Reflexive Governance in EU Equality Law最新文献

Theoretical Foundations: Reflexive Governance, EU Enlargement Process, and Non-Discrimination 理论基础:反身性治理、欧盟扩大进程和非歧视

Reflexive Governance in EU Equality Law Pub Date : 2021-10-21 DOI: 10.1093/oso/9780192843371.003.0003

E. Lantschner

{"title":"Theoretical Foundations: Reflexive Governance, EU Enlargement Process, and Non-Discrimination","authors":"E. Lantschner","doi":"10.1093/oso/9780192843371.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780192843371.003.0003","url":null,"abstract":"Chapter 2 reviews explanatory models of rule adoption of Europeanization, policy transfer, and diffusion literature, and the conditions they identify for a successful transfer of norms and ideas. It argues that the external incentives model might best explain the likelihood of rule adoption but if the ultimate goal is that rules are applied and enforced, learning-based approaches have to be strengthened in the enlargement process. Different approaches to reflexive governance, from collaborative-relational to experimentalist, pragmatist, and genetic approaches, all focusing in different ways on the conditions required for a learning process to be successful, are presented claiming that they offer ideas that merit closer study to establish their potential in improving the performance in the EU enlargement process and beyond. The hypothesis is that reflexive governance is well suited to improve compliance and reduce likelihood of backsliding as it captures all the actors involved in framework regulation as is the case of the transposition of binding directives. To test the plausibility of the hypothesis, a case study on Croatia with a focus on the equality acquis is carried out by means of process tracing. This showed that while the argument could be partly confirmed, there is also a need for more consistent and transparent monitoring, which could be achieved by the use of indicators. Furthermore, pooling of results and the drawing of conclusions from such results, which is decisive for the success of a reflexive governance system, is given too little attention. The subsequent chapters thus set out to make a contribution to these identified lacunae.","PeriodicalId":193565,"journal":{"name":"Reflexive Governance in EU Equality Law","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115559740","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Development of the EU Non-Discrimination Regime 欧盟非歧视制度的发展

Reflexive Governance in EU Equality Law Pub Date : 2021-10-21 DOI: 10.1093/oso/9780192843371.003.0002

E. Lantschner

{"title":"The Development of the EU Non-Discrimination Regime","authors":"E. Lantschner","doi":"10.1093/oso/9780192843371.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780192843371.003.0002","url":null,"abstract":"In Chapter 1 the development of the EU non-discrimination regime is introduced, first in terms of legal developments. It recapitulates the steps starting from the founding Treaties, which only dealt with discrimination on the grounds of nationality and gender, up until the Treaty of Amsterdam, introducing the competence for the discrimination grounds of racial or ethnic origin, religion or belief, age, disability, and sexual orientation, and the adoption of the two Directives which are the focus of the book: Directive 2000/43/EC and Directive 2000/78/EC. It also points at financial instruments and institutions set up in parallel to support the implementation of these Directives and the recent adoption of a series of Strategic Documents and Action Plans in the Commission’s attempts to achieve a Union of equality. The second sub-chapter then discusses the shift from non-discrimination to substantive equality on the basis of the jurisprudence of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) and closes with some considerations regarding the different levels of impact of EU anti-discrimination law in national constitutional systems.","PeriodicalId":193565,"journal":{"name":"Reflexive Governance in EU Equality Law","volume":"230 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124288210","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Reflexive Governance in EU Equality Law 欧盟平等法中的反身治理

Reflexive Governance in EU Equality Law Pub Date : 2021-10-21 DOI: 10.1093/oso/9780192843371.001.0001

E. Lantschner

{"title":"Reflexive Governance in EU Equality Law","authors":"E. Lantschner","doi":"10.1093/oso/9780192843371.001.0001","DOIUrl":"https://doi.org/10.1093/oso/9780192843371.001.0001","url":null,"abstract":"The Covid pandemic has revealed how far we, as a European society, still are from the proclaimed Union of Equality. This book explores how the promise of equal treatment can become a reality and compliance with the EU acquis relating to equality and non-discrimination be improved. It studies enforcement and promotion aspects of the two watershed Directives of 2000, the Racial Equality Directive 2000/43/EC and the Employment Equality Directive 2000/78/EC, through the lens of reflexive governance. This governance approach is proposed as having a great potential in enhancing the likelihood of sustainability (or continuation) of reforms in the current candidate countries and EU Member States through its emphasis on reflexive learning processes and the cooperation between EU institutions, national authorities, and civil society actors. In order to deploy this potential, there is, however, a need for more consistent and transparent monitoring, both with regard to candidate countries as well as old and new Member States, and a reconsideration of the understanding of monitoring as such. It should be seen as helping to deconstruct own-preference formations and as an opportunity to learn from successes and failures in a cooperative and recursive process. To work on these lacunae and improve learning and monitoring processes, this book identifies indicators that are deduced from the comparative review of the implementation practice of the Member States. It is thus a contribution to the existing literature in the fields of Europeanization, governance studies, and the right to equality and non-discrimination.","PeriodicalId":193565,"journal":{"name":"Reflexive Governance in EU Equality Law","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130699292","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Promotion of Equality and Prevention of Discrimination 促进平等和防止歧视

Reflexive Governance in EU Equality Law Pub Date : 2021-10-21 DOI: 10.1093/oso/9780192843371.003.0007

E. Lantschner

{"title":"Promotion of Equality and Prevention of Discrimination","authors":"E. Lantschner","doi":"10.1093/oso/9780192843371.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780192843371.003.0007","url":null,"abstract":"Any attempt to address discrimination through litigation must be combined with efforts to prevent discrimination from happening in the first place and promoting equality. Articles 5, 10–13 RED and Articles 7, 12–14 EED are key here. Chapter 6 looks at the role played in this context by state authorities, Equality Bodies, and civil society organizations. As well as the possibility of taking positive action, state authorities have an obligation to disseminate information and raise awareness about legal rights and existing redress mechanisms. Research shows that awareness-raising activities are superficial, insufficient, and are not considered to be high priority by the Member States. This is an unacceptable situation in light of the low level of awareness in particular of support structures in place in the different countries. The task is sometimes (by law or in practice) delegated to Equality Bodies, which also have to fulfil an advisory role to the government. In countries with a predominantly tribunal-type Equality Body, these bodies, faced with financial constraints, tend to prioritize their decision-making function. When it comes to the dialogue with civil society organizations, a state obligation under the Directives having the purpose of increasing the effectiveness of national policies and awareness raising, the research has shown that the opportunities for NGOs to engage in a constructive dialogue with state authorities and to be meaningfully involved in law and policy making are shrinking. The chapter closes with indicators to measure the level of implementation of the respective provisions of the Directives.","PeriodicalId":193565,"journal":{"name":"Reflexive Governance in EU Equality Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129116489","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Reaction to Discrimination by Judicial Mechanisms 司法机制对歧视的反应

Reflexive Governance in EU Equality Law Pub Date : 2021-10-21 DOI: 10.1093/oso/9780192843371.003.0005

E. Lantschner

{"title":"Reaction to Discrimination by Judicial Mechanisms","authors":"E. Lantschner","doi":"10.1093/oso/9780192843371.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780192843371.003.0005","url":null,"abstract":"Chapter 4 sets out to pool the results of more than fifteen years of implementation of those provisions of RED and EED that give interested organizations an important role in providing a more effective level of protection to victims of discrimination. The chapter comparatively assesses the legal standing of NGOs in discrimination disputes and to what extent Member States have introduced also collective forms of redress. It then carries out in-depth case studies on the implementation practice in Romania, Hungary, and Germany to understand which factors (legal framework or implementation practice) influence the success or failure of a system. The research finds that the positive results of NGO litigation at individual and societal level could not be achieved because of, but despite of the role played by state authorities. Legal challenges relate to limited legal standing, sometimes restricted to certain levels of jurisdiction or certain bodies, and the fact that collective redress is foreseen only in about half of the Member States. Even where legislation is permissive, practical challenges involve an insufficient territorial coverage with NGOs acting in support of victims of discrimination, lack of funding, lack of awareness among victims about being able to turn to NGOs, lack of referencing systems, and an increasingly hostile environment vis-à-vis NGOs working for vulnerable groups. On the basis of these findings, structural, process, and outcome indicators to monitor the effective implementation of the provisions giving a role to NGOs in judicial dispute resolution are deduced.","PeriodicalId":193565,"journal":{"name":"Reflexive Governance in EU Equality Law","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123402919","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Conclusions 结论

Reflexive Governance in EU Equality Law Pub Date : 2021-10-21 DOI: 10.1093/oso/9780192843371.003.0008

E. Lantschner

{"title":"Conclusions","authors":"E. Lantschner","doi":"10.1093/oso/9780192843371.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780192843371.003.0008","url":null,"abstract":"The conclusions reflect on the level of reflexivity present in the interplay between the different actors, the value of reflexive governance for the effective enforcement and promotion of equality and non-discrimination law, and the role it can play in preventing backsliding and creating resilience. Different actors have internalized to different degrees the various elements of reflexivity. Some of these elements could not unfold their full potential as their use has only been half-hearted (like the use of benchmarks without the simultaneous use of indicators in monitoring) or processes have been interrupted halfway (like not pursuing monitoring after accession). The conclusions advocate for a shift from an intergovernmental approach to a triangular constellation of equal partnership involving state authorities, EU institutions, and transnational/national societal actors. It underlines the importance of the empowerment and equal participation of local stakeholders. This enhances mutual social learning in the processes of socialization and internalization, and contributes to the prevention of backsliding. They further plead for understanding monitoring as dynamic norm contestation in which the three actors involved critically engage with the norms under consideration. As such, it helps to deconstruct own preference-formations and is a possibility to learn from successes and failures in a cooperative and recursive process. Monitoring understood in this way needs to be permanent and should not only take place in the pre-accession phase but should include all Member States. It concludes that reflexive governance is an approach which well reflects all the above proposed shifts of focus and of understanding.","PeriodicalId":193565,"journal":{"name":"Reflexive Governance in EU Equality Law","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132025709","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Indicators as a Tool for Strengthened Monitoring 指标作为加强监测的工具

Reflexive Governance in EU Equality Law Pub Date : 2021-10-21 DOI: 10.1093/oso/9780192843371.003.0004

E. Lantschner

{"title":"Indicators as a Tool for Strengthened Monitoring","authors":"E. Lantschner","doi":"10.1093/oso/9780192843371.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780192843371.003.0004","url":null,"abstract":"Chapter 3 is dedicated to a discussion of the concept of indicators, since the use of such an instrument is not uncontroversial. To address critics of the concept, the chapter analyses not only the purposes for which indicators can be used and their related advantages, but also discusses the limitations and pitfalls connected with their use. This chapter also introduces the division into structural, process, and outcome indicators that measure the progress of implementation in different phases of the life cycle of a norm. It further looks at the use that is made (or not made) of indicators in monitoring procedures carried out by the Commission in the pre-accession phase to show that, to date, the concept has been used rather inconsistently. On the basis of the foregoing, it develops criteria for the development of indicators in the area of equality and non-discrimination. The main purpose of these indicators is to support consistent monitoring of the transposition and implementation of the EU non-discrimination acquis. They can, however, also be used as a tool in the political dialogue between the European Commission, civil society actors, and state institutions, as well as by policy makers to analyse the situation in view of evidence-based law and policy making.","PeriodicalId":193565,"journal":{"name":"Reflexive Governance in EU Equality Law","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128257083","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Introduction: Aim and Scope of the Book and Its Structure 引言:本书的目的和范围及其结构

Reflexive Governance in EU Equality Law Pub Date : 2021-10-21 DOI: 10.1093/oso/9780192843371.003.0001

E. Lantschner

{"title":"Introduction: Aim and Scope of the Book and Its Structure","authors":"E. Lantschner","doi":"10.1093/oso/9780192843371.003.0001","DOIUrl":"https://doi.org/10.1093/oso/9780192843371.003.0001","url":null,"abstract":"The introduction lays out the two main aims pursued by the research carried out in the book, its methodology, and its structure. One aim is to investigate how implementation and compliance with norms and policies relating to equality and non-discrimination adopted in the course of EU enlargement could be improved and the likelihood of sustainability (or continuation) of reforms after enhanced accession be enhanced. The central hypothesis is that conditionality is not able to achieve these goals and that reflexive governance is the mode of governance most conducive to an effective and sustainable implementation of the equality acquis through its emphasis on cooperation between all relevant actors and a reflexive learning process. A case study on Croatia has revealed that the lack of consistent and transparent monitoring, as well as insufficient attention to the pooling of results and learning from successes and failures, are among the elements of reflexive governance that have not yet been sufficiently developed. The second aim of this research is, therefore, to make a contribution to both these issues. On the basis of a comparative review of transposition and practical implementation of selected parts of the RED and the EED in EU Member States, it identifies good practices and challenges in the implementation and enforcement of the selected policy options. Drawing from this, indicators are proposed, on the basis of which the progress in the transposition and practical implementation of the EU acquis in the field of equality and non-discrimination can be evaluated.","PeriodicalId":193565,"journal":{"name":"Reflexive Governance in EU Equality Law","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115865846","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Reaction to Discrimination by Quasi- and Non-Judicial Mechanisms 准司法和非司法机制对歧视的反应

Reflexive Governance in EU Equality Law Pub Date : 2021-10-21 DOI: 10.1093/oso/9780192843371.003.0006

E. Lantschner

{"title":"Reaction to Discrimination by Quasi- and Non-Judicial Mechanisms","authors":"E. Lantschner","doi":"10.1093/oso/9780192843371.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780192843371.003.0006","url":null,"abstract":"Chapter 5 comparatively assesses the implementation of the provision of the RED dealing with the Equality Bodies’ function of providing independent assistance to victims of discrimination in pursuing their complaint. Although the EED does not call for the establishment of such bodies, most countries have extended their mandates to include the discrimination grounds covered by this Directive. After discussing issues related to the structure of these bodies, the chapter focuses on the legal framework and implementation practice concerning the independence of Equality Bodies. It then looks separately at predominantly tribunal-type bodies and predominantly promotion-type bodies. While the former spend the bulk of their time and resources hearing, investigating, and deciding on individual instances of discrimination brought before them, the latter can either engage in mediation or consultation, engage in various ways before courts, or decide (mostly in a legally non-binding form) cases brought before them. Case studies look at the practical implementation in Romania, Bulgaria, and Austria for the former type of body, and in Belgium, Ireland, and Germany for the latter type of body. The findings show that Equality Bodies are suffering from inadequate resources, limited independence, and lack of awareness of their existence and the support they can provide. Nevertheless they have contributed to individual redress, societal change, and legal clarification by litigating cases as far as the CJEU. The chapter closes with indicators derived from the comparative analysis that can be used to monitor the effective implementation of the obligation to establish bodies that independently support victims of discrimination.","PeriodicalId":193565,"journal":{"name":"Reflexive Governance in EU Equality Law","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123778903","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0