Overall assessment

• Author: Iustina Ionescu
• Pages: 63-64

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12 Overall assessment

The following transposition problems were mentioned in this report:

1. Lack of explicit protection a gainst discrimination for transgender, intersex and non-

binary persons, in the context of an insufficient legal framework of legal gender

recognition procedures, which allows for arbitrary decisions by the auth orities.

2. Inconsistent case law of the national equality body applying the definition of indirect

discrimination, by using intent and a cau sality link between th e behaviour and th e

ground of discrimination as a way to d ifferentiate indirect discrimination from direct

discrimination.

3. Lack of measures or p ending proposals to improve the gender balance on c ompany

boards, given that existing legal provisions are general and unspecific, which renders

them ineffective.

4. There are two absolute legal limitations of the material scope of the Gender Equality

Law: religious denominations, private life of individuals

5. National law and case law do not lay down parameters for establishing the equal

value of work performed.

6. The measures set out by EC Recommendation of 7.3.2014 on strength ening the

principle of equality between men and women t hrough transparency have not been

implemented and existing labour legislation embeds the principles of salary

confidentiality and individual negotiations.

7. The national legislation does not entitle workers to time off from work on grounds of

force maj eure for urgent family reasons in case of sickness or accident, and only

provides for the possibility of employers offering such benefits .

8. There is no legal provision on care or carers’ leave.

9. The national legislation does not provide workers with a legal right to reduc e or

extend working time on request.

10. There are no explicit legal provisions prohibiting direct and indirect discrimination in

occupational social security schemes, only implicit provisions.

11. National legislation does not recognise life partners, only married spouses in the

context of the Directive 2010/ 41/EU with respect to public pensions and the public

health insurance schemes.

The implementation of the EU gender equality acquis is satisfactory and this is mainly due

to the adoption of the general Anti-discrimination Law and the establishment of the CNCD.

When examining cases of discrimination, the C NCD does not usually invoke the Gender

Equality Law, only the Anti-discrimination Law. While ensuring legal protection, this

approach does not allow for the development of cas e law under the Gender Equality Law,

rendering this piece of legislation th eoretical and illusory. Although having special

legislation focusing exclusively on gender equality shows incipient political support f or

gender issues, the way in which EU legislation has been transposed has resulted in

fragmentation, overlap and lack of clarity and inconsistencies which affect women from all

groups protected against discrimination. This situation makes it more d ifficult for the

courts or other competent authorities to examine and sanction discrimination in an

effective, prop ortionate and dissuasive way. It is imperative that all laws in the field of

anti-discrimination and gender equality are consolidated in one piece of legislation, while

bearing in mind that higher standards established in each of these laws should be

preserved and benefit all groups protected against discrimination equ ally.

Despite g enerous legal provisions, the courts and the CNCD choose milder or symbolic

sanctions, frequently rendering the sanctioning mechanism ineffective. This has an impact

on the limited case law because people exposed to discrimination do not feel motivated to

bring complaints or take further legal action. The lack of legal aid available in these cases

and lack of resources for NGOs working on women’s issues to dev elop legal expertise in

this field has led to scarce development of case law on gender discrimination, in relatively