Overall assessment

• Author: Kristīne Dupate
• Pages: 67-70

67

12 Overall assessment

The following transposition problems were mentioned in this report.

Definitions and concepts:

1. There is one major problem which relates to the definition and un derstanding of the

concept of non-discrimination. The principle of non-discrimination in the majority of

Latvian no rmative acts is formulated as ‘prohibit ion of differential treatment’ instead of

‘prohibition of discrimination’. This may result in an inadequate application of EU law, for

example, by excluding direct and indirect discrimination which arises due to the equal

treatment of persons in different situations, by excluding exceptions provided in the

framework of the principle of non-discrimination, for example, reasonable accommodation,

or in th e form of formally incorrect findings by national courts, such as finding that

discrimination is justified because the relevant persons were not in comparable

situations.184

2. The set of laws pro vide inc omplete definitions by not stipulating that less favourable

treatment on the grounds of pregnancy and maternity is not only discrimination, but direct

discrimination.

3. There is a l ack of an explicit link between pregnancy/maternity protection and non-

discrimination provisions in the Labour Law which may ‘cause’ a problem, in particular, for

identifying that non-provision of specific rights during pregnancy and maternity leads to

direct sex discrimination. None of the laws explicitly provide that pregnancy and maternity

discrimination may occur in two cases: one is unfavourable treatm ent due t o pregnancy

and maternity ( Directive 2006/54/EC) and the second is unfavourable treatment due to

request or non-provision of the specific rights due to pregnancy a nd maternity (Directive

92/85/EEC in conjunction with Directive 2006/54/EC).

4. The definition of ‘sexual harassment’, w hich is ‘merged’ with the definition of

‘harassment’.

Material scope:

1. Special law s usually regulate legal relationships between private parties, while EU

gender equality and non-discrimination law entails horizontal and mainstreaming

obligations for state powers. There wa s a provision obliging the drafters of l egislative

documents and the delegated legislator – the Cabinet of Ministers and subordinated

executive institutions – to carry out impact assessment, but these explicit norms were

abolished.185 The State Chancellery h as explained this amendment by the need to assess

all legislative proposals from the perspective of all general pr inciples of law. 186 However,

as expected by the author of this report, this has led to a lack of appropriate assessment

of draft legislation.

2. The prohibition of discrimination with regard to employment (service) conditions has

not been implemented with regard to judges and public prosecutors. As a consequence,

judges187 and public prosecutors188 are still only protected against discrimination with

regard to access to a post.

184 Decision of Riga City Vidzemes District Court of 17 July 2006 in Case No. C 30-1667/9-2006.g. (not

published).

185 The Instruction of the Cabinet of Ministers No. 19 ‘The procedure on the initial assessment of legislative

proposals’ (Tiesbu akta projekta skotnjs ietekmes izvrtšanas krtba), Official Gazette No. 205, 30

December 2009, respective amendments Official Gazette No. 91, 14 May 2013.

186 Telephone interview with the Head of Department of Development of State Administration of the State

Chancellery on 31 August 2015.

187 Article 51(2) of the Law on Judicial Power (Likums ‘Par tiesu varu’), Official Gazette No. 1, 14 January 1993.

188 Article 331(1) of the Prosecutors’ Office Law (Prokuratras likums), Official Gazette No. 65, 2 June 1994.