ENAR Policy Seminar

From Racism to Equality?

Realising the potential of European Anti-Discrimination Law

6-7 October 2006

Brussels

Aspirations vs. RealityThe position of NGOs

- Legal standing of organisations

- Dialogue with NGOs

- Situation testing

- Strategic Litigation

Legal Standing

Article 7.2 of RED and 9.2 of the EED:

“ Member States shall ensure that associations, organisations or other legal entities which have in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of these Directives are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under these Directives”

Legal Standing

• Is often limited regarding the organisations (certain number of years of existence, fighting discrimination has to be in the mandate, depend on other law or decree, etc.)

• Is also limited regarding the field (restricted to employment or non-employment matters)

• NGOs legal standing not specifically addressed (general rules)

• Possibility of class action?

Dialogue with NGOs

Article 12 of RED and 14 of EED: “Member States shall encourage dialogue with appropriate non-governmental organisations which have in accordance with their national law and practice, a legitimate interest in contributing to the fight against discrimination on grounds of racial and ethnic origin with a view to promoting the principle of equal treatment.”

Dissemination of information

Articles 10 of the RED and 12 of the EED:

“ Member States shall take care that the provisions adopted pursuant to this Directives, together with the relevant provisions already in force, are brought to the attention of the persons concerned by all appropriate means throughout their territory”

Information/Dialogue with NGOs

• What form of dialogue?• Campaigns• Information booklets• Meetings• Consultation process• Cooperation with NGOs• Role of specialised bodies

Situation Testing• Method aiming at establishing a discriminatory

practice: a person with a specific characteristic is treated less favourably than another person without this specific characteristic in a similar situation

• “Role play”

• Methodology

Situation Testing

• Mentioned and permitted by Law: Belgium, France and Hungary

• Has been admissible as evidence in court: Belgium, Czech Republic, Denmark, Finland, France, Hungary, Ireland, the Netherlands, the UK

• Is used by NGOs: Belgium, Czech Republic, France, Hungary, the Netherlands, Sweden

• Is under development or recently/rarely used: Austria, Denmark, Finland, Ireland, Slovakia and the UK

Strategic LitigationWhat is it?

• Method using the court systems in order to create a broad social change and to further social justice

• Technique falling within the field of public interest

• Instrument promoting the rights and advancement of disadvantaged population

• Tool to support legal changes

• Role of NGOS, Equality bodies, trade unions

Basic principles of strategic litigation

• Well defined objectives

• A client/victim (“client-oriented approach”)

• An issue (“policy-oriented approach”)

• A goal

• A method

• An impact

Aims of strategic litigation

- Social change (and not necessarily success)

- Interpretation, clarification of the law

- Supporting the rule of law

- Legal education

- Documenting injustices

- Governmental accountability

- Changing public attitudes and empowering vulnerable groups

Case selection

• Define the litigation goal• Chose the right plaintiff• Chose the right defendant• Select the proper forum• Make creative use of legal arguments• Evidences/proof• Use of outside expert and analysis• Cooperation with/among NGOs/specialised

bodies• Rely on constitutional and international law

Ingredients for achieving strategic litigation goals

• Sufficient facts

• Admissible evidence

• Financial resources

• Resilient client

• Reputation of the court/judge

• Potential for media coverage/publicity

Advantages and disadvantagesAdvantages:• A single case can achieve a wide social impact• Good use of limited resources• Precedent• Educational function• Can result to political pressure• Influences public opinion• Tests and clarifies content of law

Disadvantages:

- No insurance about the outcome

- Burden carried by an individual

- Use of the law for wider interests /best interest of client

- Lack of public support?

- Negative result may reaffirm unfavourable law or practice

Conclusion• Gap between legislation and its practical

implementation

• Make sure that the directives have been transposed correctly (legal standing)

• Make use of the Directives (increase cooperation/dialogue with the government and other NGOs, means of proof such as evidence testing)

• Create other opportunities (such as clarify the content of the law : strategic litigation)