Equality was proclaimed as one of the three principles of the French Revolution. The Declaration of the Rights of Man and of the Citizen of 1789 described it as entailing the same law for all, plus all citizens being equal in the eyes of the law and equally eligible to public office, albeit according to their respective ability, virtues and talents.
The three European Union primary law documents also consecrate the principle of equality. Secondary Union law has implemented it massively through countless directives, such as the Racial Equality Directive 2000/43/EC, the Gender Equality Directive in the fields of goods and services 2004/113/EC, the Gender Equality Directive in the field of employment 2006/54/EC and the Gender Equality Directive in the field of self-employment 2010/41/EU.
These four European Union laws, in particular, all made provision for the setting up of so-called equality bodies. As a consequence, Member States have already created 40 of such bodies. They are entrusted with the task of progressing equality among individuals, institutions and society, including with the faculty of imposing sanctions and a desire to evaluate programmes funded by the European Union.
To “progress equality”, or to “develop equal societies” goes a step further than “equal treatment”, the vague term usually employed to dissimulate the socialising trend under the concept. The European Commission has even claimed that equality bodies are an element in the system of checks and balances in a “healthy” democracy, while restricting them amounts to “threatening the rule of law”.
In 2018, the Commission published a non-binding recommendation on standards for equality bodies. Now, Mrs. Von der Leyen’s team wishes more; it has recently proposed two new Directives on standards for such bodies. That is, they have to become more equal among themselves. Equality to the deepest degree. They will have to resemble each other in terms of mandate, powers, structure, leadership, independence, resources and effectiveness. Another example of centralised government coming from Brussels.
In 2021, the European Parliament had indeed called for standards, but simply as a follow-up to “consultations representing a disability”, which is rather limited in scope. Moreover, in 2022 the European Parliament had requested Member States to “improve their application of the Racial Equality Directive”, another specific area of legislation.
Some equality bodies prefer to focus on promotion of equality. Some others are of a tribunal-type nature, though of course without the guarantee of independence of judges and tribunals. In order to execute both kinds of functions, some Member States have decided to create more than one body; Austria, Croatia and Portugal are already funding three each. A further expansion in the number of equality bodies could happen if different clusters of competence are allocated to more than body. Or if local and regional offices are set up with the excuse of bringing the bodies closer to the citizens.
With regards to independence, one could ask whether they should form part of Government ministries or else be accountable to Parliament or to statutory audit authorities. Appointment and accountability outside of Government ministries can obstruct the work of the duly elected authorities in a representative democracy; particularly if other organisations are present or have a say in the boards of equality bodies, thereby defending their own interests.
A similar issue could arise with regards to budget. If it is not set by government, there is a risk that elected officials lose control of their own management of public finances, plus a temptation to grow in mandate and competences allowed by greater resources. But why should we expand the mandate and competences of such bodies before an impact assessment is conducted?
As activist as ever, the Council of Europe has stated that the competences and powers of equality bodies “should be harmonised and levelled up so that each mandate should, as far as possible, enjoy the broadest competences and powers available to any of the other mandates”. Perhaps we could remind the Council of Europe that equality mainstreaming and “positive action” in order to overburden Europe with equality run contrary to the nature of things and thus prove disastrous – whether we think of societies behind the Iron Curtain or current Latin America banana republics.