Compliance and enforcement aspects (horizontal provisions of all directives)

AuthorAnu Laas
11 Compliance and enforcement aspects (horizontal provisions of all
11.1 General (legal) context
11.1.1 Surveys and reports about the particular difficulties related to obtaining legal
Legal studies from a gender equality perspective are scarce in Estonia.
Naaber (2014) has considered whether there is an opportunity in the Estonian legal system
for the employee to claim for effective, proportionate and dissuasive damages when
his/her rights have been violated based on his/her sex.208 Naaber found that in Estonian
case law, the court has a power to follow rules set by Article 18 of the Directive
2006/54/EC. Imposing compensation that has a dissuasive effect should be an inseparable
part of non-pecuniary damage in sex discrimination disputes. The law does not state the
scope of this type of compensation. Dissuasion is accomplished only when the means of
remedy are suitable for the employee and they have a dissuasive effect on the employer.
Article 13(2) of the Gender Equality Act and Article 134(6) of the Law of Obligations Act
allow the court to award the employee who has been discriminated against in accordance
to Directive 2006/54/EC Article 18, compensation that is efficient, proportional and
dissuasive for the offender. Naaber concludes that awarding dissuasive compensation
should be a rule, not an exception.
11.1.2 Other issues related to the pursuit of a discrimination claim
Judges have access to training and an obligation to undertake it, but gender issues are
not taught. Jud ges have a high workloa d. The term ‘gender’ is missing from the Code of
Civil Procedure (CCP).209 However, Article 7 stipulates that the administration of justice
must take place on the basis of equality (‘the parties and other persons are equal before
the law and the court’), which means that during either a civil or criminal trial, both sides
have legally equal access to the court and neither side should be procedurally
disadvantaged. If the power and resources of one party gives them an advantage, the
court is obliged to take that into account in order to avoid the advantage although
without removing it. When making decisions about child custody rights between parents
in domestic violence cases, the context should be taken into account given that the parties
are not equal in terms of the power that they have.
11.1.3 Political and societal debate and pending legislative proposals
Political and societal debate on gender is almost entirely absent. There are no legislative
proposals regarding gender discrimination and access to justice.
Prejudices and stereotyping might affect the right to a fair trial and should be avoided.
Some media debates encourage prejudices and gender stereotypes, which might lead to
unfair judgments.
11.2 Victimisation
The GEA provides a general protection against victimisation. Article 5(1.1) of the GEA
stipulates that adverse treatment of a person, as well as causing negative consequences
for that person due to the fact that that person has relied on the rights and obligations
208 Naaber, H. (2014), Tõhus, proportsionaalne ja tõrjuv kahjuhüvitis soolise diskrimineerimise keelu rikkumise
korral töösuhtes (Effective, proportional and dissuasive compensation when violating prohibition of
discrimination in labor relations), masters thesis, Univesity of Tartu. Summary in English available at:
209 Code of Civil Procedure,

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