
areas of interest among the participants, the trainers might want to divide
the participants into smaller groups. About 2 – 3 hours need to be dedicated
to this session.
*** Please refer to the Methodology Section to decide HOW to deliver training
on the issues raised by this section.
Intended learning outcomes:
■ For the participants to have explored various activities and services
that NGOs can undertake and provide in order to help combat discrimination
on a practical level
*** Participants should be invited to explore in couples or small
groups why it is important for NGOs to raise awareness and improve the overall
understanding of anti-discrimination and equality issues - and what such work
could entail. The trainers will direct the discussion and make sure it will
include the issues outlined below.
Although some people are consciously prejudiced against certain groups and
knowingly discriminate against them, many more members of society are unaware
that their conduct and attitudes are discriminatory. This lack of awareness
is sometimes one of the first hurdles to be overcome in the efforts made to
work towards equality. There are many ways for NGOs to communicate knowledge
and information on equality issues to the social partners and the wider national
community.
Many victims of discrimination are unaware of their rights and what to do
or where to go for help.
Self or institutional awareness raising
Research carried out by major funders and NGO consortia has shown that, for
NGOs to work effectively, they not only need to raise awareness of the issues
they espouse but also both their own, and the public’s, awareness of themselves
as organisations. This is a separate but related issue to raising awareness
of the discrimination issues they seek to address. It is also often overlooked.
NGOs specifically dealing with discrimination issues therefore need to develop
parallel strategies to raise awareness of themselves and their own aims and
objectives as well as of the discrimination issues their work seek to address.
This strategy might include;
● Establishing a visible presence by participating in relevant meetings
and events or by joining committees/taskforces on issues of importance. Such
events may be ideal places to meet and set up individual meetings with other
organisations looking for partners, as well as donors, who can fund services
directly. For Government support of such activities, where needed, NGOs can
rely in particular on Article 14 of Council Directive 2000/78/EC and Article
12 Council Directive 2000/43/EC.
● Binding together with other organisations – i.e. other NGOs with a
shared, even if diverse, focus on discrimination issues. This can include
meeting, coordinating activities, and identifying priorities for the community.
● Acquiring materials and technical expertise - for example;
- Asking for a specialist in the discrimination field to provide technical
assistance or to be seconded to that NGO;
- Requesting specific areas of training;
- Establishing partnership with other organisations to implement specific
programs;
- Understanding the relationship of NGO programs to long-term Government plans.
It is important for NGOs to be able to state collectively where their activities
fit into these larger plans. Some NGOs are often better able to address an
unmet need, offer an alternative viewpoint, and stimulate debate on issues
that are not yet mainstreamed by the Government.
NGOs in raising their own profile will also be raising awareness of the particular
areas of discrimination which are their interest.
Awareness raising of equality issues
What is the purpose of awareness raising?
● Changing attitudes, behaviours and patterns, mobilising support in
favour of new policies, promoting the implementation of an equality agenda,
etc.
Who are the target groups?
● Public opinion, victims or potential victims, public and private sector
employers, providers of services including housing, educational bodies, enforcement
authorities etc.
How can it be done?
● by providing information, by organising campaigns, by educating and
training, by doing research and making it public, by networking and building
alliances, by doing media work.
● by identifying examples of conscious or unconscious discrimination
which occur, particularly where these involve inhuman or degrading treatment.
● by providing reasons, understandable by and acceptable to the community
at large, why such discrimination is prohibited and what is the significance
of the fact that this prohibition is written into law.
● by personalising the understanding of what suffering discrimination
is like (i.e. educating people to empathise with the victims of discrimination)
and moving away from seeing the victims as “others”.
● by providing information about:
- the law relating to discrimination rights;
- the legislation giving effect to those rights, and in particular the duty
on states under Article 12 Council Directive 2000/78/EC and Article 10 of
Council Directive 2000/43/EC to disseminate information about the content
of the Directives by all appropriate means;
- the powers that exist to protect people against discrimination;
- preventative measures;
- the routes to challenging violations of anti-discrimination legislation;
- the details of relevant organisations and authorities specifically established
to deal with particular areas of discrimination.
Various methods for awareness raising in the community at large are set out
in the “Skills and Tools” section.
*** Again, the participants should be invited to discuss in groups
relevant issues related to monitoring and influencing the development of policy
and law. The trainers will facilitate the discussions.
NGOs can have an important role to play in monitoring and influencing the
development of policy and law as they are uniquely well placed to bring grass
roots knowledge of the problems and thoughtful consideration of possible solutions
to the attention of the authorities. NGOs need to make a policy decision as
to whether this is an activity they have the expertise and capacity to undertake
(see Skills and Tools section).
What to monitor?
● Implementation of legislation and policies
● Practices and attitudes in determined sectors (public administrations,
employment, access to services, etc)
● Effects of policies on vulnerable groups
How to do it?
● By doing research, by collecting data, by developing indicators.
Good monitoring will lead to relevant and reliable information and is a prerequisite
for effective lobbying.
Monitoring using Research and lobbying approaches can include;
– Trying to get Government to take up issues through meeting or writing to
Ministers and civil servants;
– Responding to consultation documents;
– Using the political process;
– Briefing MPs on issues and try getting them to put down motions for debate;
– Working closely with Government (if appropriate) when the opportunity arises
(taking part in working groups and task forces etc);
– Working closely with other NGOs on equality issues;
– Working closely with relevant Equality and Diversity Forums;
– Monitoring the effect of new laws, and where new laws have an adverse impact
on particular groups bringing this to the attention of Government, other NGOs
etc.
Support
*** Trainers should encourage participants to identify, during the discussion
of the issues outlined below, some of the emotions experienced by victims
of discrimination.
NGOs must recognise their capacity in relation to supporting victims of discrimination.
In this context NGOs can rely on Article 9(2) of Council Directive 2000/78/EC
and Article 7(2) of Council Directive 2000/43/EC.
Some NGOs will have the skills and resources to provide detailed advice and
support including legal representation. Other NGOs may be able to help the
victim diagnose that the treatment they have received may constitute unlawful
discrimination and assist with some initial inquiries. Another group of NGOs
may lack skills and experience even to embark on basic diagnosis and should
immediately refer the person to a more suitable source of advice and assistance.
NGOs must be careful not to try to do more in this area than they feel capable
of doing. This is why conducting a skills audit is so important (see Skills
and Tools section).
NGOs should provide broad based support to individual victims of discrimination.
This support must always take into account the sensitivities of the victims
and the range of emotions which they will be experiencing (anger, lack of
self esteem, reluctance to disclose or repeat insults – verbal or otherwise
- sense of isolation, fear of losing their livelihood, fear of reprisals,
fear of victimisation), this support should also take into account the expectations
of the victim in relation to a possible action to be undertaken etc.
Providing professional but sympathetic support is essential. This support
can take various forms, e.g.:
– Setting up a dedicated helpline, served by trained advisers to record and
monitor instances of discrimination.
– Providing victims with information about their rights in simple layman's
language.
– Providing specialist information and advice to victims as to the most appropriate
mechanism for challenging the discrimination they have suffered.
– Providing realistic information and advice about the likely outcome of pursuing
a complaint.
– Providing (or providing access to) professional counselling to assist in
the rebuilding (or building) of self esteem.
– Putting victims in touch with other victims if they would find this helpful.
– Identifying the victims’ objectives in pursuing a complaint and reconciling
this with the NGO’s policies and objectives.
– Proposing, when appropriate possibilities of informal resolution (e.g. mediate
between a victim who has been denied an apartment and the owner in order to
make him reconsider his decision).
– Establishing a legal team able to provide the necessary legal support for
acts of discrimination to be challenged (see Article 13 Council Directive
2000/43/EC and Article 9 Council Directive 2000/78/EC).
– Supplying specialist research and statistical information and advice on
equality issues.
In addition, in cases of employment and occupation discrimination, if the
NGOs have established constructive links with the employers bodies (“le patronat”)
and any statutory enforcement bodies such as the labour inspectorate, they
may be able to be in a position to address the employers in a way which is
more comfortable for the victims.
Litigation
*** As with previous sections, the participants should be encouraged to discuss
the various options outlined below.
Various options exist for NGOs wishing to use litigation to combat discrimination:
# Using the services of lawyers who work directly for the
NGO (either paid or pro bono) to litigate cases. The acquisition of the necessary
specialist knowledge and skills by those lawyers is essential.
# Establishing a team of lawyers affiliated to the NGO with
the relevant expertise who are able and willing to litigate on behalf of individuals
or groups.
# Establishing links with law firms and encouraging them
to acquire the necessary expertise to take up cases whether for payment (if
funds are available) or pro bono if they are not.
# Ensuring familiarity with national legal aid provisions
so as to be able to utilise these on behalf of impecunious victims.
# Developing a litigation policy suitable to the NGO’s policies
and objectives, the national system and to the incidence of complaints. NGOs
may decide to adopt a litigation strategy, or set litigation priorities, or
offer an across the board service. Each has its advantages and disadvantages
but whichever option is selected the criteria for taking up cases must be
transparent both to the NGO and to the victims who approach it for assistance.
# Litigating before national judicial bodies (including
constitutional complaints where these are possible) in particular ensuring
that NGOs utilise the rights accorded by Article 9 of Council Directive 2000/78/EC
and Article 7 of Council Directive 2000/43/EC.
# Where discrimination related criminal offences have been
committed, such as incitement to racial hatred, homophobic assault, religiously
motivated violence, ensuring that prosecutors and investigating judges carry
out their tasks with due diligence, bringing legal action where appropriate
to ensure that this is done.
- Supporting victims as civil parties in any discrimination related criminal
prosecution.
# Where such criminal offences have been committed and no
charges are brought by the prosecutor, advising victims regarding the possibility
of bringing a private prosecution, where this is allowed by national law,
and, where appropriate, assisting them to do so.
# Taking complaints (individual or collective) to international
bodies such as the European Court of Human Rights (in particular under Protocol
12, see Key Concepts section) UN Human Rights Committee (under the International
Covenant on Civil and Political Rights), the Committee on the Elimination
of Racial Discrimination, the Council of Europe's Committee of Social Rights
under the European Social Charter where appropriate acceptances have been
made by the State concerned.
# Ensuring referrals of important points of interpretation
of the EU Directives are made to the ECJ by national courts (see section on
National Law and Procedure).
# Alerting the European Commission to administrative practices
which violate the Directives with a view to the initiation of infringement
proceedings and providing the necessary information and support to the Commission
when such proceedings are initiated.
Alternative Dispute Resolution (ADR)
*** The participants should be encouraged by the national trainers to familiarise
themselves with the systems which exist at national level for ADR..
ADR is specifically referred to in Article 7(1) of Council Directive 2000/43/EC
and Article 9(1) of Council Directive 2000/78/EC.
ADR takes many different forms in the Member States of the EU and the Council
of Europe, and might include conciliation, mediation and arbitration.
*** Explore different possibilities of informal resolution provided by NGOs,
trade unions, specialised bodies etc, the sectors where this can be done more
easily, the kind of agreements that can be reached, settlements with financial
compensation, code of conducts, changing a practice, etc and whether these
are binding on the parties.
In some countries ADR is a true alternative to litigation. The parties typically
have access to a trained mediator or mutually agreed arbitrator, or a panel
of arbitrators, who assist them in coming to a mutually acceptable agreement
which brings the complaint/dispute process to a conclusion. The agreement
may have no legal force but can often solve both the surface and the underlying
problem more satisfactorily than litigation. If either party reneges on the
agreement, both parties will still have access to court.
In some systems the agreement reached in this way may be binding and can be
enforced in the courts if either party reneges on it.
Many countries of Central and Eastern Europe have developed more formal systems
of mediation which are regulated by specific laws on mediation and which involve
the services of a judge as mediator or arbitrator, without recourse to formal
legal proceedings. Typically the agreements reached at the end of such mediated
discussions will be registered with the court and are enforceable. If the
parties cannot reach an agreement, recourse can be had to the ordinary courts.
Sometimes more than one of these systems exists and there is a certain degree
of overlap.
Both mediation and arbitration are highly skilled professional activities.
In many countries Colleges of Mediation and/or Arbitration have been established
to ensure that the highest standards are met. NGOs may wish to acquire those
skills for themselves so that their personnel can put themselves forward as
credible mediators. Alternatively they may wish to forge links with trained
mediators on whose services they can call on behalf of victims of discrimination.
Other national and international ADR non-judicial mechanisms may also be appropriate,
e.g. complaints to the relevant national ombudsman, petitioning the European
Parliament.
*** Clearly, this is a session that will benefit from small group discussions
and case studies.
*** This section will give the participants an opportunity to explore the
various ways in which they can work towards combating discrimination, and
what skills they might need in order to do so. About 3 – 4 hours need to be
dedicated to this session.
*** Please refer to the Methodology Section to decide HOW to deliver training
on the issues raised by this section.
Intended learning outcomes:
■ For the participants to have explored the skills and tools required
for an NGO, as an organ of civil society, to combat discrimination
NGOs need to carry out a “skills audit” within their organisation
so as to establish what skills are needed to achieve the organisation’s
main objectives in its work towards combating discrimination, and what
skills are lacking within the organisation in the context of fulfilling its
identified objectives.
*** Participants should be invited to explore what skills they consider are
necessary in their work. Only after the participants have explored this for
themselves should the trainer provide a suggested list such as the one below.
This list should then be amended by the group to produce a list of their own.
The organisation will need to consider if it has, and/or needs to acquire,
knowledge and expertise, from:
its own staff or
its own membership or
links with other NGOs
by identifying whether it has and/or needs any of the following (not all these
skills are needed by all NGOs);
The purpose of the audit is to identify the skills that each NGO needs to
carry out its main objectives:
● Personnel with legal skills;
● Personnel with mediating/arbitrating skills;
● Personnel with counseling skills;
● Personnel with training skills;
● Personnel with good interpersonal and networking skills;
● Personnel with good public relations and communication skills;
● Personnel with awareness of and familiarity with political processes;
● Personnel with the necessary language skills to access appropriate
international materials or processes;
● Personnel with experience of working with the media;
● Personnel with marketing skills;
● Personnel with fund-raising skills;
● Personnel with technical IT skills.
Where a skills lack is identified, NGOs will need to go on to identify the
steps they must take to remedy this lack e.g. by;
● Recruitment of appropriate staff;
● Recruitment of appropriate volunteers;
● Using contacts with other NGOs for example for training, mentoring,
skills exchanges etc;
● Securing the availability of appropriate skills through e.g. establishing
links with local businesses, professionals, or training providers;
● Applying for funding if necessary.
NGOs will need to conduct a “tools audit” within their organisation
so as to establish which ‘tools’ they are using and/or could be using to assist
them in achieving their identified main objectives objectives.
*** Same basic methodology as in 1 should be used.
Campaigning
The political arena
The organisation should use the local and national political arena and processes
by campaigning and sub-campaigning politically on specific issues (e.g. for
new legislation, and also to extend existing legislation to cover a wider
group of people and situations) or to change discriminatory practices.
Campaigns should be aimed at politicians, local authorities and other decision
makers. The NGO should brief ministers on the true facts around the issues
for which the campaign is being run. The NGO should make its views known on
draft bills and laws and should demand that authorities and Government agencies
do their job in helping people properly.
The public at large
The public is a powerful tool and hence campaigning work should also be undertaken
publicly. Such campaigns should seek to influence public opinion by keeping
the public properly informed on issues. Changing public opinion is a vital
part of any campaign because if the public does not care, the campaign will
become pointless. Furthermore, if the public is not made to see that discrimination
rights are fundamental, then nor will the politicians who count their votes.
Networking and building alliances
Interaction with target groups is an important part of networking. Talking
with relevant groups and forums (e.g. if dealing specifically with age discrimination,
speak with Older People’s Forums) to get their views is a good starting point.
Networking in this way will help the organisation to build a database of up-to-date
useful contacts.
In addition, networking with other groups and organisations with a shared
objective in combating discrimination – or other related shared aims – (for
example improving standards in rural schools) is an ideal way of sharing knowledge
and information, and building relationships and hence contacts, and broadening
the base and strengthening the impact of any campaign.
NGOs can, for example, invite other organisations working in similar fields
to ‘round table’ discussions where they can try to agree aims for lobbying
and campaigning and share information on projects in which they are involved.
This united ‘team-playing’ will also seek to avoid any duplication of work
or efforts (and hence costs) in the same field. This is important, especially
if organisations might be competing for the same funding. The economical benefits
of working together and sharing knowledge also releases funds which can then
be utilised in other ways, again, perhaps on a joint or united basis.
Building alliances with other sectors will allow a better exchange of information,
a better coordination of strategies and will make it possible to mobilise
a larger support in favour of an equality agenda.
By holding its own seminars, and getting invited to speak at other relevant
conferences/events, the organisation will raise its own profile, radiate awareness
of discrimination issues, and further its contacts database.
Building alliances with other groups in civil society which can reach further
and deeper into politics and economics like trade-unions, universities and
think tanks, consumer organisations, media etc. is also very important.
Research
The NGO's views which will be put forward through campaigning, working with
the media etc, do need to be backed up by rock-solid research, carried out
to a high professional standard into the issues and the people affected. The
research plays a significant role in influencing policy makers at the highest
levels of Government.
Some of the best and most effective research is carried out by those NGOs
who have the expertise, skills and resources to execute this work to the high
professional standard that is necessary for it to be respected. Many NGOs
do not have these skills and should not embark on such work without them.
Poor quality research can damage both to the NGO and the cause. Instead, often
the NGOs can contribute to the research of experts by providing them with
the data which they need.
Accordingly, the organisation should consider whether it has the necessary
skills to undertake its own research as well as, resources permitting, commissioning
research from experts on topics related to discrimination. Bigger NGOs may
wish to manage such externally commissioned research projects and prepare
reports once the research projects are concluded. Carrying out surveys of
awareness and statistical analyses through the use of questionnaires is a
useful way of collecting information.
NGOs can then compile and produce, comprehensive research reports, working
papers and/or shorter research findings documents, evidence and case studies,
publications on policy issues, regular newsletters, statistical briefings,
summaries of findings, and fact sheets and make these available through publication
and in other ways (e.g. through its policy library or on its website).
NGOs may carry out electronic or postal mailouts of information to those on
its database several times a year, which publicise its research and statistical