A comparative analysis of non-discrimination law in Europe 2017 (excerpts)

This document has been prepared for the European Commission however it reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein.

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National experts: (..) Estonia [:] Non-discrimination [:] Vadim Poleshchuk

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1. PROTECTED GROUNDS OF DISCRIMINATION

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1.2 Grounds of discrimination

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Most countries have chosen not to define the grounds of discrimination in their implementing legislation (for instance, Croatia, the Former Yugoslav Republic of Macedonia, France, Hungary, Lithuania, Luxembourg, Poland, Romania, Serbia and Slovenia). A small group of countries have included definitions of at least some of the grounds either within the legislation itself or in accompanying documentation, such as an explanatory memorandum. This group includes Bulgaria, the Czech Republic, Denmark, Estonia, Finland, Germany, Greece, Ireland, Montenegro, the Netherlands, Sweden and the United Kingdom. In many countries, definitions or guidelines for definitions have subsequently been provided by national court rulings.

All countries have included the general principle of equal treatment or specific grounds of discrimination in their constitution (except Denmark and the UK, which does not have a written constitution). Constitutional
provisions are generally either not directly applicable or they have vertical effect only in litigation involving the state as the respondent. However, constitutional provisions are deemed to be applicable to horizontal relations as well in Bulgaria, Cyprus, Denmark, Estonia, Greece, Iceland, Liechtenstein, Luxembourg, the Netherlands, Norway, Serbia, Slovenia, Spain and Turkey.

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Most countries have transposed the directives through civil or labour law, with a minority having also maintained, introduced or amended criminal law provisions (e.g. Belgium, Denmark, Estonia, France and Luxembourg).

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Table 1: Grounds protected on the national level in various laws, whether at the federal or regional level

(..) Estonia [:] Ethnic origin, race, colour, origin, religion or other beliefs, age, disability or sexual orientation, sex, language, duty to serve in defence forces, marital or family status, family-related duties, representation of the interests of employees or membership of an organisation of employees,
political or other opinion, property, financial or social status, genetic risks, other grounds. (..)

1.2.2 Religion or belief

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1.2.2.1 Specific provisions on religion or belief – ethos-based organisations

Most of the controversy around the implementation of the provisions of the Employment Equality Directive on religion or belief centres on the extent of any exceptions provided for organised religions (e.g. churches) and organisations with an ethos based on religion or belief (e.g. religious schools). Under Article 4(2) of the Employment Equality Directive, Member States can maintain national legislation or practices that allow churches and other public or private organisations whose ethos is based on religion or belief to treat people differently on the basis of their religion or belief. Such different treatment does not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitutes a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This exception only allows for differential treatment on the grounds of religion or belief, and cannot be used to justify discrimination on another ground, for example sexual orientation.

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the following states have adopted provisions in national law which seek to rely on Article 4(2): Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, the Former Yugoslav Republic of Macedonia, Germany, Greece, Hungary, Italy, Ireland, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Slovakia, Slovenia, Spain, Turkey and the United Kingdom

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1.3 Assumed and associated discrimination

Discrimination can sometimes occur because of an assumption about another person, which may or may not be factually correct, e.g. that the person has a disability. Alternatively, a person may face discrimination because they associate with persons of a particular characteristic, e.g. a non-Roma man may be denied admission to a bar because he is with friends from the Roma community. In many countries, the application of discrimination law to such scenarios is neither stipulated nor expressly prohibited, and only future judicial interpretation will clarify this issue. This is the case for instance in Estonia, Germany, 148 Iceland, Italy, Latvia, Liechtenstein, Lithuania, Malta, 149 Poland, Portugal, Romania and the UK. 150

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2. DEFINITIONS AND SCOPE

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2.1 Forms of discrimination

2.1.1 Direct discrimination

All examined countries except Iceland and Liechtenstein have adopted legislation that reflects closely the definition of direct discrimination found within the directives in relation to the relevant grounds. In most countries, there are common elements to the definitions of direct discrimination: – the need to demonstrate less favourable treatment; – a requirement for a comparison with another person in a similar situation but with different characteristics (e.g. ethnic origin, religion, sexual orientation); – the opportunity to use a comparator from the past (e.g. a previous employee) or a hypothetical comparator; and – a statement that direct discrimination cannot be justified. These elements can be generally found in legislation in Austria, Belgium, Bulgaria, Croatia, the Czech Republic, Cyprus, Denmark, Estonia, Finland, the Former Yugoslav Republic of Macedonia, France (although hypothetical comparison is not covered, in breach of the directives),181 Germany, Greece, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Montenegro, the Netherlands, Norway, Poland (although the definition of direct discrimination given in the Labour Code is still erroneous with regard to the comparator), Portugal, Serbia, Slovakia, Slovenia, Spain (although the law does not determine whether past and hypothetical comparators are covered), Sweden and the United Kingdom. [..]

Table 3: Prohibition of direct discrimination in national law (..)

LawArticleDefinedDefinition
equivalent to
the directives
Estonia Equal Treatment Act Art. 3(2) YesYes

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2.1.2 Indirect discrimination

A large proportion of states have introduced a definition of indirect discrimination that generally reflects the definition adopted in the directives. This includes Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, the Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. [..]

Table 4: Prohibition of indirect discrimination in national law (..)

LawArticleDefinedDefinition
equivalent to
the directives
Estonia Equal Treatment Act Art. 3(4) YesYes

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2.1.3 Harassment

The concept of harassment, in particular sexual harassment, was traditionally developed in the 1990s from EU gender equality legislation. Harassment in the anti-discrimination directives does not differ much from the established baseline and is defined as unwanted conduct relating to racial or ethnic origin, religion or belief, disability, age, or sexual orientation with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.192 The majority of states have adopted definitions of harassment that appear in line with that contained in the directives. This includes Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, the Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Montenegro, the Netherlands, Norway, Poland, Portugal, Serbia, Slovakia, Slovenia and the United Kingdom.

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Table 5: Prohibition of harassment in national law (..)

LawArticleDefinedDefinition
equivalent to
the directives
Estonia Equal Treatment Act Art. 3(3) YesYes

2.1.4 Instructions to discriminate

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National law varies greatly among the countries regarding the scope of liability for instructions to discriminate. In some countries, only the instructor (and not the instructed discriminator) can be held liable for instructions to discriminate. These include Estonia, Greece, Liechtenstein, Lithuania, and the Netherlands. However, in a large majority of the countries, both the instructor and the discriminator can be held liable

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Table 6: Prohibition of instructions to discriminate in national law (..)

LawArticleDefined
ESTONIAEqual Treatment Act Art. 3(5) No

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2.2 Scope of discrimination

2.2.1 Personal scope

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In Estonia, the Equal Treatment Act refers to the rights of persons and the local legal tradition implies that only natural persons can be victims of discrimination (unless this is challenged in the national courts).

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2.2.2 Material scope

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The material scope of the directives is met in Austria, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, the Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Ireland, Italy, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.

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3 EXCEPTIONS TO THE PRINCIPLE OF NON-DISCRIMINATION AND POSITIVE ACTION

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3.1 Genuine and determining occupational requirements

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Both directives allow national legislation to provide an exception where the characteristic is a ‘genuine and determining occupational requirement’. Under Recital 18 of the Racial Equality Directive, in very limited
circumstances, a difference of treatment may be justified where a characteristic related to racial or ethnic origin constitutes a genuine and determining occupational requirement, when the objective is legitimate
and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission. All countries surveyed, except Iceland, have chosen to include
such an exception within their national legislation

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3.3 Nationality

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Table 8: Nationality is an explicitly protected ground in anti-discrimination legislation

LawArticleEquality body has explicit mandate to deal with nationality If not,
does
so in
practice
ESTONIANoNoNo

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3.7 Positive action

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Table 9: Main grounds and fields where positive action is used in practice (..)

ESTONIADisability (employment), ethnic origin (employment), age (employment).

4 ACCESS TO JUSTICE AND EFFECTIVE ENFORCEMENT

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4.1 Judicial and administrative procedures

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In no state are discrimination disputes resolved purely in the courts. The vast majority of states combine judicial proceedings – which may be civil, criminal, labour and/or administrative – with non-judicial proceedings. Mediation or conciliation proceedings may be available as a mandatory part of the court proceedings, as in France, Italy, Portugal, Spain and Sweden, or separately, as for example in Croatia, Estonia, Finland, the Former Yugoslav Republic of Macedonia, Germany, Hungary, Malta, Montenegro, Poland, Serbia, Slovakia and Slovenia. [..]

4.1.1 Available procedures

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In Lithuania, employment disputes commissions, regulated by the Employment Code, are the primary bodies mandated to resolve employment disputes. The responsibility for establishing an employment
disputes commission in a company, agency or organisation rests with the employer. They are made up of an equal number of representatives of employers and employees. The employment disputes commission
can award compensation to an individual in cases of discrimination that have breached the Labour Code. Similarly, in Estonia, labour dispute committees have an important role in resolving labour disputes,
including those involving discrimination. [..]

Some countries propose conciliation, such as Austria (mandatory for disability cases)313 or Latvia where the Ombudsman’s Office examines and reviews complaints of human rights violations and attempts to resolve conflicts through conciliation, which, if unsuccessful, is followed by non-binding recommendations. Similarly, the Estonian Chancellor of Justice provides an impartial conciliation procedure upon application by the victim. In the context of discrimination by natural or legal persons in private contexts, the decision of the Chancellor of Justice is legally binding, while the Chancellor of Justice (in cases of discrimination by public institutions) and Commissioner for Gender Equality and Equal Treatment (public and private domain) are empowered to conduct ombudsman-like procedures with non-legally binding results. Participation in the conciliation procedure before the Chancellor of Justice is not compulsory. [..]

4.2 Legal standing and associations

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Under the directives, EU Member States have some discretion as to how this clause is implemented in terms of the type of legal standing that associations can have, and therefore national legal orders present many different patterns that are difficult to compare. In some countries, the relevant anti-discrimination legislation provides associations and/or trade unions or other organisations with some legal standing specifically in cases of discrimination. These include Belgium, Bulgaria, Cyprus, the Czech Republic, France, Germany, Greece, 327 Hungary, Ireland, Italy, Lithuania, Malta, Montenegro, Norway, Portugal, Romania, Slovakia, Slovenia, Spain, Serbia and Sweden. In a number of countries however, no such specific provision is made for cases of discrimination, although general provisions of civil, administrative or labour law provide some standing to associations under certain conditions (e.g. Denmark, Estonia, the Former Yugoslav Republic of Macedonia, Iceland, Latvia, Liechtenstein, the Netherlands, Poland and Turkey).

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4.2.2 To engage ‘on behalf of’

A majority of the countries examined allow associations and/or trade unions to engage in proceedings ‘on behalf of’ victims of discrimination (i.e. representing them), including Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, the Former Yugoslav Republic of Macedonia, France, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Malta, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Spain, Sweden and Turkey.

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Table 10: Legal standing in court of organisations for discrimination cases (..)

Legal standing to act on behalf of victimsLegal standing to act in support of victims
ESTONIAIndividual Labour Dispute Resolution Act, Art. 14 (21) 87No 88
Chancellor of Justice Act, Art. 23 (2) 89

87 Labour dispute resolution (ordinary employment).

88 As regards civil procedures, judicial interpretation is however required of Articles 213 and 216 of the Code of Civil Procedure.

89 Conciliation procedures (private sphere)

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4.2.3 Collective redress

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Actio popularis is permitted by national law for discrimination cases in 19 countries (Austria, Bulgaria, Croatia, France, the Former Yugoslav
Republic of Macedonia, Germany, 346 Hungary, Italy, Liechtenstein, 347 Luxembourg, Malta, 348 Montenegro, 349
the Netherlands, Norway, Portugal, Romania, Serbia, Slovakia, and Spain).350

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Class actions (the ability for an organisation to act in the interest of more than one individual victim for claims arising from the same event) are permitted by law for discrimination cases in 13 countries: Bulgaria, Denmark, the Former Yugoslav Republic of Macedonia, France, Iceland, 355 Liechtenstein, Montenegro, the Netherlands, Norway, Portugal, Romania, Slovakia and Slovenia.

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Neither actio popularis nor class action is permitted in discrimination cases in the following countries: the Czech Republic, Belgium, Estonia, Finland, Greece, Ireland, Latvia, Sweden and Turkey. 358

4.3 Burden of proof

As a result of the difficulties inherent in proving discrimination, Article 8 of the Racial Equality Directive and Article 10 of the Employment Equality Directive lay down that people who feel they have faced discrimination must only establish, before a court or other competent authority, facts from which it may be presumed that there has been discrimination.360 The burden of proof will then shift to the respondent, who must prove that there has been no breach of the principle of equal treatment. This does not affect criminal cases (Article 8(3)/10(3)), and Member States can decide not to apply it to cases in which courts have an investigative role (Article 8(5)/10(5)). Thus, for example, [..] Similarly, in Estonia, the shift of the burden of proof does not apply in administrative court or criminal proceedings. [..]

4.4 Victimisation

Member States must ensure that individuals are protected from any adverse treatment or adverse consequences in reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment (Article 9, Racial Equality Directive; Article 11, Employment Equality Directive). [..]

Although the directives do not limit the protection against victimisation to the actual claimants themselves but potentially extend it to anyone who could receive adverse treatment ‘as a reaction to a complaint or to proceedings’, the protection is more restricted in several countries. [..]

However, the scope of the protection is wider in most countries, such as in Italy, which includes protection for ‘any other person’ in addition to the claimant, or Estonia and Poland, where protection includes claimants as well as those who ‘support’ them. [..]

Table 11: Prohibition of victimisation in national law (in the case of decentralised states only federal law is indicated) [..]

LawArticleProtection
extended outside
employment
ESTONIAEqual Treatment ActArt. 3(6)Yes

4.5 Sanctions and remedies

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There appear to be no limits either in relation to pecuniary or non-pecuniary damages in the national laws of Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, the Former Yugoslav Republic of Macedonia, Finland, France, Germany, 378 Greece, Iceland, Italy, Liechtenstein, 379 Lithuania, Luxembourg, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia,
380 Spain, Sweden
and the United Kingdom. [..]

5 EQUALITY BODIES

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Bodies that already existed but which have been given the functions designated by Article 13 include the Cypriot Ombudsman,388 the Estonian Chancellor of Justice and Commissioner for Gender Equality and Equal Treatment, the Lithuanian Equal Opportunities Ombudsperson, the Maltese National Commission for the Promotion of Equality, the Slovak National
Centre for Human Rights and the Croatian Ombudsman [..]

Table 12: Relevant specialised bodies dealing with racial/ethnic origin and the grounds covered by their mandates (..)

CountryRelevant specialised body dealing with race/ethnic originDoes this body cover other grounds than race or ethnic origin as specified by Article 13? If so, which ones?
ESTONIACommissioner for Gender Equality
and Equal Treatment
(Equal Treatment Act, Arts 15-22)
Sex, ethnic origin, race, colour, religion or other beliefs, age, disability and sexual orientation.
Chancellor of Justice (Chancellor of Justice Act, Art. 19-35 16) Public sector: any ground Private sector: sex, race, ethnic origin, colour, language, origin, religious, political or other belief, property or social status, age, disability, sexual orientation or other ground of discrimination provided for by the law.

Out of the 35 countries included in this report, all but Iceland and Turkey have a specialised body which at least deals with race and ethnicity. Three countries (Estonia, the Netherlands and the United Kingdom) have two specialised bodies. [..]

[..] In Estonia, in addition to the five grounds covered by the anti-discrimination directives, the Chancellor of Justice deals with ‘other grounds of discrimination provided for in the law’ in the private sector [..]

5.2 Competencies of equality bodies

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Out of the 36 specialised bodies, 31 have a mandate to provide independent assistance to victims and five do not. The countries where the
relevant bodies do not officially have a mandate to provide such assistance include: Cyprus (although in practice both the Equality Authority
and the Anti-discrimination Authority advise victims informally of their rights), Estonia (the Chancellor of Justice, which nevertheless does
so in practice), Lithuania, the Netherlands (the Netherlands Institute for Human Rights), and Norway. [..]

Of the 36 specialised bodies, 35 have a mandate to conduct independent surveys while only one, the Estonian Chancellor of Justice, does not. [..]

Almost all specialised bodies have a mandate to publish independent reports, with the exception of the Estonian Chancellor of Justice.393 [..]

393 Although the Chancellor of Justice does not have a mandate to publish independent reports, it does draft annual reports which may include information about complaints and related opinions on equality and discrimination-related issues.

Although this is not required by the Racial Equality Directive, some specialised bodies are also quasijudicial institutions, the decisions of which are ultimately binding. Tribunal-like, quasi-judicial bodies exist parallel to the specialised bodies in Austria, Denmark and Finland and they are also included in the analysis of this section, making a total of 39 bodies. Only 13 of these 39 bodies are quasi-judicial institutions: in Austria (the Equal Treatment Commission), Bulgaria (the Protection against Discrimination Commission), Cyprus (the Equality Authority and Anti-Discrimination Authority), Denmark (the Board of Equal Treatment), Estonia (the Chancellor of Justice),397 the Former Yugoslav Republic of Macedonia (the Commission for Protection against Discrimination), Hungary (the Equal Treatment Authority), Lithuania (the Equal Opportunities Ombudsperson), the Netherlands (the Netherlands Institute for Human Rights), Norway (the Equality and Anti-Discrimination Tribunal),398 Romania (the National Council on Combating Discrimination) and Serbia (the Commissioner for the Protection of Equality). [..]

Among these 13 bodies, nine can issue binding decisions. This is the case for the Bulgarian, Cypriot, 399 Danish, 400 Estonian, 401 Finnish, Hungarian, Lithuanian, 402Romanian and Serbian bodies. [..]

401 The Chancellor of Justice only in conciliation procedures.

6 IMPLEMENTATION AND COMPLIANCE

6.1 Dissemination of information and social and civil dialogue

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6.1.1 Dissemination of information and awareness-raising

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The mandates of specialised bodies in most countries include awareness-raising activities, for instance in Denmark, Estonia, France, Germany, Lithuania, Norway, Romania, Slovenia, Sweden and the United Kingdom.

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6.2 Ensuring compliance

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In some jurisdictions, an entire agreement is invalidated if it includes a discriminatory clause (e.g. Germany). However, legislation that can annul individual discriminatory rules in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers’ and employers’ organisations is more common among the Member States. This is the case in the Netherlands where the main equal treatment acts stipulate that ‘agreements’ that are in contravention of the equal treatment legislation are void. General labour law is relied on to this end in many countries, including Hungary, 426 where Article 27 of the Labour Code provides that an agreement (individual or collective) that violates labour law regulations is void. If annulled or successfully contested the agreement is invalid (Article 28) and, if invalidity results in loss, compensation must be paid (Article 30). Similar general labour law provisions are found in Italy (Article 15 of the Workers’ Act), Latvia (Article 6 of the Labour Act), Poland (Article 18(2) of the Labour Code)427 and Estonia (Article 4(2) of the Collective Agreements Act, which provides that the terms and conditions of a collective agreement which are ‘less favourable to employees than those prescribed in a law or other legislation’ are invalid, unless exceptions are explicitly permitted).

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Annexes

Annex 1. Main national specific anti-discrimination legislation

CountryConstitutional
anti-discrimination
provisions
Main specific anti-discrimination
legislation
Grounds covered
ESTONIAArticle 12(1) of the ConstitutionChancellor of Justice Act of 25 February1999, as last amended in 2015 Sex, race, ethnic origin, colour,
language, origin, religious, political or
other belief, property or social status,
age, disability, sexual orientation
or other ground of discrimination
provided for in the law.5
Equal Treatment Act of 11 December 2008, as last amended in 2014 Ethnic origin, race, colour, religion or other beliefs, age, disability or sexual orientation

5 These grounds are covered in the private sector for the conciliation procedure. For the public sector, the grounds are not specified.

Annex 2. Signature/ratification of international convention

ESTONIA Ratified: European Convention on Human Rights, Revised European Social Charter, International Covenant on Civil and Political Rights, Framework Convention on the Protection of National Minorities, International Convention on Economic, Social and Cultural Rights, Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of Discrimination against Women, ILO Convention No 111 on Discrimination, Convention on the Rights of the Child, Convention on the Rights of Persons with Disabilities. Signed: Protocol 12, ECHR

Annex 3. National specialised bodies

Country: Estonia

Specialised body designated by law in compliance with Article 13:

Commissioner for Gender Equality and Equal Treatment
(Equal Treatment Act, Arts 15-22): Grounds covered other than racial or ethnic origin: Sex, ethnic origin, race, colour, religion or other beliefs, age, disability and sexual orientation. Provides independent assistance to victims: Yes. Conducts independent surveys: Yes. Publishes independent reports: Yes. Issues recommendations: Yes. Is a quasi-judicial body: No. Its decisions are binding: N/A.

Chancellor of Justice (Chancellor of Justice Act, Art. 19-35 16) : Grounds covered other than racial or ethnic origin: Public sector: any ground. Private sector: sex, race, ethnic origin, colour, language, origin, religious,
political or other belief, property or social status, age, disability, sexual
orientation or other ground of discrimination provided for by the law. Provides independent assistance to victims: No. Conducts independent surveys: No. Publishes independent reports: No. Issues recommendations: No. Is a quasi-judicial body: Yes4 Its decisions are binding: Yes 5

4 In conciliation procedures.

5 In conciliation procedures


Document data: published in November 2017, based on information current on 01.01.2017 ISBN 978-92-79-75353-4 Link: https://www.equalitylaw.eu/downloads/4489-a-comparative-analysis-of-non-discrimination-law-in-europe-2017-pdf-1-35-mb

Publisher’s note: Older analogous annual reports on the issue can be found at http://providus.lv/article_files/1575/original/ke7807323_en.pdf?1332248757 (2007 edition), at publications.europa.eu (2010-2014), at equalitylaw.eu (2015-2016)

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