Compliance and enforcement aspects (horizontal provisions of all directives)

• Author: Nathalie Wuiame
• Pages: 60-65

60

11 Compliance and enforcement aspects (horizontal provisions of all

directives)

11.1 General (legal) context

11.1.1 Surveys and reports about the particular difficulties related to obtaining legal

redress

First, it should be noted that the national courts do not classify gender discrimination cases

as such and that there is no systematic publication of cases. Therefore, there is no readily

accessible data.

Case law relating to gender di scrimination deals mainly with discriminatory dismissals or

non-recruitments.

The evaluation repo rt102 of the an ti-discrimination laws points to some hindrances

regarding access to courts, such as:

- costs including the possibility of paying a procedural in demnity in case of denial of

the claim;

- the potential difficulties linked to the coexistence of different time-limits depending

on the type of action (civil, criminal, labour);

- the formalistic approach to the protection of witnesses (applying only to persons who

report the facts in a signed and dated documen t). See below under Section 11.2 for

new developments;

- the potential benefits of the outcome of legal action (payment of a fixed

compensation without reintegration in the job).

As far as gender equality law is concerned, one should also point to the limited resources

of the Institute for the Equality of Women and Men and its inadequate visibility to the

public. This contributes to the low number of discrimination cases repor ted.

11.1.2 Other issues related to the pursuit of a discrimination claim

The situation of discrimination might be improved by the adoption of provisions which

enable the labour inspectorates to use anonymous calls in order to establish the existence

of discriminatory practices (through the whole scope of EU anti-discrimin ation legislation

as meant by Article 19(1) TFEU). The Parliament of the Brussels Capital Region103 and the

federal Parliament104 took such steps recently, and other federate authorities might follow

these examples. However, due to the complexity of the division of competence in the

country, the e ffectiveness of such innovations might be hampered by hesitations as to

respective jurisdi ctions (legal uncertainty may arise as to which of those instruments is

applicable to a case which occurs in education (within a communit y’s jurisdiction) or in

local administration (within a region’s jurisdiction).105

Moreover, there are serious differences between the provisions already adopted (e.g. in

Brussels Capital, the inspectorate may perform anonymous calls on its own initiative, while

102 Evaluation Commission of the federal law aiming at fighting discrimination (2017), First evaluation report,

February 2017 (Commission d’évaluation de la législation fédérale relative à la lutte contre les

discriminations, Premier rapport d’évaluation), report available at:

https://www.unia.be/files/Documenten/Aanbevelingen-

advies/Commission_d%C3%A9valuation_de_la_l%C3%A9gislation_f%C3%A9d%C3%A9rale_relative_%C3

%A0_la_lutte_contre_les_discriminations.pdf.

103 Ordonnance/Ordinantie of 16 November 2017; all legal texts quoted are available in French and Dutch at

http://www.juridat.be.

104 Act of 15 January 2018 amending the Social Penal Code.

105 See labour tribunal in Namur, judgment of 28 April 2003, Chroniques de droit social, 2004, p. 100 with

J.Jacqmain’s case note; and labour court in Liège, judgments of 12 March 2013 and 18 February 2014, Rôle

général No. 2012/AN/41, unreported.