Rights and Opportunities for Participation

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Rights and Opportunities for Participation

Rights and Opportunities for Associations to Participate in Legal Proceedings and Complaints Procedures concerning Non-Discrimination

Racial discrimination as well as discrimination on the grounds of gender, religion or belief, disability, age or sexual identity are not just marginal exceptions in Germany but part of everyday experience. Discriminating structures, mechanisms, regulations and actions extend to cover all areas of daily existance, for instance work, education or housing. Urgent action is necessary not only from the state. Protection against discrimination is a task that concerns the whole of society, the civil society should also intensify its efforts. Associations can offer a valuable contribution and play an important role in enforcing an effective legal protection against discrimination.

Mobilising the Legal System

Associations contribute to the mobilisation of rights and to the combat of discrimination through their participation in legal proceedings and complaints procedures.

On the one hand, associations provide support in individual cases and strengthen the position of  affected persons as well as protecting them against discrimination. Associations can help affected persons to gain access to legal proceedings and to claim their legal rights, since otherwise this is often practically impossible. Sometimes, the people concerned do not know what possibilities are available to assert their rights. Above all, however, the proceedings are often psychologically wearing and negatively affect their life. This burden, as well as fear of the anticipated legal costs and duration of the proceedings can discourage individuals from initiating court cases. Persons affected by discrimination often do not have the same social position of power and legal skills as the opposing party. Class action rights constitute an important instrument in legal proceedings and complaints procedures because of the supportive expertise as well as the proximity of the association and the trust it receives from the person concerned.

Class action lawsuits also offer the possibility of a strategic conduct of the proceedings that can contribute to social change beyond the individual case. Court cases can be made public and effect a sustainable improvement of the law, the prevailing case law and the legal structure. Consequently the lawsuits also serve to educate and raise awareness among the courts, public authorities and society as a whole. In this process, the legal implementation of discrimination prevention is not the only element, but an essential element in an effective non-discrimination policy.

Procedure according to the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG)

The German AGG was created to implement four main EU Equal Treatment Directives (Directives 2000/43/EC, 2000/78/EC, 2002/73/EC and 2004/113/EC). The objective of this law is to protect against racist discrimination as well as discrimination due to gender, religion or belief, disability, age or sexual identity, especially in civil and labour law.

Associations can support affected persons in procedures according to the AGG as an anti-discrimination association by providing legal advice as well as by functioning as a legal adviser. A formal admission as an anti-discrimination association is not required. However, the association must be of a minimum size (75 natural members or seven member associations) and it should represent the special interests of disadvantaged persons or groups of persons on a non-profit basis according to its statutes.

Part of a possible legal advice could also be the provision of legal assistance such as drafting letters of complaint to discriminating entities or responsible authorities.

Associations can support affected persons in oral court hearings as a legal adviser. Unlike an authorised legal representative, the legal adviser then acts not in the place of the appellant party but in support of the person concerned or his/her legal representative. In this position the legal adviser may participate in all legal procedures that the oral court hearing may lead to, such as describing the circumstances of the case and filing applications.

In addition, associations that are registered as so-called consumer protection associations with the Federal Office of Justice can file a consumer protection suit according to the Act Against Unfair Practices (Gesetz gegen den unlauteren Wettbewerb, UWG) and the Law on Action for Injunction (Unterlassungsklagengesetz, UKlaG), if general terms and conditions or business practices violate the AGG. Associations that are non-profit making according to their statutes are entitled to be registered and not just temporarily provide education and counselling of the persons they represent, i.e. for consumer protection.

Trade unions and workers' councils can also file a lawsuit against employers if they severely breach the AGG.

Finally, it may be appropriate for associations to encourage a preliminary ruling procedure at the European Court of Justice in procedures according to the AGG. In the course of national lawsuits, the court having jurisdiction can submit a question to clarify the legal situation, if the question concerns the implementation or interpretation of a EU directive and is relevant for the ruling. Such rulings of the European Court of Justice are relevant beyond the individual case since the AGG is to be interpreted on the basis of the underlying directives and the jurisdiction of the European Court of Justice. Associations can attempt to initiate such a preliminary ruling procedure and a corresponding leading decision.

Proceedings according to the Federal Act on Equal Opportunities of Disabled People (Behindertengleichstellungsgesetz, BGG) and the Social Security Code IX (Sozialgesetzbuch, SGB IX)

Further instruments available to associations for the protection against discrimination due to disability exist in the Act on Equal Opportunities of Disabled People (BGG), in the corresponding Federal State laws as well as the Social Security Code IX (SGB IX).

The BGG is especially targetted towards implementing accessibility for people with disabilities in relation to public bodies, for instance authorities. Associations can file a class action or a representative action lawsuit according to the BGG in order to sue for discrimination if they are acknowledged by the Federal Ministry for Labour and Social Affairs. Similar possibilities exist at the level of the Federal State (Land) according to the respective Federal State laws.
A class action lawsuit can be filed with public authorities to enforce accessibility for people with disabilities if no concrete person is affected or in a case of general significance. In contrast, representative action occurs in the case of authorisation by a person affected by discrimination, to act on their behalf concerning the violation of rights in court or by administrative procedures. Unlike a legal representative, the nominal plaintiffs file a claim concerning violation of rights in their own name as a claimant and not in the name of others.
According to the SGB IX, the possibility for representative action also exists. The objective of the SGB IX is to promote the self-determination and equal participation of people with disabilities in society and to avoid or counteract discrimination. An association can then assert an entitlement of a severly disabled person to an accessible workplace according to the SGB IX. There is no requirement for the association to be registered. The only prerequisite is that the association represents the interests of people with disabilities on the federal and federal state level.

International Procedures

Associations can also participate in international procedures for protection against discrimination.

The compliance and implementation of the human rights treaties of the United Nations are monitored with state reports and audit procedures and have partially been expanded with the possibilities of complaints in individual cases and in examination procedures. The so-called Treaty Bodies, committees of independent experts, are the monitoring bodies in charge of these procedures and have been set up for every core human rights treaty of the United Nations.

Therefore, associations can support complaints procedures on human rights to different UN Treaty Bodies with counselling, monitoring and representation. Persons or groups of people can file a complaint with the respective UN committees when the national legal process has been exhausted. Individual complaints in Germany are possible at the UN Human Rights Committee (CCPR), the UN Committee on the Elimination of Racial Discrimination (CERD), the UN Committee on the Elimination of Discrimination against Women (CEDAW), the UN Committee against Torture (CAT) and the new UN Committee on the Rights of Persons with Disabilities (CRPD). These UN committees, however, do not have the power for legislative enactment and cannot pronounce legally binding or enforceable judgments but can only express so-called “views”. However, the political effect of these recommendations or reprimands to the respective state should not be underestimated. In a so-called Follow-Up-Procedure an evaluation is made whether the state has adhered to the recommendations.

An individual case procedure is also possible at the European Court of Human Rights (ECHR), and unlike the declarations of the UN committees, its judgments are legally binding and enforceable.

The main monitoring instrument of the UN human rights treaties is the reporting process of the States Parties. Germany is obliged to submit periodic reports on the status of the human rights situation and the implementation of the respective treaty to the corresponding UN monitoring body. Associations can participate in these procedures by submitting so-called parallel or shadow reports. In the parallel reports, they can reveal mistakes or omissions in the state report and describe the inadequate implementation of the respective human rights obligations and specific problems. In the past, different associations in Germany have submitted joint co-ordinated parallel reports. The committees then address recommendations and reprimands to the respective state that are published on the website of the committee on the basis of the state report and the parallel report. A similar monitoring procedure is also conducted by the UN Human Rights Council (Universal Periodic Review or UPR procedure).

Furthermore, there is also the possibility of initiating an investigation procedure by a UN committee by notifying severe and systematic human rights violations. This procedure is provided for at the Committee on the Elimination of Discrimination against Women, the Committee on the Rights of Persons with Disabilities and as a so-called preventive procedure by the Committee on the Elimination of Racial Discrimination.

Parallel reports: Complaints and indictments for investigative procedures cannot only be used to create awareness at the international level for national problems but can additionally be used to inform the German parliament and other target groups and to raise awareness for the problem domestically. This can open access to various government levels and ministries and dialogue can be enhanced with the UN committee recommendations serving as an important basis for appeal.

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