EU Anti-Discrimination Law (Oxford European Union Law Library) 9780199698462, 0199698465

Table of contents :
Cover
Contents
Table of Cases
Table of Legislation
Table of Treaties and Conventions
List of Abbreviations
1. Introduction
The importance of anti-discrimination law
Non-discrimination and equality
The dynamism inherent in EU law
Sources of EU anti-discrimination law
(i) The TFEU
(ii) Secondary legislation
(iii) Decisions of the CJEU and the General Court
(iv) Instruments for the protection of fundamental human rights
(v) Other indirect sources
The grounds on which EU law forbids discrimination
(i) Nationality
(ii) Sex
(iii) Part-time and temporary employment
(iv) Racial or ethnic origin
(v) Religion or belief
(vi) Disability
(vii) Age
(viii) Sexual orientation
2. Essential characteristics of EU law
The nature and effects of EU Law
The supremacy of EU law
Direct enforcement of EU law by individuals
(i) Origins of the principle
(ii) Direct enforcement of secondary EU legislation
(iii) Directives and horizontal effect
(iv) Meaning of the ‘State’
(v) Mitigating the lack of horizontal enforceability of directives
(vi) The need to implement directives
(vii) The principle of procedural autonomy
(viii) Balancing the claims of national law and EU law
The constitutional scope of EU law
3. General principles and equal treatment
General principles as part of EU law
Sources of general principles
The European Convention on Human Rights
(i) The rights and freedoms expressed in the Convention
(ii) Article 14
(iii) Protocol 12
The European Social Charter
The Community Social Charter
The Charter of Fundamental Rights
The substantive content of the general principles relevant to this work
(i) A general principle of non-discrimination on the ground of age?
(ii) Equal treatment
(iii) Proportionality
(iv) The general principle of non-discrimination on the ground of sex
4. Key concepts in EU anti-discrimination law
Direct discrimination
Indirect discrimination
Multi-dimensional discrimination
Burden of proof
Causation
Defences to a discrimination claim
Can direct discrimination be justified as a matter of EU law?
Harassment and instructions to discriminate
Positive action
Mainstreaming
5. Equal pay
Scope of the obligation
The meaning of ‘pay’ for the purposes of Article 157
(i) Are pensions ‘pay’ within Article 157?
(ii) The principle of equality as applied to pensions
(iii) Occupational social security schemes
(iv) Other statutorily regulated payments made by employers to their employees
(v) Are all employment benefits ‘pay’?
The meaning of ‘equal work’
(i) Equal pay for ‘equal work’
(ii) Work of equal value
Defences to an equal pay claim
The direct effect of the equal pay principle and the remedies for its breach
The equal pay provisions of the Recast Directive
(i) The background
(ii) The relationship between the directive and Article 157
(iii) The content of the Directive’s provisions on equal pay
6. The scope and enforcement of the workplace anti-discrimination provisions
Scope of the legislation
Scope of the Recast Directive, Race Directive, and Framework Directive
The substantive provisions of the Recast Directive, Race Directive, and Framework Directive
(i) Pay
(ii) Access to employment
(iii) Working conditions
(iv) Dismissal
(v) Harassment and sexual harassment
Remedies and enforcement
The directives supplementing the principle of non-discrimination on the ground of sex
(i) The Directive on Part-time Work
(ii) The Directive on Fixed-term Employees
(iii) The Directive on Temporary Agency Work
(iv) The Directive on Equal Treatment of the Self-employed
7. Discrimination on the grounds of pregnancy and maternity
Pregnancy
The role of the comparator
Health and safety
Employment rights during pregnancy and maternity leave
Protection against dismissal
Parental leave
Proposed amendments to the Pregnancy Directive
8. Non-workplace discrimination
The Race Directive
The Goods and Services Directive
The 2008 proposal
9. Exceptions to the non-discrimination principle
Introduction
The exceptions
(i) Genuine and determining occupational requirement
(ii) The special occupational exception for religious bodies
(iii) Provisions protecting women
(iv) Differences of treatment based on nationality
(v) Measures necessary for public security, public order, the prevention of criminal offences, the protection of health, and the protection of the rights and freedoms of others
(vi) Payments made by state schemes
(vii) The armed forces
(viii) Reasonable accommodation for the disabled
(ix) Justification on grounds of age
(x) The exceptions for Northern Ireland
(xi) Additional exceptions contained in the Goods and Services Directive
Positive action
10. Equality in social security
The objectives of the Social Security Directive
Scope of application: the persons covered
Scope of application: benefits
The principle of equal treatment
Objective justification
Direct effect
Implementation
Exceptions to the Social Security Directive
11. Conclusions
The utility of the present law
(i) The achievements of the CJEU
(ii) The positive significance of individual litigation
(iii) The limitations inherent in individual litigation as a proactive strategy
What more should be done to protect against discrimination and to further equality of opportunity?
(i) Mainstreaming
(ii) Individual enforcement
(iii) Enforcement at a strategic level
Index
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
W
X

Citation preview

OXFORD EU LAW LIBRARY General Editors: David Anderson, QC Barrister at Brick Court Chambers and Visiting Professor of Law at King’s College London. Piet Eeckhout, Professor of Law at University College London.

EU ANTI-DISCRIMINATION LAW Second Edition

OXFORD EU LAW LIBRARY The aim of this series is to publish important and original studies of the various branches of EC and EU law. Each work provides a clear, concise, and critical exposition of the law in its social, economic, and political context, at a level which will interest the advanced student, the practitioner, the academic, and government and community officials. Formerly the Oxford European Community Law Library.

The EU Common Security and Defence Policy Panos Koutrakos

EC Customs Law Second Edition Timothy Lyons

The General Principles of EU Law Third Edition Takis Tridimas

The European Union and its Court of Justice Second Edition Anthony Arnull

EU Employment Law Fourth Edition Catherine Barnard

The General Principles of EU Law Second Edition Takis Tridimas

EU External Relations Law Second Edition Piet Eeckhout

Directives in EC Law Second Edition Sacha Prechal

EU Justice and Home Affairs Law Third Edition Steve Peers

Workers, Establishment and Services in the EU Robin White

Intellectual Property Rights in EU The EC Common Fisheries Policy Law Free Movement and Competition Law Robin Churchill, Daniel Owen David T. Keeling EC Competition Law EC Agricultural Law Fifth Edition Second Edition Joanna Goyder and Albertina John A. Usher Albors-Llorens EC Securities Regulation Second Edition Niamh Moloney

EU Anti-Discrimination Law Second Edition

EVELYN ELLIS AND PHILIPPA WATSON

1

3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © E Ellis and P Watson 2012 The moral rights of the author have been asserted First Edition published in 2005 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen's Printer for Scotland British Library Cataloguing in Publication Data Data available ISBN 978–0–19–969846–2 Printed in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

For Olivia, Josie and Genevieve Evelyn Ellis For Sarah, Emily and Pierre Philippa Watson

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General Editor’s Foreword This second edition of EU Anti-Discrimination Law, the product of an excellent co-authorship, is a marvellous addition to the Library collection. Its focus is one of the most significant and extensive areas of EU law. It is often said that, when the EEC was created, its specific goals and instruments were virtually all economic in nature; that the original Treaty made no reference to fundamental rights, and was very limited with respect to social policy. But the principle of equal pay for men and women was there from the start, and has proved to be the cornerstone of the great edifice which EU anti-discrimination policy and law now form. This is an area in which the EU is an active human rights organisation - not just one which accepts that its policies and acts are subject to human-rights discipline. It is, as the authors emphasise, also an area in which the Court of Justice has always been the protagonist. Notwithstanding general, and often vague and ambiguous provisions, both in the Treaties and in the EU legislation, the Court has managed to put together a generally convincing and coherent set of principles and rules.The authors demonstrate that very clearly. To achieve such coherence is no small achievement, in light of the profound conceptual questions which anti-discrimination law needs to grapple with. The concept of equality has of course been at the heart of Western moral and political philosophy ever since Plato and Aristotle, and its meaning and scope are intensely contested. Any system of anti-discrimination law therefore has deep and complex roots. If the Court has done a good job at achieving broad coherence, the authors have done an even better one at conceptualising the issues, analysing the Court’s rulings, and providing us with critical commentary. The book does not shy away from attempting to come to grips with essential concepts such as indirect and positive discrimination, and the eternal tension between formal and substantive equality. The authors’ analysis is lucid, forensic, and critical. They consistently offer excellent examples to illustrate general and theoretical questions. At no point does their account get lost in the detail of this vast area of law, with all its technicalities. But they do more than that. They rightly advocate a broad conception of indirect discrimination, as a tool to achieve substantive equality. That is not mere academic luxury, in light of the realities on the ground. The actual pay gap between men and women throughout the EU is but the recurring media flash point for the many difficulties which persist in achieving real, substantive equality. And EU antidiscrimination law has become a vastly more significant tool since the year 2000, when its remit was extended to discrimination on grounds of race, age, sexual orientation, disability, and religion or belief. We are only beginning to see the effects

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General Editor’s Foreword

of that extension, as well as the conceptual difficulties which it creates, for example as regards the justification of differences in treatment on grounds of age. In these and other matters, Evelyn Ellis and Philippa Watson are unerringly on the side of a broad conception of EU anti-discrimination law, but their advocacy is always persuasively reasoned. But this is of course far more than a conceptual book. It reviews and analyses the law, as it has developed, in a most accessible way. It is structured so as to connect the different forms of discrimination, and so as to focus on substantive issues, such as equal pay; workplace and non-workplace discrimination; pregnancy and maternity; etc. As such it will be of immense use for legal practice, and all those working in the field will find it an invaluable guide. But there is also a lot in the book which is of broader interest, for all those studying EU constitution law. The chapter on general principles is particularly illuminating. We therefore recommend this book to everyone with an interest in antidiscrimination law, EU social policy, and EU constitutional law. Piet Eeckhout David Anderson

Preface This edition of EU Anti-Discrimination Law is intended to reflect the changes in EU law in the area of equality and non-discrimination over the last seven years, but particularly since the entry into operation of the Treaty of Lisbon in December 2009. The changes have been of both a constitutional nature and also of a more detailed kind. The proposed Constitutional Treaty has been abandoned but the Charter of Fundamental Rights has now achieved formal legal status. The old Treaty on the European Union is amended in major respects, and the new Treaty on the Functioning of the European Union replaces the former Treaty on the European Community. The law on equality between the sexes has been consolidated in a Recast Directive, and a new Directive mandating equal treatment of the sexes in relation to the provision of goods and services has come into force. In the meantime, the Court of Justice of the EU has begun work on interpreting the often imprecise provisions of the Race and Framework Directives of 2000. In particular, it has received a large number of requests for preliminary rulings relating to discrimination on the ground of age and the possible justification of such discrimination. Its case law has also continued to develop in the field of sex discrimination, pregnancy, and discrimination on the grounds of sexual orientation and disability.The austere economic situation in the EU and the enlarged membership of the Court resulting from the accession of new Member States provide a somewhat different backdrop against which the current jurisprudence of the Court has to be assessed. These developments have made it necessary to reorganize the material contained in the former edition. In particular, a new Chapter Three has been introduced, dealing with general principles and equal treatment.This reflects the entry into legal effect of the Charter on Fundamental Rights, the EU’s proposed accession to the European Convention on Human Rights, and the expanded role now being accorded by the Court to general principles of law. The substantive content of the rules forbidding discrimination are now discussed in two separate chapters: Chapter Six dealing with the workplace provisions and Chapter Eight with the non-workplace law. A new chapter is devoted exclusively to pregnancy and maternity, since the law in this area has been voluminous and is also unique. A final new chapter assesses the current law. The joint authorship of this book is the result of a fortuitous exchange of emails between the writers. It has proved stimulating and challenging to be able to bounce ideas off one another. For the opinions expressed, as well as any errors, we are of course jointly responsible. Evelyn Ellis Philippa Watson September 2012

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Contents Table of Cases Table of Legislation Table of Treaties and Conventions List of Abbreviations

1. Introduction The importance of anti-discrimination law Non-discrimination and equality The dynamism inherent in EU law Sources of EU anti-discrimination law (i) (ii) (iii) (iv) (v)

The TFEU Secondary legislation Decisions of the CJEU and the General Court Instruments for the protection of fundamental human rights Other indirect sources

The grounds on which EU law forbids discrimination (i) (ii) (iii) (iv) (v) (vi) (vii) (viii)

Nationality Sex Part-time and temporary employment Racial or ethnic origin Religion or belief Disability Age Sexual orientation

2. Essential characteristics of EU law The nature and effects of EU Law The supremacy of EU law Direct enforcement of EU law by individuals (i) (ii) (iii) (iv) (v) (vi) (vii) (viii)

Origins of the principle Direct enforcement of secondary EU legislation Directives and horizontal effect Meaning of the ‘State’ Mitigating the lack of horizontal enforceability of directives The need to implement directives The principle of procedural autonomy Balancing the claims of national law and EU law

The constitutional scope of EU law

xv xli xlv xlix

1 1 2 8 12 13 19 21 21 22 22 22 23 31 31 35 39 41 42 43 43 45 52 52 54 61 69 73 87 89 94 98

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Contents

3. General principles and equal treatment General principles as part of EU law Sources of general principles The European Convention on Human Rights (i) The rights and freedoms expressed in the Convention (ii) Article 14 (iii) Protocol 12

The European Social Charter The Community Social Charter The Charter of Fundamental Rights The substantive content of the general principles relevant to this work (i) (ii) (iii) (iv)

A general principle of non-discrimination on the ground of age? Equal treatment Proportionality The general principle of non-discrimination on the ground of sex

99 99 101 104 105 105 110 112 116 117 123 123 130 130 131

4. Key concepts in EU anti-discrimination law Direct discrimination Indirect discrimination Multi-dimensional discrimination Burden of proof Causation Defences to a discrimination claim Can direct discrimination be justified as a matter of EU law? Harassment and instructions to discriminate Positive action Mainstreaming

142 143 148 156 157 163 169 171 174 176 177

5. Equal pay Scope of the obligation The meaning of ‘pay’ for the purposes of Article 157

180 180 182 186 195 209

(i) (ii) (iii) (iv)

Are pensions ‘pay’ within Article 157? The principle of equality as applied to pensions Occupational social security schemes Other statutorily regulated payments made by employers to their employees (v) Are all employment benefits ‘pay’?

The meaning of ‘equal work’ (i) Equal pay for ‘equal work’ (ii) Work of equal value

Defences to an equal pay claim The direct effect of the equal pay principle and the remedies for its breach The equal pay provisions of the Recast Directive

216 221 223 223 231 234 246 255

Contents (i) The background (ii) The relationship between the directive and Article 157 (iii) The content of the Directive’s provisions on equal pay

6. The scope and enforcement of the workplace anti-discrimination provisions Scope of the legislation Scope of the Recast Directive, Race Directive, and Framework Directive The substantive provisions of the Recast Directive, Race Directive, and Framework Directive (i) (ii) (iii) (iv) (v)

Pay Access to employment Working conditions Dismissal Harassment and sexual harassment

Remedies and enforcement The directives supplementing the principle of non-discrimination on the ground of sex

xiii

255 256 258

273 273 274 280 282 287 288 288 296 301

The Directive on Part-time Work The Directive on Fixed-term Employees The Directive on Temporary Agency Work The Directive on Equal Treatment of the Self-employed

315 315 318 323 325

7. Discrimination on the grounds of pregnancy and maternity Pregnancy The role of the comparator Health and safety Employment rights during pregnancy and maternity leave Protection against dismissal Parental leave Proposed amendments to the Pregnancy Directive

328 328 333 338 340 346 350 358

8. Non-workplace discrimination The Race Directive The Goods and Services Directive The 2008 proposal

361 362 366 372

9. Exceptions to the non-discrimination principle Introduction The exceptions

380 380 381 381 394 396

(i) (ii) (iii) (iv)

(i) Genuine and determining occupational requirement (ii) The special occupational exception for religious bodies (iii) Provisions protecting women

xiv

Contents (iv) Differences of treatment based on nationality (v) Measures necessary for public security, public order, the prevention of criminal offences, the protection of health, and the protection of the rights and freedoms of others (vi) Payments made by state schemes (vii) The armed forces (viii) Reasonable accommodation for the disabled (ix) Justification on grounds of age (x) The exceptions for Northern Ireland (xi) Additional exceptions contained in the Goods and Services Directive

Positive action

400 402 404 405 405 408 418 419 420

10. Equality in social security The objectives of the Social Security Directive Scope of application: the persons covered Scope of application: benefits The principle of equal treatment Objective justification Direct effect Implementation Exceptions to the Social Security Directive

438 439 443 450 458 463 470 476 481

11. Conclusions The utility of the present law

495 495 495 502 502

(i) The achievements of the CJEU (ii) The positive significance of individual litigation (iii) The limitations inherent in individual litigation as a proactive strategy

What more should be done to protect against discrimination and to further equality of opportunity? (i) Mainstreaming (ii) Individual enforcement (iii) Enforcement at a strategic level

Index

503 506 506 507 509

Table of Cases Alphabetical AB v South West Water Services [1993] 1 All ER 609 . . . . . . . . . . . . . . . . . . . 310 AP v Austria (1995) 20 EHRR CD 63 . . . 106 Abdoulaye v Renault SA (C-218/98) [1999] ECR I-5723 . . . . . . . . . 142, 184, 334, 398 Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471 . . . . . . . . . . . . . 108 Abdullah v Birmingham City Council [2011] EWCA Civ 1412 . . . . . . . . . . . 92 Abrahamsson (C-407/98) [2000] ECR I-5539 . . . . . . . . . . . . . . . . . . . . . . .433–6 Acterberg-te Riele v Sociale Verzekeringsbank (48/88, 106/88, & 107/88) [1989] ECR 1963. . . . . . . . . . . . . . 445, 449, 450 Adarand Constructors Inc v Federico Pena, Secretary of Transportation et al (1995) 132 L Ed 2d 158 . . . . . . . . . . . . . . . . 426 Adarand Constructors v Pena 515 US 200 . . . . . . . . . . . . . . . . . . . . . . . 425 Adeneler v ELOG (C-212/04) [2006] ECR I-6057 . . . . . . . . . . 68, 76, 319, 321 Administration des Douanes v Legros (C-163/90) [1992] ECR I-4625 . . . . . 250 Administration des Douanes v Société Jacques Vabre [1975] 2 CMLR 336 . . . . 48 Ahmad v ILEA [1978] QB 36 . . . . . . . . 406 Airola v Commission (21/74) [1975] ECR 221 . . . . . . . . . . . . . . . . . . . . . 135 Alabaster v Woolwich plc and Secretary of State for Social Security (C-147/02) [2004] ECR I- 3101 . . . . . . 184, 334, 342 Alatulkkila and Others v Finland (2006) 43 EHRR 34 . . . . . . . . . . . . . . . . . . . . . 107 Alegra (7/56 & 3–7/57) [1957–58] ECR 39 . . . . . . . . . . . . . . . . . . . . . . . 99 Allonby v Accrington and Rossendale College (C-256/01) [2004] ECR I-873 . . . . . . 180, 198, 211, 226, 230 Alonso v Osakidetza (C-307/05) [2007] ECR I-7109 . . . . . . . . . . . . . . 319

American Cyanamid Co v Ethicon Ltd [1975] AC 396 . . . . . . . . . . . . . . . . . . . 96 Amministrazione delle Finanze dello Stato v Denkavit Italiana Srl (61/79) [1980] ECR 1205 . . . . . . . . . . . . . 90, 249 Amministrazione delle Finanze dello Stato v Meridionale Industria Salumi Srl (66, 127 & 128/79) [1980] ECR 1237. . . . . . . . . . . . . . . . . . 249, 250 Amministrazione delle Finanze dello Stato v Simmenthal (106/77) [1978] ECR 629 . . . . . . . . . . . 46, 95, 124 Andersen (C-499/08) [2010] ECR I-9343 . . . . . . . . . . . . . . . . . 294, 413, 415 Angelidaki (C-378/07) [2009] ECR I-3071 . . . . . . . . . . . . 319, 321, 322 Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse (C-309/97) [1999] ECR I-2865 . . . . . . . . . . . . . . 228 Angonese v Cassa di Risparmio di Bolzano SpA (C-281/98) [2000] ECR I-4139 . . . . . . . . . . . . . . . . . . . . 61 Application of Wunsche Handelgesellschaft, Re [1987] 3 CMLR 225 . . . . . . . . . . . 48 Arbeiterwohlfahrt der Stadt Berlin v Bötel (C-360/90) [1992] ECR I-3589 . . . . . . . . . . . . . . . . . . . . . 184, 243 Arcaro (C-168/95) [1996] ECR I-4705 . . . . . . . . . . . . . . . . . . . . . . . . . 62 Arrowsmith v UK (1978) 19 DR 5. . . . . . 37 Association Belge des Consommateurs Test-Achats ASBL (C-236/09) [2011] ECR I-000 . . . . . 14, 100, 120, 129, 206, 209, 213, 215, 367, 370, 371, 418, 419, 492, 508 Atkins v Wrekin District Council (C-228/94) [1996] ECR I–3633 . . . . . . . . . . . . . . . . 456, 480, 490 Atlanta Fruchthandelsgesellschaft (C-465/93) [1995] ECR I-3761 . . . . . . 97

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Table of Cases

ATRAL (C-14/02) [2003] ECR I-4431 . . . . . . . . . . . . . . . . . . . . . . . . 125 Audiolux (C-101/08) [2009] ECR I-9823 . . . . . . . . . . . . . . . . . . . . . . . . 103 Aziz v Cyprus (2005) 41 EHRR 164 . . . 106 BP Supergas (C-62/93) [1995] ECR I-1883 . . . . . . . . . . . . . . . . . . . . . . .90, 93 Baczkowski v Poland (2009) 48 EHRR 19 . . . . . . . . . . . . . . . . . . . . . 107 Badeck v Landesanwalt Beim Staatsgerichtshof des Landes Hessen (C-158/97) [1999] ECR I-1875 . . . . . . 422, 428–30, 432, 433 Balestra v INPS (C-139/95) [1997] ECR I-549 . . . . . . . . . . . . . . . . . 490, 491 Bankhaus Hermann Lampe KG (C-322/98) [2000] ECR I-7505 . . . . . . . 151, 288, 289 Banks Ltd v British Coal Corporation (C-128/92) [1994] ECR I-1209 . . . . . . 86 Barber v Guardian Royal Exchange Assurance Group [1983] IRLR 240 . . . . . . . . . . . . . . . . . . . . . . . . . . 186 Barber v Guardian Royal Exchange Assurance Group (C-262/88) [1990] ECR I-1889 . . . . . . . .66, 73, 75, 140, 185, 191, 195, 196, 217, 222, 237, 250, 257, 263, 284, 293, 295, 443, 483, 496, 498 Barnes v Costle (1977) 15 FEP Cases 345 . . . . . . . . . . . . . . . . . . . . . 163 Bartsch v Bosch (C-427/06) [2008] ECR I-7245 . . . . . . . . . . 42, 67, 127, 128, 173, 415, 416 Becker v Court of Auditors (T-93/94) [1996] ECR II-141 . . . . . . . . . . . . . . 101 Becker v Finanzampt Munster-Innenstadt (8/81) [1982] ECR 53 . . . . . . . . . . .60, 61 Beentjes BV v Holland (C-31/87) [1988] ECR 4635. . . . . . . . . . . . . . . . . . . . . . 71 Beets-Proper v Van Lanschot Bankiers NV (262/84) [1986] ECR 773 . . . . 74, 482 Belgian Linguistic Case (Merits) [1979–80] 1 EHRR 252 . . . . . . . 106, 108 Belgium v Humbel (263/86) [1988] ECR 5365. . . . . . . . . . . . . . . . . . . . . 365 Bellone v Yokohama (C-215/97) [1998] ECR I-2191 . . . . . . . . . . . . . . . . . . . . 64 Bernáldez (C-129/94) [1996] ECR I-1829 . . . . . . . . . . . . . . . . . . . . 63

Bestuur Van Het Algemeen Burgerlijk Pensioenfonds v Beune (C-7/93) [1994] ECR I-4471 . . . . . . . . 164, 192, 198, 210, 214, 216, 481 Biggs v Somerset County Council [1996] ICR 364 . . . . . . . . . . . . . . . . . 253 Bilka-Kaufhaus GmbH v Weber Von Hartz (170/84) [1986] ECR 1607. . . . . . . . . . 108, 165, 169, 187, 188, 197, 198, 216, 234, 251, 266, 294, 463 Birds Eye Walls Ltd v Roberts (C-132/92) [1993] ECR I-5579 . . . . . . . . . 171, 208, 209, 211 Blaizot v University of Liège (24/86) [1988] ECR 379 . . . . . . . . . . . . . 250, 365 Bonsignore v City of Cologne (67/74) [1975] ECR 297 . . . . . . . . . . . . . . . . . 57 Bosphorus (C-84/95) [1996] ECR I-3953 . . . . . . . . . . . . . . . . . . . 100 Bosphorus v Ireland (2006) 42 EHRR 1 . . . . . . . . . . . . . . . . . . . 119 Bossa v Nordstress Ltd [1998] IRLR 284 . . . . . . . . . . . . . . . . . . . . . . 51 Bourgoin v Ministry of Agriculture and Fisheries [1985] 3 All ER 585 . . . . . . . . 79 Bowman v Secular Society [1917] AC 406 . . . . . . . . . . . . . . . . . . . . . . . . 38 Boyle v EOC (C-411/96) [1998] ECR I-6401 . . . . . 284, 333, 334, 337, 342 Brachner (C-123/10) [2011] ECR I-000 . . . . . . . . . 155, 457, 458, 460, 462, 464, 469, 470 Bramhill v Chief Adjudication Officer (C-420/92) [1994] ECR I-3191 . . . . . . . . . . . . . . . . . 66, 493 Brasserie du Pécheur v Germany (C-46/93) [1996] ECR I-1029 . . . . . . . 78 Brinkmann Tabakfabriken GmbH v Skatteministeriet (C-319/96) [1998] ECR I-5255 . . . . . . . . . . . . . . . . . .83, 85 British Coal Corporation v Smith [1996] 3 All ER 97 . . . . . . . . . . . . . . . . . . . . 225 British Road Services v Loughran [1997] IRLR 92 . . . . . . . . . . . . . . . . . . . . . . 245 Brown and Royle v Cearns and Brown Ltd (1986) 6 EOR 27 . . . . . . . . . . . . . . . 234 Brown v Rentokil Ltd (C-394/96) [1998] ECR I-4185 . . . . . . . . . . . . . . . . 335, 336 Brunner v European Union Treaty [1994] 1 CMLR 57 . . . . . . . . . . . . . . . . . . . . 48

Table of Cases Brunnhofer v Bank der österreichischen Postsparkasse AG (C-381/99) [2001] ECR I-4961 . . . . . . . . . . . . 132, 160, 169, 222, 228, 229 Büchner v Sozialversicherungsanstalt der Bauern (C-104/98) [2000] ECR I-3625 . . . . . . . . . . . . . . . 489, 492 Bulicke v Deutsche Büro Service GmbH (C-246/09) [2010] ECR I-7003 . . . . . . . . . . . . . . . . 91, 312 Burghartz v Switzerland (1994) 18 EHRR 101 . . . . . . . . . . . . . . . . . . . . 108 Burton v British Railways Board (19/81) [1982] ECR 555 . . . . . 144, 183, 186, 188, 258, 289, 483, 485 Busch v Klinikum Neustadt GmbH (C-320/01) [2003] ECR I-2041 . . . . . . . . . . . . . . . . . 172, 348, 351 CIA Security v Signalson (C-194/94) [1996] ECR I-2201 . . . . . . . . . . . . 63, 68 CNAVTS v Thibault (C-136/95) [1998] ECR I-2011 . . . . . . . . . . . 337, 396 Cadman v HSE (C-17/05) [2006] ECR I-9583 . . . . . . . . . . . . 234, 239, 417 Campbell and Cosans v UK (1982) 4 EHRR 293 . . . . . . . . . . . . . . . . . . . 38 Carp (C-80/06) [2007] ECR I-4473 . . . . . . . . . . . . . . . . . . . . . . 62, 128 Centrosteel Srl v Adipol GmbH (C-456/98) [2000] ECR I-6007 . . . . . . . . . . . . .65, 75 Centrum v Firma Feryn NV (C-54/07) [2008] ECR I-5187 . . . . . . . . . 6, 35, 147, 162, 312, 499 Cha’are Shalom Ve Tsedek v France, App No 00027417/95, Reports of Judgments and Decisions 2000-VII . . . . 37 ChacÓn Navas v Eurest Colectividades SA (C-13/05) [2006] ECR I-6467 . . . . . . . . . . . . . . . . . 16, 20, 39, 67, 374, 406, 498 Chappell v UK (1987) 53 DR 241 . . . . . . 37 Chatzi v Ipourgos Ikonomikon (C-149/10) [2010] ECR I-8489 . . . . . 353 Chessington World of Adventures Ltd v Reed [1997] IRLR 556. . . . . . . . .27, 75 Chief Constable of the West Yorkshire Police (No 2) v A [2004] 2 WLR 1209 . . . . . . 50 City Motors (C-421/05) [2007] ECR I-653. . . . . . . . . . . . . . . . . . . . . . . . . . 86 Clay Cross Ltd v Fletcher [1979] ICR 1 . . . . . . . . . . . . . . . . . . . . . . . . 235

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Cohn-Bendit v Ministre de l’Intérieure [1980] 1 CMLR 543 . . . . . . . . . . . .48, 58 Coleman v Attridge Law (C-303/06) [2008] ECR I-5603 . . . . 39, 146, 147, 167, 173, 175, 277, 499 Coloroll Pension Trustees Ltd v Russell (C-200/91) [1994] ECR I-4389 . . . . . . . . 196, 197, 201, 202, 204, 205, 211, 213, 230, 254 Comet BV v Produktschap voor Siergewassen (45/76) [1976] 2 ECR 2043 . . . . . . . . . . . . . . . . . . . . 89 Commission v Belgium (102/79) [1980] ECR 1473. . . . . . . . . . . . . . . . . . . 87, 302 Commission v Belgium (C-229/89) [1991] ECR I-2216 . . . . .66, 464, 465, 475 Commission v Belgium (C-173/91) [1993] ECR I-673 . . . . . . . . . . . . . . . 220 Commission v Denmark (143/83) [1985] ECR 427 . . . . . . . . 88, 225, 261–3 Commission v France (312/86) [1988] ECR 6315. . . . . . . . . . . . . . 400, 421, 428 Commission v France (C-197/96) [1997] ECR I-1489 . . . . . . . . . . . . . . 288 Commission v France (C-354/98) [1999] ECR I-4927 . . . . . . . . . . . . 87, 210 Commission v Greece (68/88) [1989] ECR 2965. . . . . . . . . . . . . . . . . . . . . . 90 Commission v Greece (C-187/98) [1999] ECR I-7713 . . . . . . . . . 66, 88, 458 Commission v Hellenic Republic (C-559/07) [2009] ECR I-47* . . . . . . 192 Commission v Italy (39/72) [1973] CMLR 439 . . . . . . . . . . . . . . . . . . . . 261 Commission v Italy 163/82 [1983] ECR 3273. . . . . . . . . . . . . . . . . . . . . 397 Commission v Luxembourg (58/81) [1982] ECR 2175 . . . . . . . . . . . . 183, 269 Commission v Luxembourg (C-519/03) [2005] ECR I-3067 . . . . . 354 Commission v UK (61/81) [1982] ECR 2601. . . . . . . . . . . . . . 225, 259, 263, 264, 266 Commission v UK (165/82) [1983] ECR 3431. . . . . . . . . . . . . . . . 268, 302–4, 383, 384, 500 Coote v Granada Hospitality Ltd (C-185/97) [1998] ECR I-5199 . . . . . . . . . . . . . . . .65, 74, 305, 314 Costa v ENEL (6/64) [1964] ECR 585 . . . . . . . . . . . . . . . . . 45, 47, 48

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Table of Cases

Cotter and McDermott v Minister for Social Welfare (No 2) (C-377/89) [1991] ECR I–1155 . . . . . . . . . . . . . . . . 473, 497 Courage Ltd v Crehan (C-453/99) [2001] ECR I-6297 . . . . . . . . . . . . . . . . . . . . 86 Criminal Proceedings Against Vajnai (C-328/04) [2005] ECR I-8577 . . . . . . . . . . . . . . . . . 34, 35 Criminal Proceedings Against X (C–74 & 129/95) [1996] ECR I–6609 . . . . . . . . . . . . . . . . . . . . . 65, 77 Crown Suppliers v Dawkins [1993] ICR 517 . . . . . . . . . . . . . . . . . . . . . . . 35 DEI v Evrenopoulos (C-147/95) [1997] ECR I-2057 . . . . . . . . . 192, 200, 202, 254 DH v Czech Republic (2008) 47 EHRR 3 . . . . . . . . . . . . . . . . . . . . . . 107 D and Sweden v Council (C–122 & 125/99P) [2001] ECR I–4319 . . . . . . . . . . . . . . . 5, 30, 102 D v Council (T-264/97) [1999] ECR II-1 . . . . . . . . . . . . . . . . . . . . . 102 Danosa v LKB Lizings SIA (C-232/09) [2010] ECR I-11405 . . . . . . . . . . . . . 330 Danske Slagterier v Germany (C-445/06) [2009] ECR I-2119 . . . .80, 94 Davies v Neath Port Talbot County Borough Council [1999] IRLR 769 . . . . . . . . . . . . . . . . . . . . 51, 184, 245 De Angelis v Commission (246/83) [1985] ECR 1253 . . . . . . . . . . . . . . . 136 De Weerd, née Koks (C-343/92) [1994] ECR I–571 . . . . . . . . . . . . . 442, 449, 466, 475, 476 Deane v London Borough of Ealing [1993] IRLR 209. . . . . . . . . . . . . . . . 310 Defrenne v Belgium (80/70) [1971] ECR 445 . . . . . . . . . . . 183, 188–90, 246, 479, 481, 498 Defrenne v Sabena (No 2) (43/75) [1976] ECR 455 . . . . 25, 54, 61, 127, 130, 133, 144, 182, 216, 223–5, 228, 230, 232, 247, 250–2, 254, 256, 257, 269, 277, 497 Defrenne v Sabena (No 3) (149/77) [1978] ECR 1787 . . . . . . . . . . . . . . . 132, 139, 221, 251 Defreyn v Sabena SA (C-166/99) [2000] ECR I-6155 . . . . . . . . . . . 197, 284

Dekker v Stichting Vormingscentrum Voor Jonge Volwassen Plus (177/88) [1990] ECR I-3941 . . . . 27, 164, 167, 169, 172, 216, 230, 306, 307, 333, 340, 426 Delauche v Commission (111/86) [1987] ECR 5345 . . . . . . . . . . . . . . . 162 Delkvist v Public Prosecutor (21/78) [1978] ECR 2327 . . . . . . . . . . . . . . . . 67 Denkavit Internationaal BV v Kamer (C-2/94) [1996] ECR I-2827 . . . . . .69, 93 Denkavit International v Bundesamt für Finanzen (C-283, 291 & 292/94) [1996] ECR I-5063 . . . . . . . . . . . . . . . 83 Deutsche Lufthansa AG v Kumpan (C-109/09) [2011] ECR I-000 . . . 321, 322 Deutsche Post v Sievers and Shrage (C-270 & 271/97) [2000] ECR I-929 . . . . . . . . . . . . . . 46, 132, 198, 234, 250, 469 Deutsche Telekom AG v Vick and Conze (C-234 & 235/96) [2000] ECR I-799 . . . . . . . . . . . . . . . . . . 46, 198 Deutsche Telekom v Schröder (C-50/96) [2000] ECR I-743. . . . . . . . .46, 132, 154, 198, 234, 250 Devred v Commission (257/78) [1979] ECR 3767. . . . . . . . . . . . . . . . . . . . . 136 Dietz v Stichting Thuiszorg Rotterdam (C-435/93) [1996] ECR I-5223 . . . . . . . . . . . . 198, 202, 479 Dik v College van Burgemeester en Wethouders, Arnhem (80/87) [1988] ECR 1601. . . . . . . . . . . . . . . . . . 473, 478 Dillenkofer v Germany (C-178, 179, 188, 189, & 190/94) [1996] ECR I-4845 . . . . . . . . . . . . . . . 78, 84, 87 Diocese of Hallam Trustee v Connaughton [1996] IRLR 505. . . . . . . . . . . . . . . . 229 Dominguez v CICOA (C-282/10) [2012] ECR I-000 . . . . . .62, 103, 121, 129 Dory v Germany (C-186/01) [2003] ECR I-2479 . . . . . . . . . . . . 278, 381, 391 Doughty v Rolls-Royce plc [1992] ICR 538 . . . . . . . . . . . . . . . . . . . . . . . 72 Draehmpaehl v Urania Immobilenservice ohG (C-180/95) [1997] ECR I-2195 . . . . . . . . . . . . . . . .64, 90, 308, 309 Drake v Chief Adjudication Officer (150/85) [1986] ECR 1995 . . . . . . . . . . . 444, 445, 451, 470, 499

Table of Cases Dudgeon v UK [1981] 5 EHRR 573 . . . . . . . . . . . . . . . . . . . . . . . 106, 107 Duke v GEC Reliance Ltd [1988] 2 WLR 359 . . . . . . . . . . . . . . . . 50, 75, 290 Duphar (C-238/82) [1984] ECR 523 . . . . . . . . . . . . . . . . . . . . . 440 EB v France (2008) 47 EHRR 21 . . . . . . . . . . . . . . . . . . 106, 107 ECSC v Aciaierie e Ferriere Busseni (in liquidation) (C-221/88) [1990] ECR 495 . . . . . . . . . . . . . . . . . . . . . . 71 Edis v Ministero delle Finanze (C-231/96) [1998] ECR I-4951 . . . . . . . . . . . . . . . . . . . . . . . . . 94 El Corte Inglés SA v Rivero (C-192/94) [1996] ECR I-1281 . . . . . . . . . . . . . . . . . . . . . . .62, 65 Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis (C-260/89) [1991] ECR I-2925 . . . . . . . . . . . 100, 101 Elsner-Lakeberg v Land Nordrhein-Westfalen (C-285/02) [2004] ECR I-5861 . . . . . 150 Emmott v Minister for Social Welfare (C-208/90) [1991] ECR I–4269 . . . . . . . . . . . . . . . . . 92, 476 Enderby v Frenchay Health Authority and the Secretary of State for Health [1991] IRLR 44 . . . . . . . . . . . . . . . . 245 Enderby v Frenchay Health Authority (C-127/92) [1993] ECR I-5535 . . . . . . . . . . . . . 159, 162, 163, 173, 233–5, 245, 268 Enka BV v Inspecteur der Invoerrechten en Accijnzen (38/77) [1977] ECR 2203. . . . . . . . . . . . . . . . . 46, 57, 59 Equal Opportunities Commission, Ex parte (C-9/01) [1992] ECR I-4297 . . . . . . . 482 Eunomia di Porro v Italian Ministry of Education (18/71) [1971] ECR 811 . . . 53 European Parliament v Council (C-540/03) [2006] ECR I-5769 . . . . . 119 Faccini Dori v Recreb Srl (C-91/92) [1994] ECR I-3325 . . . . . . . . . . . . .62, 63 Fahmi (C-33/99) [2001] ECR I-2415 . . . . . . . . . . . . . . . . . . . . . . . . 476 Familiapress v Bauer Verlag (C-368/95) [1997] ECR I-3689 . . . . . 100 Fantask A/S v Industriministeriet (C-188/95) [1997] ECR I-6783 . . . . . . . . . . . . 93, 476

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Federal Republic of Germany v Y and Z (C-71/11 & C-99/11), not yet reported . . . . . . . . . . . . . . . . . . 37 Federatie Nederlandse Vakbeweging (C-124/05) [2006] ECR I-3423 . . . . . . . . . . . . . . . . . . . . . 330, 354 Finanzampt Koln-Altstadt v Schumacker (C-279/93) [1995] ECR I-225 . . . . . . . . . . . . . . . . . . . . 142 Fink-Frucht GmbH v Hauptzollamt Munchen (27/67) [1968] ECR 223 . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Finnegan v Clowney Youth Training Ltd [1990] 2 WLR 1305 . . . . . . . . . .50, 75 Fisscher v Voorhuis Hengelo BK (C-128/93) [1994] ECR I-4583 . . . . . . . . . . . 91, 198, 202, 294, 479 Forcheri v Belgium (152/82) [1983] ECR 2323. . . . . . . . . . . . . . . . . . . . . 365 Foster v British Gas plc (188/89) [1990] ECR I-3313; [1988] 2 CMLR 697 . . . 70 Francovich and Bonifaci v Italy (C-6 & 9/90) [1991] ECR I-5357 . . . . . . . . . . . . . . . . 54, 78, 90, 462 Francovich v Italy (C-479/93) [1995] ECR I-3843 . . . . . . . . . . . . . . . . . . . . 79 Fratelli Costanzo v Commune di Milano (103/88) [1989] ECR 1839. . . . . . . . . . . . . . . . . . . . . . 72 Fredin v Sweden (1991) 13 EHRR 784 . . . . . . . . . . . . . . . . . . . . 108 Freers v Deutsche Bundespost (C-278/93) [1996] ECR I-1165 . . . . . . . . . . . . . . . . . 184, 243, 244 Frontini v Minister of Finance [1974] 2 CMLR 372 . . . . . . . . . . . . . . 48 Fuchs and KÖhler v Land Hessen (C-159 & 160/10) [2011] ECR I-000 . . . . . . . . . . 41, 281, 282, 294, 403, 410–14, 500 Garden Cottage Foods Ltd v Milk Marketing Board [1984] 1 AC 130 . . . . . . . . . . . . . . . . . . . . . . . 79 Garland v British Rail (12/81) [1982] ECR 359 . . . . . . . . . . . . . . . . . . 183, 258 Garland v British Rail [1982] 2 WLR 918 . . . . . . . . . . . . . . . . . . .49, 75 Gassmayr v Bundesminister fuer Wissenschaft und Forschung (C-194/08) [2010] ECR I-6281 . . . . . 346

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Table of Cases

Gavieiro v Conselleria de EducaciÓn (C-444/09) [2010] ECR I-14031 . . . . . . . . . . . . . . .20, 77, 319, 320 Gaygusuz v Austria (1997) 23 EHRR 364 . . . . . . . . . . . . . . . . . . . . 109 Georgiev v Tehnicheski universitet (C-250 & 268/09) [2010] ECR I-11869 . . . . . . . . . . . . . . . . . 41, 282, 410 Gerster v FreistaatBayern (C-1/95) [1997] ECR I-5253 . . . . . . . . . . . 26, 154, 221, 238, 295 Ghaidan v Godin-Mendoza [2004] 3 WLR 113 . . . . . . . . . . . . . . . . . . . . 107 Gillespie v Northern Health and Social Services Board (C-342/93) [1996] ECR I–475 . . . . . . . . . 183, 184, 221, 230, 284, 333, 344 Glasgow City Council v Marshall [2000] 1 WLR 333 . . . . . . . . . . . . . . . . . . . . 170 Gola v Land Vorarlberg (C-224/97) [1999] ECR I-2517 . . . . . . . . . . . . . . . 46 Goodwin v UK (2002) 35 EHRR 447 . . . . . . . . . . .27, 29, 105, 119, 285, 459 Grad v Finanzampt Traunstein (9/70) [1970] ECR 825 . . . . . . . . . . . . . . . . . 55 Graff v Hauptzollamt Kölon-Rheinau (C-351/92) [1994] ECR I-3361 . . . . . 100 Grainger plc v Nicholson [2010] ICR 360 . . . . . . . . . . . . . . . . . . . . . . . 36 Grant v South-West Trains Ltd (C-249/96) [1998] ECR I-621. . . . . . . . . . . . . . . . .29, 30, 102, 172 Gratz v Bollinger 123 S Ct 2411. . . . . . . 425 Grau-Hupta v Stadtgemeinde Bremen (C-297/93) [1994] ECR I-5535 . . . . . 160 Gravier v City of Liège (293/83) [1985] ECR 593 . . . . . . . . . . . . . . . . 365 Griesmar (C-366/99) [2001] ECR I-9383 . . . . . . . . . . . . . . 145, 193, 399, 433 Griffin v London Pension Fund Authority [1993] ICR 564 . . . . . . . . . . . . . . . . . 193 Griggs v Duke Power Co (1971) 401 US 425 . . . . . . . . . . . . . . . . . . . . . . . 143 Grimaldi v Fonds des Maladies Professionelles (322/88) [1989] ECR 4407. . . . . . . . . . . . . . . . . . . .77, 78 Gruber v Silhouette International Schmied GmbH & Co KG (C-249/97) [1999] ECR I-5295 . . . . . . . . . 152, 166, 183, 216 Grutter v Bollinger 123 S Ct 2325 . . . . . 425

Grzekzyk v Centre Public d’Aide Sociale (C-184/99) [2001] ECR I–6193 . . . . . . . . . . . . . . . . . . . . . .2, 250 Gwynedd County Council v Jones [1986] ICR 833 . . . . . . . . . . . . . . . . . . 34 H v UK (1993) 16 EHRR CD 44 . . . . . . 37 Haackert v Pensionsversicherungsanstalt der Angestellten (C-303/02) [2004] ECR I-2195 . . . . . . . . . . . . . . . . 483, 489 Haahr Petroleum v benra Havn (C-90/94) [1997] ECR I-4085 . . . . . . . . . . . . . . . 94 Habermann-Beltermann (C-421/92) [1994] ECR I-1657 . . . . . . . . . . . 172, 400 Haim v KVN (C-424/97) [2000] ECR I-5123 . . . . . . . . . . . . . . . . . . . . 81 Handels-OG Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening (179/88) [1990] ECR I-3979 . . . . .27, 164, 334, 341 Handels-OG Kontorfunktionaerernes Forbund i Danmark, acting on behalf of Larsson v Dansk Handel & Service, acting on behalf of Fotex Supermarked A/S (C-400/95) [1997] ECR I-2757 . . . . . . . . . . . . . . . . . . . . . 334, 335 Handels-OG Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening (acting for Danfoss) (109/88) [1989] ECR 3199. . . . . . . . . . . . . . 158, 159, 236, 237, 245, 417 Handels-OG Kontorfunktionaerernes Forbund I Danmark v Faeloesforeningenfor Danmarks Brugsforeninger (C-66/96) [1998] ECR I-7327 . . . . . . . . . 339, 341, 342, 396 Hasley v Fair Employment Agency [1989] IRLR 106. . . . . . . . . . . . . 143, 225 Hayes v Malleable Working Men’s Club [1985] ICR 703 . . . . . . . . . . . . . . . . . 163 Hepple v Adjudication Officer (C-196/98) [2000] ECR I-3701 . . . . . . . 491, 492, 494 Hill and Stapleton v Revenue Commissioners (C-243/95) [1998] ECR I-3739 . . . . . . . . . . . . 171, 237, 238 Hlozek (C-19/02) [2004] ECR I-11491 . . . . . . . . . . . . . . . . . . . . . . . 209 Hoever v Land Nordrhein-Westfalen (C-245 & 312/94) [1996] ECR I-4895 . . . . . . . . . . . . 277, 450, 482

Table of Cases Hoffmann v Austria (1994) 17 EHRR 293 . . . . . . . . . . . . . . 37, 108, 109 Hofmann v Barmer Ersatzkasse (184/83) [1984] ECR 3047 . . . . . . . . 397, 398, 420 Honeywell, Re [2011] 1 CMLR 33 . . . . . 48 Horsey v Dyfed District Council [1982] IRLR 395 . . . . . . . . . 163 Hughes v Chief Adjudication Officer (C-78/91) [1992] ECR I-4839 . . . . . . . . . . . . . . . . . . . 277 Humblet v Belgium (6/60) [1960] ECR 559 . . . . . . . . . . . . . . . . . . . . . . 89 Huppert v UGC (1986) 8 EOR 38 . . . . 137 Hurley v Mustoe [1981] IRLR 208 . . . . 163 Hütter v Technische Universität Graz (C-88/08) [2009] ECR I-5325 . . . . . . . . . . . 41, 239, 281, 416, 417 INPS v Bruno (C-395 & 396/08) [2010] ECR I-5119 . . . . . . . . . . . . 67, 317 Impact v Minister for Agriculture and Food (C-269/06) [2008] ECR I-2483 . . . . . . . . . . . . . . .77, 90, 320, 321 Incorporated Trustees of the National Council on Ageing v Secretary of State for Business, Enterprise and Regulatory Reform (C-388/07) [2009] ECR I-1569 . . . . . . . . 41, 173, 282, 294, 411, 501 Integrity v Rouvroy (C-373/89) [1990] ECR I–4243 . . . . . . . . . . . . . . . . . . . 457 Inter-Environnement Wallonie ASBL v Region Wallonne (C-129/96) [1997] ECR I-7411 . . . . . . . . 66, 67, 76, 124, 494 International Transport Workers’ Federation and Finnish Seamen’s Union (C-438/05) [2007] ECR I-10779 . . . . . . . . . . . . . 119 Internationale Handelsgesellschaft (11/70) [1970] ECR 1125 . . . . . . . . . 133 Internationale Handelsgesellschaft GmbH v Einfuhr-und Vorratsstelle fur Getreide und Futtermittel [1974] 2 CMLR 540 . . . . . . . . . . . . . . 48 Inze v Austria, Judgment of 28 October 1987, Series A No 126, p 17 . . . . . . . . 105 Iskcon v UK (1994) 76A DR 90 . . . . . . . 37 Islington v Ladele [2010] 1 WLR 955 . . . 394 JH Walker Ltd v Hussain [1996] IRLR 11 . . . . . . . . . . . . . . . . . . . . . . . 35

xxi

Jackson and Cresswell v Chief Adjudication Officer (C-63 & 64/91) [1992] ECR I-4737 . . . . . . . . 162, 165, 277, 287, 453, 474, 477 James v Eastleigh Borough Council [1990] 2 AC 751; [1990] 3 WLR 55 . . . . . . . . . . . . . . . . . . 163, 426 Jämställdhetsombudsmannen v Örebro läns landsting (C-236/98) [2000] ECR I-2189 . . . . . . . 221–3, 228, 246, 296 Jégo-Quéré v Commission (T-177/01) [2002] ECR II-2365 . . . . . . . . . . . . . 119 Jenkins v Kingsgate (Clothing Productions) Ltd (96/80) [1981] ECR 911 . . . . . . . . . . . . . . 143, 165, 225, 226, 234, 251, 255, 257, 258 Jivraj v Hashwani [2011] UKSC 40 . . . . 181 Johnson v Chief Adjudication Officer (C-31/90) [1991] ECR I–3723 . . . . . . . . . 445, 447, 449, 474 Johnson v Chief Adjudication Officer (C-410/92) [1994] ECR I-5483 . . . . . . . . . . . . . . . . . 93, 477 Johnston v Chief Constable of the RUC (222/84) [1986] ECR 1651. . . . . . . . 70, 131, 174, 280, 282, 310, 380, 381, 387, 399, 400, 428, 449, 499 Jørgensen v Foreningen af Speciallaeger (C-226/98) [2000] ECR I-2447 . . . . . . . . . 155, 188, 222, 467 KB v National Health Service Pensions Agency (C-117/01) [2004] 1 CMLR 28 . . . . . . . . 28, 285, 459 Kalanke v Freie Hansestadt Bremen (C-450/93) [1995] ECR I-3051 . . . . . . . . . 421, 423, 424, 434 Kapferer v Schlank & Schick GmbH (C-234/04) [2006] ECR I-2585 . . . . . . 90 Karlheinz Schmidt v Germany (1994) 18 EHRR 513. . . . . . . . . . . . . . . . . . 108 Karlsson (C-292/97) [2000] ECR I-2737 . . . . . . . . . . . . . . . . . . . . . 100, 132 Kelly v National University of Ireland (C-104/10) [2011] ECR I-000 . . . . . . 162 Kiiski v Tampereen kaupunki (C-116/06) [2007] ECR I-7643 . . . . . . . . . . . . . . . . . 329, 351, 354

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Table of Cases

Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1992] 3 WLR 170 . . . . . . 79 Kirsammer-Hack v Sidal (C-189/91) [1993] ECR I-6185 . . . . . . . . . . . 384, 467 Köbler v Austria (C-224/01) [2003] ECR I-10239 . . . . . . . . . . . . . . . . . . . 81 Kohll v Union des Caisses de Maladie (C-158/96) [1998] ECR I-1931 . . . . . 364 Kokkinakis v Greece (1994) 17 EHRR 397 . . . . . . . . . . . . . . . . . . . . . 37 Konle v Austria (C-302/97) [1999] ECR I-3099 . . . . . . . . . . . . . . . . . . . . 80 Kording v Senator für Finanzen (C-100/95) [1997] ECR I-5289 . . . . . . . . . . . . . . . . . . . . . 237, 238 Koukou v Elliniko Dimosio (C-519/08) [2009] ECR I-65* . . . . . . 323 Kowalska v Freie und Hansestadt Hamburg (33/89) [1990] ECR I-2591 . . . . . . . . 165, 217, 243, 254, 268, 304 Kreil v Germany (C-285/98) [2000] ECR I-69 . . . . . . . . . . . . . . 381, 390, 400 Kruger GmbH v Hauptzollamt Hamburg-Jonas (C-334/95) [1997] ECR I-4517 . . . . . . . . . . . . . . . . . . . . 97 Krüger v Kreiskrankenhaus Ebersberg (C-281/97) [1999] ECR I-5127 . . . . . . . . . . . . . . . . . . . . . 183, 242 Kücükdeveci v Swedex GmbH (C-555/07) [2010] ECR I-365. . . . . . . . . . . . . . .41, 46, 67, 68, 122, 127, 129, 130, 277, 288, 376, 416 Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122 . . . . . . . . . . . . . . . . 310 Kuratorium fur Dialyse und Nierentranslantation eV v Lewark (C-457/93) [1996] ECR I-243. . . . . . . . . . . . . . . . . . . . . . 184, 243 Kutz-Bauer v Freie und Hansestadt Hamburg (C-187/00) [2003] ECR I-2741 . . . . . 240, 255, 296, 304, 450 Lagoudakis v Kéntro (C-162/08) [2009] ECR I-95* . . . . . . . . . . . . . . . . . . . . 323 Land v Austria (2003) 36 EHRR 1022 . . . . . . . . . . . . . . . . . . . . . . . . . 109 Laperre v Bestuurscommissie (C-8/94) [1996] ECR I-273 . . . . . . . . . . . . . .466–8

Larissis v Greece (1999) 27 EHRR 329 . . . . 37 Lawrence v Regent Office Care Ltd (C-320/00) [2002] ECR I-7325 . . . . . . . . . . . . . . . . . . . . . 226, 252 Leonesio v Italian Ministry of Agriculture and Fisheries (93/71) [1972] ECR 287 . . . . . . . . . . . . . . . . . . . .19, 54 Leverton v Clwyd County Council [1989] 2 WLR 47 . . . . . . . . . . . . . . . 225 Levez v Jennings (Harlow Pools) Ltd (C-326/96) [1998] ECR I-7835 . . . . . . 91 Levy (C-158/91) [1993] ECR I-4287 . . . . . . . . . . . . . . . . . . . . . . 46, 288 Lewen v Denda (C-333/97) [1999] ECR I-7243 . . . . . . . . . 149, 184, 343, 352 Liefting v Directie van het Academisch Ziekenhuis bij de Universiteit van Amsterdam (23/83) [1984] ECR 3225. . . . . . . . . . . . . . 163, 185, 251 Lindorfer (C-227/04) [2007] ECR I-6767 . . . . . . . . . . . . . . . . . . . . . 126, 205 Lister v Forth Dry Dock and Engineering Co Ltd [1989] ICR 341 . . . . . . . . . .49, 74 Lommers v Minister van Landbouw (C-476/99) [2002] ECR I-2891 . . . . . . . . . . 296, 422, 430, 431, 434 London Borough of Hackney v Sivanandan [2011] IRLR 740 . . . . . . . 310 Lorenz v Germany (120/73) [1973] 2 ECR 1471 . . . . . . . . . . . . . . . . . . . . 89 Lutticke v Hauptzollamt Sarrelouis (57/65) [1966] ECR 205 . . . . . . . . . . . . . . . . . 53 Luxembourg v Linster (C-287/98) [2000] ECR I-6917 . . . . . . . . . . . . . . . . . . . . 67 Macarthys Ltd v Smith (129/79) [1980] ECR 1275. . . . . . . 145, 169, 173, 224, 226, 229, 251, 258, 259 Macarthys Ltd v Smith [1982] 2 WLR 918 . . . . . . . . . . . . . . . . . . . . . 50 McDermott and Cotter v Minister for Social Welfare and the Attorney General (286/85) [1987] ECR 1453 . . . . . . . . . . . . 473, 497 Magorrian and Cunningham v Eastern Health & Social Services Board (C-246/96) [1997] ECR I-7153 . . . . . . . . . . . . . . . . . . . . . . 91, 199 Mahlburg v Land MecklenburgVorpommern (C-207/98) [2000] ECR I-549 . . . . . . . . . . . . . . . . . 340, 397

Table of Cases Mandla v Dowell Lee [1983] AC 548 . . . . 34 Manfredi (C-295–298/04) [2006] ECR I-6619 . . . . . . . . . . . . . . . . . . . . . . . . . 86 Mangold v Helm (C-144/04) [2005] ECR I-9981 . . . . . . . . 41, 66–8, 123, 129, 130, 208, 277, 320, 323, 376, 409, 501, 508 Manor Bakeries Ltd v Nazir [1996] IRLR 604 . . . . . . . . . . . . . . . . . . . . . 184 Marks & Spencer plc v Commissioners of Customs & Excise (C-62/00) [2002] ECR I-6325 . . . . . . . . . . . . .60, 61 Marleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) [1990] ECR I-4135 . . . . . . . . . . . . . . . . . . . . . . . . . 75 Marrosu v Azienda Ospedaliera (C-53/04) [2006] ECR I-7213 . . . . . . . 72 Marschall v Land Nordrhein-Westfalen (C-409/95) [1997] ECR I-6363 . . . . . . . . . . . . . . 422, 428, 433, 434 Marshall v Southampton and South-West Hants Area Health Authority (152/84) [1986] ECR 723 . . . . . . . . . . .62, 65, 69, 74, 128, 157, 277, 280, 282, 290, 482–4, 487, 488 Marshall v Southampton and South-West Hants Area Health Authority (No 2) [1988] IRLR 325. . . . . . . . . . . . . . . . 307 Marshall v Southampton and South-West Hants Area Health Authority (No 2) (C-271/91) [1993] ECR I-4367 . . . . . . . . . . . . 54, 62, 157, 253, 268, 308, 309, 477, 502 Martínez Sala (C-85/96) [1998] ECR I–2691 . . . . . . . . . . . . . . . . . .2, 180 Maruko v Versordungsanstalt der deutschen Bühnen (C-267/06) [2000] ECR I-1757 . . . . . . . . 42, 181, 193, 202, 248, 277, 285, 286, 377 Matiano v INAIL (C-217/08) [2009] ECR I-35* . . . . . . . . . . . . . . . . . . . . . . 2 Mayr v FlÖckner OHG (C-506/06) [2008] ECR I-1017 . . . . .27, 167, 331, 397 Mediguard Services Ltd v Thame [1994] IRLR 504. . . . . . . . . . . . . . . . 218 Meerts v Proost NV (C-116/08) [2009] ECR I-10063 . . . . . . . . . . 355, 356

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Megner and Scheff el v Innungskrankenkasse Vorderplatz (C-444/93) [1995] ECR I-4741 . . . . . . . . . . 241, 242, 448, 460, 466 Melgar v Ayuntamiento de Los Barrios (C-438/99) [2001] ECR I-6915 . . . . . . . . . . . . 341, 348, 349 Melloni (C-399/11) [2011] OJ C 282/5 . . . . . . . . . . . . . . . . . . . . 120 Merino Gómez v Continental Industrias del Caucho SA (C-342/01) [2004] ECR I-2605 . . . . . 343 Meyers v Adjudication Officer (C-116/94) [1995] ECR I-2131 . . . . . . . . . . . . . . 277, 287, 288, 478 Michaeler v Amt für sozialen Arbeitsschutz (C-55 & 56/07) [2008] ECR I-3135 . . . . . . . . . . . . 67, 318 Ministère Public v Even (207/78) [1979] ECR 2019 . . . . . . . . . . . . . . . 188 Ministero delle Finanze v IN. CO. CE. ‘90 Srl (C-10–22/97) [1998] ECR I-6307 . . . . . . . . . . . . . . . . . . . . 46 Ministero delle Finanze v Spac (C-260/96) [1998] ECR I-4997 . . . . . . 94 Ministry of Defence v Cannock [1994] IRLR 509 . . . . . . . . . . . . . . . . . . . . . 310 Ministry of Defence v Fletcher [2010] IRLR 25 . . . . . . . . . . . . . . . . . . . . . . 310 Ministry of Defence v Meredith [1995] IRLR 539 . . . . . . . . . . . . . . . . . . . . . 310 Molenbroek v Bestuur van de Sociale Verzekeringsbank (C-226/91) [1992] ECR I-5943 . . . . . . . . . . . . 465, 466, 476 Molkerei-Zentrale Westfalen/Lippe GmbH v Hauptzollamt Paderborn (28/67) [1968] ECR 143 . . . . . . . . 44, 53, 54, 89 Moroni v Collo GmbH (C-110/91) [1993] ECR I-6591 . . . . 196, 201, 213, 250 Mouflin v Recteur de l’académie de Reims (C-206/00) [2001] ECR I-10201 . . . . . . . . . . . . . . . . . . . . . . . 193 Müller Fauré v Onderlinge Waarborgmaatschappij (C-385/99) [2003] ECR I-4509 . . . . . . . . . . . . . . 364 Murphy v Bord Telecom Eireann (157/86) [1988] ECR 673 . . . . . . . . . . . . . . . . . 231–3, 252, 258 Mutualités Chrétiennes v Rzepa (35/74) [1974] ECR 1241 . . . . . . . . . . 89

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Table of Cases

NUT v Governing Body of St Mary’s School [1997] ICR 334 . . . . . . . . . .71, 72 National Pensions Office v Jonkman (C-231/06–C-233/06) [2007] ECR I-5149 . . . . . . . . . . . . . . . . 475, 478 National Union of Belgian Police v Belgium [1979–80] 1 EHRR 578 . . . . 105 Neath v Hugh Steeper Ltd (C-152/91) [1993] ECR I-6935 . . . . . . . 171, 196, 202 Netherlands v Federatie Nederlands Vakbeweging (71/85) [1986] ECR 3855. . . . . . . . . . . 443, 471, 472, 497 Neville Estates Ltd v Madden [1962] Ch 832 . . . . . . . . . . . . . . . . . . . . . . . . 38 Newstead (192/85) [1987] ECR 4753 . . . . . . . . . . . . . . . . . . . . . . 257, 258 Nicolo [1990] 1 CMLR 173 . . . . . . . . . . 48 Nikoloudi v OTE (C-196/02) [2005] ECR I-189 . . . . . . . . . . . . . 230, 237, 238 Nimz v Freie und Hansestadt Hamburg (C-184/89) [1991] ECR I-297 . . . . . . . . . 237, 254, 255, 268, 295, 304 Nolte v Landesversicherungsanstalt Hannover (C-317/93) [1995] ECR I-4625 . . . . . . . . . . . . . . 52, 153, 165, 170, 241, 242, 448, 460, 466 Norbrook Laboratories v MAFF (C-127/95) [1998] ECR I-1531 . . . . . . 79 O’Brien v Ministry of Justice (C-393/10) [2012] ECR I-000 . . . . . . . . . . . . 316, 317 O’Brien v Sim-Chem Ltd [1980] 1 WLR 734 . . . . . . . . . . . . . . . . . . . . 253 O’Flynn v Adjudication Officer (C-237/94) [1996] ECR I-2617 . . . . . 148 Océano Grupo Editorial SA v Quintero (C-240–244/98) [2000] ECR I-4941 . . . . . . . . . . . . . . . . . . . . . . .67, 75 Office National de l’Emploi v Minne (C-13/93) [1994] ECR I-371. . . . . . . . . . . . . . . . . . . 46, 288, 400 Oliver Bruestle v Greenpeace eV (C-34/10) [2011] ECR I-000 . . . . . . . 369 Omkarananda and the Divine Light Zentrum v Switzerland (1981) 25 DR 105 . . . . . 37 Ósterreichischer Gewerkschaftsbund v Wirtschaftskammer Ósterreich (C-220/02) [2004] ECR I-5907 . . . . . . . . . . . . . . . . . 153, 217, 353

P v S and Cornwall County Council (C-13/94) [1996] ECR I-2143 . . . . . . . . . . . . . . . . . . . 27, 29, 279 Padawan v SGAE (C-467/08) [2010] ECR I-10055 . . . . . . . . . . . . . . . . . . 369 Palacios de la Villa v Cortefi el Servicios SA (C-411/05) [2007] ECR I-8531 . . . . . . . . . . . . . . 16, 41, 67, 68, 99, 122, 126, 282, 293, 294, 410, 417 Palmisani (C-261/95) [1997] ECR I-4025 . . . . . . . . . . . . . . . . . . . . . . . . . 90 Panagis Pafitis v Trapeza Kentrikis Ellados AE (C-441/93) [1996] ECR I-1347 . . . . . . . . . . . . . . . . . . . . 64 Paquay v Societe d’Architectes Hoet (C-460/06) [2007] ECR I-8511 . . . . . 350 Parliamentary Commissioner for Administration v Fernandez [2004] IRLR 22 . . . . . . . . . . . . . . . . . . . . . . 170 Parsons v East Surrey Health Authority [1986] ICR 837 . . . . . . . . . . . . . . . . . . 50 Parviainen v Finnair Oyj (C-471/08) [2010] ECR I- 6533 . . . . . . . . . . . .344–6 Peerbooms v Stichting CZ Groep Zorgverzekeringen (C-157/99) [2001] ECR I-5473 . . . . . . . . . . . . . . 364 Pensionkasse für die Angestellten der Banner Ersatzkasse VvaG v Menauer (C-379/99) [2001] ECR I-7275 . . . . . . . . . . . . . . . . . . . . . 202, 340 Pensionsversicherungsanstalt v Kleist (C-356/09) [2010] ECR I-000 . . . . . . . . . . 145, 172, 209, 290 Peterbroeck v Belgium (C-312/93) [1995] ECR I-4599 . . . . . . . . . . . . . . . 91 Petersen v Berufungsausschuss (C-341/08) [2010] ECR I-047. . . . . . . . . . . . . . . 41, 281, 403, 411, 412, 415, 500 Pickstone v Freemans plc [1987] 3 WLR 811; [1988] 2 All ER 803 . . . . . . . . . . . . . . . . . . 49, 50, 253 Pla and Puncernau v Andorra (2006) 42 ECHRR 522 . . . . . . . . . . . . . . . . 106 Podesta v CRICA (C-50/99) [2000] ECR I-4039 . . . . . . . . . . . . . . . . 193, 201 Politi Sas v Minister of Finance (43/71) [1971] ECR 1039 . . . . . . . .46, 54 Pontin v T-Comalux SA (C-63/08) [2009] ECR I-10467 . . . . . . . . . . . . . . 91

Table of Cases Posthuma-Van Damme v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen (C-280/94) [1996] ECR I–179 . . . . . . . . . . . . . 444, 449, 460, 467, 468, 476 Prais v Council (130/75) [1976] ECR 1589. . . . . . . . . . . . . . . . . . . . . . 38 Preston v Wolverhampton Healthcare NHS Trust [1997] IRLR 233 . . . . . . . 258 Preston v Wolverhampton Healthcare NHS Trust (C-78/98) [1999] ECR I-3201 . . . . . . . . . . . . . 91, 199, 479 Pretore di Salo v Persons Unknown (14/86) [1987] ECR 2545 . . . . . . . .62, 77 Pretty v UK (2002) 35 EHRR 1 . . . . . . 105 Price v Civil Service Commission [1977] IRLR 291. . . . . . . . . . . . . . . . 137 Prigge et al v Deutsche Lufthansa AG (C-447/090 [2011] ECR I-000 . . . . . . . . . . 41, 127, 302, 393, 404, 412, 500 Prodest v Caisse Primaire d’Assurance Maladie de Paris (C-237/83) [1984] ECR 3153. . . . . . . . . . . . . . . . . . . . . 279 Promusicae (C-275/06) [2008] ECR I-271. . . . . . . . . . . . . . . . . . . . . . . . . 119 Pubblico Ministero v Ratti (148/78) [1979] ECR 1629 . . . . . . . . . . . . . . . . 59 Public Prosecutor v Kolpinghuis Nijmegen BF (80/86) [1987] ECR 3969 . . . . .74, 77 R v Bouchereau (30/77) (1977) 2 CMLR 800 . . . . . . . . . . . . . . . . . . . . . 57 R v Governing Body of JFS [2010] 2 AC 728 . . . . . . . . . . . . . . . . . . . . . . 164 R v HM Treasury, ex parte British Telecommunications plc (C-392/93) [1996] ECR I-1631 . . . . . . . . . . . . . . . 83 R v Kent Kirk (63/83) [1984] ECR 2689. . . . . . . . . . . . . . . . . . . . . . 47 R v Minister of Agriculture and Fisheries, ex parte Agegate Ltd (C-3/87) [1989] ECR 4459 . . . . . . . . . . . . . . . . 97 R v Minister of Agriculture and Fisheries, ex parte Jaderow Ltd (C-216/87) [1989] ECR 4509 . . . . . . . . . . . . . . . . 97 R v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd (C-5/94) [1996] ECR I-2553 . . . . . . . . . . . . . . . . . . . . . . . . . 84

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R v Ministry of Defence, ex parte Smith [1996] IRLR 100. . . . . . . . . . . . . . . . . 29 R v Registrar General, ex parte Segerdal [1970] 2 QB 697 . . . . . . . . . . . . . . . . . 38 R v Secretary of State for Defence, ex parte Perkins [1997] IRLR 297 . . . . 29 R v Secretary of State for Education, ex parte Schaffter [1987] IRLR 53 . . . . 50 R v Secretary of State for Employment, ex parte EOC [1994] 2 WLR 409 . . . . . . . . . . .53, 242, 467, 482 R v Secretary of State for Employment, ex parte Seymour-Smith [1997] 1 WLR 473 . . . . . . . . . . . . . . . . . . 63, 218 R v Secretary of State for Employment, ex parte Seymour-Smith (C-167/97) [1999] ECR I-623 . . . . . . . . . 149, 154, 170, 218, 219, 222, 241, 296, 461, 469 R v Secretary of State for Health, ex parte Richardson (C-137/94) [1995] ECR I–3407 . . . . 455, 476, 480, 490 R v Secretary of State for Home Affairs, ex parte Santillo (131/79) [1980] ECR 1585. . . . . . . . . . . . . . . . . . . .53, 60 R v Secretary of State for Social Security, ex parte EOC (C-9/91) [1992] ECR I-4297 . . . . . . . . . . . . . . . . 134, 484 R v Secretary of State for Social Security, ex parte Smithson (C-243/90) [1992] ECR I–467 . . . . . . . . . . . . . . . 452 R v Secretary of State for Social Security, ex parte Sutton (C-66/95) [1997] ECR I-2163 . . . . . . . . . . . . . . . . . . . 477 R v Secretary of State for Social Security, exparte Taylor (C-382/98) [1999] ECR I–8955 . . . . . . . 456, 487, 490 R v Secretary of State for Transport, ex parte Factortame Ltd [1989] 2 WLR 997 . . . . . . . . . . . . . . . . . . .94, 95 R v Secretary of State for Transport, ex parte Factortame Ltd (C-213/89) [1990] ECR I-2433 . . . . . . . . . . . . . . . 95 R v Secretary of State for Transport, ex parte Factortame (48/93) [1996] ECR I-1029 . . . . . . . . . . . . . . . . . . . . 78 R v Secretary of State for Transport, ex parte Factortame Ltd (No 3) (C-221/89) [1991] ECR I-3905 . . . . . . . . . . . . . . . . . . . . 97

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R v Secretary of State for Transport, ex parte Factortame Ltd (No 5) [1999] 3 WLR 1062 . . . . . . . . . . . . . . . 80 R v Secretary of State for Transport, ex parte Factortame Ltd [1989] 2 WLR 997; [1990] 3 WLR 818 . . . . . . 51 R (on the application of Amicus—MSF section) v Secretary of State for Trade and Industry [2004] IRLR 430 . . . . . . . . . . . 167, 168, 284, 382 R (Pretty) v DPP [2002] 1 AC 800 . . . . . 105 Rainey v Greater Glasgow Health Board [1986] 3 WLR 1017 . . . . . . . . . . . . . . 235 Ratification of the Treaty of Lisbon, Re [2010] 3 CMLR 1 . . . . . . . . . . . . . 48 Raulin (C-357/89) [1992] ECR I-1027 . . . . . . . . . . . . . . . . . . . . . . . . 365 Razzouk and Beydoun v Commission (75 & 117/82) [1984] ECR 1509. . . . . . . 130, 134, 187, 190, 284 Rechberger and Greindl v Austria (C-140/97) [1999] ECR I-3499 . . . . . . 85 Reed Packaging Ltd v Boozer [1987] IRLR 26 . . . . . . . . . . . . . . . . . . . . . . 245 Regents of the University of California v Bakke 98 S Ct 2733 . . . . . . . . . . . . 425 Reiser GmbH v Asfinag (C-157/02) [2004] ECR I-1477 . . . . . . . . . . . . .67, 72 Rewe-Zentralfinanz, eG and Rewe-Zentral AG v Landwirtschaftskammer fur das Saarland (33/76) [1976] 2 ECR 1989 . . . . . . . . . . . . . . 89, 91, 249 Richards v Secretary of State for Work and Pensions (C-423/04) [2006] ECR I-3585 . . . . . . . . . . . . . 28, 458, 459, 475, 482 Rijsdienst voor Pensioenen v Brouwer (C-577/08) [2010] ECR I–7489 . . . . . 475 Rinke v Ätztekammet Hamburg (C-25/02) [2003] ECR I-8349 . . . . . . . . . . . 138, 140 Rinner-Kühn v FWW Spezial Gebaudereinigung GmbH (171/88) [1989] IRLR 493. . . . . 148, 166, 219, 239, 295, 463 Roberts v Tate & Lyle Ltd (151/84) [1986] ECR 703 . . . . . . 291, 482, 483, 485 Roca Álvarez v Sesa Start España ETT SA (C-104/09) [2010] ECR I-8661 . . . . . . . . . . 164, 356, 357, 399, 431 RÖmer v Freie und Hansestadt Hamburg (C-147/08) [2011] ECR I-000 . . . . . . . 42, 248, 277, 286, 287

Roquette v Commission (26/74) [1976] ECR 677 . . . . . . . . . . . . . . . . . 90 Rosenbladt v Oellerking (C-45/09) [2010] ECR I-9391 . . . . . . .41, 294, 302, 411–14, 417, 501 Rummler v Dato-Druck GmbH (237/85) [1986] ECR 2101 . . . . . . . . 264 Runevi-Vardyn v Vilniaus (C-391/09) [2011] ECR I-000 . . . . . . . . . . . . . . . 281 Russo v AIMA (60/75) [1976] ECR 45 . . . . . . . . . . . . . . . . . . . . . . . 89 Rutili v Minister of the Interior (36/75) [1975] ECR 1219 . . . . . . . .57, 58 Ruzius-Wilbrink v Bestuur van de Bedrijfsvereniging voor Overheidsdiensten (C-102/88) [1989] ECR 4311 . . . . . . . . . . . . . . . 463 SACE v Italian Ministry of Finance (33/70) [1970] ECR 1213 . . . . . . . .55, 56 Sabbatini (20/71) [1972] ECR 345 . . . . . 140 Sabbatini v European Parliament (32/71) [1972] ECR 345 . . . 134, 135, 183 Salamander AG v European Parliament and Council (T-172/98 & T-175–177/98) [2000] ECR 11–2487 . . . . . . . . . . . . . . . . . . . 65 Salgoil SpA v Italian Ministry of Foreign Trade (13/68) [1968] ECR 453 . . . .54, 89 Salgueiro da Silva Mouta v Portugal (1999) 31 EHRR 1055 . . . . . . . . . . . 107 San Giorgio (199/82) [1983] ECR 3595 . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Sanchez-Camacho v. INSS (C-537/07) [2009] ECR I-6525 . . . . . . . . . . . 355, 358 Santana v Consejería de Justicia (C-177/10) [2011] ECR I-000 . . . . . . . . . . . . . . . . . 312, 320 Schnorbus v Land Hessen (C-79/99) [2000] ECR I-10997 . . . . . . . . . . . . . . . . 145, 169, 170, 173, 287, 340, 391, 430, 433 Schönheit v Stadt Frankfurt am Main (C-4 & 5/02) [2003] ECR I-12575 . . . . . . . . . . . . . . . . 170, 194, 210 Schóning-Koigebetopoulou v Freie und Hansestadt Hamburg (C-15/96) [1998] ECR I-47. . . . . . .81, 83 Schuier-Zgraggen v Switzerland [1996] 21 EHRR 404. . . . . . . . . . . . . . . . . . 105

Table of Cases Schwarz and Gootjes v Finanzamt Bergisch Gladback (C-78/05) [2007] ECR I-6849 . . . . . . . . . . . . . . . . . . . . . . . . 365 Scullard v Knowles [1996] IRLR 344 . . . 225 Secretary of State for Social Security v Graham (C-92/94) [1995] ECR I-2521 . . . . . . . . . . . . . . . . . . . . . . . . 488 Secretary of State for Social Security v Thomas (C-328/91) [1993] ECR I-1267 . . . . . . . . . . . . . . . . . . . . . 381, 487 Seide v Gillette Industries Ltd [1980] IRLR 427 . . . . . . . . . . . . . . . . . . . . . . 35 Sejdic and Finci v Bosnia and Herzegovina (App Nos 27996/06 & 34836/06). . . . 111 Seldon v Clarkson Wright, Jakes (A Partnership) [2012] UKSC 16 . . . . . . . 412 Sex Discrimination in the Civil Service, Commission v France, Re (318/86) [1988] ECR 3559 . . . . . 216, 388 Sgarlata v Commission (40/64) [1965] ECR 215 . . . . . . . . . . . . . . . . . . . 99, 101 Sidabras and Dziautas v Lithuania (2004) 42 EHRR 104. . . . . . . . . . . . . . . . . . 107 Sirdar v Army Board and Secretary of State for Defence (No 1) [1988] ECR 3559. . . . . . . . . . . . . . . . . . . . . 389 Sirdar v Army Board and Secretary of State for Defence (C-273/97) [1999] ECR I-7403 . . . . . . . . . . . . . . . . 381, 389 Smith v Avdel Systems Ltd (C-408/92) [1994] ECR I-4435 . . . . . . . . . . . . . . . . . 172, 200, 254 Smith v Gardner Merchant Ltd [1996] ICR 790 . . . . . . . . . . . . . . . . . . . . . . . 29 Sodemare v Reggio Lombardia (C-70/95) [1997] ECR I-3395 . . . . . . 440 Solred (C-347/96) [1998] ECR I-937. . . . . . . . . . . . . . . . . . . . . . . . . 124 Sorge v Poste Italiane SpA (C-98/09) [2010] ECR I-5837 . . . . . . . . 77, 322, 323 South Ayrshire Council v Morton [2002] ICR 956 . . . . . . . . . . . . . . . . . 225 SpA Granital v Amministrazione delle Finanze, Decision No 170 of 8 June 1984, (1984) 21 CMLRev 756 . . . . . . . 48 Specialarbejderforbundet i Danmark v Dansk Industri, acting for Royal Copenhagen A/S86 (C-400/93) [1995] ECR I-1275 . . . . . . . 161, 245, 246 Speybrouck v Parliament (T-45/00) [1992] ECR II–33 . . . . . . . . . . . . . .4, 349

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Stadt Lengerich v Heimig (C-399, 409 & 425/92, C-34, 50 & 78/93) [1994] ECR I-5727 . . . . . . . . . 26, 150, 154, 160, 183, 254, 257, 268, 304 State v Royer (48/75) [1976] ECR 497 . . . . . . . . . . . . . . . . . . . .57, 88 Stec v UK (2006) 43 EHRR 18 . . . . . . . 108 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen (C-338/91) [1993] ECR I-5475 . . . . . . . . . . . . . . .93, 476, 481, 482 Steinicke v Bundesanstalt für Arbeit (C-77/02) [2003] ECR I-9027 . . . . . . . . . 240, 255, 296, 305 Stoeckel (C-345/89) [1991] ECR I-4047 . . . . . . . . . . . . . 46, 288, 400 Strathclyde Regional Council v Wallace [1998] SC 72 . . . . . . . . . . . . . 170 Supremacy of EC law, Re [2010] 2 CMLR 15 . . . . . . . . . . . . . . . . . . . . . . 48 Tele Danmark A/S v Handels-OG Kontorfunktionaerernes Forbund I Danmark (HK) (C-109/00) [2001] ECR I-6993 . . . . . . . 172, 319, 341, 347–9 Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers-en Schoonmaakbedrijf (C-109/91) [1993] ECR I-4879 . . . . . . . . . 189, 196, 204, 284 Teuling v Bedrijfsvereniging voor de Chemische Industrie (30/85) [1987] ECR 2497. . . . . . . . . . . .65, 460, 463, 494 Texaco and Oliesehkabet Danmark (C-114 & 115/95) [1997] ECR I-4263 . . . . . . . . . . . . . . . . . . . . 94 Thlimmenos v Greece (2001) 31 EHRR 411 . . . . . . . . . . . . . . . . . . 37, 109 Thoburn v Sunderland City Council [2002] 3 WLR 247. . . . . . . . . . . . . . . . 49 Thomas v Adjudication Officer and Secretary of State for Social Security [1990] IRLR 436 . . . . . . . . . 290 Timishev v Russia [2005] 44 EHRR 776 . . . . . . . . . . . . . . . . . . . . 109 Turley v Allders Department Stores Ltd [1980] IRLR 4 . . . . . . . . . . . . . . . . . 163 Tyrolean Airways v Betriebsrat Bord (C-132/11) [2012] ECR I-000 . . . . . . . . . . . . . . . . . . . . 173

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Table of Cases

UK v Council (C-84/94) [1996] ECR I-5755 . . . . . . . . . . . . . . . . . . . 338 Unibet (London) Ltd v Justitiekanslern (C-432/05) [2007] ECR I-2271 . . . . . . . . . . . . . . 90, 98, 119 Unilever GmbH v Smithkline Beecham GmbH (C-77/97) [1999] ECR I-431 . . . . . . . . . . . . . . . . 63 Unilever Italia SpA v Central Food SpA (C-443/98) [2000] ECR I-7535 . . . . . . . . . . . . . . . . . . . . . . .63, 68 Van Cant v Rijksdienst voor Pensioenen (C-154/92) [1993] ECR I–3811 . . . . . . . . . 472, 474, 475, 484, 485 Van Den Akker v Stichting Shell Pensioenfonds (C-28/93) [1994] ECR I-4527 . . . . . . . . . . . . . . . . . . . 201 Van Den Broeck v Commission (37/74) [1975] ECR 235 . . . . . . . . . . . . . . . . 136 Van Duyn v Home Office (41/74) [1974] ECR 1337 . . . . . . . . . . 54, 56, 381 Van Gemert-Derks v Bestuur van de Nieuwe Industriele Bedrijfsvereniging (C-337/91) [1993] ECR I–5435 . . . . . . . . . . . . . . . . 472, 481, 482 Van Gend en Loos v Nederlandse Tariefcommissie (26/62) [1963] ECR 1 . . . . . . . . . . . . . . . . . . . 44, 45, 52 Van Munster v Rijksdienst voor Pensioenen (C-165/91) [1994] ECR I-4661 . . . . . . . . . . . . . . . . . . . 493 Van Raalte v Netherlands (1997) 24 EHRR 503 . . . . . . . . . . . . . . . . . . . . 106 Van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten (C-430 & 431/93) [1995] ECR I-4705 . . . . . . . . 91 Vaneetveld v SA Le Foyer (C-316/93) [1994] ECR I-763 . . . . . . . . . . . . . . . . 62 Vassallo v Azienda Ospedaliera (C-180/04) [2006] ECR I-7251 . . . . . . . . . . . . 72, 319 Verbond v Inspecteur der Invoerrechten en Accijnzen (51/76) [1977] ECR 113 . . . 57 Verholen v Sociale Verzekeringsbank (C-87, 88, & 89/90) [1991] ECR I–3757 . . . . . . . . . . . . . . . . . . . . . . . 449 Volker und Markus Schecke and Eifert (C-93/09) [2010] ECR I-11063 . . . . . 206 Von Colson and Kamann v Land Nordrhein Westfalen (14/83) [1984] ECR 1891. . . . . . . . . . . . . . . 73, 254, 305

Voss v Land Berlin (C-300/06) [2007] ECR I-10573 . . . . . . . . . . . . . . . . . . 155 Vroege v NCIV Instituut voor Volkshuisvesting BV (C-57/93) [1994] ECR I-4541 . . . . . . . 198, 250, 294 Wachauf v Germany (5/88) [1989] ECR 2609 . . . . . . . . . . . . . . . . . . . . 100 Wagner Miret v Fondo de Garantia Salarial (C-334/92) [1993] ECR I-6911 . . . . . . 76 Walrave and Koch v Association Union Cycliste Internationale (36/74) [1974] ECR 1405 . . . . . . . . . . . . . 61, 279 Walt Wilhelm v Bundeskartellamt (14/68) [1969] ECR 1 . . . . . . . . . . . . . 47 Wandsworth London Borough Council v Michalak [2003] 1 WLR 617 . . . . . . . 108 Webb v EMO (Air Cargo) Ltd (C-32/93) [1994] ECR I-3567 . . . . . . . . . . 172, 173, 333, 339, 347 Webb v EMO (Air Cargo) Ltd [1995] 4 All ER 577 . . . . . . . . . . . . . . . . . . . . 75 Wells and Others v Smales Ltd (1985) 2 EOR 24 . . . . . . . . . . . . . . . . . . . . . 234 White v British Sugar Corporation [1977] IRLR 121. . . . . . . . . . . . . . . . . 27 Willis v United Kingdom (2002) 35 EHRR 212. . . . . . . . . . . . . . . . . . 107 Winner Wetten GmbH v Burgermeisterin der Stadt Bergheim (C-409/06) [2010] ECR I-8015 . . . . . . . . . . . . . . . 46 Wippel v Peek & Cloppenburg GmbH (C-313/02) [2004] ECR I-9483 . . . . . . . . . . . . 279, 316, 317 Wirth v Landeshaupstadt Hannover (C-102/92) [1993] ECR I–6447 . . . . . 365 Wolf v Stadt Frankfurt am Main (C-229/08) [2010] ECR I-000. . . . . . . . . . . . 41, 281, 381, 392, 500 Worringham v Lloyds Bank Ltd (69/80) [1981] ECR 767 . . . . . . . . . . . . 144, 145, 164, 184, 190, 203, 217, 250–2, 258, 263 Worsdorfer v Raad van Arbeid (9/79) [1979] ECR 2717 . . . . . . . . . . . . . . . 439 X and Church of Scientology v Sweden (1979) 16 DR 68 . . . . . . . . . . . . . . . . . 37 Zambrano v ONEM (C-34/09) [2011] WLR (D) 81 . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Cases Zarb Adami v Malta (2007) 44 EHRR 43 . . . . . . . . . . . . . . . . . . . . . 107 Zentralbetriebsrat v Land Tirol (C-486/08) [2010] ECR I-3527 . . . . . . . . . . . . . . . . . 280, 317, 320 Züchner v Handelskrankenkasse Bremen (C-77/95) [1996] ECR I-5689 . . . . . . . . . . . . . . 287, 445, 446, 460 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe (C-143/88 & C-92/89) [1991] ECR I-415 . . . . . . . . . . . . . . . . . . . . . 97 Numerical 7/56 & 3–7/57 Alegra [1957–58] ECR 39 . . . . . . . . . . . . . . . . . . . . . . . 99 6/60 Humblet v Belgium [1960] ECR 559 . . . . . . . . . . . . . . . . . . . . . . 89 26/62 Van Gend en Loos v Nederlandse Tariefcommissie [1963] ECR 1 . . . . . . . . . . . 44, 45, 47, 52 6/64 Costa v ENEL [1964] ECR 585 . . . . . . . . . . . . . . . . . 45, 47, 48 40/64 Sgarlata v Commission [1965] ECR 215 . . . . . . . . . . . . . . . . . . . . . 101 57/65 Lutticke v Hauptzollamt Sarrelouis [1966] ECR 205 . . . . . . . . . . . . . . . . . 53 27/67 Fink-Frucht GmbH v Hauptzollamt Munchen [1968] ECR 223 . . . . . . . . . . . . . . . . . . . . . . 53 28/67 Molkerei-Zentrale Westfalen/Lippe GmbH v Hauptzollamt Paderborn [1968] ECR 143 . . . . . . . . . 44, 53, 54, 89 13/68 Salgoil SpA v Italian Ministry of Foreign Trade [1968] ECR 453. . . . .54, 89 14/68 Walt Wilhelm v Bundeskartellamt [1969] ECR 1 . . . . . . . . . . . . . . . . . . . 47 9/70 Grad v Finanzampt Traunstein [1970] ECR 825 . . . . . . . . . . . . . . . . . 55 11/70 Internationale Handelsgesellschaft [1970] ECR 1125 . . . . . . . . . . . . . . . 133 33/70 SACE v Italian Ministry of Finance [1970] ECR 1213 . . . . . . . . . . . . . .55, 56 80/70 Defrenne v Belgium [1971] ECR 445 . . . . . . . . . . . 183, 188–90, 246, 479, 481, 498 18/71 Eunomia di Porro v Italian Ministry of Education [1971] ECR 811 . . . . . . . . . . . . . . . . . . . . . . 53 20/71 Sabbatini [1972] ECR 345 . . . . . . 140 32/71 Sabbatini v European Parliament [1972] ECR 345 . . . . . . . . . 134, 135, 183

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43/71 Politi Sas v Minister of Finance [1971] ECR 1039 . . . . . . . . . . . . . .46, 54 93/71 Leonesio v Italian Ministry of Agriculture and Fisheries [1972] ECR 287 . . . . . . . . . . . . . . . . . . . .19, 54 39/72 Commission v Italy [1973] CMLR 439 . . . . . . . . . . . . . . . . . . . . 261 120/73 Lorenz v Germany [1973] 2 ECR 1471. . . . . . . . . . . . . . . . . . . . . . 89 21/74 Airola v Commission [1975] ECR 221 . . . . . . . . . . . . . . . . . . . . . 135 26/74 Roquette v Commission [1976] ECR 677 . . . . . . . . . . . . . . . . . . . . . . 90 35/74 Mutualités Chrétiennes v Rzepa [1974] ECR 1241 . . . . . . . . . . . 89 36/74 Walrave and Koch v Association Union Cycliste Internationale [1974] ECR 1405 . . . . . . . . . . . . . 61, 279 37/74 Van Den Broeck v Commission [1975] ECR 235 . . . . . . . . . . . . . . . . 136 41/74 Van Duyn v Home Office [1974] ECR 1337 . . . . . . . . . . 54, 56, 381 67/74 Bonsignore v City of Cologne [1975] ECR 297 . . . . . . . . . . . . . . . . . 57 36/75 Rutili v Minister of the Interior [1975] ECR 1219 . . . . . . . . . . . . . .57, 58 43/75 Defrenne v Sabena (No 2) [1976] ECR 455 . . . . 25, 54, 61, 127, 130, 133, 144, 182, 216, 223–5, 228, 230, 232, 247, 250–2, 254, 256, 257, 269, 277, 497 48/75 State v Royer [1976] ECR 497 . . . . . . . . . . . . . . . . . . . .57, 88 60/75 Russo v AIMA [1976] ECR 45 . . . . . . . . . . . . . . . . . . . . . . . 89 130/75 Prais v Council [1976] ECR 1589. . . . . . . . . . . . . . . . . . . . . . 38 33/76 Rewe-Zentralfinanz, eG and Rewe-Zentral AG v Landwirtschaftskammer fur das Saarland [1976] 2 ECR 1989 . . . . . . . . . 89, 91, 249 45/76 Comet BV v Produktschap voor Siergewassen [1976] 2 ECR 2043 . . . . . 89 51/76 Verbond v Inspecteur der Invoerrechten en Accijnzen [1977] ECR 113 . . . . . . . . . . . . . . . . . . . . . . 57 30/77 R v Bouchereau (1977) 2 CMLR 800 . . . . . . . . . . . . . . . . . . . . . 57 38/77 Enka BV v Inspecteur der Invoerrechten en Accijnzen [1977] ECR 2203. . . . . . . . . . . . . . . . . 46, 57, 59

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106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629 . . . . . . . . . . . . . . . . 46, 95, 124 149/77 Defrenne v Sabena (No 3) [1978] ECR 1787 . . . . . 132, 139, 221, 251 21/78 Delkvist v Public Prosecutor [1978] ECR 2327 . . . . . . . . . . . . . . . . 67 148/78 Pubblico Ministero v Ratti [1979] ECR 1629 . . . . . . . . . . . . . . . . 59 207/78 Ministère Public v Even [1979] ECR 2019. . . . . . . . . . . . . . . . . . . . . 188 257/78 Devred v Commission [1979] ECR 3767. . . . . . . . . . . . . . . . . . . . . 136 9/79 Worsdorfer v Raad van Arbeid [1979] ECR 2717 . . . . . . . . . . . . . . . 439 61/79 Amministrazione delle Finanze dello Stato v Denkavit Italiana Srl [1980] ECR 1205 . . . . . . . . . . . . . 90, 249 66, 127, & 128/79 Amministrazione delle Finanze dello Stato v Meridionale Industria Salumi Srl [1980] ECR 1237. . . . . . . . . . . . . . . . . . 249, 250 102/79 Commission v Belgium [1980] ECR 1473. . . . . . . . . . . . . . . . . . . 87, 302 129/79 Macarthys Ltd v Smith [1980] ECR 1275. . . . . . . 145, 169, 173, 224, 226, 229, 251, 258, 259 131/79 R v Secretary of State for Home Affairs, ex parte Santillo [1980] ECR 1585 . . . . . . . . . . . . . .53, 60 69/80 Worringham v Lloyds Bank Ltd [1981] ECR 767 . . . . . 144, 145, 164, 184, 190, 203, 217, 250–2, 258, 263 96/80 Jenkins v Kingsgate (Clothing Productions) Ltd [1981] ECR 911 . . . . . . . 143, 165, 225, 226, 234, 251, 255, 257, 258 8/81 Becker v Finanzampt MunsterInnenstadt [1982] ECR 53 . . . . . . . .60, 61 12/81 Garland v British Rail [1982] ECR 359 . . . . . . . . . . . . . . . . . . 183, 258 19/81 Burton v British Railways Board [1982] ECR 555 . . . . 183, 258, 289 58/81 Commission v Luxembourg [1982] ECR 2175 . . . . . . . . . . . . 183, 269 61/81 Commission v UK [1982] ECR 2601. . . . . . . 225, 259, 263, 264, 266 75 & 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509 . . . . . . . . . . . 130, 134, 187, 190, 284

152/82 Forcheri v Belgium [1983] ECR 2323. . . . . . . . . . . . . . . . . . . . . 365 163/82 Commission v Italy [1983] ECR 3273. . . . . . . . . . . . . . . . . . . . . 397 165/82 Commission v UK [1983] ECR 3431 . . . . . . . . . . . . . . . . 268, 302–4, 383, 384, 500 199/82 San Giorgio [1983] ECR 3595 . . . . . . . . . . . . . . . . . . . . . . . . . . 90 238/82 Duphar [1984] ECR 523 . . . . . . 440 14/83 Von Colson and Kamann v Land Nordrhein Westfalen [1984] ECR 1891. . . . . . . . . . . . . . . 73, 254, 305 23/83 Liefting v Directie van het Academisch Ziekenhuis bij de Universiteit van Amsterdam [1984] ECR 3225. . . . . . . . . . . . . . 163, 185, 251 63/83 R v Kent Kirk [1984] ECR 2689 . . . . . . . . . . . . . . . . . . . . . . . . . . 47 143/83 Commission v Denmark [1985] ECR 427 . . . . . . . . . . . . . 88, 225, 261–3 184/83 Hofmann v Barmer Ersatzkasse [1984] ECR 3047 . . . . . . . . 397, 398, 420 237/83 Prodest v Caisse Primaire d’Assurance Maladie de Paris [1984] ECR 3153. . . . . . . . . . . . . . . . . . . . . 279 246/83 De Angelis v Commission [1985] ECR 1253 . . . . . . . . . . . . . . . 136 293/83 Gravier v City of Liège [1985] ECR 593 . . . . . . . . . . . . . . . . . . . . . 365 151/84 Roberts v Tate & Lyle Ltd [1986] ECR 703 . . . . . . 291, 482, 483, 485 152/84 Marshall v Southampton and South-West Hants Area Health Authority [1986] ECR 723 . . . . . . . . . . .62, 65, 69, 74, 128, 157, 277, 280, 282, 290, 482–4, 487, 488 170/84 Bilka-Kaufhaus GmbH v Weber Von Hartz [1986] ECR 1607. . . . . . . 108, 165, 169, 187, 188, 197, 198, 216, 234, 251, 266, 294, 463 222/84 Johnston v Chief Constable of the RUC [1986] ECR 1651. . . . . . . . . . . 70, 131, 174, 280, 282, 310, 380, 381, 387, 399, 400, 428, 449, 499 262/84 Beets-Proper v Van Lanschot Bankiers NV [1986] ECR 773 . . . . 74, 482

Table of Cases 30/85 Teuling v Bedrijfsvereniging voor de Chemische Industrie [1987] ECR 2497. . . . . . . . 65, 460, 463, 475, 494 71/85 Netherlands v Federatie Nederlands Vakbeweging [1986] ECR 3855. . . . . . . . . . . 443, 471, 472, 497 150/85 Drake v Chief Adjudication Officer [1986] ECR 1995 . . . . . . . . . . . 444, 445, 451, 470, 499 192/85 Newstead [1987] ECR 4753. . . . . . . . . . . . . . . . . . 257, 258 286/85 McDermott and Cotter v Minister for Social Welfare and the Attorney General [1987] ECR 1453 . . . . . . 473, 497 14/86 Pretore di Salo v Persons Unknown [1987] ECR 2545 . . . . . .62, 77 24/86 Blaizot v University of Liège [1988] ECR 379 . . . . . . . . . . . . . 250, 365 80/86 Public Prosecutor v Kolpinghuis Nijmegen BF [1987] ECR 3969 . . . .74, 77 111/86 Delauche v Commission [1987] ECR 5345. . . . . . . . . . . . . . . . . . . . . 162 157/86 Murphy v Bord Telecom Eireann [1988] ECR 673 . . . . . . . 231–3, 252, 258 263/86 Belgium v Humbel [1988] ECR 5365. . . . . . . . . . . . . . . . . . . . . 365 312/86 Commission v France [1988] ECR 6315. . . . . . . . . . . . . . 400, 421, 428 318/86 Re Sex Discrimination in the Civil Service, Commission v France [1988] ECR 3559 . . . . . . . . . . . . 216, 388 3/87 R v Minister of Agriculture and Fisheries, ex parte Agegate Ltd [1989] ECR 4459 . . . . . . . . . . . . . . . . 97 31/87 Beentjes BV v Holland [1988] ECR 4635. . . . . . . . . . . . . . . . . . . . . . 71 80/87 Dik v College van Burgemeester en Wethouders, Arnhem [1988] ECR 1601. . . . . . . . . . . . . . . . . . 473, 478 216/87 R v Minister of Agriculture and Fisheries, ex parte Jaderow Ltd [1989] ECR 4509 . . . . . . . . . . . . . . . . 97 5/88 Wachauf v Germany [1989] ECR 2609. . . . . . . . . . . . . . . . . . . . . 100 48/88, 106/88, & 107/88 Acterberg-te Riele v Sociale Verzekeringsbank [1989] ECR 1963 . . . . . . . . 445, 449, 450 68/88 Commission v Greece [1989] ECR 2965. . . . . . . . . . . . . . . . . . . . . . 90 102/88 Ruzius-Wilbrink v Bestuur van de Bedrijfsvereniging voor

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Overheidsdiensten [1989] ECR 4311. . . . . . . . . . . . . . . . . . . . . 463 103/88 Fratelli Costanzo v Commune di Milano [1989] ECR 1839 . . . . . . . . . . 72 109/88 Handels-OG Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening (acting for Danfoss) [1989] ECR 3199 . . . . 158, 159, 236, 237, 245, 417 143/88 & C-92/89 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe [1991] ECR I-415 . . . . . . . . . . 97 171/88 Rinner-Kühn v FWW Spezial Gebaudereinigung GmbH [1989] IRLR 493 . . . . . . . . . . 148, 166, 219, 239, 295, 463 177/88 Dekker v Stichting Vormingscentrum Voor Jonge Volwassen Plus [1990] ECR I-3941 . . . . . . . . . 27, 164, 167, 169, 172, 216, 230, 306, 307, 333, 340, 426 179/88 Handels-OG Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening [1990] ECR I-3979 . . . . .27, 164, 334, 341 221/88 ECSC v Aciaierie e Ferriere Busseni (in liquidation) [1990] ECR 495 . . . . . . 71 262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889 . . . . . . . 66, 73, 140, 185, 191, 195, 196, 217, 222, 237, 250, 257, 263, 284, 293, 295, 443, 483, 496, 498 322/88 Grimaldi v Fonds des Maladies Professionelles [1989] ECR 4407. . . . . . . . . . . . . . . . . . . .77, 78 33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR I-2591 . . . . . . . . . . . . 165, 217, 243, 254, 268, 304 C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR I-4135 . . . . . . . . . . . . . . . . . . . . 75 C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR I-297 . . . . . . . . . . . . . 237, 254, 255, 268, 295, 304 C-188/89 Foster v British Gas plc [1990] ECR I-3313 . . . . . . . . . . . . . . . 70

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C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd [1990] ECR I-2433 . . . . . . . . . . . . . . . 95 C-221/89 R v Secretary of State for Transport, ex parte Factortame Ltd (No 3) [1991] ECR I-3905 . . . . . . . . . 97 C-229/89 Commission v Belgium [1991] ECR I-2216 . . . . .66, 464, 465, 475 C-260/89 Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis [1991] ECR I-2925 . . . . . . . . . . . 100, 101 C-345/89 Stoeckel [1991] ECR I-4047 . . . . . . . . . . . . . . . . . . 46, 288, 400 C-357/89 Raulin [1992] ECR I-1027 . . . . . . . . . . . . . . . . . . . . . . . . 365 C-373/89 Integrity v Rouvroy [1990] ECR I–4243 . . . . . . . . . . . . . . . . . . . 457 C-377/89 Cotter and McDermott v Minister for Social Welfare (No 2) [1991] ECR I–1155 . . . . . . . . . . . 473, 497 C-6 & 9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357 . . . . . . .54, 78, 90, 462 C-31/90 Johnson v Chief Adjudication Officer [1991] ECR I–3723 . . . . . . . . . 445, 447, 449, 474 C-87, 88, & 89/90 Verholen v Sociale Verzekeringsbank [1991] ECR I–3757 . . . . . . . . . . . . . . . . . . . 449 C-163/90 Administration des Douanes v Legros [1992] ECR I-4625. . . . . . . . . 250 C-208/90 Emmott v Minister for Social Welfare [1991] ECR I–4269 . . . . . . 92, 476 C-243/90 R v Secretary of State for Social Security, ex parte Smithson [1992] ECR I–467 . . . . . . . . . . . . . . . 452 C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Bötel [1992] ECR I-3589 . . . . . 184, 243 C-9/91 R v Secretary of State for Social Security, ex parte EOC [1992] ECR I-4297 . . . . . . . 134, 482, 484 C-63 & 64/91 Jackson and Cresswell v Chief Adjudication Officer [1992] ECR I-4737 . . . . . . . . 162, 165, 277, 287, 453, 474, 477 C-78/91 Hughes v Chief Adjudication Officer [1992] ECR I-4839 . . . . . . . . 277 C-109/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf [1993] ECR I-4879 . . . . . . . . . . .189, 196, 197, 204, 284

C-110/91 Moroni v Collo GmbH [1993] ECR I-6591 . . . . . 196, 197, 201, 213, 250 C-152/91 Neath v Hugh Steeper Ltd [1993] ECR I-6935 . . . . . . . 171, 196, 202 C-158/91 Levy [1993] ECR I-4287 . . . . . . . . . . . . . . . . . . . . . 46, 288 C-165/91 Van Munster v Rijksdienst voor Pensioenen [1994] ECR I-4661 . . . . . . . . . . . . . . . . . . . . . . . . 493 C-173/91 Commission v Belgium [1993] ECR I-673 . . . . . . . . . . . . . . . 220 C-189/91 Kirsammer-Hack v Sidal [1993] ECR I-6185 . . . . . . . . . . . 384, 467 C-200/91 Coloroll Pension Trustees Ltd v Russell [1994] ECR I-4389 . . . . . . . . . . . . . 196, 197, 201, 202, 204, 205, 211, 213, 230, 254 C-226/91 Molenbroek v Bestuur van de Sociale Verzekeringsbank [1992] ECR I-5943 . . . . . . . 465, 466, 476 C-271/91 Marshall v Southampton and South-West Hants Area Health Authority (No 2) [1993] ECR I-4367 . . . . . . . 54, 62, 157, 253, 268, 308, 309, 477, 502 C-328/91 Secretary of State for Social Security v Thomas [1993] ECR I-1267 . . . . . . . . . . . . . . . . 381, 487 C-337/91Van Gemert-Derks v Bestuur van de Nieuwe Industriele Bedrijfsvereniging [1993] ECR I–5435 . . . . . . . . . . . . 472, 481, 482 C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR I-5475 . . . . . . . . . . . . . . .93, 476, 481, 482 C-91/92 Faccini Dori v Recreb Srl [1994] ECR I-3325 . . . . . . . . . . . . .62, 63 C-102/92 Wirth v Landeshaupstadt Hannover [1993] ECR I–6447 . . . . . . 365 C-127/92 Enderby v Frenchay Health Authority [1993] ECR I-5535 . . . . . . . . . . . . . 159, 162, 163, 173, 233–5, 245, 268 C-128/92 Banks Ltd v British Coal Corporation [1994] ECR I-1209 . . . . . 86 C-132/92 Birds Eye Walls Ltd v Roberts [1993] ECR I-5579 . . . . . . . . . . . . . . 171, 208, 209, 211

Table of Cases C-154/92 Van Cant v Rijksdienst voor Pensioenen [1993] ECR I–3811 . . . . . . . . . . . . 472, 474, 475, 484, 485 C-334/92 Wagner Miret v Fondo de Garantia Salarial [1993] ECR I-6911 . . . . . . . . . . . . . . . . . . . . . . . . . 76 C-343/92 De Weerd, née Koks [1994] ECR I–571 . . . . . . . . . . . . . 442, 449, 466, 475, 476 C-351/92 Graff v Hauptzollamt KölnRheinau [1994] ECR I-3361 . . . . . . . 100 C-399, 409, & 425/92 Stadt Lengerich v Heimig [1994] ECR I-5727 . . . . . . . . . . . . . . 26, 150, 154, 160, 183, 254, 257, 268, 304 C-408/92 Smith v Avdel Systems Ltd [1994] ECR I-4435 . . . . . . . 172, 200, 254 C-410/92 Johnson v Chief Adjudication Officer [1994] ECR I-5483 . . . . . . 93, 477 C-420/92 Bramhill v Chief Adjudication Officer [1994] ECR I-3191 . . . . . . 66, 493 C-421/92 Habermann-Beltermann [1994] ECR I-1657 . . . . . . . . . . . 172, 400 C-7/93 Bestuur Van Het Algemeen Burgerlijk Pensioenfonds v Beune [1994] ECR I-4471 . . . . . . . . 164, 192, 193, 198, 210, 214, 216, 481 C-13/93 Office National de l’Emploi v Minne [1994] ECR I-371. . . . . . . . . . . . . . . . . . . 46, 288, 400 C-28/93 Van Den Akker v Stichting Shell Pensioenfonds [1994] ECR I-4527 . . . . . . . . . . . . . . . . . . . 201 C-32/93 Webb v EMO (Air Cargo) Ltd [1994] ECR I-3567 . . . . . . . . . . 172, 173, 333, 339, 347 C-34, 50, & 78/93 Stadt Lengerich v Heimig [1994] ECR I-5727 . . . . . . . . . . . . . 150, 154, 160, 183, 254, 257, 268, 304 C-46 & 48/93 Brasserie du Pécheur v Germany & R v Secretary of State for Transport, ex parte Factortame [1996] ECR I-1029 . . . . . . . . . . . . . . . 78 C-57/93 Vroege v NCIV Instituut voor Volkshuisvesting BV [1994] ECR I-4541 . . . . . . . . . . . . 198, 250, 294 C-62/93 BP Supergas [1995] ECR I-1883 . . . . . . . . . . . . . . . . . .90, 93

xxxiii

C-128/93 Fisscher v Voorhuis Hengelo BK [1994] ECR I-4583 . . . . . . . . . . . 91, 198, 202, 294, 479 C-278/93 Freers v Deutsche Bundespost [1996] ECR I-1165 . . . . . . . . . . . . 184, 243, 244 C-279/93 Finanzampt Koln-Altstadt v Schumacker [1995] ECR I-225 . . . . 142 C-297/93 Grau-Hupta v Stadtgemeinde Bremen [1994] ECR I-5535. . . . . . . . 160 C-312/93 Peterbroeck v Belgium [1995] ECR I-4599 . . . . . . . . . . . . . . . 91 C-316/93 Vaneetveld v SA Le Foyer [1994] ECR I-763 . . . . . . . . . . . . . . . . 62 C-317/93 Nolte v Landesversicherungsanstalt Hannover [1995] ECR I-4625 . . . . . . . . . . . . . . 52, 153, 165, 170, 241, 242, 448, 460, 466 C-342/93 Gillespie v Northern Health and Social Services Board [1996] ECR I–475 . . . . . . . . . 183, 184, 221, 230, 284, 333, 344 C-392/93 R v HM Treasury, ex parte British Telecommunications plc [1996] ECR I-1631 . . . . . . . . . . . . . . . 83 C-400/93 Specialarbejderforbundet i Danmark v Dansk Industri, acting for Royal Copenhagen A/S86 [1995] ECR I-1275 . . . . . . . 161, 245, 246 C-430 & 431/93 Van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705 . . . . . . . . . . . . . . . . . . . . 91 C-435/93 Dietz v Stichting Thuiszorg Rotterdam [1996] ECR I-5223 . . . . . . . . . . . . 198, 202, 479 C-444/93 Megner and Scheff el v Innungskrankenkasse Vorderplatz [1995] ECR I-4741 . . . . . . . 241, 242, 448, 460, 466 C-450/93 Kalanke v Freie Hansestadt Bremen [1995] ECR I-3051 . . . . . . . . . . . . . . 421, 423, 424, 434 C-457/93 Kuratorium fur Dialyse und Nierentranslantation eV v Lewark [1996] ECR I-243 . . . . . . 184, 243 C-465/93 Atlanta Fruchthandelsgesellschaft [1995] ECR I-3761 . . . . . . . . . . . . . . . 97 C-479/93 Francovich v Italy [1995] ECR I-3843 . . . . . . . . . . . . . . . . . . . . 79

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Table of Cases

C-2/94 Denkavit Internationaal BV v Kamer [1996] ECR I-2827 . . . . . . .69, 93 C-5/94 R v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd [1996] ECR I-2553 . . . . . 84 C-8/94 Laperre v Bestuurscommissie [1996] ECR I-273 . . . . . . . . . . . . . .466–8 C-13/94 P v S and Cornwall County Council [1996] ECR I-2143 . . . . . . . . . . . . . . 27, 29, 279 C-84/94 UK v Council [1996] ECR I-5755 . . . . . . . . . . . . . . . . . . . . . . . . 338 C-90/94 Haahr Petroleum v benra Havn [1997] ECR I-4085 . . . . . . . . . . . . . . . 94 C-92/94 Secretary of State for Social Security v Graham [1995] ECR I-2521 . . . . . . . . . . . . . . . . . . . 488 C-116/94 Meyers v Adjudication Officer [1995] ECR I-2131 . . . . . . . . . . . . . . 277, 287, 288, 478 C-137/94 R v Secretary of State for Health, ex parte Richardson [1995] ECR I–3407 . . . . . . . . . 455, 476, 480, 490 C-178, 179, 188, 189, & 190/94 Dillenkofer v Germany [1996] ECR I-4845 . . . . . . . . . . . . . . . 78, 84, 87 C-192/94 El Corte Inglés SA v Rivero [1996] ECR I-1281 . . . . . . .62, 65 C-194/94 CIA Security v Signalson [1996] ECR I-2201 . . . . . . . . . . . . .63, 68 C-228/94 Atkins v Wrekin District Council [1996] ECR I–3633 . . . . . . . . . . . . . . . . 456, 480, 490 C-237/94 O’Flynn v Adjudication Officer [1996] ECR I-2617 . . . . . . . . 148 C-245 & 312/94 Hoever v Land Nordrhein-Westfalen [1996] ECR I-4895 . . . . . . . . . . . . 277, 450, 482 C-280/94 Posthuma-Van Damme v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1996] ECR I–179 . . . . . . . . . . . . . 444, 449, 460, 467, 468, 476 C-283, 291, & 292/94 Denkavit International v Bundesamt für Finanzen [1996] ECR I-5063 . . . . . . . . 83 T-93/94 Becker v Court of Auditors [1996] ECR II-141 . . . . . . . . . . . . . . 101 C-1/95 Gerster v FreistaatBayern [1997] ECR I-5253 . . . . .26, 221, 238, 295

C-66/95 R v Secretary of State for Social Security, ex parte Sutton [1997] ECR I-2163 . . . . . . . . . . . . . . 477 C-70/95 Sodemare v Reggio Lombardia [1997] ECR I-3395 . . . . . . . . . . . . . . 440 C–74 & 129/95 Criminal Proceedings Against X [1996] ECR I–6609 . . . . .65, 77 C-77/95 Züchner v Handelskrankenkasse Bremen [1996] ECR I-5689 . . . . . . . . . . . . . . 287, 445, 446, 460 C-84/95 Bosphorus [1996] ECR I-3953 . . . . . . . . . . . . . . . . . . . . . . . . 100 C-100/95 Kording v Senator für Finanzen [1997] ECR I-5289 . . . . . . . . . . . . . . . . . . . . . 237, 238 C-114 & 115/95 Texaco and Oliesehkabet Danmark [1997] ECR I-4263. . . . . . . . 94 C-127/95 Norbrook Laboratories v MAFF [1998] ECR I-1531 . . . . . . . . . 79 C-136/95 CNAVTS v Thibault [1998] ECR I-2011 . . . . . . . . . . . . . . . . 337, 396 C-139/95 Balestra v INPS [1997] ECR I-549 . . . . . . . . . . . . . . . . . 490, 491 C-147/95 DEI v Evrenopoulos [1997] ECR I-2057 . . . . . . . . . 192, 200, 202, 254 C-168/95 Arcaro [1996] ECR I-4705 . . . . 62 C-180/95 Draehmpaehl v Urania Immobilenservice ohG [1997] ECR I-2195 . . . . . . . . . . .64, 90, 308, 309 C-188/95 Fantask A/S v Industriministeriet [1997] ECR I-6783 . . . . . . . . . . . . . . . . . 93, 476 C-243/95 Hill and Stapleton v Revenue Commissioners [1998] ECR I-3739 . . . . . . . . . . . . 171, 237, 238 C-261/95 Palmisani [1997] ECR I-4025 . . . . . . . . . . . . . . . . . . . . . . . . . 90 C-334/95 Kruger GmbH v Hauptzollamt Hamburg-Jonas [1997] ECR I-4517 . . . . . . . . . . . . . . . 97 C-368/95 Familiapress v Bauer Verlag [1997] ECR I-3689 . . . . . . . . . . . . . . 100 C-400/95 Handels-OG Kontofunktionaerernes Forbund i Danmark, acting on behalf of Larsson v Dansk Handel & Service, acting on behalf of Fotex Supermarked A/S [1997] ECR I-2757 . . . . . . . . . . . 334, 335 C-409/95 Marschall v Land Nordrhein-Westfalen [1997] ECR I-6363 . . . . . . . . . 422, 428, 433, 434

Table of Cases C-15/96 Schóning-Koigebetopoulou v Freie und Hansestadt Hamburg [1998] ECR I-47 . . . . . . . . . . . . . . .81, 83 C-50/96 Deutsche Telekom v Schröder [2000] ECR I-743. . . . . . . . . . . . . . . . . . . 46, 132, 154, 198, 234, 250 C-66/96 Handels-OG Kontorfunktionaerernes Forbund I Danmark v Faeloes foreningenfor Danmarks Brugsforeninger [1998] ECR I-7327 . . . . . . . . . 339, 341, 342, 396 C-85/96 Martínez Sala [1998] ECR I–2691 . . . . . . . . . . . . . . . . . . . . . .2, 180 C-126/96 Inter-Environnement Wallonie [1997] ECR I-7411 . . . . . . . 124 C-129/96 Inter-Environnement Wallonie ASBL v Region Wallonne [1997] ECR I-7411 . . . . . . .66, 67, 76, 494 C-158/96 Kohll v Union des Caisses de Maladie [1998] ECR I-1931 . . . . . 364 C-197/96 Commission v France [1997] ECR I-1489 . . . . . . . . . . . . . . 288 C-231/96 Edis v Ministero delle Finanze [1998] ECR I-4951 . . . . . . . . . . . . . . . 94 C-234 & 235/96 Deutsche Telekom AG v Vick and Conze [2000] ECR I-799 . . . . . . . . . . . . . . . . . . 46, 198 C-246/96 Magorrian and Cunningham v Eastern Health & Social Services Board [1997] ECR I-7153 . . . . . . . 91, 199 C-249/96 Grant v South-West Trains Ltd [1998] ECR I-621 . . . 29, 30, 102, 172 C-260/96 Ministero delle Finanze v Spac [1998] ECR I-4997 . . . . . . . . . . . 94 C-319/96 Brinkmann Tabakfabriken GmbH v Skatteministeriet [1998] ECR I-5255 . . . . . . . . . . . . . . . . . .83, 85 C-326/96 Levez v Jennings (Harlow Pools) Ltd [1998] ECR I-7835 . . . . . . . 91 C-347/96 Solred [1998] ECR I-937. . . . 124 C-394/96 Brown v Rentokil Ltd [1998] ECR I-4185 . . . . . . . . . . . 335, 336 C-411/96 Boyle v EOC [1998] ECR I-6401 . . . . . . . . . . . . . . 284, 333, 334, 337 C-10–22/97 Ministero delle Finanze v IN. CO. CE. ‘90 Srl [1998] ECR I-6307 . . . . . . . . . . . . . . . . . . . . 46 C-77/97 Unilever GmbH v Smithkline Beecham GmbH [1999] ECR I-431 . . . . . . . . . . . . . . . . . . . . . 63

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C-140/97 Rechberger and Greindl v Austria [1999] ECR I-3499 . . . . . . . . . 85 C-158/97 Badeck v Landesanwalt Beim Staatsgerichtshof des Landes Hessen [1999] ECR I-1875 . . . . . . . . . . . 422, 428–30, 432, 433 C-167/97 R v Secretary of State for Employment, ex parte Seymour-Smith [1999] ECR I-623 . . . . 149, 154, 170, 218, 219, 222, 241, 296, 461, 469 C-185/97 Coote v Granada Hospitality Ltd [1998] ECR I-5199 . . . . . . . . . . .65, 74, 305, 314 C-215/97 Bellone v Yokohama [1998] ECR I-2191 . . . . . . . . . . . . . . . . . . . . 64 C-224/97 Gola v Land Vorarlberg [1999] ECR I-2517 . . . . . . . . . . . . . . . 46 C-249/97 Gruber v Silhouette International Schmied GmbH & Co KG [1999] ECR I-5295 . . . . . . . . . 152, 166, 183, 216 C-270 & 271/97 Deutsche Post v Sievers and Shrage [2000] ECR I-929. . . . . . . . .46, 132, 198, 234, 250, 469 C-273/97 Sirdar v Army Board and Secretary of State for Defence [1999] ECR I-7403 . . . . . . . . . . . 381, 389 C-281/97 Krüger v Kreiskrankenhaus Ebersberg [1999] ECR I-5127 . . . 183, 242 C-292/97 Karlsson [2000] ECR I-2737 . . . . . . . . . . . . . . . . . . . . . 100, 132 C-302/97 Konle v Austria [1999] ECR I-3099 . . . . . . . . . . . . . . . . . . . . 80 C-309/97 Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse [1999] ECR I-2865 . . . . . . . . . . . . . . 228 C-333/97 Lewen v Denda [1999] ECR I-7243 . . . . . . . . . 149, 184, 343, 352 C-424/97 Haim v KVN [2000] ECR I-5123 . . . . . . . . . . . . . . . . . . . . 81 T-264/97 D v Council [1999] ECR II-1 . . . . . . . . . . . . . . . . . . . . . 102 C-78/98 Preston v Wolverhampton Healthcare NHS Trust [1999] ECR I-3201 . . . . . . . . . . . . . 91, 199, 479 C-104/98 Büchner v Sozialversicherungsanstalt der Bauern [2000] ECR I-3625 . . . . . 489, 492 C-187/98 Commission v Greece [1999] ECR I-7713 . . . . . . . . . 66, 88, 458

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Table of Cases

C-196/98 Hepple v Adjudication Officer [2000] ECR I-3701 . . . . . . . 491, 492, 494 C-207/98 Mahlburg v Land Mecklenburg-Vorpommern [2000] ECR I-549 . . . . . . . . . . . . 340, 397 C-218/98 Abdoulaye v Renault SA [1999] ECR I-5723 . . . . 142, 184, 334, 398 C-226/98 Jørgensen v Foreningen af Speciallaeger [2000] ECR I-2447 . . . . . . . . . 155, 188, 222, 467 C-236/98 Jämställdhetsombudsmannen v Örebro läns landsting [2000] ECR I-2189 . . . . . . . 221–3, 228, 246, 296 C-240–244/98 Océano Grupo Editorial SA v Quintero [2000] ECR I-4941 . . . . . . . . . . . . . . . . . .67, 75 C-281/98 Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECR I-4139 . . . . . . . . . . . . . . . 61 C-285/98 Kreil v Germany [2000] ECR I-69 . . . . . . . . . . . . . . 381, 390, 400 C-287/98 Luxembourg v Linster [2000] ECR I-6917 . . . . . . . . . . . . . . . 67 C-322/98 Bankhaus Hermann Lampe KG [2000] ECR I-7505 . . . . . . . . . . . . . . . . . 151, 288, 289 C-354/98 Commission v France [1999] ECR I-4927 . . . . . . . . . . . . . . . . . 87, 210 C-382/98 R v Secretary of State for Social Security, exparte Taylor [1999] ECR I–8955 . . . . . . . 456, 487, 490 C-407/98 Abrahamsson [2000] ECR I-5539 . . . . . . . . . . . . . . . . . .433–6 C-443/98 Unilever Italia SpA v Central Food SpA [2000] ECR I-7535 . . . . .63, 65 C-456/98 Centrosteel Srl v Adipol GmbH [2000] ECR I-6007 . . . . . . .65, 75 T-172/98 & T-175–177/98 Salamander AG [2000] ECR II-2487 . . . . . . . . .65, 71 C-33/99 Fahmi [2001] ECR I-2415 . . . 476 C-50/99 Podesta v CRICA [2000] ECR I-4039 . . . . . . . . . . . . . . . . 193, 201 C-79/99 Schnorbus v Land Hessen [2000] ECR I-10997 . . . . . . . 145, 169, 170, 173, 287, 391, 430, 433 C–122 & 125/99P D and Sweden v Council [2001] ECR I–4319 . . . 5, 30, 102 C-157/99 Peerbooms v Stichting CZ Groep Zorgverzekeringen [2001] ECR I-5473 . . . . . . . . . . . . . . . . . . . 364 C-166/99 Defreyn v Sabena SA [2000] ECR I-6155 . . . . . . . . . . . 197, 284

C-184/99 Grzekzyk v Centre Public d’Aide Sociale [2001] ECR I–6193 . . . . . . . . . . . . . . . . . .2, 250 C-366/99 Griesmar [2001] ECR I-9383 . . . . . . . . . . . . . . 145, 193, 399, 433 C-379/99 Pensionkasse für die Angestellten der Banner Ersatzkasse VvaG v Menauer [2001] ECR I-7275 . . . . . . . . . . . . . . . . . . . 202 C-381/99 Brunnhofer v Bank der österreichischen Postsparkasse AG [2001] ECR I-4961 . . . . 132, 160, 169, 222, 228, 229 C-385/99 Müller Fauré v Onderlinge Waarborgmaatschappij [2003] ECR I-4509 . . . . . . . . . . . . . . . . . . . 364 C-438/99 Melgar v Ayuntamiento de Los Barrios [2001] ECR I-6915 . . . . . . . . . . . . . . . . . 341, 348, 349 C-453/99 Courage Ltd v Crehan [2001] ECR I-6297 . . . . . . . . . . . . . . . 86 C-476/99 Lommers v Minister van Landbouw [2002] ECR I-2891 . . . . . . . . . . 296, 422, 430, 431, 434 C-62/00 Marks & Spencer plc v Commissioners of Customs & Excise [2002] ECR I-6325 . . . . . . . .60, 61 C-109/00 Tele Danmark A/S v Handels-OG Kontorfunktionaerernes Forbund I Danmark (HK) [2001] ECR I-6993 . . . . . . . . . . . . 172, 320, 341, 347–9 C-187/00 Kutz-Bauer v Freie und Hansestadt Hamburg [2003] ECR I-2741 . . . . . . . . . 240, 255, 296, 450 C-206/00 Mouflin v Recteur de l’académie de Reims [2001] ECR I-10201 . . . . . . . . . . . . . . . . . . 193 C-320/00 Lawrence v Regent Office Care Ltd [2002] ECR I-7325 . . . . . . . . . . . . . . . . 226, 252 T-45/00 Speybrouck v Parliament [1992] ECR II–33 . . . . . . . . . . . . . .4, 349 C-9/01 Ex parte Equal Opportunities Commission [1992] ECR I-4297 . . . . 482 C-117/01 KB v National Health Service Pensions Agency [2004] 1 CMLR 28 . . . . . . . . . . . . . 28, 285, 459 C-186/01 Dory v Germany [2003] ECR I-2479 . . . . . . . . . . . . 278, 381, 391 C-224/01 Köbler v Austria [2003] ECR I-10239 . . . . . . . . . . . . . . . . . . . 81

Table of Cases C-256/01 Allonby v Accrington and Rossendale College [2004] ECR I-873 . . . . . . 180, 198, 211, 226, 230 C-320/01 Busch v Klinikum Neustadt GmbH [2003] ECR I-2041 . . . . . . . . . . . . 172, 348, 351 C-342/01 Merino Gómez v Continental Industrias del Caucho SA [2004] ECR I-2605 . . . . . . . . . . . 343 T-177/01 Jégo-Quéré v Commission [2002] ECR II-2365 . . . . . . . . . . . . . 119 C-4 & 5/02 Schönheit v Stadt Frankfurt am Main [2003] ECR I-12575 . . . . . . . . . . . . . . . . 170, 194, 210 C-14/02 ATRAL [2003] ECR I-4431 . . . . . . . . . . . . . . . . . . . . . . . . 125 C-19/02 Hlozek [2004] ECR I-11491 . . . . . . . . . . . . . . . . . . . . . . . 209 C-25/02 Rinke v Ätztekammet Hamburg [2003] ECR I-8349 . . . 138, 140 C-77/02 Steinicke v Bundesanstalt für Arbeit [2003] ECR I-9027 . . . . . . . . . . . . . . 240, 255, 296, 305 C-147/02 Alabaster v Woolwich plc and Secretary of State for Social Security [2004] ECR I-3101 . . . . . . . . . . . . . . . . . 184, 334, 342 C-157/02 Reiser GmbH v Asfi nag [2004] ECR I-1477 . . . . . . . . . . . . .67, 72 C-196/02 Nikoloudi v OTE [2005] ECR I-189 . . . . . . . . . . . . . 230, 237, 238 C-220/02 Ósterreichischer Gewerkschaftsbund v Wirtschaftskammer Ósterreich [2004] ECR I-5907 . . . . . . . 153, 217, 353 C-285/02 Elsner-Lakeberg v Land Nordrhein-Westfalen [2004] ECR I-5861 . . . . . . . . . . . . . . . . . . . . . . . . 150 C-303/02 Haackert v Pensionsversicherungsanstalt der Angestellten [2004] ECR I-2195 . . . . . . . . . . . . . . . . . . . . . 483, 489 C-313/02 Wippel v Peek & Cloppenburg GmbH [2004] ECR I-9483 . . . . . . . . . . . . 279, 316, 317 C-519/03 Commission v Luxembourg [2005] ECR I-3067 . . . . . . . . . . . . . . 354 C-540/03 European Parliament v Council [2006] ECR I-5769 . . . . . . . 119 C-53/04 Marrosu v Azienda Ospedaliera [2006] ECR I-7213 . . . . . . . . . . . . . . . 72 C-116/04 Kiiski [2007] ECR I-7643 . . . 354

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C-144/04 Mangold v Helm [2005] ECR I-9981 . . . . . . . . 41, 66–8, 123, 129, 130, 208, 277, 320, 323, 376, 409, 501, 508 C-180/04 Vassallo v Azienda Ospedaliera [2006] ECR I-7251 . . . . . . . . . . . . 72, 319 C-212/04 Adeneler v ELOG [2006] ECR I-6057 . . . . . . . . . . .68, 76, 319, 321 C-227/04 Lindorfer [2007] ECR I-6767 . . . . . . . . . . . . . . . . 126, 205 C-234/04 Kapferer v Schlank & Schick GmbH [2006] ECR I-2585 . . . 90 C-295–298/04 Manfredi [2006] ECR I-6619 . . . . . . . . . . . . . . . . . . . . . . . . . 86 C-328/04 Criminal Proceedings Against Vajnai [2005] ECR I-8577 . . . . . . . .34, 35 C-423/04 Richards v Secretary of State for Work and Pensions [2006] ECR I-3585 . . . . . . 28, 458, 459, 475, 482 C-13/05 ChacÓn Navas v Eurest Colectividades SA [2006] ECR I-6467 . . . . . . . . . . . . . .16, 20, 39, 67, 374, 406, 498 C-17/05 Cadman v HSE [2006] ECR I-9583 . . . . . . . . . . . . 234, 239, 417 C-78/05 Schwarz and Gootjes v Finanzamt Bergisch Gladback [2007] ECR I-6849 . . . . . . . . . . . . . . 365 C-124/05 Federatie Nederlandse Vakbeweging [2006] ECR I-3423 . . . . . . . . . . . . . . . . . . . . . 330, 354 C-307/05 Alonso v Osakidetza [2007] ECR I-7109 . . . . . . . . . . . . . . . . . . . 319 C-411/05 Palacios de la Villa v Cortefi el Servicios SA [2007] ECR I-8531 . . . . . . . . . 16, 41, 67, 68, 99, 122, 126, 282, 293, 294, 410, 417 C-421/05 City Motors [2007] ECR I-653 . . . . . . . . . . . . . . . . . . . . . 86 C-432/05 Unibet (London) Ltd v Justitiekanslern [2007] ECR I-2271 . . . . . . . . . . . . . . 90, 98, 119 C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union [2007] ECR I-10779 . . . . . . . . . . . . . . . . . . 119 C-80/06 Carp [2007] ECR I-4473 . . . . . . . . . . . . . . . . . . . . . . 62, 128 C-116/06 Kiiski v Tampereen kaupunki [2007] ECR I-7643 . . . . . . . . . . . 329, 351

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C-231/06–C-233/06 National Pensions Office v Jonkman [2007] ECR I-5149 . . . . . . . . . . . . . . . . . . . . . 475, 478 C-267/06 Maruko v Versordungsanstalt der deutschen Bühnen [2008] ECR I-1757 . . . . . . . . . 42, 181, 193, 202, 248, 277, 285, 286, 377 C-269/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483 . . . . . . . . . . . . . . 77, 90, 320 C-275/06 Promusicae [2008] ECR I-271 . . . . . . . . . . . . . . . . . . . . 119 C-286/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483 . . . . . . . . . . . . . . . . . . . 321 C-300/06 Voss v Land Berlin [2007] ECR I-10573 . . . . . . . . . . . . . . . . . . 155 C-303/06 Coleman v Attridge Law [2008] ECR I-5603 . . . . 39, 146, 147, 167, 173, 175, 277, 499 C-409/06 Winner Wetten GmbH v Burgermeisterin der Stadt Bergheim [2010] ECR I-8015 . . . . . . . . . . . . . . . 46 C-411/06 Boyle v EOC [1998] ECR I-6401 . . . . . . . . . . . . . . . . . . . 342 C-427/06 Bartsch v Bosch [2008] ECR I-7245 . . . . . . . 42, 67, 127, 128, 173, 415, 416 C-445/06 Danske Slagterier v Germany [2009] ECR I-2119 . . . . .80, 94 C-460/06 Paquay v Societe d’Architectes Hoet [2007] ECR I-8511 . . . . . . . . . . 350 C-506/06 Mayr v FlÖckner OHG [2008] ECR I-1017 . . . . .27, 167, 331, 397 C-54/07 Centrum v Firma Feryn NV [2008] ECR I-5187 . . . . . . . . . 6, 35, 147, 162, 312, 499 C-55 & 56/07 Michaeler v Amt für sozialen Arbeitsschutz [2008] ECR I-3135 . . . . . . . . . . . . . . . . . 67, 318 C-378/07Angelidaki [2009] ECR I-3071 . . . . . . . . . . . . 319, 321, 322 C-388/07 Incorporated Trustees of the National Council on Ageing v Secretary of State for Business, Enterprise and Regulatory Reform [2009] ECR I-1569 . . . 41, 173, 282, 294, 411, 501 C-537/07 Sanchez-Camacho v INSS [2009] ECR I-6525 . . . . . . . . . . . 355, 358

C-555/07 Kücükdeveci v Swedex GmbH [2010] ECR I-365. . . . . . . . . . . . . . .41, 46, 67, 68, 122, 127, 129, 130, 277, 288, 376, 416 C-559/07 Commission v Hellenic Republic [2009] ECR I-47* . . . . . . . 192 C-63/08 Pontin v T-Comalux SA [2009] ECR I-10467 . . . . . . . . . . . . . . 91 C-88/08 Hütter v Technische Universität Graz [2009] ECR I-5325 . . . . . . 41, 239, 281, 416, 417 C-101/08 Audiolux [2009] ECR I-9823 . . . . . . . . . . . . . . . . . . . 103 C-116/08 Meerts v Proost NV [2009] ECR I-10063 . . . . . . . . . . 355, 356 C-147/08 RÖmer v Freie und Hansestadt Hamburg [2011] ECR I-000 . . . . . . . 42, 248, 277, 286, 287 C-162/08 Lagoudakis v Kéntro [2009] ECR I-95* . . . . . . . . . . . . . . . 323 C-194/08 Gassmayr v Bundesminister fuer Wissenschaft und Forschung [2010] ECR I-6281 . . . . . . . . . . . . . . 346 C-217/08 Matiano v INAIL [2009] ECR I-35* . . . . . . . . . . . . . . . . . . . . . . 2 C-229/08 Wolf v Stadt Frankfurt am Main [2010] ECR I-000. . . . . . . . . . . . 41, 281, 381, 392, 500 C-341/08 Petersen v Berufungsausschuss [2010] ECR I-047 . . . . . 41, 281, 403, 411, 412, 415, 500 C-395 & 396/08 INPS v Bruno [2010] ECR I-5119 . . . . . . . . . . . . 67, 317 C-467/08 Padawan v SGAE [2010] ECR I-10055 . . . . . . . . . . . . . . . . . . 369 C-471/08 Parviainen v Finnair Oyj [2010] ECR I- 6533 . . . . . . . . . . . 344–6 C-486/08 Zentralbetriebsrat v Land Tirol [2010] ECR I-3527 . . . . . . . 280, 317, 320 C-499/08 Andersen [2010] ECR I-9343 . . . . . . . . . . . . . . . . . 294, 413, 415 C-519/08 Koukou v Elliniko Dimosio [2009] ECR I-65* . . . . . . . . . . . . . . . 323 C-577/08 Rijsdienst voor Pensioenen v Brouwer [2010] ECR I–7489 . . . . . . . 475 C-34/09 Zambrano v ONEM [2011] WLR (D) 81 . . . . . . . . . . . . . . . . . . . . . 2 C-45/09 Rosenbladt v Oellerking [2010] ECR I-9391 . . . . . . .41, 294, 302, 411–14, 417, 501

Table of Cases C-93/09 Volker und Markus Schecke and Eifert [2010] ECR I-11063 . . . . . . . . 206 C-98/09 Sorge v Poste Italiane SpA [2010] ECR I-5837 . . . . . . . . . . . . 77, 323 C-104/09 Roca Álvarez v Sesa Start España ETT SA [2010] ECR I-8661 . . . . . . . . . . 164, 356, 357, 399, 431 C-109/09 Deutsche Lufthansa AG v Kumpan [2011] ECR I-000. . . . . . . . . . . . . . . . . . . . . . 321, 322 C-232/09 Danosa v LKB Lizings SIA [2010] ECR I-11405 . . . . . . . . . . . . . 330 C-236/09 Association Belge des Consommateurs Test-Achats ASBL [2011] ECR I-000. . . . . . . . . . . . . 14, 41, 100, 120, 129, 206, 208, 209, 213, 215, 367, 370, 371, 418, 419, 492, 508 C-246/09 Bulicke v Deutsche Büro Service GmbH [2010] ECR I-7003 . . . . . . . . . . . . . . . . . . . . . . 91, 312 C-250 & 268/09 Georgiev v Tehnicheski universitet [2010] ECR I-11869 . . . . . . . . . . . . 41, 282, 410 C-356/09 Pensionsversicherungsanstalt v Kleist [2010] ECR I-000. . . . . . . . . . . . . . . 145, 172, 209, 290 C-391/09 Runevi-Vardyn v Vilniaus [2011] ECR I-000 . . . . . . . . . . . . . . . 281 C-444/09 Gavieiro v Conselleria de EducaciÓn [2010] ECR I-14031 . . . . . . . . . . . . . . .20, 77, 319, 320

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C-447/09 Prigge et al v Deutsche Lufthansa AG [2011] ECR I-000. . . . . . . . . . . . . . . . . . . 41, 127, 500 C-34/10 Oliver Bruestle v Greenpeace eV Judgment of 18 October 2011 . . . . 369 C-104/10 Kelly v National University of Ireland [2011] ECR I-000 . . . . . . . 162 C-123/10 Brachner v Pensionsversicherungsanstalt [2011] ECR I-000 . . . . . . . . . 155, 457, 458, 460, 462, 464, 469, 470 C-149/10 Chatzi v Ipourgos Ikonomikon [2010] ECR I-8489 . . . . 353 C-159 & 160/10 Fuchs and KÖhler v Land Hessen [2011] ECR I-000. . . . . . . . . . . . . . . 41, 281, 282, 294, 403, 410–14, 500 C-177/10 Santana v Consejería de Justicia [2011] ECR I-000 . . . . . . 312, 320 C-282/10 Dominguez v CICOA [2012] ECR I-000 . . . . . .62, 103, 121, 129 C-310/10 Agafitei, not yet reported in ECR I-000 . . . . . . . . . . . . . . . . . . . 34 C-393/10 O’Brien v Ministry of Justice [2012] ECR I-000 . . . . . 316, 317 C-71/11 & C-99/11 Federal Republic of Germany v Y, not yet reported . . . . . . . . . . . . . . . . . . . . . . . 37 C-132/11 Tyrolean Airways v Betriebsrat Bord, not yet reported in ECR I . . . . . . . . . . . . . . . . . . . . . . 173 C-399/11 Melloni OJ [2011] C 282/5 . . . . . . . . . . . . . . . . . . . . . . 120

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Table of Legislation

EUROPEAN LEGISLATION Directives Dir 64/221OJ Sp Ed [1963–4] Free Movement Directive . . . . . . . . . . 117 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Dir 75/117/EEC [1975] OJ L45/19 Equal Pay Directive . . . . . . .166, 210, 255, 260, 495 Art 1 . . . . . . . . . . . . . . . . . . 232, 257, 261 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . 258 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . 159 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . 269 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . 270 Dir 76/207 [1976] OJ L39/40 Equal Treatment Directive . . . . . . 27, 74, 273, 287, 495 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . 279 Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . 420 Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . 383 Art 5 . . . . . . . . . . . . . . . . . . . . . . 291, 292 Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . 290 Art 6 . . . . . . . . . . . . . . . . . . . . . . 310, 311 Dir 79/7 [1979] OJ L6/24 Social Security Directive . . . . 134, 215, 438, 495, 498 Recital 2 . . . . . . . . . . . . . . . . . . . . . . 439 Recital 3 . . . . . . . . . . . . . . . . . . . . . . 440 Recital 13 . . . . . . . . . . . . . . . . . . . . . 439 Art 1 . . . . . . . . . . . . . . . . . . 439, 451, 471 Art 2 . . . . . . . . . . . . . . . . . . . . . . .443–50 Art 3 . . . . . . . . . . . . . . . . 445, 447, 452–7 Art 3(1) . . . . . . . . . 448, 450, 453, 456, 457 Art 3(1)(a) . . . . . . . . . . . 447, 451, 453, 454 Art 3(1)(b) . . . . . . . . . . . . . . . . . . . . . 454 Art 3(3) . . . . . . . . . . . . . 209, 439, 443, 481 Art 4 . . . . . . . . . . . 458, 459, 465, 470, 473 Art 4(1) . . . . . . . . . . . 458–61, 470–2, 474, 475, 484, 493 Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . 482 Art 5 . . . . . . . . . . . . . . . . . . . . . . 471, 476 Art 6 . . . . . . . . . . . . . . . . . . . . . . 476, 477 Art 7 . . . . . . . . . . . 291, 292, 471, 482, 485 Art 7(1) . . . . . . . . . . . . . 482, 484, 493, 494 Art 7(1)(a) . . . . . . . . . . . . . . . . . . .484–92

Art 7(1)(d) . . . . . . . . . . . . . . . . . . . . . 493 Art 7(2) . . . . . . . . . . . . . . . . . . . . . . . 494 Art 8(1) . . . . . . . . . . . . . . . . . . . . 471, 478 Art 8(2) . . . . . . . . . . . . . . . . . . . . 480, 494 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . 481 Dir 83/189, Arts 8, 9 . . . . . . . . . . . . . . . . 65 Dir 86/378/EEC, OJ [1986] L225/40 Occupational Social Security Directive . . . . . . . . . . . 134, 209, 496 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . 213 Art 8(2) . . . . . . . . . . . . . . . . . . . . . . . 214 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . 215 Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . 213 Dir 86/613 Equal Treatment [1986] OJ L359/56 . . . . . . . . . . . . . . . . 496 Dir 89/391 [1989] OJ L183/1 Health and Safety at Work . . . . . . . . . . . 338 Dir 92/85/EC [1992] OJ L348/1 Pregnancy Directive . . . . . . . . .16, 27 Art 1 . . . . . . . . . . . . . . . . . . . . . . 338, 355 Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . 339 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . 330 Art 2(1) . . . . . . . . . . . . . . . . . . . . 328, 336 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . 339 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . 339 Art 5(1) . . . . . . . . . . . . . . . . 336, 344, 345 Art 5(2) . . . . . . . . . . . . . . . . . . . . 344, 345 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . 339 Art 8 . . . . . . . . . . . . . . . . . . . . . . 340, 355 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . 349 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . 339 Art 10 . . . . . . . . . . . . . . . . . . . . . 339, 349 Art 10(1) . . . . . . . . . . . . . . . . . . . . . . 350 Art 11(1) . . . . . . . . . . . . . . . . . . . . . . 346 Art 11(2)(a) . . . . . . . . . . . . . . . . . . . . 342 Art 11(3) . . . . . . . . . . . . . . . . . . . . . . 345 Dir 93/104 [1993] OJ L307/18 Working Time Directive . . . . . . . . . . . . . 343 Dir 94/45/EC [1994] OJ L254/64 Directive on Works Councils . . . . . 1 Dir 95/46/EC [1995] OJ L281/31 Data Protection Directive . . . . . . 155 Dir 96/97/EC [1997] OJ L46/20 Occupational Social Security Directive . . . . . . . . . . . . . . . 210, 496

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Dir 97/80/EC [1998] OJ L14/6 Burden of Proof Directive. . . . . . . . . . . . 162 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . 151 Dir 97/81/EC [1998] OJ L14/9 Part-Time Workers . . . . . . . . . .19, 30 Dir 99/70/EC [1999] OJ L175/3 Fixed-term Employees . . . . . . 19, 30, 123, 318–19, 323 Dir 2000/43/EC [2000] OJ L180/22 Race Directive . . . . . . 20, 36, 89, 118, 167, 222, 273, 361, 380, 496, 507 Recital 9 . . . . . . . . . . . . . . . . . . . . . . 254 Recital 12 . . . . . . . . . . . . . . . . . . . . . 361 Recital 13 . . . . . . . . . . . . . . . . . . . . . 401 Recital 14 . . . . . . . . . . . . . . . . . . 156, 274 Recital 15 . . . . . . . . . . . . . . . . . . . . . 151 Recital 17 . . . . . . . . . . . . . . . . . . . . . 436 Recital 18 . . . . . . . . . . . . . . . . . . . . . 382 Recital 21 . . . . . . . . . . . . . . . . . . . . . 162 Art 1 . . . . . . . . . . . . . . . . . . . . . . 142, 276 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . 279 Art 2(2)(a) . . . . . . . . . . . . . . . . . . . . . 145 Art 2(2)(b) . . . . . . . . . . . . . . . . . . 151, 171 Art 2(3) . . . . . . . . . . . . . . . . . . . . 175, 300 Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . 175 Art 3 . . . . . . . . . . . . . . . . . . . . . . 281, 363 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . 362 Art 3(2) . . . . . . . . . . . . . . . . . . . . 375, 400 Art 4 . . . . . . . . . . . . . . . . . . . . . . 131, 381 Art 4(1)(c) . . . . . . . . . . . . . . . . . . . . . 181 Art 5 . . . . . . . . . . . . . . . . . . . . . . 142, 436 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . 312 Art 7(3) . . . . . . . . . . . . . . . . . . . . . . . 312 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . 162 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . 315 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . 315 Art 13 . . . . . . . . . . . . . . . . . . 30, 313, 315 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . 312 Art 17(2) . . . . . . . . . . . . . . . . . . . . . . 179 Dir 2000/78/EC [2000] OJ L303/16 Framework Directive . . . . . 20, 30, 35, 36, 89, 123, 167, 222, 273, 361, 380, 439, 496, 497 Recital 3 . . . . . . . . . . . . . . . . . . . 156, 274 Recital 6 . . . . . . . . . . . . . . . . . . . . . . . 32 Recital 7 . . . . . . . . . . . . . . . . . . . . . . . 32 Recital 10 . . . . . . . . . . . . . . . . . . . . . . 32 Recital 11 . . . . . . . . . . . . . . . . . . . 32, 254 Recital 12 . . . . . . . . . . . . . . . . . . . . . 401

Recital 13 . . . . . . . . . . . . . . . . . . . . . 278 Recital 15 . . . . . . . . . . . . . . . . . . . . . 151 Recital 18 . . . . . . . . . . . . . . . . . . . . . 393 Recital 22 . . . . . . . . . . . . . . . . . . . . . 285 Recital 23 . . . . . . . . . . . . . . . . . . 382, 393 Recital 24 . . . . . . . . . . . . . . . . . . . . . 395 Recital 27 . . . . . . . . . . . . . . . . . . . . . 437 Recital 31 . . . . . . . . . . . . . . . . . . . . . 162 Recital 34 . . . . . . . . . . . . . . . . . . . . . 419 Art 1 . . . . . . . . . . . . . . . . . . 142, 146, 276 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . 293 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . 279 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . 413 Art 2(2)(a) . . . . . . . . . . . . . . . . . . . . . 145 Art 2(2)(b) . . . . . . . . . . . . . . . . . . 151, 171 Art 2(2)(b)(ii) . . . . . . . . . . . . . . . . . . . 407 Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . 300 Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . 175 Art 2(5) . . . . . . . . . . . . . . . . . . . . 402–404 Art 3 . . . . . . . . . . . . . . . . . . . . . . 281, 293 Art 3(1)(c) . . . . . . . . . . . . . . . . . . . . . 181 Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . 402 Art 3(3) . . . . . . . . . . . . . . . . . . . . 278, 404 Art 3(4) . . . . . . . . . . . . . . . . . . . . . . . 405 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . 381 Art 5 . . . . . . . . . . . . . . . . . . 405, 407, 408 Art 6 . . . . . . . . . . . . . . . . . . . . . . 408, 416 Art 6(1) . . . . . . . . . 125, 131, 174, 294, 375, 410–16, 500, 501 Art 6(2) . . . . . . . . . . . . . . . . . . . . 209, 418 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . 142 Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . 436 Art 7(2) . . . . . . . . . . . . . . . . . . . . . . . 436 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . 312 Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . 314 Art 9(3) . . . . . . . . . . . . . . . . . . . . . . . 312 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . 162 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . 314 Arts 12–14. . . . . . . . . . . . . . . . . . . . . 315 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . 312 Art 18 . . . . . . . . . . . . . . . . . 125, 410, 478 Art 19(2) . . . . . . . . . . . . . . . . . . . . . . 179 Dir 2002/73/EC [2002] OJ L269/15 Equal Treatment Directive . . . . . . . . . . . . . . . 152, 231 Recital 1 . . . . . . . . . . . . . . . . . . . . . . 274 Recital 4 . . . . . . . . . . . . . . . . . . . 274, 367 Recital 6 . . . . . . . . . . . . . . . . . . . . . . 274 Recital 11 . . . . . . . . . . . . . . . . . . . . . 383 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . 277 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . 357

Table of Legislation Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . 357 Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . 357 Art 2(7) . . . . . . . . . . . . . . . . . . . . . . . 342 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . 392 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . 294 Art 6(1) . . . . . . . . . . . . . . . . . . . . . . . 392 Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . 386 Art 14(1) . . . . . . . . . . . . . . . . . . . . . . 280 Dir 2004/113/EC [2003] OJ L373/37 Goods and Services Directive . . . . . . 20, 89, 120, 167, 328, 361, 366, 380, 496, 504 Recital 4 . . . . . . . . . . . . . . . . . . . . . . 206 Recital 11 . . . . . . . . . . . . . . . . . . . . . 377 Recital 18 . . . . . . . . . . . . . . . . . . . . . 205 Recital 19 . . . . . . . . . . . . . . . . . . . . . 205 Recital 22 . . . . . . . . . . . . . . . . . . . . . 162 Art 1 . . . . . . . . . . . . . . . . . . . . . . 142, 367 Art 2 . . . . . . . . . . . . . . . . . . . . . . 175, 368 Art 2(1)(a) . . . . . . . . . . . . . . . . . . . . . 145 Art 2(5) . . . . . . . . . . . . . . . . . . . . . . . 376 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . 377 Art 4 . . . . . . . . . . . . . . . . . . . . . . 375, 400 Art 4(3) . . . . . . . . . . . . . . . . . . . . . . . 175 Art 4(4) . . . . . . . . . . . . . . . . . . . . . . . 175 Art 4(5) . . . . . . . . . . . . . . . . 370, 394, 419 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . 419 Art 5(1) . . . . . . . . . . . . . 205, 369, 371, 372 Art 5(2) . . . . . .205–208, 369, 371, 372, 492 Art 5(3) . . . . . . . . . . . . . . . . . . . . . . . 369 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . 367 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . 367 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . 305 Art 8(2) . . . . . . . . . . . . . . . . . . . . . . . 311 Art 8(3) . . . . . . . . . . . . . . . . . . . . . . . 314 Art 8(4) . . . . . . . . . . . . . . . . . . . . . . . 312 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . 162 Dir 2006/54/EC [2006] OJ L204/23 Recast Directive . . . . 16, 20, 27, 89, 138, 273, 284, 328, 368, 380, 496, 498, 504 Recital 6 . . . . . . . . . . . . . . . . . . . . . . 301 Recital 7 . . . . . . . . . . . . . . . . . . . . . . 301 Recital 8 . . . . . . . . . . . . . . . . . . . . . . 255 Recital 9 . . . . . . . . . . . . . . . . . . . . . . 224 Recital 10 . . . . . . . . . . . . . . . . . . . . . 226 Recital 11 . . . . . . . . . . . . . . . . . . . . . 272 Recital 12 . . . . . . . . . . . . . . . . . . . . . 210 Recital 19 . . . . . . . . . . . . . . . . . . . . . 382 Recital 22 . . . . . . . . . . . . . . . . . . . . . 434

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Recital 29 . . . . . . . . . . . . . . . . . . . . . 305 Recital 32 . . . . . . . . . . . . . . . . . . . . . 305 Recital 33 . . . . . . . . . . . . . . . . . . . . . 311 Recital 38 . . . . . . . . . . . . . . . . . . . . . 272 Art 1 . . . . . . . . . . . . . . . 142, 210, 276, 280 Art 2(1)(a) . . . . . . . . . . . . . . . . . . . . . 145 Art 2(1)(b) . . . . . . . . . . . . . . . . . . 152, 171 Art 2(1)(c) . . . . . . . . . . . . . . . . . . 175, 300 Art 2(1)(f) . . . . . . . . . . . . . . . . . . . . . 210 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . 175 Art 2(2)(a) . . . . . . . . . . . . . . . . . . . . . 301 Art 2(2)(c) . . . . . . . . . . . . . . . . . . . . . 341 Art 3 . . . . . . . . . . . . . . . . . . 142, 420, 436 Art 4 . . . . . . . . . . . . . . . . . . . . . . 211, 221 Art 4(1) . . . . . . . . . . . . . . . . 258, 262, 263 Art 4(2) . . . . . . . . . . . . . . . . 260, 264, 267 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . 212 Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . 211 Art 8(2) . . . . . . . . . . . . . . . . . . . . . . . 211 Art 9(1) . . . . . . . . . . . . . . . . . . . . . . . 211 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . 214 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . 215 Art 12(1) . . . . . . . . . . . . . . . . . . . 196, 215 Art 12(2) . . . . . . . . . . . . . . . . . . . . . . 215 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . 216 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . 341 Art 14(1)(a) . . . . . . . . . . . . . . . . . . . . 382 Art 14(1)(b) . . . . . . . . . . . . . . . . . . . . 382 Art 14(1)(c) . . . . . . . . . . . . . . . . . 298, 304 Art 14(2) . . . . . . . . . . . . . . . 382, 390, 500 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . 342 Art 17(1) . . . . . . . . . . . . . . . . . . . 305, 310 Art 17(2) . . . . . . . . . . . . . . . . . . . 313, 314 Art 18 . . . . . . . . . . . . . . . . . . . . . 267, 311 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . 162 Art 20 . . . . . . . . . . . . . . . . . . . . . 313, 327 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . 315 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . 315 Art 23 . . . . . . . . . . . . . . . . . . . . . 268, 302 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . 314 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . 312 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . 301 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . 312 Art 28(1) . . . . . . . . . . . .215, 396–400, 421 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . 315 Art 31(3) . . . . . . . . . . . . . . . . . . . . . . 386 Dir 2008/104/EC [2008] OJ L327/9 Directive on Temporary Agency Work . . . 181, 323 Art 1 . . . . . . . . . . . . . . . . . . . . . . . 30, 324 Art 2 . . . . . . . . . . . . . . . . . . . . . . . 30, 324

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Art 3(1)(f) . . . . . . . . . . . . . . . . . . . . . 324 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . 325 Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . 324 Art 5(5) . . . . . . . . . . . . . . . . . . . . . . . 324 Art 6(4) . . . . . . . . . . . . . . . . . . . . . . . 324 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . 325 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . 325 Dir 2010/18 [2010] OJ L68/13 Parental Leave Directive . . . . 328, 351 Dir 2010/41/EU [2010] OJ L180/1 Equal Treatment for Self-employed . . . . .16, 178, 368, 496 Recital 7 . . . . . . . . . . . . . . . . . . . . . . 325 Recital 10 . . . . . . . . . . . . . . . . . . . . . 325

Recital 12 . . . . . . . . . . . . . . . . . . . . . 326 Recital 15 . . . . . . . . . . . . . . . . . . . . . 433 Art 1 . . . . . . . . . . . . . . . . . . . . . . 325, 326 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . 326 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . 326 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . 326 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . 434 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . 326 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . 325 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . 325 Arts 9–13 . . . . . . . . . . . . . . . . . . . . . 327 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . 326 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . 327 Art 16(1) . . . . . . . . . . . . . . . . . . . . . . 325

Table of Treaties and Conventions Amsterdam Treaty 1997 . . . . . . . . . . . . . . . 9 Charter of Fundamental Rights 2000 . . . . . . . . . . . . . . 21, 112 Preamble . . . . . . . . . . . . . . . . . . . . . . 117 Recitals 2–4. . . . . . . . . . . . . . . . . . . . 117 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . 118 Art 15(1) . . . . . . . . . . . . . . . . . . . 281, 410 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . 118 Art 21 . . . . . . . . . . . . 13, 33, 118, 206, 207, 367, 417 Art 21(1) . . . . . . . . . . . . .12, 122, 126, 127 Art 22 . . . . . . . . . . . . . . . . . . . . . . 13, 118 Art 23 . . . . . . . . . . 118, 206, 207, 367, 434 Art 24 . . . . . . . . . . . . . . . . . . . . . 119, 353 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . 119 Art 26 . . . . . . . . . . . . . . . . . . . . . 119, 437 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 31 . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 31(2) . . . . . . . . . . . . . . . . . . . . . . 121 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . 119 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . 120 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . 120 Art 51 . . . . . . . . . . . . . . . . . . . . . . . . 120 Art 51(1) . . . . . . . . . . . . . . . . . . . . . . 121 Art 52 . . . . . . . . . . . . . . . . . . . . . . . . 120 Art 52(2) . . . . . . . . . . . . . . . . . . . . . . 121 Art 52(3) . . . . . . . . . . . . . . . . . . . . . . 120 Art 52(7) . . . . . . . . . . . . . . . . . . . . . . 120 Art 53 . . . . . . . . . . . . . . . . . . . . . . . . 120 Charter on the Fundamental Social Rights of Workers 1989 . . . . . . . . . . . . . . 103, 116, 350 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . 116 Arts 20–23. . . . . . . . . . . . . . . . . . . . . 117 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . 117 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . 117 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . 117 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . 116 Convention on the Rights of Persons with Disabilities . . . . . . . . 22, 40, 497 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . 41 EC Treaty Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . . 33 Art 13 (now 19 TFEU). . . . . . . . . . 20, 496 Art 46 . . . . . . . . . . . . . . . . . . . . . . . . 100

Art 55 . . . . . . . . . . . . . . . . . . . . . . . . 100 Art 141 . . . . . . . . . . . . . . . . . . . . . . . . 30 Art 249 (now Art 288 TFEU) . . . . . . . . 20 Art 308 . . . . . . . . . . . . . . . . . . . . . . . . 16 EEC Treaty 1957 . . . . . . . . . . . . . . . . . .8, 44 Art 119 (now 157 TFEU) . . . . . . . . 25, 495 Art 169 (now 258 TFEU) . . . . . . . . . . . 66 Art 177 . . . . . . . . . . . . . . . . . . . . . .45, 51 European Atomic Energy Community (Euratom) 1951 . . . . . . . . . . . . . . . 8 European Coal and Steel Community (ECSC) Treaty 1951 . . . . . . . . . . . . 8 European Convention on Human Rights and Fundamental Freedoms 1950. . . . . . . . . . . . . . . 11 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . 310 Art 8 . . . . . . . . . . . . . . . . . . . . . . . 29, 105 Art 9 . . . . . . . . . . . . . . . . . . . 36, 105, 118 Art 10 . . . . . . . . . . . . . . . . . . . . . . 37, 101 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . 107 Art 12 . . . . . . . . . . . . . . .29, 105, 111, 459 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . 310 Art 14 . . . . . . . . . . . . . . . . . 104–110, 115 Protocol 12 . . . . . . . . . . 104, 107, 110, 111 Protocol 12, Art 1 . . . . . . . . . . . . . . . 112 European Social Charter 1961 . . . . . . . . 103 Recital 5 . . . . . . . . . . . . . . . . . . . . . . 103 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . 113 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . 113 Art 20 . . . . . . . . . . . . . . . . . . . . . 113, 114 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . 114 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 26 . . . . . . . . . . . . . . . . . . . . . . 13, 115 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . 115 International Covenant on Civil and Political Rights 1966 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . 111 Single European Act of 1986 . . . . . . . . .9, 16 Treaty of the European Union (Maastricht) 1992, Art N(2) . . . . . . . . . . . . . . . . 9 Treaty of the European Union (Lisbon) 2007 (TEU) Art 2 . . . . . . . . . . . . . . . . . . . . . . . .11, 12 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Art 4(3) (ex 5(2) EC) . . . . . . 65, 66, 73, 89

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Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . 363 Art 5(2) . . . . . . . . . . . . . . . . . . . . . . . 363 Art 5(4) . . . . . . . . . . . . . . . . . . . . . 21, 131 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Art 6(1) . . . . . . . . . . 21, 119, 120, 124, 496 Art 6(2) . . . . . . . . . . . . . . . . . . . . 104, 107 Art 6(3) . . . . . . . . . . . . . . . . . . 21, 22, 103 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . 99 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . 104 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . 248 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . 10 Treaty of the Functioning of the European Union (TFEU) Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . 10 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . 10 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . 14 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . 14 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 18 . . . . . . . . . . . 22, 130, 142, 365, 401 Art 19 (ex 13 EC) . . . .16, 30, 40, 122, 130, 177, 366, 371, 373, 496 Art 19(1) . . . . . . . . . 15, 54, 126, 142, 372 Art 19(3)(b) . . . . . . . . . . . . . . . . . . . . . 43 Art 30 (ex 12 EEC) . . . . . . . . . . . . .44, 53 Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . 84 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . 84 Art 40 (ex 34(2) EC) . . . . . . . . . . . . . 132 Art 45 . . . . . . . . . . . . . . . . . . . . . . 51, 448 Art 45(2) . . . . . . . . . . . . . . . . . . . . . . 142 Arts 45–63. . . . . . . . . . . . . . . . . . . . . . 22 Art 48 . . . . . . . . . . . . . . . . . . . . . 440, 441 Art 52(2) . . . . . . . . . . . . . . . . . . . . . . . 58 Arts 56–62. . . . . . . . . . . . . . . . . . 364, 365 Art 101 . . . . . . . . . . . . . . . . . . . . . . . . 86 Art 101(1) . . . . . . . . . . . . . . . . . . . . . . 86 Art 114 . . . . . . . . . . . . . . . . . . . . . . . 443 Arts 114–117 . . . . . . . . . . . . . . . . . . . . 89 Arts 114–168 . . . . . . . . . . . . . . . . . . . 364 Art 115 . . . . . . . . . . . . . . . . . . 16, 57, 274 Art 151 . . . . . . . . . . . . . . . . . . . . . . . 181 Art 153 . . . . . . . . . . . . . . . . 363, 440, 441 Art 153(1)(c) . . . . . . . . . . . . . . . . . . . 441 Art 153(1)(k) . . . . . . . . . . . . . . . . . . . 441 Art 153(2) . . . . . . . . . . . . . . . . . . . . . 441 Art 153(2)(b) . . . . . . . . . . . . . . . . . . . 441 Art 153(4) . . . . . . . . . . . . . . . . . . . . . 441

Art 157 (ex 119 EEC, 141 EC) . . . . . . . . . . 14, 23, 26, 49, 61, 91, 130, 133, 134, 138–40, 142–4, 163, 165, 169, 172, 180–203, 208–10, 213–34, 243, 244, 247–58, 263–9, 273, 275, 280, 283, 284, 293, 296, 316, 317, 341, 344, 368, 439, 443, 445, 459, 472, 481, 498 Art 157(1) (ex 119 EC) . . . . . . 14, 54, 221 Art 157(2) (ex 119 EC) . . . . . 14, 142, 143, 182, 221 Art 157(3) . . . . . . . . . . . . . . . . . . . .16, 57 Art 157(4) . . . . . . . . . . . . 431, 434–6, 497 Art 158 . . . . . . . . . . . . . . . . . . . . . . . . 23 Art 165 . . . . . . . . . . . . . . . . . . . . 364, 365 Art 166 . . . . . . . . . . . . . . . . . . . . 364, 365 Art 168(5) . . . . . . . . . . . . . . . . . . . . . 364 Art 256(3) . . . . . . . . . . . . . . . . . . . . . . 43 Art 258 (ex 169 EEC). . . . . . . . . . . . . 52, 66, 249, 259, 269, 271, 302, 480 Art 259 . . . . . . . . . . . . . . . . . . . . . . . . 52 Art 260 . . . . . . . . . . . . . . . . . . . . . . . . 55 Art 267 . . . . . . . . . . . . . . . . . . . . . . . . 43 Art 288 (ex 249 EC) . . . . . . . . . 14, 19, 20, 53–9, 306 Art 288(3) . . . . . . . . . . . . . . . . . . . . . . 74 Art 289(3) . . . . . . . . . . . . . . . . . . . . . . 12 Art 296 . . . . . . . . . . . . . . . . . . . . . .20, 21 Art 297(1) . . . . . . . . . . . . . . . . . . . . . . 21 Art 340 . . . . . . . . . . . . . . . . . . . . . . . 101 Art 347 . . . . . . . . . . . . . . . . . . . . . . . 381 Art 351 . . . . . . . . . . . . . . . . . . . . . . . 268 Art 352 . . . . . . . . . . . 16, 89, 274, 275, 443 Protocol 1 . . . . . . . . . . . . . . . . . . . . . 275 Protocol 2 . . . . . . . . . . . . . . . . . . . . . 131 Treaty of Lisbon 2007 . . . . . . . . . . . . . . . 44 Treaty of Nice . . . . . . . . . . . . . . . . . . . . . 43 UK LEGISLATION Statutes Age Discrimination in Employment Act 1977 . . . . . . . . . . . . . . . . . . . 41 Anti-Discrimination (Pay) Act 1974 . . . . 232 Charities Act 2006, s 2(3)(a) . . . . . . . . . . . 38 Employment Act 1989, s 16 . . . . . . . . . . 217 Employment Equality Act 1998 . . . . . . . . 15 Equal Pay Act 1970 . . . . . . . . . . . 50, 91, 221

Table of Treaties and Conventions s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 s 1(2)(c) . . . . . . . . . . . . . . . . . . . . . . . 253 s 2(5) . . . . . . . . . . . . . . . . . . . . . . . . . 248 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Equality Act 2010 . . . . . . . . . . . . . . . . . . 38 s 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 s 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 39 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . 146 s 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 s 66(1) . . . . . . . . . . . . . . . . . . . . . . . . 221 s 79(3) . . . . . . . . . . . . . . . . . . . . . . . . 225 s 79(4) . . . . . . . . . . . . . . . . . . . . . . . . 225 s 124 . . . . . . . . . . . . . . . . . . . . . . . . . 309 s 132 . . . . . . . . . . . . . . . . . . . . . . . . . . 92 s 145 . . . . . . . . . . . . . . . . . . . . . . . . . 304 s 146 . . . . . . . . . . . . . . . . . . . . . . . . . 304 s 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 European Communities Act 1972 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 s 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 49 s 2(4) . . . . . . . . . . . . . . . . . . . . . 48, 49, 51 Gas Act 1972 . . . . . . . . . . . . . . . . . . . . . . 71 Gender Recognition Act 2004 . . . . . . . . . 28 Jobseekers Act 1995 . . . . . . . . . . . . . . . . 454 Limitation Act 1980, s 5 . . . . . . . . . . . . . . 92 Merchant Shipping Act 1988 . . . . . 51, 94, 96 Northern Ireland Act 1998, s 75 . . . . . . . . . 7 Pensions Act 2011 . . . . . . . . . . . . . . . . . 483 Police (Northern Ireland) Act 2000. . . .7, 419 Race Relations Act 1976, s 8 . . . . . . . . . . 51 Race Relations (Remedies) Act 1994 . . . 307 Sex Discrimination Act 1975 . . . . 27, 74, 268 s 6 . . . . . . . . . . . . . . . . . . . . . . . . 303, 304 s 6(3) . . . . . . . . . . . . . . . . . . . . . . . . . 383 s 6(4) . . . . . . . . . . . . . . . . . . . 49, 289, 290 s 13(1) . . . . . . . . . . . . . . . . . . . . . . . . 303 s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . 385 s 65(2) . . . . . . . . . . . . . . . . . . . . . . . . 307 s 66(3) . . . . . . . . . . . . . . . . . . . . . . . . 307 s 77(1) . . . . . . . . . . . . . . . . . . . . . . . . 303 s 85(4) . . . . . . . . . . . . . . . . . . . . . . . . 389

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Social Security Pensions Act 1975 s 14(2) . . . . . . . . . . . . . . . . . . . . . . . . 486 s 22 . . . . . . . . . . . . . . . . . . . . . . . . . . 486 s 36(4)(d) . . . . . . . . . . . . . . . . . . . . . . 486 Supreme Court Act 1981 . . . . . . . . . . . . . 95 s 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Trade Union Reform and Employment Rights Act 1993, s 32 . . . . . . . .268–9 Statutory Instruments Equal Pay Act 1970 (Amendment) Regulations 2003 (SI 2003/1656). . . . . . . . . . . . . . . 92 Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162) (NI 21), reg 4 . . . . 37 Merchant Shipping (Registration of Shipping Vessels) Regulations 1988 (SI 1988/1926) . . . . . . . . . . 94 Occupational Pension Regulations 1976 (SI 1976/142), reg 12 . . . . . . . . . . . . . . . . . 199, 200 Occupational Pension Schemes (Access to Membership) Regulations (Northern Ireland) 1976 (SI 1976/238) . . . . . . . . . . 199 Sex Discrimination Act 1975 (Amendment of section 20) Order 1983 (SI 1983/1202), art 2 . . . . . . . . . . . . . . . . . . . . . 386 Sex Discrimination and Equal Pay (Miscellaneous Amendments) Regulations 1996 (SI 1996/438) . . . . . . . . . . . . . . 307 Sex Discrimination and Equal Pay (Remedies) Regulations 1993 (SI 1993/2798) . . . . . . . . . 307 Sex Discrimination (Gender Reassignment) Regulations 1999 (SI 1999/1102) . . . . . . . . . . 27 Sex Discrimination (Northern Ireland) Order 1976 (SI 1976/1042), Art 53 . . . . . . . . . . . . . 310, 311, 387

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List of Abbreviations CFI CJEU CLJ CMLR CMLRev CYELS ECHR ECJ ECR ECSC EHRLR EHRR ELJ

Court of First Instance Court of Justice of the European Union Cambridge Law Journal Common Market Law Reports Common Market Law Review Cambridge Yearbook of European Legal Studies European Convention on Human Rights European Court of Justice European Court Reports European Coal and Steel Community European Human Rights Law Review European Human Rights Reports European Law Journal

ELRev EOC EOR EPL EU Euratom GC ICR IGC ILJ IRLR JCMS JSWFL

European Law Review Equal Opportunities Commission Equal Opportunities Review European Public Law European Union European Atomic Energy Community General Court Industrial Cases Reports Intergovernmental Conference Industrial Law Journal Industrial Relations Law Reports Journal of Common Market Studies Journal of Social Welfare and Family Law

LIEI LQR MLR

Legal Issues of European Integration Law Quarterly Review Modern Law Review

NLJ

New Law Journal

l

List of Abbreviations

nyr OJ

not yet reported Official Journal of the European Communities

OJLS PL TEC TEU TFEU YEL

Oxford Journal of Legal Studies Public Law Treaty establishing the European Community Treaty on European Union Treaty on the Functioning of the European Union Yearbook of European Law

1 Introduction

The importance of anti-discrimination law Earlier editions of this book were entirely concerned with the law on sex equality, an area in which, from the beginning of its existence, the European Economic Community1 possessed rules forbidding discrimination. The right to equality of opportunity irrespective of sex is fundamental to a civilized society since, without it, the individual’s talents cannot be exploited to the full, human dignity is compromised, and the person concerned cannot make the most of what life has to offer: inequality on the ground of sex is simply unfair.The community at large suffers too since valuable resources go untapped and potential gifts remain unrealized.The law and the apparatus by which it is administered, of course, play a vital part in sustaining the notion of equality as between the sexes; the law cannot do the whole job, since the political, social, and economic contexts, together with peoples’ attitudes and cultural values, will always overlay it; however, it can prove highly instrumental in shaping behaviour and expectations.2 As will be seen later in this chapter, economic and political forces combined to produce the first European Community anti-discrimination legislation in the fields of sex and nationality. It was not until the dawn of the third millennium that similar laws came into existence to forbid discrimination on the grounds of race, religion, disability, age, and sexual orientation. In addition, it will be seen that other expressions of the equality principle have found their way into EU law. It is undeniable that this later generation of anti-discrimination law is every bit as significant as its predecessors in human, moral, political, and economic terms.The aspirations which 1 A brief account of the development of the three original European Communities, and their subsequent metamorphosis into the European Union, is given below. 2 See further Byre, ‘Applying Community Standards on Equality’, in Buckley and Anderson (eds), Women, Equality and Europe (Macmillan, London, 1988); Mancini and O’Leary, ‘The New Frontiers of Sex Equality Law in the European Union’ (1999) 24 ELRev 331; Osborne and Shuttleworth (eds), Fair Employment in Northern Ireland: a generation on (Blackstaff Press and the Equality Commission for Northern Ireland, Belfast, 2004); and Gijzen, Selected Issues in Equal Treatment Law: A multi-layered comparison of European, English and Dutch Law (Intersentia, Antwerp and Oxford, 2006). For an expression of the view that EU law is not committed to the principle of real sex equality, see Fenwick and Hervey, ‘Sex Equality in the Single Market: New Directions for the European Court of Justice’ (1995) 32 CMLRev 443. Similarly, see Fredman, ‘European Community Discrimination Law: A Critique’ (1992) 21 ILJ 119, where powerful arguments are marshalled to demonstrate that EU law fails to address the underlying structural obstacles to progress for women.

2

Introduction

lie behind it are justice and an improved quality of life for literally millions of people within the European Union.3 The present volume therefore attempts to examine the scope and coverage of EU law on all the grounds (bar one) upon which it currently forbids discrimination and seeks to promote equality between people; the law forbidding discrimination on the ground of nationality is not covered in depth (though occasional reference is made to it where the context requires) for reasons of space and also because its rationale is very different from that of the other grounds, rooted as it is in the importance of the free movement of persons to the achievement of a single economic market; in addition, its scope is somewhat different from that of the other categories of discrimination and, furthermore, the whole area of nationality discrimination is being subsumed today into the wider notion of citizenship of the Union.4

Non-discrimination and equality Despite the length of time which it took the EU to outlaw discrimination on this portfolio of grounds, it is not actually difficult for most people today to embrace the broad notion that at least some types of discrimination are unacceptable and should be forbidden by law. Of course, the word ‘discriminate’ is capable of two distinct connotations, the first of which expresses the usually laudable activity of making those kinds of choices which everyday life presents to human beings; thus, we speak, for example, of being ‘discriminating’ consumers of food or art, meaning that we make informed and critical judgements about these matters. This is not, however, the sense which legal systems attach to the word ‘discriminate’; the law is concerned with discrimination only when it is in some generally recognized way unacceptable. As Feldman has explained, discrimination becomes ‘morally unacceptable’ when it takes the form of treating a person less favourably than others on account of a consideration which is ‘morally irrelevant’.5 The critical question which then has to be decided by the legal system is when a consideration is to be considered morally irrelevant.6 If taken to extremes, this principle could effectively stultify decision-making by requiring the positive justification of every matter taken into consideration by the decision-maker. Legal systems frequently, therefore, 3

Henceforth EU. See in particular Case C-85/96 Martínez Sala [1998] ECR I-2691; Case C-184/99 Grzekzyk v Centre Public d’Aide Sociale [2001] ECR I-6193; and Case C-34/09 Zambrano v ONEM [2011] ECR I-000. See also Spaventa, ‘From Gebhard to Carpenter: Towards a (Non-) Economic European Constitution’ (2004) 41 CMLRev 743. Non-discrimination and citizenship of the Union are today governed by Part Two (Arts 18–25) of the Treaty on the Functioning of the European Union; the free movement of persons without discrimination on the ground of nationality, the right of establishment and freedom to provide services are regulated by Part Three,Title IV, Free movement of persons, services and capital (Arts 45–62); and sex equality is regulated by Art 157 which is contained in Part Three, Title X, Social Policy. 5 Feldman, Civil Liberties and Human Rights in England and Wales, 2nd edn (Oxford University Press, 6 Oxford, 2002), 135–9. See Case C-217/08 Matiano v INAIL [2009] ECR I-35*. 4

Non-discrimination and equality

3

attempt to classify or to enumerate those matters which are morally irrelevant in specified contexts. Thus, there is some consensus today that many matters which fall outside the control of an individual, such as sex, race, and disability, are generally speaking morally irrelevant bases on which to disfavour people in fields such as the workplace and education. Control is not, however, the invariable key to deciding this matter. Age, for example, although outside control, may often be considered to be morally relevant to the doing of a job: a five-year-old may not be the best person to pilot a jumbo jet! Even more doubt surrounds those issues over which, arguably, people have some control, such as their choice of religion or (more controversially) sexual orientation. A legal system which outlaws discrimination also has to be acutely aware of the many different ways in which discrimination manifests itself. The law cannot restrict its prohibition to conscious or deliberate acts founded on prejudice, since these are certainly not the only ways in which disadvantage grounded upon discrimination arises. Much discrimination results from the traditional, unquestioning ways in which society is ordered and the ways in which it functions in practice. For example, the ineffectual and haphazard pursuit by the London Metropolitan Police Service of the murderers of the black teenager Stephen Lawrence constituted institutional discrimination, irrespective of the wrongdoing of individual officers. In very important words, which should serve as a reminder to all legislators in this area, Sir William Macpherson’s Inquiry into the matter defined the concept of ‘institutional racism’ as: The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people. It persists because of the failure of the organisation openly and adequately to recognise and address its existence and causes by policy, example and leadership. Without recognition and action to eliminate such racism it can prevail as part of the ethos or culture of the organisation. It is a corrosive disease.7

In addition to difficulties surrounding the identification and definition of discrimination, it has become abundantly clear from the practical operation of systems of anti-discrimination law that it is not enough to focus simply on the negative concept of non-discrimination. If the moral basis on which the law forbids discrimination is that there is a fundamental human right to be treated in the same way as other human beings,8 the aim must logically be to produce substantive equality.9 This is a much more positive and value-laden concept than non-discrimination, although courts 7

The Stephen Lawrence Inquiry, Cm 4262–1 (HMSO, London, 1999), para 6.34. In addition to this goal of neutrality as between different groups of people, Fredman has argued that the non-discrimination principle also furthers individualism and personal autonomy: see Fredman, ‘Equality: A New Generation?’ (2001) 30 ILJ 145. 9 Cf Holmes, ‘Anti-Discrimination Rights Without Equality’ (2005) 68 MLR 175. 8

4

Introduction

not infrequently conflate the two ideas.10 In particular, it involves taking an active attitude to dismantling the obstacles which stand in the way of equality (however ‘equality’ is to be defined).11 Thus, for example, it is not sufficient for the achievement of equality simply to require the same conditions for all people, whether male or female, black or white; this is because in practice some sections of the community have been historically so disadvantaged as to be unable to compete in the race in the first place. Although most people would probably agree at a relatively rarefied plane of abstraction that equality is a proper goal, there is scope for a great deal of debate over the lengths to which it is proper for the law to go in order to provide such a level playing-field.12 In addition, there is the even more difficult problem of deciding to what extent equality embraces respect for minority practices and requires the recognition of diversity, as distinct from identity of treatment.13 There are many different ways in which the concept of equality can be expressed and in which it can be attempted to be realized in practical terms.14 It has been described by one commentator as ‘one of that genre of words ...which have both a vague conceptual meaning and a rich emotive meaning—with the conceptual meaning being subject to constant redefinition’.15 The same author draws attention to three main (though not exclusive) expressions of the principle of equality, namely ‘formal’ equality (consistency of treatment), equality of opportunity, and equality of results. In addition, although many different models of equality can be articulated and described, legal systems often adopt their own individualized views of these various 10 For example, in Case T-45/00 Speybrouck v Parliament [1992] ECR II-33, the Court of First Instance stated that ‘the principle of equal treatment for men and women in matters of employment and, at the same time, the principle of the prohibition of any direct or indirect discrimination on grounds of sex form part of the fundamental rights the observance of which the Court of Justice and the Court of First Instance must ensure’ (at 46). 11 For a compelling critique of Europe’s existing race discrimination laws from this perspective, see Hepple, ‘Race and Law in Fortress Europe’ (2004) 67 MLR 1. See also O’Brien’s plea for a new concept of economic utility, in ‘Equality’s false summits: new varieties of disability discrimination, “excessive” equal treatment and economically constricted horizons’ (2011) 36 ELRev 26. 12 For a seminal, though now in part historical, analysis of the causes of inequality and the panoply of responses to it which are open to society, see McCrudden, ‘Institutional Discrimination’ (1982) 2 OJLS 303. 13 See Barmes with Ashtiany, ‘The Diversity Approach to Achieving Equality: Potential and Pitfalls’ (2003) 32 ILJ 274; Barmes, ‘Equality Law and Experimentation: the Positive Action Challenge’ (2009) 68 CLJ 623; and Vickers, ‘Promoting equality or fostering resentment? The public sector equality duty and religion and belief ’ (2011) 31 Legal Studies 135, especially at 147–55. The rejected Constitution (discussed below) in Art 1–8, rather engagingly adopted a ‘motto’ for the EU, which was to be ‘united in diversity’. 14 See McCrudden, ‘Equality and Non-Discrimination’, in Feldman (ed), English Public Law, 2nd edn (Oxford University Press, Oxford, 2009), ch 11; Barnard, ‘The Principle of Equality in The Community Context: P, Grant, Kalanke and Marschall: Four Uneasy Bedfellows?’ (1998) 57 CLJ 352; Fredman, A Critical Review of the Concept of Equality in UK Anti-Discrimination Legislation’, Working Paper No 3 (Cambridge Centre for Public Law and the Judge Institute of Management Studies, 1999); and Fredman, Discrimination Law, 2nd edn (Oxford University Press, Oxford, 2011). 15 Barrett, ‘Re-examining the Concept and Principle of Equality in EC Law’ (2003) 22 YEL 117, at 120.

Non-discrimination and equality

5

models. Current EU law, as will be seen throughout this book,16 espouses differing approaches to the concept,17 and is indeed subject to competing influences in this regard.18 There are, in short, no absolutes in this area in practice, although absolute positions can be defined in theory. The picture can perhaps best be viewed in terms of a continuum. At one end lies what is often called ‘formal’ equality; this is the minimal, Aristotelian postulate that like cases should be treated alike and that different cases should be treated differently, unless there is an objective reason not to do so. Thus, for example, two people with identical qualifications and experience should be paid the same wage, irrespective of any dissimilarities which they may possess. This is also frequently referred to as the ‘merit’ principle: individuals ought to be rewarded according to their merit and not according to stereotypical assumptions made about them on account of the group to which they belong. However, such a principle is of course deceptively simple, for how is it to be judged, for example, that the qualifications and experience of two individuals are identical?19 And to precisely which situations and decisions is the principle to be applied?20 In addition, this analysis does nothing to improve the condition of an under-class, since it is satisfied where two individuals are treated equally badly, as well as where they are treated equally beneficially. If one of the prime rationales of equality law is the improvement of the lot of human beings, this simply will not do. These sorts of difficulties lead some legal systems to focus on factual scenarios which can be shown empirically to produce specially severe or marked injustice and hardship (‘suspect classifications’ in American terminology), and then to enact quite specific laws which attempt to remedy the situation. For example, it is often perceived that, as a result of stereotyping, women and people from ethnic minorities are treated unequally in the workplace by comparison with men and the prevailing ethnic majority. A frequent legislative response is therefore to enact legislation 16

But see ch 4 in particular. See Fenwick, ‘From Formal to Substantive Equality: the Place of Affirmative Action in European Union Sex Equality Law’ (1998) 4 EPL 507; Barnard and Hepple, ‘Substantive Equality’ (2000) 59 CLJ 562; Bell and Waddington, ‘Reflecting on Inequalities in European Equality Law’ (2003) 28 ELRev 349. 18 See Flynn, ‘Equality Between Men and Women in the Court of Justice’ (1998) 18 YEL 259, and McCrudden, ‘International and European Norms Regarding National Legal Remedies for Racial Inequality’ in Fredman (ed), Discrimination and Human Rights (Oxford University Press, Oxford, 2001). 19 See further McCrudden, ‘Merit Principles’ (1998) 18 OJLS 543. 20 This sort of problem manifested itself in Joined Cases C–122 & 125/99P D and Sweden v Council [2001] ECR I-4319, which concerned the alleged entitlement of a Community employee, who had a registered same-sex partnership under Swedish law, to identical treatment to that accorded to a married employee. The CJEU found that the then existing laws of the Member States showed great diversity in approach to same-sex partnerships and that they did not generally assimilate them to marriage; it held that the employee’s situation was therefore not comparable with that of a married employee. On same-sex partnerships, see further Wintemute and Andenas (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law (Hart Publishing, Oxford, 2001). In the UK, the Civil Partnership Act 2004 grants legal recognition to same-sex partnerships and places civil partners in the same position as married people as regards discrimination on the ground of their status. As will be seen in later chapters, the position of same-sex partners is today generally treated as close to that of married partners. 17

6

Introduction

making it unlawful to discriminate on the grounds of sex and ethnic origin in the context of employment. A more fluid version of this principle is also encountered. This acknowledges specific instances of discrimination in practice but then tries to generalize and to cater for similar, but not yet classified, examples of discrimination. Such a model typically covers a broad range of situations in which discrimination is rendered unlawful and contains a eiusdem generis provision allowing the prohibition to develop organically to deal with fresh situations as they manifest themselves. McCrudden characterizes this model as prevalent in relation to the ‘protection of particularly prized “public goods”, including human rights’. He goes on to explain that the focus here is on the distribution of the public goods, rather than on the characteristics of the recipient, except for the purpose of justifying different treatment.21 These models, however, share a common shortcoming which is often analysed in terms of symmetry. In the example taken here, the rules apply identically to men and women, and to people from all ethnic backgrounds; indeed, this is at the heart of their philosophy since they are usually predicated on a principle of fundamental human rights and the dignity which should be accorded to all human beings. However, the underlying injustice which they actually seek to counter applies predominantly to women and to people from ethnic minorities. In seeking to treat everyone alike, the law in effect forces a male, ethnic majority paradigm on all. This, it is argued, may appear to produce equality but it is in reality only a formal, superficial kind of equality which reinforces the pre-existing hegemony.22 In addition, as Fredman has pointed out, these types of model also ignore the fact that cumulative disadvantage makes it difficult for members of the disadvantaged group ever to attain the threshold of equal qualification or merit with the dominant group.23 Furthermore, these models usually rely heavily upon individual action, normally through litigation, to vindicate the rights protected. They do not provide either the support or the subsequent legal protection offered by a collectivist or group-based remedy. In addition, they may never actually achieve legal redress, since there may never emerge a particular ‘wrong-doer’ whose actions can be challenged; many manifestations of disadvantage result from an agglomeration of factors and circumstances for which no one person or body may be legally responsible.24 21 McCrudden, ‘Equality and Non-Discrimination’, in Feldman (ed), English Public Law, 2nd edn (Oxford University Press, Oxford, 2009), para 11.05. 22 MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press, Cambridge, Mass/London, 1987); Fredman, ‘European Community Discrimination Law: A Critique’ (1992) 21 ILJ 119; Lacey, ‘From Individual to Group’, in Hepple and Szyszczak (eds), Discrimination: The Limits of Law (Mansell, London, 1992). 23 Fredman, ‘The Future of Equality in Britain’, Working Paper Series No 5 (EOC, 2002). See also Fredman, Women and the Law (Clarendon Press, Oxford, 1997). 24 But see the CJEU’s decision in Case C-54/07 Centrum v Firma Feryn NV [2008] ECR I-5187, discussed in ch 4.

Non-discrimination and equality

7

Some systems and some bodies of law therefore approach equality from a different angle.25 Rather than attempting to be blind to differences, they actually focus on differences, especially those which produce disadvantage in practice, and in doing so they clearly come into headlong conflict with the basic non-discrimination principle.They characteristically aim for equality of results, but the extent to which they intervene in the activities of people and organizations varies considerably. In some, there is little more than an obligation to be aware of differences and to endeavour to offer equal participation to all. Others expressly require public authorities actively to promote equality of opportunity.26 And some are openly re-distributive, for example allocating jobs and other opportunities on the specific basis of membership of an under-privileged group.27 Such models are clearly, though to varying extents, in tension with the liberal, non-collectivist view of equality which sees it as an individual human right.28 It must be emphasized that these models are often much less distinct from one another in practice than these descriptions might suggest. Legal systems frequently blur the distinctions concerned, in particular by combining the principle of nondiscrimination with requirements to promote equality of opportunity and to celebrate diversity and pluralism.29 Such blurring is sometimes also a consequence of the fact that a court may be required to enforce law from several different sources simultaneously. In addition, it should be acknowledged that different times and political climates require different and increasingly sophisticated responses, and that this is an area where one must therefore expect a constantly shifting legislative, as well as judicial,30 response to society’s demands. The title of the present work reflects the fact that the substance of most of the existing EU law in this area refers primarily to the principle of non-discrimination; however, it is not to be taken to

25

See further O’Cinneide, ‘Extending Positive Duties Across the Equality Grounds’ (2003) 120 EOR

12. 26 Notable examples of this approach in the UK are the Northern Ireland Act 1998, s 75, and the Equality Act 2010, ss 1 and 149. 27 The clearest example of this approach in the UK is to be found in the Police (Northern Ireland) Act 2000; pursuant to the so-called ‘Patten’ reforms to the Northern Ireland police service, a 50:50 split between Catholics and Protestants was, on a temporary basis, required for recruits to that force. 28 For a thought-provoking attempt to resolve this tension, see Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 MLR 16; the author asserts that ‘deviations from equal treatment are required in order to achieve the distributive aim of social inclusion. This aim requires preference or priority to members of a particular group, if the group can be classified as socially excluded. The preferential measures required are those that will contribute to the reduction of social exclusion’ (at 40). 29 See Schiek, ‘A New Framework on Equal Treatment of Persons in EC Law?’ (2002) 8 ELJ 290; and Fredman, ‘Making Equality Effective: Proactive Measures and Substantive Equality for Men and Women in the EU’ European Gender Equality Law Review No 2/2010, 7. 30 See, eg, Lord Lester’s account of attitudes to discrimination expressed in the past by UK courts and judges in ‘Equality and United Kingdom Law: Past, Present and Future’ [2001] Public Law 77. See also the analysis of the EU case law on sex discrimination by Pager in ‘Strictness v Discretion:The European Court of Justice’s Variable Vision of Gender Equality’ (2003) 51 American Journal of Comparative Law 553; the author there argues that the EU’s judiciary adapts the level of scrutiny which it applies according to the nature of the provision under review.

8

Introduction

preclude discussion of the concept of equality, which is (as will be seen) also often referred to both in the legislation and in judicial decisions.31 Finally, by way of introduction, it must be stressed again that too much should not be expected of non-discrimination and equality law. Of course justice in individual cases is a vital component of a civilized society and the legal system has its obvious part to play in achieving this. The academic commentator’s job is to provide a constructive critique of the way in which this role is being discharged and the directions which it ought to pursue. However, little short of a political, social, and economic revolution is still also required to eradicate the deprivation and exclusion experienced by many of today’s victims of discrimination.

The dynamism inherent in EU law EU law has proved an ideal vehicle for upholding the principle of sex equality, in part at least because of the EU’s undoubted potential for growth. That growth has taken place, and continues to occur, in a number of different ways.With the expansion of the Union’s concerns to cover other grounds of discrimination, it would appear well-nigh inevitable that what has been true in the past for sex equality will also hold good for other fields of equality law. When the European Coal and Steel Community (ECSC) Treaty was concluded in 1951, and the Treaties establishing the European Economic Community (EEC) and European Atomic Energy Community (Euratom) were concluded in 1957, their chief instigators intended their immediate end to be economic welfare but their long-term goal to be political integration amongst the States of Europe.32 The architects of the three European Communities had personally witnessed the destructive forces of nationalism; many had seen their countries overwhelmed and occupied during the Second World War.They were increasingly aware of the rise of the then ‘Super Powers’ and of the threat of Communism in the East.The Schuman Declaration of 9 May 1950, which preceded the formation of the ECSC, made very clear its author’s ultimate political aspirations. Robert Schuman, the French Minister for Foreign Affairs, proposed that the whole of the French and German coal and steel production industries be placed under a common ‘high authority’, within the framework of an organization open to participation by the other countries of Europe. He went on to explain: The pooling of coal and steel production will immediately provide for the setting up of common bases for economic development as a first step in the federation of Europe, and will change the destinies of those regions which have long been devoted to the manufacture 31 For discussion of the way in which the draft EU Constitution reflected notions of formal and substantive equality, negative and positive duties, and diversity, see Bell, ‘Equality and the European Union Constitution’ (2004) 33 ILJ 242. 32 See in particular Ionescu, The New Politics of European Integration (Macmillan, London, 1972) and Kitzinger, The Politics and Economics of European Integration (Greenwood Press, Westport, Conn, 1963).

The dynamism inherent in EU law

9

of munitions of war, of which they have been the most constant victims. The solidarity in production thus established will make it plain that any war between France and Germany becomes, not merely unthinkable, but materially impossible.

His overall plan was to build a united Europe ‘through concrete achievements, which first create a de facto solidarity’. The Coal and Steel Community was to be just a first step in an ever-tightening web of economic, and thus political, integration. It was believed that the integration of the coal and steel industries would create common spheres of interest as between the French and the (then West) Germans, which would encourage greater political friendship between those nations; further common economic and social issues would then begin to present themselves and a political framework would have to be established to deal with them. Gradually, the process would gather momentum.This scheme for ‘rolling interdependence’ between the States of Europe is now, and was from the start, clearly echoed in the founding Treaties. It was taken a stage further when the Member States pledged themselves in the Single European Act of 1986 to make greatly increased use of majority voting in the Council, thereby relinquishing a significant portion of their national sovereignty in favour of the Community. Furthermore, despite the antagonism of many, in particular the British Government, to the use of the word ‘federal’ in the Treaty on European Union of 1993,33 it is clear that that Treaty nevertheless continued the progress towards tightening the web; its Preamble proclaimed the Member States: Resolved to mark a new stage in the process of European integration undertaken with the establishment of the European Communities, ...[And] Resolved to continue the process of creating an ever closer union among the peoples of Europe ...

It also transformed the nature of the enterprise so as to create the ‘European Union’. Founded upon the European Community34 which was still governed by its own Treaty,35 the EU was also to direct its attention (albeit in a looser and less supranational fashion) to the wider issues of a Common Foreign and Security Policy and Justice and Home Affairs; it became the pediment (essentially a single institutional framework) over-arching three so-called ‘pillars’: (i) the Economic Community and Euratom, (ii) the Common Foreign and Security Policy, and (iii) Police and Judicial Cooperation in Criminal Matters. The TEU also paved the way for economic and monetary union. The Amsterdam Treaty of 1997, concluded after the holding of an Intergovernmental Conference (IGC) mandated by the TEU,36 made numerous technical changes intended to reinforce the economic, social, political, and other links between the Member States.37 The Member States, however, made clear their 33 Henceforth referred to in the present work as the TEU.This Treaty was also known colloquially for a number of years as the Maastricht Treaty. 34 The original title ‘European Economic Community’ was abbreviated to the ‘European Commu35 nity’ by the TEU. Henceforth normally referred to in the present work as the TEC. 36 See the original TEU, Art N(2). 37 Art 12 and the Annex to the Treaty of Amsterdam renumbered the articles of both the TEU and the TEC.

10

Introduction

unease with the existing constitutional arrangements surrounding the EU in a Declaration on the Future of the Union which was issued in Nice in 2000, and they therefore decided to convene a new IGC, intended to agree the necessary Treaty amendments. A further Declaration made at Laeken in the following year established a Convention under the chairmanship of ex-President Giscard d’Estaing of France, charged with providing a discussion document for the IGC. This Convention produced a draft Constitution for the Union in 2003, an amended text of which was signed by the Heads of State or Government of all the Member States (but subject to ratification by all of them in accordance with their respective constitutional requirements) on 29 October 2004. The Constitution was an amalgam of legal provisions, both articulating the most fundamental of principles on which the Union was based and also containing a mass of detailed rules, substantive and institutional. It turned out to be widely considered to be too overtly federal in tone and therefore politically unacceptable and was rejected by referendums in France and the Netherlands in 2005. However, a modified version was agreed by the Member States in 2007 and this became the Lisbon Treaty; its legal effect was delayed by a no-vote in Ireland in a referendum of 2008 but this was reversed in a second referendum of 2009. The Lisbon Treaty entered into force on 1 December 2009. It amends and systematizes the earlier Treaties. The pillar structure has been removed and the Union is now simply founded on two Treaties: a consolidated version of the TEU and a new Treaty on the Functioning of the European Union38 which replaces the TEC. The TFEU ‘organises the functioning of the Union and determines the areas of, delimitation of, and arrangements for exercising its competences’.39 The TEU and the TFEU are renumbered40 and are expressed to have the same legal value.41 The Union replaces and succeeds the European Community so that it is now legally accurate to refer to the EU in relation to all aspects of its activities. It is evident that, although public relish for formal federalization has perceptibly waned over recent years, the process of European integration is thus set to continue, probably bringing in its wake yet further legislation supporting closer economic and political ties which are well-nigh certain to touch on the spheres of equality and non-discrimination. The process of European integration has not, however, been restricted to the deepening of ties between the States of Europe. It has also been significant because it has hugely broadened the geographical scope of the enterprise. The Treaties, of course, provide for the accession of new Member States42 and, although only six States joined in the wake of the original Schuman Declaration,43 the EU today consists of 27 Member States and spans most of Western and Central Europe.44 38 Referred to in the present work as the TFEU. All references to Treaty articles henceforth are to the 39 TFEU, unless otherwise stated. Art 1(1). 40 The article numbers used in the present work are those given by the Treaty of Lisbon, unless the 41 context requires otherwise. Art 1(2). 42 See now TEU, Art 49. 43 France, West Germany, Italy, Belgium, The Netherlands, and Luxembourg. 44 The UK, Ireland, and Denmark became members of the Communities from 1 January 1973; Greece acceded as of 1 January 1981, Spain and Portugal as of 1 January 1986, and Austria, Finland and

The dynamism inherent in EU law

11

A third way in which the development of modern Europe has provided important support for the principle of equality is through its enhanced emphasis in recent times on the protection of human rights.45 The Treaty of Amsterdam first amended the TEU so as to articulate this emphasis.The Union’s fundamental values are today proclaimed in Article 2 of the TEU: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

The Treaty of Lisbon gives legal force to the Charter of Fundamental Rights of 7 December 2000, as adapted at Strasbourg on 12 December 2007;46 it is expressed to have the same legal value as the Treaties but cannot in any way extend the competences of the Union as defined in the Treaties.47 It is also provided that the Union ‘shall accede’ to the European Convention for the Protection of Human Rights and Fundamental Freedoms48 although such accession is not to affect the Union’s competences as defined in the Treaty.49 Provisional agreement was reached on accession in 2011. Fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, are to constitute general principles of EU law.50 A procedure is set out for dealing with a ‘clear risk of a serious breach’ by a Member State of the values referred to in Article 2 of the TEU; in the event of such a breach being established, certain of the defaulting Member State’s Treaty rights, including the right to vote in the Council, may be suspended.51 These aspects of the development of the EU are vital to an understanding of its equality laws. The Treaties and their present provisions are in no sense intended to be an end in themselves but rather a staging-post in an ultimate design. The social provisions, especially those protecting fundamental human rights, are growing and developing as the linkage between the Member States becomes closer. Furthermore, the Union’s geographical extension brings its jurisdiction to bear over a vastly expanded population. What this means in practical terms is that a continuously developing body of equality law now reaches a very large, and ever-

Sweden as of 1 January 1995. The largest wave of accessions took place on 1 May 2004 and brought into membership of the Union Hungary, Poland, the Czech Republic, Slovakia, Slovenia, Malta, Cyprus, Estonia, Latvia, and Lithuania. Bulgaria and Romania acceded in 2007. At the time of writing, Croatia, the former Yugoslav Republic of Macedonia, Turkey, and Iceland are candidates for admission. 45 See further Ellis, ‘The impact of the Lisbon Treaty on gender equality’ [2010] No 1 European Gender Equality Law Review 7. Cf the highly sceptical view of the EU’s approach to human rights expressed in Williams, EU Human Rights Policies: A Study in Irony (Oxford University Press, Oxford, 46 2004). The Charter was originally included as Part II of the proposed Constitution. 47 TEU, Art 6(1). 48 ETS No 5, 1950. Henceforth referred to in the present work as the ECHR. 49 50 51 TEU, Art 6(2). TEU, Art 6(3). TEU, Art 7.

12

Introduction

expanding, group of people. An element of dynamism is contained within this formula which is almost always lacking in any wholly domestic context.

Sources of EU anti-discrimination law Crucial to the concept of federation is the existence of a distinct legal system, belonging exclusively to the federation itself. This means that a federation must be able both to create its own laws and to enforce them effectively through its own system of courts or tribunals. The drafters of the European Community Treaties, eager as they were to create the germ from which a federation would grow, were aware of these needs and therefore provided for a system of Community law, together with appropriate law-making powers, enforceable through the medium of what is today called the Court of Justice of the European Union (the CJEU)52 and the local courts. Essentially, they made provision for both primary and secondary tiers of Community law. The original Treaties stopped short of using the actual word ‘legislation’ in describing the legal system which they created, presumably for the political and psychological reasons that this might have proved unacceptable to national parliaments at the time of their accession to the European Communities. As will be seen below, however, the Lisbon Treaty bites the bullet and refers to the power to legislate and to legislative acts.53 The Lisbon Treaty also contains a number of important references to the principles of equality and non-discrimination in various fields. Article 2 of the TEU has been referred to above. In addition, the second recital of the Preamble to the TEU now proclaims that the Member States draw ‘inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law’. Article 3 of the TEU is concerned with the re-vamped aims of the Union, namely to promote peace, the Union’s values and the well-being of its peoples; in the second indent of paragraph 3 the Article pledges the Union to ‘combat social exclusion and discrimination’ and to ‘promote social justice and protection, equality between men and women, solidarity between generations and protection of the rights of the child’.54 The importance of equality in the broad sense is also affirmed in 52 The CJEU’s sister court was created in 1988 and was originally named the ‘Court of First Instance’. It is today called the ‘General Court’ by the TEU, Art 19, which also creates new ‘specialized’ courts for the Union.The specialized courts have jurisdiction over certain classes of action or proceedings brought in specific areas; see further TFEU, Art 257. 53 TFEU, Art 289(3) provides: ‘Legal acts adopted by legislative procedure shall constitute legislative acts’. But see discussion in Dashwood, Dougan, Rodger, Spaventa and Wyatt (eds), Wyatt and Dashwood’s European Union Law, 6th edn (Hart Publishing, Oxford, 2011), ch 4, for the complex distinction between legislative and non-legislative acts in modern EU law. 54 Note also the Declaration made by the Member States on TEU, Art 3: ‘The Conference agrees that, in its general efforts to eliminate inequalities between women and men, the Union will aim in its

Sources of EU anti-discrimination law

13

specific contexts; in particular, Article 9 of the TEU which is concerned with democratic principles states that: ‘In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies’.55 Also noteworthy is Article 21 of the TEU, at the start of Title V on external action and the Common Foreign and Security Policy; it provides in paragraph 1 that: ‘The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’.

(i) The TFEU The main primary source of EU law is the founding Treaties, as they have been amended over the years. The Lisbon amendments to the TEU emphasizing the importance attributed today to the principles of equality and non-discrimination were noted in the preceding section. The TFEU also contains a number of provisions which are relevant in this field. Such provisions are of three types, namely, statements of principle or intent, provisions which convey substantive rights, and those which confer enabling authority on the institutions of the EU to make secondary legislation. Taking first the statements of principle or intent, the significance to the Union of outlawing sex discrimination is indicated by Article 8 which promises that: ‘In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women’.56 Article 10 further spells out that: ‘In defining and implementing its policies and activities, the Union shall57 aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. Article 21(1) of the Charter expands on this by providing that ‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or other opinion, membership of a national minority, property, birth, disability,58 age59 or sexual orientation shall be prohibited’;60 and Article 22 of the Charter promises that the Union will respect different policies to combat all kinds of domestic violence. The Member States should take all necessary measures to prevent and punish these criminal acts and to support and protect the victims’. 55 See also the Protocol on Services of General Interest which is annexed to the founding Treaties and commits the Member States to respecting the principle of equality in respect of services of general 56 economic interest. Formerly, TEC, Art 3(2). 57 The imperative tone of both this and Art 8 is noteworthy. 58 59 See also Art 26 of the Charter. See also Art 25 of the Charter. 60 As discussed in ch 5, Art 21 of the Charter was relied upon by the CJEU in Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL [2010] ECR I-000 in order to invalidate a sex-

14

Introduction

cultural, religious, and linguistic diversity. Article 17 of the TFEU pledges respect by the Union for churches, religious associations or communities, and philosophical and non-confessional organizations. Article 15761 specifically enunciates the principle of equal pay for equal work irrespective of sex. As the Treaty was originally drafted, this was the only explicit mention anywhere in it of the principle of sex equality,62 and so it provided the inspirational springboard for the subsequent developments in this area. As it is currently drafted, the Article also protects the wider principles of equality of opportunity and equal treatment in the world of work. It is echoed by Article 23 of the Charter which states that sex equality must be ensured ‘in all areas, including employment, work and pay’.63 The third type of Treaty provision relevant in the present context is that which provides the legal authorization for further, secondary legislation. Title I of the TFEU sets out the respective spheres of competence of the Union and the Member States. In the areas enumerated in Article 3, the Union enjoys exclusive competence to legislate, whilst in those referred to in Article 4(2) it shares competence with the Member States; such shared competence relates in particular to ‘(b) social policy, for the aspects defined in this Treaty’. Article 2(2) explains that, where there is shared competence: [T]he Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.

The institutions are empowered by Article 288 to enact measures of secondary legislation in order to ‘exercise the Union’s competences’. What is today Article 157 itself conferred no secondary law-making power until its amendment by the Amsterdam Treaty. Now, however, paragraph (3) provides: The European Parliament and the Council, acting in accordance with the ordinary legislative procedure,64 and after consulting the Economic and Social Committee,65 shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of

discriminatory exception contained in a directive, which permitted the continued use of gender-specific actuarial calculations by the insurance industry. 61 Before the Lisbon renumbering of the Treaty, this provision was contained in Art 141. Under the pre-Amsterdam numbering, the substance of what today are the first two paragraphs of Art 157 were contained in Art 119 and many of the older cases cited in the text therefore refer to Art 119. 62 A number of references to sex equality were added by the Amsterdam Treaty, as will be discussed. 63 This provision was also relied upon by the CJEU in Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL [2011] ECR I-000. 64 The ordinary legislative procedure is defined in Arts 289 and 294 and involves the joint adoption of an act by the European Parliament and the Council on a proposal from the Commission. 65 The Economic and Social Committee ‘shall consist of representatives of organizations of employers, of the employed, and of other parties representative of civil society, notably in socio-economic, civic, professional and cultural areas’: Art 300(2).

Sources of EU anti-discrimination law

15

men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

The breadth of this enabling provision is noteworthy; it permits measures in general and is not limited to any one form of legislative instrument.66 It is expressed to extend to measures ensuring equality of opportunity and is not restricted to those simply outlawing discrimination.67 Furthermore, it encompasses not merely pay equality but also other aspects of equal treatment.The important issue of how far it will be permitted to extend to equal treatment outside the traditional world of paid work will depend on the policy adopted by the CJEU in relation to the interpretation of the word ‘occupation’. Also of prime significance is Article 19(1), which states:68 Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union,69 the Council, acting unanimously in accordance with a special legislative procedure70 and after obtaining the consent of the European Parliament,71 may take appropriate action to combat discrimination72 based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.73

It is noteworthy that this Article is to be found in Part Two of the TFEU, headed ‘Non-Discrimination and Citizenship of the Union’; this will arguably enable the 66

See discussion at p 19 et seq. of the different legislative instruments available in EU law. See discussion at p 2 et seq. 68 The forerunner of Art 19 was Art 13 which was created by the Treaty of Amsterdam. As to its genesis, see Flynn, ‘The Implications of Article 13 EC—After Amsterdam, Will Some Forms of Discrimination be More Equal Than Others?’ (1999) 36 CMLRev 1127. 69 Note the subtly different opening words of Art 18 on nationality discrimination: ‘Within the scope of application of the Treaties and without prejudice to any special conditions contained therein’ (emphasis added). It remains to be seen whether any significance will be ascribed by the CJEU to these verbal differences. 70 Art 289 explains that, ‘[i]n the specific cases provided for by the Treaties, the adoption [of a legislative act] ...by the European Parliament with the participation of the Council, or by the latter with the participation of the European Parliament, shall constitute a special legislative procedure’. 71 The old Art 13 gave a more marginal role to the European Parliament, requiring only its consultation. This seemed ironic, given that this area touches the very heart of social policy. The difference between the Parliament’s role under Art 13 and that under the old Art 141(3) led to differences in the texts of the instruments adopted pursuant to these respective provisions. Note: Art 19(1) does not involve the full co-decision procedure and, although increasing the Parliament’s powers in this area from its old ones, somewhat limits its input to the debate over new measures. Note also: Art 19(2) permits the adoption by qualified majority of incentive measures, excluding harmonization measures, to support action taken by the Member States against discrimination on the grounds listed in para (1). 72 As will be seen below, the CJEU and the EU legislature interpret the expression ‘to combat discrimination’ as embracing the pursuit of substantive, as well as merely of formal, equality. 73 Considerable disagreement between the Member States preceded the adoption of this Article. Whilst most agreed on the need to include sex, race, and religion, there was much less commitment to the other grounds.The UK, under Conservative administrations, was opposed to any EU instrument on discrimination; this attitude changed only with the election of a Labour Government in 1997, whose support made possible the unanimous agreement necessary for the adoption of the new Article. The Irish Presidency of the Council in the second half of 1996 is widely credited with the eventual text of Art 13. Ireland’s enthusiasm for such legislation was also manifested shortly afterwards by the adoption of its own wide-ranging national Employment Equality Act 1998. 67

16

Introduction

CJEU, if it is so inclined, to emphasize the constitutional importance of the instruments adopted pursuant to Article 19. The opening phrase of the Article indicates that it is not to be used where other, more specific, enabling authority exists, and Article 157(3) will thus usually be the appropriate provision for legislation dealing exclusively with sex discrimination;74 however, Article 19 could be used for the enactment of a composite measure which addressed discrimination based on sex as well as the other prohibited classifications. Like Article 157(3), Article 19 authorizes all types of legislative or other instrument,75 but it should be noted that its ambit is restricted to the prohibition of discrimination and that it does not extend to measures to promote equality of opportunity on the wider scale.76 Before the creation by the Amsterdam Treaty of enabling provisions dealing expressly with sex equality, more general enabling provisions had to be utilized for the enactment of secondary legislation in this area. The most obvious candidates were what are today Articles 115 and 352. Article 115 permits the Council, acting unanimously (in accordance today with a special legislative procedure) and after consulting the European Parliament and the Economic and Social Committee, to make directives77 ‘for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the internal market’. This is often called ‘harmonization’ legislation. Article 352 is generally a little wider in its scope and provides: If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament,78 shall adopt the appropriate measures.

Some further bases for harmonization legislation were provided by the Single European Act of 1986, in particular what was then Article 118a. This was used to mandate Council directives for improving the health and safety of workers.79 The

74 This provision was used as the authority for the Recast Directive, Directive 2006/54, OJ [2006] L204/23, discussed further below, and for the Directive on Equal Treatment between men and women engaged in an Activity in a Self-employed Capacity, Directive 2010/41, OJ [2010] L180/1, discussed in ch 6. 75 See Waddington, ‘Testing the Limits of the EC Treaty Article on Non-discrimination’ (1999) 28 ILJ 133. 76 It was given a strict interpretation in Case C-13/05 Chac
n Navas v Eurest Colectividades SA [2006] ECR I-6467. In Case C-411/05 Palacios de la Villa v Cortefiel Servicios SA [2007] ECR I-8531, Mazak AG observed that the Article is simply an enabling provision and cannot have direct effect (at para 36); for discussion of the concept of direct effect, see ch 2. 77 For the definition and characteristics of a directive, see below. 78 The predecessor Art 308 of the TEC gave only a right to be consulted to the European Parliament. 79 In this form it provided the authorization for the Pregnancy Directive (Directive 92/85, OJ [1992] L348/1), discussed in ch 7.

Sources of EU anti-discrimination law

17

Amsterdam Treaty generalized the provision80 and today its successor, Article 153, provides that the Union will support and complement the activities of the Member States in a number of fields including: (a) improvement in particular of the working environment to protect workers’ health and safety; (b) working conditions; (c) social security and social protection of workers; ... (h) the integration of persons excluded from the labour market; ... (i) equality between men and women with regard to labour market opportunities and treatment at work.

To these ends, the European Parliament and the Council are authorized to adopt directives setting ‘minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States’.81 Such directives must not, however, impose administrative, financial, and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.82 The European Parliament and the Council are also permitted to adopt measures: designed to encourage co-operation between Member States through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences, excluding any harmonisation of the laws and regulations of the Member States.83

Such action is to be in accordance with the ordinary legislative procedure, after consulting the Economic and Social Committee and the Committee of the Regions.84 Exceptionally, however, in order to take action inter alia in the fields of social security and social protection, the Council has to act unanimously in accordance with a special legislative procedure, after consulting the European Parliament, the Economic and Social Committee, and the Committee of the Regions.85 Until its repeal by the Amsterdam Treaty, the Protocol on Social Policy annexed at Maastricht to the TEC provided a vehicle for a special kind of secondary legislation.86 The Protocol contained an Agreement on Social Policy, acquiesced to by all the Member States apart from the UK, which refused whilst under the Conservative administration to be involved in any further extension of the powers

80 It absorbed into the body of the TEC the provisions which had formerly been contained in the 81 Agreement on Social Policy, discussed below. Art 153(2)(b). 82 83 84 85 Art 153(2)(b). Art 153(2)(a). Established by Art 300(3). Art 153(2). 86 The then Art 311 provided that Protocols annexed to the TEC were to form ‘an integral part thereof ’.

18

Introduction

of the Community in the field of social policy.87 Legislative action88 pursuant to the Agreement took place according to the usual EC institutional procedures, but without the participation of the UK in the relevant Council meetings since such legislation did not bind the UK.89 It could supplement but could not detract from the pre-existing acquis communautaire.90 Several instruments were concluded under the aegis of the Protocol and Agreement, the first being the Directive on Works Councils.91 This was followed by a European-level collective agreement on parental leave signed on 14 December 1995. The agreement was subsequently enacted in the form of a directive in June 1996.92 A directive on parental leave had been proposed as long ago as 1984, but was consistently opposed by the UK Government on financial grounds. The proposal was resurrected after the Social Policy Agreement came into force. Another measure which had remained stalled for a long time because of the intransigence of the UK Government of the day was a proposed directive on the burden of proof in sex discrimination cases and on the definition of indirect discrimination; the social 87 It was suggested by some writers that the UK’s social policy opt-out could be contrary to a ‘higher principle’ of Community law (ie, superior in legal force to the written rules of the Treaty), such as that of the uniform application of EC law or the principle of legal certainty, and that it was therefore invalid. See Hartley, ‘The European Court, Judicial Objectivity and the Constitution of the European Union’ (1996) 112 LQR 95;Whiteford, ‘Social Policy After Maastricht’ (1993) 18 ELRev 202; and Curtin, ‘The Constitutional Structure of the European Union: a Europe of Bits and Pieces’ (1993) 30 CMLRev 17. 88 Art 2(2) permitted the Council to adopt directives in accordance with the procedure referred to in the former Art 252, after consulting the Economic and Social Committee. Art 2(3) permitted unspecified action to be taken by the Council unanimously on a proposal of the Commission, after consulting the European Parliament and the Economic and Social Committee, in areas which included social security and the protection of workers. Art 4 envisaged Community level collective agreements which could, in certain circumstances, be implemented by a Council decision on a proposal from the Commission. See further Fitzpatrick, ‘Community Social Law After Maastricht’ (1992) 21 ILJ 199 and Watson, ‘Social Policy After Maastricht’ (1993) 30 CMLRev 481. 89 Thus the Agreement created for the first time the potential for a ‘two speed Europe’. For the view that the Protocol created a real danger of ‘social dumping’, in other words, ‘investment by companies in the United Kingdom where labour costs are lower than in other Member States, which will result in workers in those other Member States being forced to accept lower standards in order to avoid unemployment’, see Watson, ‘Social Policy After Maastricht’ (1993) 30 CMLRev 481. 90 See the opening recital to the Protocol. Curtin, in ‘The Constitutional Structure of the European Union: a Europe of Bits and Pieces’ (1993) 30 CMLRev 17, questioned the legal status of such ‘legislation’, pointing out that the wording adopted by the Protocol authorized the participating States to adopt acts ‘among themselves’ and arguing that the products of such agreements could not constitute EC law with the qualities set out in the then Art 249. The Commission, however, asserted that ‘the Community nature of measures taken under the Agreement is beyond doubt, which means that the Court of Justice will be empowered to rule on the legality of directives adopted by the Eleven and to interpret them’ (Communication concerning the application of the agreement on social policy presented by the Commission to the Council and to the European Parliament COM(93) 600 final).To the same effect, see also Bercusson, ‘The Dynamic of European Labour Law After Maastricht’ (1994) 23 ILJ 1. 91 Directive 94/45, OJ [1994] L254/64, as to which see also Burrows and Mair, European Social Law (Wiley, Chichester, 1996), ch 14. At a lecture in the University of Birmingham in 1995, Prof Giorgio Gaja pointed out that the adoption of the usual EC system for the numbering of such directives was deceptive because it implied that they were ordinary instruments of EC law; furthermore, he asserted that this confused the legislative system. 92 Directive 96/34, OJ [1996] L145/4, discussed in ch 7.

Sources of EU anti-discrimination law

19

partners decided that they did not wish to negotiate an agreement on this matter, but progress was made towards the enactment of legislation when unanimous political agreement93 was reached on a common position at a Council meeting in the Summer of 1997.94 In addition, an agreement between the social partners was reached in June 1997 on discrimination against part-time workers, subsequently transposed into a directive in the summer of 1997.95 A framework agreement on fixed-term work was concluded on the same basis and later transposed into a directive.96 After its election in May 1997, the new Labour Government of the UK announced its intention to commit itself to all the instruments hitherto agreed by the other Member States under the Social Policy Agreement.97

(ii) Secondary legislation Secondary EU law is of three types: regulations, directives, and decisions. Article 288 of the TFEU defines the basic attributes of each. Regulations are stated to have ‘general application’, which means that they create binding legal obligations for every person within the Union. This is not to say that they necessarily in fact impinge on the legal situation of each and every legal person within the Community, since they are frequently of a highly specialized nature and regulate only specific activities or industries. They do, however, create general law and thus have the potential actually to affect the legal position of any legal person within the Community. Their nearest equivalent in domestic legal terms is Parliamentary legislation. Article 288 goes on to provide that regulations are binding in their entirety and ‘directly applicable in all Member States’. The meaning of this latter phrase is not at once self-evident, but it is clear from comparison with what Article 288 goes on to say about the effects of directives that it is intended to indicate that regulations have automatic legal force and require no implementing measures to be taken by the legislative or other authorities in the Member States.The CJEU has also confirmed this interpretation.98 It follows that regulations are the appropriate instrument for achieving uniformity or identity of legal provision throughout the Community. Directives, unlike regulations, are expressed by Article 288 to be addressed to States rather than being of ‘general application’. A directive is binding ‘as to the 93

94 Including that of the UK. COM (96) 340 final. Directive 97/81, OJ [1998] L14/9, discussed in ch 6. 96 Directive 1999/70, OJ [1999] L175/43, also discussed in ch 6. 97 The existing instruments were re-enacted with the agreement of the UK; as Usher observed in EC Institutions and Legislation (Longmans, London, 1998), this suggests that the matters covered by the Agreement on Social Policy fell within the mainstream of Community law all along. 98 In Case 93/71 Leonesio v Italian Ministry of Agriculture and Fisheries [1972] ECR 287, the CJEU said (at 293): ‘Therefore, because of its nature and its purpose within the system of sources of Community law it has direct effect and is, as such, capable of creating individual rights which national courts must protect. Since they are pecuniary rights against the State these rights arise when the conditions set out in the regulation are complied with and it is not possible at a national level to render the exercise of them subject to implementing provisions other than those which might be required by the regulation itself.’ 95

20

Introduction

result to be achieved’ on each Member State to which it is addressed, but it leaves to the national authorities ‘the choice of form and methods’. Directives thus do not take effect within the legal systems of the Member States as they stand. Rather, they require the Member States to legislate to achieve a particular end-product. They require transposition into national law99 and always contain a time-limit by which such transposition must have been carried out.They are chiefly of use when mutually compatible, or harmonized, laws are needed amongst all the Member States, as distinct from where identical provisions are required. In practice, all the secondary legislation to date in the fields covered by the present work has taken the form of directives, so that their nature and effects are particularly significant in the present context. The directives thus far enacted have been clustered around three broad themes, namely, sex equality, non-discrimination on the ground of race, and non-discrimination on the remaining grounds set out in Article 19. The major instruments concerned are: the ‘Recast’ Directive100 which supplements Article 157 of the Treaty and proscribes sex discrimination in the world of work;101 the Race Directive,102 which implements the principle of equal treatment irrespective of racial or ethnic origin; the ‘Framework’ Directive,103 the purpose of which is to combat discrimination on the grounds of religion or belief, disability, age, or sexual orientation; and the Goods and Services Directive which implements the principle of equal treatment between men and women in the access to and supply of goods and services.104 A decision, according to Article 288, is ‘binding in its entirety’. However, if it specifies those to whom it is addressed, it is only binding on those persons.105 All three instruments of secondary legislation are required to state the reasons on which they are based and must refer to any proposals or opinions which the Treaty required to be obtained.106 Legislative acts are required to be published in

99 A national measure can transpose a directive without referring to it, even in a case where the relevant directive expressly requires the implementing law to make reference to it: Case C-444/09 Gavieiro v Conselleria de Educaci
n [2010] ECR I-14031. 100 On the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), Directive 2006/54, OJ [2006] L204/23, discussed by Burrows and Robison, in ‘An Assessment of the Recast Community Equality Laws’ (2007) 13 European Law Journal 186. 101 But note that there are a number of other directives which also support the principle of sex equal102 ity and are discussed elsewhere in the present work. Directive 2000/43, OJ [2000] L180/22. 103 Directive 2000/78, OJ [2000] L303/16. Like the Race Directive, the Framework Directive was adopted pursuant to the old Art 13. For the argument that Art 13 was not the appropriate Treaty base, and the suggestion that reasons of pragmatism and political expediency influenced the choice, see Bell and Whittle, ‘Between Social Policy and Union Citizenship: the Framework Directive on Equal Treatment in Employment’ (2002) 27 ELRev 677. However, Geelhoed AG stated in Case C-13/5 Chac
n Navas v Eurest Colectividades SA [2006] ECR I-6467 (at para 45 of the Opinion) that the choice of Art 13 as the sole legal basis for a general prohibition of discrimination on the ground of disability was 104 correct. Directive 2004/113, OJ [2003] L373/37. 105 The wording of Art 288 in relation to decisions differs slightly from its predecessor Art 249 of 106 the TEC. TFEU, Art 296.

Sources of EU anti-discrimination law

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the Official Journal of the European Union.107 They enter into force on the date specified in them or, if no such date is specified, on the twentieth day following their publication.108 The relevant enabling article in the founding Treaties has to be examined in order to discover what type of secondary law is permitted in any given instance. Where the enabling article does not specify the type of act to be adopted, Article 296 of the TFEU requires the institutions to ‘select it on a case-by-case basis, in compliance with the applicable procedures and with the principle of proportionality’.109

(iii) Decisions of the CJEU and the General Court As will become evident in the rest of this book, judicial decisions have played, and continue to play, an extremely important role in shaping EU law in the area of equality and non-discrimination. Many vital concepts, words, and phrases have either been left undefined in the relevant legislation, or have been defined only broadly; their articulation and effect are therefore in the hands of the CJEU. Although the Court does not adopt a formal system of precedent, and remains free to change its mind in subsequent decisions, in practice it establishes core areas of jurisprudence which act as sources of law. The exclusive jurisdiction enjoyed by the CJEU over the preliminary rulings procedure110 has meant that in practice the CJEU’s jurisprudence has so far been vastly more influential in this area than that of the General Court, since preliminary rulings have provided the vehicle for most of the anti-discrimination litigation.

(iv) Instruments for the protection of fundamental human rights As seen above, the Charter of Fundamental Rights today has the same legal value in EU law as the founding Treaties.111 In addition, the ECHR is expressed to be a direct source of general principles of EU law.112 However, a number of other internationally agreed instruments which seek to protect fundamental human rights exert at least an indirect influence on the content of EU law. Their relevance in the specific field of equality and anti-discrimination law will be discussed further in chapter 3. Of particular importance in this 107

TFEU, Art 297(1). TFEU, Art 297(1). Directives which are addressed only to some Member States, and decisions which specify to whom they are addressed, must be notified to their addressees and take effect upon such notification: TFEU, Art 297(2). 109 TEU, Art 5(4) provides: ‘Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’. 110 This is a procedure which enables national courts to seek the help of the CJEU in interpreting 111 and applying EU law; see ch 2. TEU, Art 6(1). 112 TEU, Art 6(3). 108

22

Introduction

context are the European Social Charter of 1961, revised in 1996, the Community Social Charter of 1989, both referred to in the Preamble to the TEU,113 and the UN Convention on the Rights of Persons with Disabilities.114

(v) Other indirect sources Since the European judicature has a wide measure of discretion in interpreting and applying anti-discrimination and equality law, it is inevitably thrown back on a number of other sources when deciding what policy consideration should guide it. Amongst such sources should be listed, no doubt inter alia, the constitutional provisions of the Member States,115 international instruments, and non-binding instruments of EU law (so-called ‘soft’ law). The part they play is discussed more fully in chapters 2 and 3.

The grounds on which EU law forbids discrimination The picture which emerges from a consideration of the numerous sources of EU equality and non-discrimination law is a complex one. There are a number of instruments to which a court must have regard in deciding an issue within this area, and the European judicature, in seeking to resolve ambiguities and unclear matters, must have recourse to many different instruments. Nevertheless, in the current state of the law, there is only a limited list of grounds on which EU law actually contains an outright prohibition on discrimination. These are nationality, sex, part-time and temporary employment, racial or ethnic origin, religion or belief, disability, age, and sexual orientation.

(i) Nationality A number of provisions of EU law forbid discrimination against persons on the ground of their possessing the nationality of one of the Member States. The most important are Article 18 of the TFEU, prohibiting such discrimination in general terms and authorizing the European Parliament and the Council to adopt rules designed for this purpose, and Articles 45–63, providing for the free movement of workers, the right of establishment, and the freedom to provide services within the Union. A substantial body of secondary law has also been enacted to support these rights. However, for reasons already set out, discrimination on the ground of nationality is not dealt with extensively in the present work. 113

See Recital 5.

114

See further at p 40.

115

See TEU, Art 6(3).

The grounds on which EU law forbids discrimination

23

(ii) Sex That the improvement of the quality of life for the peoples of the Communities is an ideal underlying the EU is clear from the Preamble to the TFEU116 and from the aspirations of the founders of the Communities discussed above. However, at the time the original TEC was being drafted, there were two radically opposed conceptions of the relationship between social policy and the establishment and functioning of the proposed Common Market. The French view was that the harmonization of the ‘social costs’ of production was necessary in order to make sure that businesses competed on a fair and equal basis once the barriers to the free movement of persons and capital were removed. At the time of the negotiations, there were important differences in the scope and content of the social legislation in force in the States concerned. France, in particular, had on her statute book a number of rules which protected workers and were consequently expensive for employers. For example, legislation of 1957 mandated equal pay for men and women. Workers in France also had longer paid holidays than workers in the other States, normally a minimum of 24 days.They were, in addition, entitled to overtime pay after fewer hours of work at basic rates than elsewhere. All this meant that the French feared that the indirect costs of production of goods in France would make French goods uncompetitive in the proposed Common Market and would damage French industry.They therefore sought to persuade the other negotiating States that social costs should be equalized throughout the Community. Germany, however, took a very different line, arguing that the harmonization of indirect or social costs would inevitably follow from the setting up of a Common Market. The Germans were also strongly committed to a minimum level of government interference in the area of wages and prices. A compromise was ultimately reached and the two differing viewpoints were both reflected in the Treaty’s social policy provisions.117 In particular, the French delegation succeeded in persuading the others to accept two specific provisions, which would protect French industry from the kind of ‘social dumping’ of which it was afraid. These are what are today Article 157, on equal pay for men and women,118 and Article 158, which provides that the Member States will ‘endeavour to maintain the existing equivalence between paid holiday schemes’. 116 See in particular recital 3:‘Affirming as the essential objective of their efforts the constant improvements of the living and working conditions of their peoples.’ 117 That the debate between the two positions is not yet over has been shown in more recent times by the altercations between those who would seek to de-regulate employment and their opponents who advocate harmonized social policy legislation as the only route to real future progress in Europe. A more recent example of the practical issues involved can be seen in the decision of Hoover, a US company, to close its factory in Dijon and transfer production to Scotland, where the burden of social protection provisions was perceived to be less than that in France: see Editorial Comment, ‘Are European Values Being Hoovered Away?’ (1993) 30 CMLRev 445. 118 See Forman, ‘The Equal Pay Principle under Community Law’ (1982) 1 LIEI 17. Note that despite its legislative history, the equal pay article makes no suggestion (and neither has the subsequent case law of the CJEU) that it protects only women and not men.

24

Introduction

Despite this somewhat unedifying origin, there emerged a principle which both the Union and the CJEU were to regard as of fundamental importance, namely, the equal treatment of men and women. Social policy generally came to play an increasingly prominent role in practice because it provided a useful mechanism by which to emphasize the human face of the Community, against a background of criticism that it was exclusively economic, capitalist, and uncaring. Social policy legislation was also made more necessary as a result of economic recession and mass unemployment. So, by 1972, the communiqué issued by the Paris Summit Meeting stated that the Heads of State or Government attached ‘as much importance to vigorous action in the social field as to the achievement of monetary and economic union’. A ‘Social Action Programme’ followed in 1973,119 which was approved by the Council in January 1974.120 The Social Action Programme had three main aims: the attainment of full and better employment; the improvement of living and working conditions; and the increased involvement of management and labour in the economic and social decisions of the Community, and of workers in the life of undertakings. Among other things its objectives included the bringing about of a ‘situation in which equality between men and women obtains in the labour market throughout the Community, through the improvement of economic and psychological conditions, and of the social and educational infrastructure’. Gradually, equality of opportunity as between the sexes took its place at the forefront of EU social policy.121 In addition to the enactment of a series of directives on the subject, a number of ‘Action Programmes’ have been mounted by the Commission, most recently to cover 2010–15.These have sought to enforce the equality legislation on a practical level in numerous ways, a matter of the utmost importance if the kinds of structural disadvantages faced by women which have been discussed earlier in this chapter are to be dismantled.‘PROGRESS’, a new integrated six-year programme for employment and social solidarity was launched by the Commission in 2006;122 it contains five sections: employment, social protection and social inclusion, working conditions, anti-discrimination and diversity, and gender equality. A number of measures have similarly been initiated to promote the integration of the Roma people.123 And, in 2010, the Commission adopted a five-year strategy for equality between women and men,124 as well as a ten-year disability strategy.125 An ‘Advisory Committee on Equal Opportunities for Women and Men’ was established in 1982 to help the Commission to formulate and implement policy on the advancement of women’s employment and equal opportunities, and to arrange for the exchange of information between interested bodies in this field.126 A group of governmental experts on discrimination was also set up in 2007.127 In addition, the 119

120 24 October 1973, COM (73) 1600. OJ [1974] C13/1. For an account of the processes at work to achieve this end, see Harlow, ‘A Community of Inter122 ests? Making the Most of European Law’ (1992) 55 MLR 331. OJ [2006] L315/1. 123 124 125 COM (2010) 133 final. COM (2010) 491 final. COM (2010) 636. 126 Commission Decision 82/43/EEC of 9 December 1981, OJ [1982] L20. 127 COM (2008) 3261 final. 121

The grounds on which EU law forbids discrimination

25

Amsterdam Treaty gave a strong new emphasis to equality of opportunity irrespective of sex and this has been maintained in the Lisbon Treaty. Quite why equality—especially sex equality—has been accorded this sort of priority by the Community is open to speculation. On an economic level, it is clearly important to prevent competitive distortions in a now quite highly integrated market. On the political level, perhaps it has been selected because it provides a relatively innocuous, even high-sounding, platform by means of which the Community can demonstrate its commitment to social progress. Barnard has also suggested that the promotion of the concept of equality by the CJEU has served, in times of uncertainty about the future of the EU, to legitimize the Union and to strengthen political integration.128 The part played by the European Parliament in the process will provide an interesting study for the historians of future generations.The Parliament, which has a higher proportion of women members than have the national parliaments,129 has since 1984 possessed an influential Standing Committee on Women’s Rights and has on several occasions provided the impetus for Community action in this field.130 To some extent, it may be that to accede to demands made by the Parliament in the sphere of equal rights between the sexes has provided the Community’s executive with a useful way out of heeding its advice in other fields.131 The CJEU has also made clear the importance which it attaches to the principle of sex equality. In its seminal decision in Defrenne v Sabena,132 it held: The question of the direct effect133 of Article 119 must be considered in the light of the nature of the principle of equal pay, the aim of this provision and its place in the scheme of the Treaty. Article 119 pursues a double aim. First, in the light of the different stages of the development of social legislation in the various Member States, the aim of Article 119 is to avoid a situation in which undertakings established in states which have actually implemented the principle of equal pay suffer a competitive disadvantage in intra-Community 128 Barnard, ‘The Principle of Equality in The Community Context: P, Grant, Kalanke and Marschall: Four Uneasy Bedfellows?’ (1998) 57 CLJ 352. 129 See Valance, ‘Do Women Make a Difference? The Impact of Women MEPS on Community Equality Policy’, in Buckley and Anderson (eds), Women, Equality and Europe (Macmillan, London, 1988) and CREW Reports (1990),Vol 10, No 5, 11. After the 1994 elections, women represented only 25.7% of the membership of the European Parliament. By 1996, this percentage had increased to 27.6.This is to be compared with the average percentage of women in the national parliaments of the Member States, which stood at 15 in 1996, notwithstanding the accessions of Sweden and Finland which then both had an exceptionally high number of women in parliament: see Equal Opportunities for Women and Men in the European Union: Annual Report 1996 (Commission, Luxembourg, 1997). The percentage of women MEPS rose to 30% in 2000, 31% in 2004 and 35% in 2009. 130 See, eg, its Resolution of 11 February 1981 on the Situation of Women in the EC (Bull EC 2-1981, point 2.3.7), which prompted the production of the first ‘Action Programme’. 131 See O’ Donovan and Szyszczak, Equality and Sex Discrimination Law (Blackwell, Oxford, 1988), in particular ch 7. 132 Case 43/75 [1976] ECR 455, the so-called Second Defrenne case, noted in [1976] Journal of Business Law 296. See also Wyatt, ‘Article 119 EEC: Direct Applicability’ (1975–76) 1 ELRev 418, and Crisham, ‘Annotation on Case 43/75’ (1977) 14 CMLRev 108. 133 The meaning of ‘direct effect’ is discussed in ch 2.

26

Introduction

competition as compared with undertakings established in states which have not yet eliminated discrimination against women workers as regards pay. Secondly, this provision forms part of the social objectives of the Community, which is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their peoples, as is emphasized by the Preamble to the Treaty. This aim is accentuated by the insertion of Article 119 into the body of a Chapter devoted to social policy whose preliminary provision, Article 117, marks ‘the need to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonization while the improvement is being maintained.’ This double aim, which is at once economic and social, shows that the principle of equal pay forms part of the foundations of the Community. Furthermore, this explains why the Treaty has provided for the complete implementation of this principle by the end of the first stage of the transitional period.134

This passage explains two vital elements of the CJEU’s reasoning in relation to the principle of equal pay for men and women. First, it sees equal pay as part, but only part, of the social objectives of the Community. This enabled it in later cases to develop an allied general principle of equality as between the sexes. It has also undoubtedly contributed to the Court’s purposive reading of the secondary legislation on sex discrimination. France’s ‘foot-in-the-door’ negotiating stance when the original TEC was being drafted therefore paid off in a way which could hardly have been anticipated in 1957. Secondly, because Article 157 is an important element in the development of Community social policy, it is not to be read narrowly or restrictively;135 its meaning and effects must be understood in the light of its purposes, and this can lead to very much more extensive constructions of its terms, and those of the implementing directives, than would normally be expected. It might be thought that the definition of ‘sex’ was a straightforward biological matter and that the only question marks which would be encountered in enforcing the principle of sex equality would concern its scope, rather than the ground itself. However, the CJEU has made it clear that the principle of non-discrimination on the ground of sex extends in two important ways beyond the obvious case of a comparable man and woman receiving different treatment. In arriving at these decisions, it has concentrated on ‘gender’ as well as ‘sex’, in other words, the social, psychological, and cultural constructs which accompany a person’s membership of one or other sex, in addition to the biological difference of sex. First, the principle of sex discrimination has been interpreted by the CJEU as providing automatic protection against discrimination based upon pregnancy.136 In

134 [1976] ECR 455, at 471-2. For discussion of the similar rationales for EU race discrimination law, see McInerney, ‘Bases for Action against Race Discrimination in EU Law’ (2002) 27 ELRev 72. 135 See, eg, the comment of Darmon AG in Joined Cases C-399, 409 & 425/92, C-34, 50 and 78/93 Stadt Lengerich v Helmig [1994] ECR I-5727, at 5731. See also Case C-1/95 Gerster v FreistaatBayern [1997] ECR I-5253, in which the CJEU held that Art 141 applied to employment relationships in the 136 public service. This matter is discussed in further detail in ch 7.

The grounds on which EU law forbids discrimination

27

Dekker v Stichting Vormingscentrum Voor Jonge Volwassen Plus,137 the Court held that the Equal Treatment Directive138 forbade an employer to refuse to employ a pregnant woman, who was otherwise suitable for the job which she had been offered. The fact of her pregnancy was the most important reason for her non-employment and, since this is a condition which can apply only to members of the female sex, this meant that the employer’s action necessarily constituted direct discrimination on the ground of sex. It followed the same line in Mayr v Flckner OHG139 where a woman was dismissed during the process of in vitro fertilization. In Handels-OG Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening (acting for Aldi Marked K/S),140 the Court added that this principle holds good throughout the relevant period of maternity leave.141 Secondly, the principle of sex equality has been held to apply to discrimination based upon gender reassignment.142 In P v S and Cornwall County Council,143 the CJEU held that the Equal Treatment Directive prohibited the dismissal of an employee144 where the true reason for the dismissal had been found by the referring court to be the employee’s proposal to undergo gender reassignment.145 The Court explained that the directive: ...is simply the expression, in the relevant field, of the principle of equality, which is one of the fundamental principles of Community law. Moreover,...the right not to be discriminated

137 Case 177/88 [1990] ECR I-3941, noted by Asscher-Vonk in (1991) 20 ILJ 152. The meaning of ‘direct’ discrimination is discussed in ch 4. 138 Directive 76/207, OJ [1976] L39/40, the predecessor of today’s Recast Directive. 139 Case C-506/06 [2008] ECR I-1017. 140 Case 179/88 [1990] ECR I-3979; both Dekker and Aldi are noted by Nielsen in (1992) 29 CMLRev 160. See also More, ‘Reflections on Pregnancy Discrimination under EC Law’ [1992] JSWFL 48. 141 See further discussion of the Pregnancy Directive in ch 7. 142 See also recital 3 of the Preamble to the Recast Directive. 143 Case C-13/94 [1996] ECR I-2143. See Campbell and Lardy, ‘Discrimination Against Transsexuals in Employment’ (1996) 21 ELR 412, and Flynn’s comments in (1997) 34 CMLRev 367. 144 In Goodwin and I v UK (2002) EHRR 447, the European Court of Human Rights held that the UK’s failure to accord legal recognition (specifically, through an amended birth certificate) to the reassigned gender of a post-operative transgender person violated the right to private life pursuant to Art 8 of the ECHR; furthermore, the State’s refusal to recognize that reassigned gender for the purpose of marriage violated the right to marry under Art 12. The UK responded by enacting the Gender Recognition Act 2004, which permits an amended birth certificate to be issued to a transsexual person who registers pursuant to the Act. Since, as discussed above, the ECHR operates as a secondary source of EU law, Goodwin is likely to induce the CJEU to take an increasingly broad view of the protection granted by EU law to transsexuals. 145 This conclusion was of particular significance in the UK where the Sex Discrimination Act 1975 had not been interpreted hitherto as extending to this situation on the basis that the treatment received by the applicant would have been no different whether the gender reassignment had been male to female or vice versa. See White v British Sugar Corporation [1977] IRLR 121. However, subsequently in Chessington World of Adventures Ltd v Reed [1997] IRLR 556, the Employment Appeal Tribunal held that the Sex Discrimination Act could be construed so as to cover unfavourable treatment on the ground of a declared intention to undergo gender reassignment. The Act was subsequently formally amended so as to preclude discrimination against transsexuals by the Sex Discrimination (Gender Reassignment) Regulations 1999, SI 1999 No 1102. See today the Equality Act 2010, ss 7 and 16.

28

Introduction

against on grounds of sex is one of the fundamental human rights whose observance the Court has a duty to ensure ... Accordingly, the scope of the Directive cannot be confined simply to discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of the Directive is also such as to apply to discrimination arising, as in this case, from the gender reassignment of the person concerned. Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard.146

Tesauro AG added: I regard as obsolete the idea that the law should take into consideration, and protect, a woman who has suffered discrimination in comparison with a man, or vice versa, but denies that protection to those who are also discriminated against, again by reason of sex, merely because they fall outside the traditional man/ woman classification.147

The spirit of this decision was followed in KB v National Health Service Pensions Agency.148 A female nurse employed by the National Health Service complained that the restriction of survivors’ benefits in her pension scheme to widows and widowers infringed her right to equal pay pursuant to the then Article 141.149 She was living in a stable relationship with R, a female-to-male transsexual, and UK law did not at the relevant time permit marriages other than between two people of the opposite biological sex; neither did it recognize the possibility of a legal change of sex.150 The CJEU held that a decision to restrict benefits to married couples, excluding all unmarried couples, did not per se amount to sex

146 [1996] ECR I-2143, at 2165.Tridimas has commented: ‘The case provides a prime example of the way the Court views the principle of equality as a general principle of Community law transcending the provisions of Community legislation. In effect, the Court applied a general principle of unwritten human rights law, according to which discrimination on arbitrary criteria is prohibited, rather than the provisions of the Equal Treatment Directive, a literal interpretation of which does not support the Court’s finding’ (Tridimas, The General Principles of EC Law (Oxford University Press, Oxford, 1999), 70). See also Case C-423/04 Richards v Secretary of State for Work and Pensions [2006] ECR I-3585. For further discussion of the general principle of equality, see ch 3, of the present work. 147 Ibid, at 2153. See Barnard, ‘P v S: Kite Flying or a New Constitutional Approach?’, in Dashwood and O’Leary (eds), The Principle of Equal Treatment in EC Law (Sweet & Maxwell, London, 1997). In Chief Constable of West Yorkshire Police v A (No 2) [2004] 2 WLR 1209, the House of Lords held that it followed from P v S and Cornwall County Council that, for the purpose of identifying unlawful discrimination, a transsexual person must be regarded as having the sexual identity of the gender to which he or she has 148 been reassigned. Case C-117/01 [2004] 1 CMLR 28. 149 The applicability of Art 157 to pension schemes, and in particular to survivors’ benefits, is discussed 150 in ch 5. But see now the Gender Recognition Act 2004.

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discrimination since it applied to both sexes. However, the situation in question did involve an ‘inequality of treatment’ which, although it did not directly undermine the enjoyment of a right protected by Community law, affected one of the conditions for the grant of that right; in other words, the inequality did not relate to the award of the widower’s pension but to a necessary precondition for the grant of such a pension, namely, the capacity to marry. The Court noted that the UK law prohibiting marriage between transsexuals and preventing the alteration of birth certificates had recently been held by the European Court of Human Rights to constitute a breach of Articles 8 and 12 of the ECHR.151 This led it to conclude: Legislation, such as that at issue in the main proceedings, which, in breach of the ECHR, prevents a couple such as KB and R from fulfilling the marriage requirement which must be met for one of them to be able to benefit from part of the pay of the other must be regarded as being, in principle, incompatible with the requirements of Article 141.152

However, the Court went on to hold that it is for the Member States to determine the conditions under which they give legal recognition to gender reassignments; it was therefore for the national court in KB to determine whether KB could rely on Article 141 in order to gain recognition of her right to nominate R as the beneficiary of her survivor’s pension. The broad interpretation of the concept of ‘sex’ for the purposes of the directive given by the CJEU in P v S and Cornwall County Council, combined with the Court’s references to the fundamental right to equality and to dignity and freedom, lent force to the view that the directive might also extend to discrimination on the ground of homosexuality.153 Thus, for example, in R v Secretary of State for Defence, ex parte Perkins,154 Lightman J commented in the High Court: After the decision in the Cornwall case, it is scarcely possible to limit the application of the Directive to gender discrimination, as was held in the Smith case,155 and there must be a real prospect that the European Court will take the further courageous step to extend protection to those of homosexual orientation, if a courageous step is necessary to do so. I doubt, 151

Goodwin v UK (2002) 35 EHRR 447, as to which see ch 7. [2004] 1 CMLR 28, at 34. 153 Support could also be derived for the application of the Equal Treatment Directive to discrimination on account of homosexuality from the fact that Art 2(1) (even after its amendment) referred to discrimination on ‘grounds’ (plural) ‘of sex’. In R v Ministry of Defence, ex parte Smith [1996] IRLR 100 (noted by Skidmore in ‘Homosexuals Have Human Rights Too’ (1996) 25 ILJ 63) and Smith v Gardner Merchant Ltd [1996] ICR 790, UK courts held that UK sex equality legislation did not protect homosexuals against discrimination on grounds of sexual orientation. For further discussion, see Wintermute, ‘Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes’ (1997) 60 MLR 334, and Waaldijk and Clapham (eds), Homosexuality: A European Community Issue (Martinus Nijhoff , Dordrecht, 1993). 154 [1997] IRLR 297. The Perkins case challenged the Ministry of Defence’s policy of dismissing all members of the armed services who had a homosexual orientation.The request for a preliminary ruling in this case was, however, withdrawn after the CJEU’s decision in Case C-249/96 Grant v South-West 155 Trains Ltd [1998] ECR I-621, discussed at p30. [1996] IRLR 100. 152

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however, whether any courage is necessary, for all that may be required is working out and applying in a constructive manner the implications of the Advocate General’s Opinion and the judgment in the Cornwall case.156

Furthermore, in Grant v South-West Trains Ltd,157 which concerned travel concessions granted by an employer in respect of the common law opposite-sex spouse of an employee but refused to a lesbian employee who was living with a female partner, Elmer AG submitted that discrimination on the ground of sexual orientation was indeed forbidden by EU law. Although the Cornwall case technically concerned the Equal Treatment Directive, he argued that it had equal significance for the then Article 141, ‘which sets out the basic principle prohibiting discrimination based on sex’. In order to give full effect to that principle, he reasoned that the Article must be construed so as to preclude forms of discrimination against employees based on gender, and he continued: The provision must, in order to be effective, be understood as prohibiting discrimination against employees not solely on the basis of the employee’s own gender but also on the basis of the gender of the employee’s child, parent, or other dependent. The provision must therefore also be regarded as precluding an employer from, for instance, denying a household allowance to an employee for sons under 18 living at home when such an allowance in otherwise equivalent circumstances was given for daughters living at home.158

His conclusion was that: [A] provision in an employer’s pay regulations under which the employee is granted travel concessions for a cohabitee of the opposite sex to the employee but refused such concessions for a cohabitee of the same sex as the employee constitutes discrimination on the basis of gender which falls within the scope of [the Treaty] Article ...159

Despite these robust assertions, in its decision in Grant the CJEU nonetheless ultimately rejected the view that the equal treatment principle contained in the Treaty Article extended to discrimination on the ground of homosexuality.160 It did however note expressly that the Treaty of Amsterdam had introduced what is now Article 19 of the TFEU, and that this would enable future legislative action to outlaw discrimination on the ground of sexual orientation. As seen above, such action was taken shortly after Grant in the form of the Framework Directive.161

156

157 [1997] IRLR 297, at 303. Case C-249/96 [1998] ECR I-621. 159 [1998] ECR I-621, at 627. [1998] ECR I-621, at 629–30. 160 For criticism of this decision, see Terrett, ‘A Bridge too Far? Non-Discrimination and Homosexuality in European Community Law’ (1998) 4 EPL 487; Bamforth, ‘Sexual Orientation Discrimination after Grant v South-West Trains’ (2000) 63 MLR 694; and the comment of McInnes in (1999) 36 CMLRev 1043. See also Joined Cases C-122 & 129/99P D and Sweden v Council [2001] ECR I-4319. 161 See also Waaldijk and Bonini-Baraldi, Sexual Orientation Discrimination in the European Union: National Laws and the Employment Equality Directive (Asser, The Hague, 2006). 158

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(iii) Part-time and temporary employment Two other grounds on which discrimination is today prohibited by EU law have also developed out of the law on sex discrimination. As will be seen in chapter 4, the concept of indirect discrimination enables the CJEU to treat as unlawful practices which, though apparently neutral, have a disadvantageous effect upon a protected class of persons. Thus, since the vast majority of part-time workers throughout the EU are female, practices which produce a negative impact for part-time workers have consistently been treated by the CJEU as contrary to the principle of sex equality. The same is true for practices which produce an adverse impact for workers employed on fixed-term contracts of employment. Today, however, it is not always necessary to resort to the concept of indirect discrimination in these situations since, as will be discussed in chapter 6, discrimination on the grounds of both part-time and temporary working is independently rendered unlawful by the Directive on Part-Time Work162 and the Directive on Fixed Term Work.163 This independent regulation has the consequence that male part-time and temporary workers also have legal protection against discrimination.164

(iv) Racial or ethnic origin The Race Directive prohibits discrimination on the grounds of ‘racial or ethnic origin’.165 Its background was mounting international concern at the prevalence of racism, in particular because of the resurgence of Far Right activities and racist violence in parts of Europe.166 1997 was proclaimed the European Year against Racism,167 and the same year witnessed the creation of the European Monitoring Centre on Racism and Xenophobia.168 The European Council meeting in Tampere in October 1999 invited the Commission to come forward as soon as possible with proposals to implement what was then the new Article 13 in the field of race, an invitation which was accepted with alacrity.169 The Commission was particularly concerned about discrimination in parts of Central and Eastern Europe, especially

162

163 Directive 97/81, OJ [1998] L14/9. Directive 99/70, OJ [1999] L175/43. See also the Directive on Temporary Agency Work, Directive 2008/104, OJ [2008] L327/9, dis165 cussed in ch 6. See, in particular, Arts 1 and 2 of this Directive. 166 See Gearty, ‘The Internal and External “Other” in the Union Legal Order: Racism, Religious Intolerance and Xenophobia in Europe’, in Alston (ed), with Bustelo and Heenan, The EU and Human Rights (Oxford University Press, Oxford, 1999). See also Brown, ‘The Race Directive: Towards Equality 167 for All the Peoples of Europe’ (2002) 21 YEL 195. OJ [1999] C237/1. 168 See Regulation 1035/97, OJ [1997] L151/1. 169 See also the account of the remarkable haste with which the Race Directive was ultimately adopted, given by the Select Committee on the European Union in ‘The EU Framework Directive on Discrimination’, HL Session 2000–01, 4th Report, HL Paper 13, para 7. 164

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as regards the Roma170 and persons with learning disabilities; it was therefore keen to send out a signal about the importance of respect for fundamental rights to the countries of Central and Eastern Europe which were at that time seeking accession to the EU. In addition, it wished to ensure that the new legislation formed part of the acquis communautaire to which those countries would be required to accede.171 There is, nevertheless, undoubtedly also an economic basis for the Race Directive172 (as indeed for its sister instrument, the Framework Directive).173 Fredman has argued that discrimination helped to establish the Common Market by creating a pool of cheap labour, and it was only with the acceptance of a ‘convergence between economic goals, and goals of justice and fairness that a generalised power to legislate in the discrimination field was enacted’.174 It is to be noted that the directive contains no definition of the elusive expression ‘racial or ethnic origin’,175 although a few textual clues about its intended meaning can be garnered from the lengthy Preamble. In particular, recital 6 provides: The European Union rejects theories which attempt to determine the existence of separate human races. The use of the term ‘racial origin’ in this Directive does not imply an acceptance of such theories.

Thus, the directive appears to be predicated on the basis that the human race itself, although a single generic entity, consists of different racial groups. The concept of racism is on several occasions176 linked in the Preamble with ‘xenophobia’, defined in the Shorter Oxford English Dictionary as a ‘morbid dread or dislike of foreigners’; this might perhaps indicate that the directive is primarily targeted at discrimination against racial groups (whatever they may be) whose origin is outside the EU. The notion of ethnicity is arguably even more elusive than that of race. However, it may perhaps be hazarded that more cases will turn on the meaning of ethnic origins than of racial origins because, whilst ‘racial’ suggests physiological but generally unprovable distinctions between people, ‘ethnic’ primarily connotes sociological or cultural distinctions (albeit sometimes transient ones) with which the 170 See further the Equinet opinion, Making equality legislation work for Roma and Travellers (Equinet, Brussels, 2010); and for the argument that stronger protection is still needed for the Roma, see Xanthaki, ‘Hope Dies Last: an EU Directive on Roma Integration’ (2005) 11 EPL 515. 171 See Select Committee on the European Union, ‘EU Proposals to Combat Discrimination’, 172 HLSession 1999–2000, 9th Report, HL Paper 68, para 36. See, eg, recital 9 of its Preamble. 173 See recital 11 of the Preamble to the Framework Directive. 174 Fredman, ‘Equality: A New Generation?’ (2001) 30 ILJ 145, at 149. 175 Attempts to provide a scientific explanation for the attribution of race are, mercifully, generally discarded today.Thus, as Fredman has observed, race today is really ‘a social construct, reflecting ideological attempts to legitimate domination, and heavily based on social and historical context ...Racism is ...not about objective characteristics, but about relationships of domination and subordination ...’ (Fredman, ‘Combating Racism with Human Rights: The Right to Equality’, in Fredman (ed), Discrimination and Human Rights:The Case of Racism (Oxford University Press, Oxford, 2001). For further discussion of the meaning of race, see Howard, The EU Race Directive: Developing the Protection against Racial Discrimination 176 within the EU (Routledge, London and New York, 2010). Recitals 7, 10, and 11.

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judiciary is likely to feel more comfortable. Thus, for example, the Shorter Oxford English Dictionary definition suggests that ‘ethnic’ indicates the distinctive characteristics of different racial groups or peoples. Recital 8 of the Preamble refers to ‘ethnic minorities’, suggesting perhaps that it is minorities within a State’s population who are uppermost in the mind of the legislature. Recital 10 refers to a Commission Communication on ‘racism, xenophobia and anti-Semitism’, the only hint given by the instrument that religion or religious heritage may play a part in defining ethnicity. Recital 14 highlights the very important practical point that women from racial minorities frequently encounter discrimination on the grounds both of their race and of their sex: In implementing the principle of equal treatment irrespective of racial or ethnic origin, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination.

The clear implication to be drawn from this provision is that the Court should recognize the concept of multiple discrimination177 and should use its powers to outlaw it insofar as it is able to do so. A further deduction is that the relevant substantive provisions of EU law on racial and sexual equality should, as far as possible, be interpreted and applied consistently with one another. On a more negative note, recital 13 explains that the directive applies to the nationals of third countries but ‘does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and to occupation’.178 It is immediately evident that this limitation will lead to some idiosyncratic distinctions; thus, for example, a white Zimbabwean whose antecedents were of European origin might be unable to complain of unlawful discrimination occurring in a Member State of the EU in circumstances where a black compatriot, of African descent, could do so. It is noteworthy that the primary British legislation outlawing race discrimination refers to colour, nationality, ethnic or national origins.179 ‘Colour’ has not been included in the directive, though it seems probable that it will play an indirect role in establishing ethnicity; this is in many ways a strange omission, since much racial discrimination is in reality grounded upon the visible element of the colour of the victim’s skin.180 As seen above, colour is expressly mentioned as a prohibited ground of discrimination by Article 21 of the Charter of Fundamental Rights. It is therefore clear that much discretion has been left in the hands of the CJEU as regards the definition of ‘racial or ethnic origin’. As will be seen in chapter 2, 177

178 Discussed in ch 4. This exception is discussed in more detail in ch 9. Equality Act 2010, s 9. 180 See discussion by Brennan in ‘The Race Directive: Recycling Racial Inequality’ (2002–03) 5 CYELS 311. 179

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the CJEU’s position is crucial, since any definition it formulates will create binding law in all the Member States. Even if it opts to delegate a measure of discretion over the meaning of ‘racial or ethnic’ in different national contexts to the courts of the Member States, the outer limits of any such discretion will be patrolled by the CJEU. Although experience in the field of sex discrimination suggests that confidence can be placed in the CJEU to articulate sensible and workable principles in this area, the disadvantage of the present arrangements is that the law will remain uncertain until such time as it does so.181 This is undesirable for applicants and respondents alike. British case law on racial discrimination is probably the most advanced of all the Member States of the EU. It is therefore likely to provide at least guidance to the CJEU in formulating its definition of ‘racial or ethnic origin’. In practice, most of the litigation has concerned the meaning of ‘ethnic’, perhaps because the inclusion of ‘colour’ in the domestic definition has made it less necessary to concentrate on the meaning of ‘race’. The leading decision is that of the House of Lords in Mandla v Dowell Lee.182 A Sikh boy had been refused admission to a school because he refused to cut off his hair and remove his turban. Since Sikhs cannot be identified by reference to colour, race, nationality, or national origin, it was necessary to prove that they formed an ethnic group if they were to be protected by the Act. Lord Fraser set out two essential, and five other relevant, characteristics of an ethnic group; in practice, his test is routinely applied today by British courts and tribunals hearing discrimination cases. The essential characteristics are: • a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which keeps it alive; • a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. The relevant characteristics are: • either a common sense of geographical origin, or descent from a small number of common ancestors; • a common language, not necessarily peculiar to a group;183 • a common literature peculiar to the group; • a common religion different from that of neighbouring groups or from the general community surrounding it; • being a minority, or being an oppressed or dominant group within a larger community. 181 In the first case presented to it pursuant to the Race Directive, Case C-328/04 Criminal Proceedings Against Vajnai [2005] ECR I-8577, the Court found that the dispute fell outside the scope of EU law. Similarly, in Case C-310/10 Agafitei [2011] ECR I-000, the Court held that discrimination on the grounds of socio-professional category and place of work (which apparently corresponded to social 182 class) fell outwith the Race Directive. [1983] AC 548. 183 A common language, on its own, is insufficient to establish a racial group under British law: Gwynedd County Council v Jones [1986] ICR 833.

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Lord Fraser added that a group which included enough of these characteristics would be capable of including converts, such as people who marry into it. The House of Lords concluded that Sikhs did constitute an ethnic group. They were originally a religious community but are now no longer purely religious in character. However, they are a distinctive and self-conscious community, with a history going back to the fifteenth century. They have a written language, which a small proportion of Sikhs can read but which can be read by a much higher proportion of Sikhs than Hindus, and they were at one time politically supreme in the Punjab. Applying Lord Fraser’s test, Rastafarians were held not to constitute an ethnic group in Crown Suppliers v Dawkins,184 since 60 years does not amount to a long shared or group history. Similarly, Muslims are not regarded by British courts as forming an ethnic group since they include people of many different nationalities and colours, who speak many different languages.185 On the other hand, in CRE v Dutton,186 members of the ‘traveller’ community (formerly known as ‘gypsies’) were found to be an ethnic group because they do have a long shared history and a common geographical origin (coming from Northern India via Persia in medieval times); they also have some customs of their own, especially as regards cooking, washing, dressing, and furnishings.They have a language or dialect of their own and, although without a common religion or literature, they have a repertoire of folk tales and music passed down the generations.187 In the first case referred to it complaining of discrimination on the ground of race or ethnic origin, the CJEU avoided dealing with the definition of race and ethnic origin by holding that the subject-matter of the domestic litigation fell outside the scope of EU law.188 In Feryn, the Court answered questions about the nature and consequences of discrimination and merely assumed that discrimination on the ground of race or ethnic origin could be proved on the facts; the evidence was unclear but the Court referred to the defendant company rejecting ‘immigrants’ or people who were not indigenous Belgians. Maduro AG stated that the defendant had refused to recruit ‘persons of Moroccan origin’.189

(v) Religion or belief The grounds of religion or belief, disability, age, and sexual orientation are all contained in the Framework Directive. As was the case with the Race Directive, the Commission made it clear at the time of proposing the instrument that an important 184

[1993] ICR 517. This assumption underlies the decision of the Employment Appeal Tribunal in JH Walker Ltd v Hussain [1996] IRLR 11. Cf the discussion below on discrimination on the ground of religion or 186 belief. [1989] QB 783. 187 In Seide v Gillette Industries Ltd [1980] IRLR 427, the Employment Appeal Tribunal held that Jewish people could be said to share a common ethnicity. 188 Case C-328/04 Criminal Proceedings against Vajnai [2005] ECR I-8577. 189 Case C-54/07 Centrum v Firma Feryn NV [2008] ECR I-5187, at para 3 of the Opinion. 185

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part of its motivation was that this anti-discrimination legislation should form part of the acquis communautaire before the accession of the new Member States. The grouping of the four, seemingly somewhat disparate, grounds together was also part of the Commission’s strategy; it believed that the Member States were more enthusiastic about some of the grounds than about others, and it wanted to exploit the political momentum to ensure that it achieved legislation on all the bases mandated by the Treaty.190 Nevertheless, this approach involves the risk of false consistency, in other words, that the attempt to shoe-horn four different grounds into a single legislative instrument will produce a model which is not wholly appropriate to one or more of them. As in the case of discrimination on the ground of racial or ethnic origin contrary to the Race Directive, the Framework Directive makes no attempt to define ‘religion or belief ’,191 so that similar problems of uncertainty occur here, as indeed also in relation to disability, age, and sexual orientation. In using the bare but alternative expression ‘religion or belief ’, the directive presumably means to encapsulate both religious beliefs (however ‘religion’ is to be defined) and other philosophical beliefs on major issues such as life, death, and morality akin to, but not amounting to, religion; thus, a belief in a divine being or deity would appear to be unnecessary. So, for example, it seems likely that the intention is to cover, for example, Buddhism. However, much remains to be clarified by the CJEU, such as whether other typical facets of religious practice, for instance some form of communal or individual worship, will be required, or whether some parallel principle will be sought in philosophical belief cases; if there is such a requirement, this might rule out belief systems such as humanism and atheism. Doubts can also be anticipated in relation to how to protect differences of opinion within established religions, such as particular sects within Christianity, Orthodox parts of Judaism, or specific groups within Islam.What also of single-issue beliefs, such as pacifism or vegetarianism?192 In addition, the Court will have to draw the difficult line between religion or belief on the one hand and political opinion on the other, a problem of heightened importance in a world in which religious fundamentalism often marches hand in hand with political ideology. Further guidance will be available from the ECHR, Article 9 of which provides: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 190 See Select Committee on the European Union, ‘EU Proposals to Combat Discrimination’, HL Session 1999–2000, 9th Report, HL Paper 68, para 40. 191 The Commission reports that most of the Member States also do not define ‘religion or belief ’ in their national legislation: see COM (2008) 225 final/2. 192 In Grainger plc v Nicholson [2010] ICR 360, the UK EAT held that a belief in climate change and the need to cut carbon emissions could be protected under the domestic legislation.Whether or not the CJEU would accept such an interpretation of EU law awaits a ruling by it.

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As already noted, the law flowing from the ECHR operates as a source of EU law and, therefore, the meaning attached by the European Court of Human Rights to the concept of religion is relevant to its interpretation by the CJEU. Whether the CJEU will be content to accept the reasoning of the Court of Human Rights in this respect in toto remains to be seen. It is however relevant to note that, although it has not decided many cases directly on the point, the European Court of Human Rights has taken an essentially broad view of Article 9,193 not confining it to the major world religions194 but extending it also to fringe religions195 and to non-religious beliefs, including atheism and agnosticism.196 Before its demise,197 the European Commission on Human Rights also recognized as ‘religions’ some movements which might be referred to popularly as ‘cults’.198 The Charter of Fundamental Rights, which as pointed out above now constitutes a formal source of EU law, repeats the wording of the ECHR on freedom of religion and adds, in its Article 10, that it recognizes the right to conscientious objection, in accordance with national law. Can any guidance as to the meaning of religion or belief be gleaned from national law? UK law did not, before the enactment of the Framework Directive, define religion or belief for the purpose of anti-discrimination law; this was because no statute applying to mainland Britain prohibited religious discrimination per se199 and, although the Fair Employment and Treatment (Northern Ireland) Order 1998200 prohibits discrimination on the ground of ‘religious belief or political opinion’,201 in the practical context of Northern Ireland it is clear that the Catholic and Protestant religions are those which were uppermost in the mind of the legislature.202 The only former purpose for which UK law had to define religion was for the law of charities, since one of the permitted objects of a charity is the advancement of religion.203 The UK courts, understandably, have never 193

See also Bot AG in Joined Cases C-71/11 & C-99/11 Y, nyr. Although of course the major world religions are included. See, eg, Cha’are Shalom Ve Tsedek v France, App No 00027417/95, Reports of judgments and Decisions 2000-VII, which implicitly regards Orthodox Judaism as covered by Art 9. 195 For example, the Jehovah’s Witnesses: Hoffmann v Austria (1994) 17 EHRR 293 and Thlimmenos v Greece (2001) 31 EHRR 411; and the Pentecostal Church: Larissis v Greece (1999) 27 EHRR 329. 196 Kokkinakis v Greece (1994) 17 EHRR 397. 197 Protocol 11 to the ECHR, which came into force on 1 November 1998, replaced the Commission and the old Court with a new full-time Court of Human Rights. 198 For example, Druidism (Chappell v UK (1987) 53 DR 241), Scientology (X and Church of Scientology v Sweden (1979) 16 DR 68), the Divine Light Zentrum (Omkarananda and the Divine Light Zentrum v Switzerland (1981) 25 DR 105), Pacificism (Arrowsmith v UK (1978) 19 DR 5), Veganism (H v UK (1993) 16 EHRR CD 44), and the Krisna consciousness movement (Iskcon v UK (1994) 76A DR 90). 199 However, as noted in the preceding section, religion plays a part in determining ethnicity within 200 the provisions of the domestic race legislation. SI 1998 No 3162 (NI 21). 201 For the purposes of the Order, references to a person’s religious belief or political opinion include references to ‘(a) his supposed religious belief or political opinion; and (b) the absence or supposed absence of any, or any particular, religious belief or political opinion’: reg 2(3). 202 See, eg, reg 4 of the Fair Employment and Treatment (Northern Ireland) Order 1998. 203 See generally Picarda, The Law and Practice Relating to Charities, 4th edn (Bloomsbury Professional, Haywards Heath, 2010). 194

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sought to arbitrate between different religions, nor to decide on the veracity of their respective claims,204 although in discrimination claims they of course demand proof that a religious belief is genuinely held. However, for charitable status, they traditionally insisted that a religion requires that its adherents believe in a god (in other words, is monotheistic)205 and, furthermore, that they engage in some form of worship.206 The former element gradually adapted to a changing social context and section 2(3)(a) of the Charities Act 2006 today provides that ‘religion’ includes systems involving a belief in more than one god and those not involving a belief in a god at all. The Charity Commission’s Guidance adds that there should be a relationship between the believer and the supreme being ‘by showing worship of, reverence for or veneration of the supreme being or entity’. Furthermore, in an attempt to exclude cult or fringe movements, the Guidance states that the belief system must have ‘a degree of cogency, coherence, seriousness and importance’207 and ‘an identifiable positive, beneficial, moral or ethical framework’.208 In the UK, the prohibition on religious discrimination is implemented by the Equality Act 2010 which provides in section 10 that ‘religion’ means any religion, including a lack of religion, and that ‘belief ’ means any religious or philosophical belief. The Explanatory Notes accompanying the Act state that a religion must have a clear structure and belief system and that denominations or sects within a religion can be considered to be a religion or belief, such as Protestants and Catholics within Christianity.The Notes add that the criteria for determining what is a ‘philosophical belief ’ are that it must be genuinely held; be a belief and not an opinion or viewpoint based on the present state of information available; be a belief as to a weighty and substantial aspect of human life and behaviour; attain a certain level of cogency, seriousness, cohesion and importance; and be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others. So, for example, any cult involved in illegal activities would not satisfy these criteria. Beliefs such as humanism and atheism would be beliefs for the purposes of the Act but adherence to a particular football team would not be.209 At the time of writing, the CJEU had not yet been confronted with a case alleging discrimination on the ground of religion or belief pursuant to the Framework Directive.210 204

205 Neville Estates Ltd v Madden [1962] Ch 832. Bowman v Secular Society [1917] AC 406. See the Decision of the Charity Commissioners of 17 November 1999 to the effect that the Church of Scientology did not attract charitable status since, although members of the Church believed in a god, they did not engage in veneration of their god. See also R v Registrar General, ex parte Segerdal [1970] 2 QB 697. 207 These words were used by the European Court of Human Rights in Campbell and Cosans v UK (1982) 4 EHRR 293; the Court added ‘and are worthy of respect in a democratic society and not incompatible with human dignity’. 208 The Advancement of religion (Charity Commission, October 2011), para 3. 209 See further discussion in Vickers, ‘Promoting equality or fostering resentment? The public sector equality duty and religion and belief ’ (2011) 31 Legal Studies 135; and Elias, ‘Religious and related discrimination’ (2008) 175 EOR 14. 210 But see the Court’s earlier decision in Case 130/75 Prais v Council [1976] ECR 1589. 206

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(vi) Disability As with the other grounds specified in the Framework Directive, no definition is provided of the term ‘disability’; the suggestion of the House of Lords Select Committee on the EU that some non-exhaustive examples might be given was not taken up.211 The result is especially unsatisfactory in relation to such an extremely vague and open-ended term as disability.212 Once again, some guidance might be obtained from the UK’s domestic legislation, in this case the Equality Act 2010. Section 6(1) defines disability for the purposes of the Act as ‘a physical or mental impairment’ which has ‘a substantial and long-term adverse effect on [the] ...ability to carry out normal day-to-day activities’. Schedule 1 supplements this provision by defining such things as the meaning of ‘long-term’, the relevance of medical treatment, and the correct approach to progressive conditions; in doing so, it well illustrates the difficulties inherent in this area and thus the current lacuna in EU law. However, the UK’s domestic legislation, focusing as it does on impairment, adopts a highly ‘medical’ view of disability; there is a competing and wider model of disability which sees it as a social construct, in other words, a result of the person’s disadvantaged position in society. As one writer has put it, ‘[w]hilst the medical model sees disability as a functional impairment, the social model sees disability as a particular relationship between the impaired individual and society’;213 she goes on to argue that EU law takes an increasingly social view and that the UK’s domestic law may therefore fall short of its demands.214 The CJEU reflected on the meaning of disability in Chac
n Navas v Eurest Colectividades SA215 and it opted for a distinctly medical approach to the issue.216 It had been asked whether sickness might be regarded as a disability and whether discrimination on grounds of sickness fell within the scope of the Framework Directive. It held that the concept of disability must be given an autonomous and uniform application in EU law. Disability refers to ‘a limitation which results in particular from physical, mental or psychological impairments 211 See Select Committee on the European Union, ‘EU Proposals to Combat Discrimination’, HL Session 1999–2000, 9th Report, HL Paper 68, para 69. 212 See further Hosking, ‘Great expectations: protection from discrimination because of disability in Community law’ (2006) 31 ELRev 667. For comprehensive treatment of the legal protection of disabled people, see Lawson and Gooding (eds), Disability Rights in Europe: From Theory to Practice (Hart Publishing, Oxford and Portland Oregon, 2005). 213 Wells, ‘The Impact of the Framework Employment Directive on UK Disability Discrimination Law’ (2003) 32 ILJ 253. The fourth recital in the Preamble to Council Recommendation 86/379 on the employment of disabled people in the Community (OJ [1986] L225/43) states:‘“disabled people” includes all people with serious disabilities which result from physical, mental or psychological impairments’. 214 See also Whittle, ‘The Framework Directive for Equal Treatment in Employment and Occupation: an Analysis from a Disability Rights Perspective’ (2002) 27 ELRev 303. 215 Case C-13/05 [2005] ECR I-6467. See also Case C-303/06 Coleman v Attridge Law [2008] ECR I-5603. 216 For criticism of this approach, see Hosking, ‘A High Bar for EU Disability Rights’ (2007) 36 ILJ 228.

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and which hinders the participation of the person concerned in professional life’.217 The Court continued: The importance which the Community legislature attaches to measures for adapting the workplace to the disability demonstrates that it envisaged situations in which participation in professional life is hindered over a long period of time. In order for the limitation to fall within the concept of ‘disability’, it must therefore be probable that it will last for a long time.218

Geelhoed AG also pointed out that the concept of disability is undergoing a fairly rapid evolution at the moment and it cannot be excluded that ‘certain physical or mental shortcomings are in the nature of “disability” in one social context, but not in another’.219 As to sickness as such, no provision of the Treaty prohibits discrimination on this ground. In particular, what is today Article 19 of the TFEU does not mention sickness and the Court concluded that it cannot therefore constitute a legal basis for EU measures to combat such discrimination. The grounds enumerated in the Framework Directive are listed ‘exhaustively’220 and thus sickness alone (in other words, in circumstances where it does not result in disability) cannot be regarded as an additional ground. It is to be hoped that the Court’s reluctance thus to expand the grounds on which EU law condemns discrimination does not presage a negative approach to the recognition of multi-dimensional discrimination.221 It is noteworthy that the Court’s decision in Chac
n Navas preceded the accession by the EU to the UN Convention on the Rights of Persons with Disabilities.222 It is to be anticipated that the wording of the Convention will influence the CJEU in its interpretation of ‘disability’ for the purposes of EU law223 and it is therefore significant that the Convention adopts a definition which embraces a more social perspective than that used by the Court in Chac
n Navas. In its Preamble, the Convention recognizes that disability is: an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.224

217 [2005] ECR I-6467, at para 43. As Waddington has observed, this formulation means that an individual has to prove that he or she is under a disability, which means proving first what he or she cannot do, in order to be able to argue later that he or she is in fact able to do the job in question and is thus the victim of discrimination: comment on Chac
n Navas in (2007) 44 CMLRev 487. 218 Chac
n Navas [2005] ECR I-6467 at para 45. 219 Chac
n Navas [2005] ECR I-6467 at para 58 of the AG’s Opinion. 220 221 Chac
n Navas [2005] ECR I-6467 at para 56. As to which, see ch 4. 222 The Convention was adopted on 13 December 2006, entered into force on 3 May 2008, and was ratified by the EU on 23 December 2010. It is the first human rights treaty to be entered into by the EU. 223 See further Waddington, ‘Future Prospects for EU equality law: lessons to be learnt from the proposed Equal Treatment Directive’ (2011) 36 ELRev 163. 224 Recital (e) of the Preamble to the Convention.

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Article 1(2) provides: Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

The distinction between the medical and social views of disability is clearly of profound political and philosophical importance to our understanding of the concept of human rights but it can also be important in a practical sense. For example, somebody with a severe facial scar might not be impaired in the medical sense, yet might nevertheless encounter serious obstacles as regards their social acceptability in the real world.225

(vii) Age Age is, in common with the other protected classifications, left undefined by the Framework Directive. One conclusion which might be drawn from this is that the directive is intended to protect all age groups and not merely older people,226 despite the demographic trend towards an increasingly elderly population in Europe.227 As will be seen in chapter 9, the directive contains a widely drafted exception where age discrimination can be justified by reference to a legitimate aim; this has already generated a number of cases which have been referred to the CJEU. Most, but not all, of these cases have involved alleged discrimination against people at the older end of the age spectrum. It is clear from the Court’s jurisprudence that the fixing of a particular age for receiving disadvantageous treatment, for example compulsory retirement, falls within the scope of the directive.228 It also seems likely that discrimination on the ground of relative age, for instance being more than 15 years younger than a Thanks are due to Professor Oddny Mj
ll Arnadttir for suggesting this example. Although it is to be noted that recital 6 of the Preamble to the Framework Directive refers expressly to the integration of ‘elderly’ people, and recital 8 speaks of supporting ‘older workers’. In Case C-555/07 Kücükdeveci v Swedex GmbH [2010] ECR I-365 the CJEU expressly recognized the applicability of the Framework Directive to younger people. 227 Eurostat data for 200I-06 showed that the number of people in the EU aged over 65 grew by 8.9% over this period, whilst the number of those between 0 and 14 decreased by 4.4%: see Tackling Ageism and Discrimination, Equinet, Brussels, 2011. Cf the American law on age discrimination: the Age Discrimination in Employment Act 1977 protects only workers who are aged 40 and over. 228 See Case C-144/04 Mangold v Helm [2005] ECR I-9981; Case C-411/05 Palacios de la Villa v Cortefiel Servicios SA [2007] ECR I-8531; Case C-388/07 Incorporated Trustees of the National Council on Ageing v Secretary of State for Business, Enterprise and Regulatory Reform [2009] ECR I-1569; Case C-88/08 Hütter v Technische Universität Graz [2009] ECR I-5325; Case C-341/08 Petersen v Berufungsausschuss [2010] ECR I-47; Case C-45/09 Rosenbladt v Oellerking [2010] ECR I-9391; Joined Cases C-159 & 160/10 Fuchs and Köhler v Land Hessen [2011] ECR I-000; Joined Cases C-250 & 268/09 Georgiev v Tehnicheski universitet [2010] ECR I-11869; and Case C-447/09 Prigge et al v Deutsche Lufthansa AG [2011] ECR I-000, all discussed further in ch 9. See also Case C-229/08 Wolf v Stadt Frankfurt am Main [2010] ECR I-1, where the fixing of an upper age for recruitment was held by the CJEU to breach the Framework Directive. 225 226

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deceased spouse, would be included.229 However, there is no doubt that age discrimination presents—as of course do other prohibited grounds—special problems of its own, most obviously that it does not involve a ‘binary’ comparison; in other words, it does not involve a straight comparison such as that between male or female, black or white. The choice of a suitable comparator in age cases, as well as the correct analysis of causation, is therefore especially important and can be predicted to give rise to unique questions.

(viii) Sexual orientation In common with the other grounds contained in the directives, the concept of ‘sexual orientation’ requires elaboration by the CJEU. Its most obvious intended application is to homosexuals and this was confirmed by the CJEU’s decision in Maruko v Versordungsanstalt der deutschen Bühnen.230 However, the prohibition in the directive appears also to extend to discrimination against heterosexual, and bisexual people.231 It is to be hoped that sexual orientation for this purpose includes those who merely incline towards homosexual, heterosexual or bisexual attraction without actively engaging in such sexual activity, since otherwise the practical application of the provision will be severely undermined; similarly, it will enhance the effectiveness of the directive if the proscription is held to extend to discrimination on the ground of a person’s behaviour (for example, his or her manner of dressing), as well as on the ground of his or her underlying sexual preference.232 It is not yet clear whether the Court will be prepared to apply the legislation, in addition, to those with minority sexual preferences such as, for example, sadomasochism.

229 See the Opinion of Sharpston AG in Case C-427/06 Bartsch v Bosch [2008] ECR I-7245. The CJEU itself did not deal with the issue in this case. 230 Case C-267/06 [2000] ECR I-1757. See also Case C-147/08 Römer v Freie und Hansestadt Hamburg [2011] ECR I-000. It was seen above that the CJEU had been reluctant to interpret ‘sex’ for the purposes of Art 157 so as to include discrimination against homosexuals and had clearly hinted in its jurisprudence that this was a matter for legislative, not judicial, decision-making. 231 There is, however, a body of opinion which questions whether sexual identity can be separated into rigid categories; see Oliver, ‘Sexual Orientation Discrimination: Perceptions, Definitions and Genuine Occupational Requirements’ (2004) 33 ILJ 1, and the literature cited therein. 232 See further discussion in ch 4.

2 Essential characteristics of EU law

The nature and effects of EU Law Because of the power,1 and indeed sometimes the duty,2 of national courts of the Member States of the EU to seek preliminary rulings from the CJEU3 in cases pending before them, it has been for the CJEU on numerous occasions to define the nature and effects of EU law. The CJEU’s jurisdiction in the preliminary rulings procedure extends to explaining the meaning and effects of particular pieces of EU law, but the Court does not have the power to apply its rulings to the facts of the given case; that remains the role of the referring national court. In defining the characteristics of EU law, the CJEU has clearly been strongly influenced by the federalist ideal underlying the conception of the Union. It has been able to distil certain specific and vital qualities of EU law, which differentiate it clearly both from the national laws of the Member States and also from traditional international law.4 In practice, as events have turned out, there has probably been no other field of substantive law in which these principles developed by the CJEU have proved to be more important than sex discrimination. There is every reason to suppose that such principles will come to have similar significance in relation to the newer fields of equality law too.

1 The main power to seek a preliminary ruling is given by Art 267, (Art 234 post-Amsterdam and Art 177 under the original Treaty numbering). Art 267(2) confers discretion on national courts and tribunals to request a preliminary ruling where a question of EU law has to be decided before that court or tribunal can arrive at a judgment. See also TEU, Art 19(3)(b). Some of the national equality bodies established pursuant to the anti-discrimination directives, and discussed in ch 6, have been given power to hear individual complaints and to issue legally binding decisions about whether unlawful discrimination has occurred; such bodies may well be regarded by the CJEU as capable of seeking preliminary rulings. For further discussion of the preliminary rulings procedure, see Dashwood, Dougan, Rodger, Spaventa and Wyatt (eds), Wyatt and Dashwood’s European Union Law, 6th edn (Hart Publishing, Oxford, 2011), ch 7. 2 In the case of courts and tribunals against whose decisions there is no judicial remedy under national law; see Art 267(3). 3 The Treaty of Nice first made it possible for what is today the General Court also to be given jurisdiction to make preliminary rulings in specified areas; TFEU, Art 256(3) today provides for the General Court to have jurisdiction over preliminary rulings in specific areas laid down by the Statute of the Court of Justice of the EU. At the time of writing, this provision had not been acted upon. 4 Cf Hartley, ‘The Constitutional Foundations of the European Union’ (2001) 117 LQR 225.

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The case in which the CJEU first began to express the particular characteristics of EU law was Van Gend en Loos v Nederlandse Tariefcommissie.5 This case concerned the legal effect within The Netherlands of the prohibition, embraced in what is today Article 306 of the TFEU, on any increase in customs duties in trade between Member States of the Community. The CJEU made a now-famous statement of principle: The objective of the EEC Treaty which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community implies that this Treaty is more than an agreement creating only mutual obligations between the contracting parties. This view is confirmed by the Preamble to the Treaty which refers not only to governments but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens. Furthermore, it must be noted that the nationals of the States brought together in the Community are called upon to cooperate in the functioning of this Community, through the intermediary of the European Parliament and the Economic and Social Committee. In addition the task assigned to the Court of Justice under Article 177, the object of which is to secure uniform interpretation of the Treaty by the national courts and tribunals, confirms that the States have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals. The conclusion to be drawn from this is that the Community constitutes a new legal order in international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the community ...Article 12 must be interpreted as producing direct effects and creating individual rights which national courts must protect.7

It follows from these remarks of the CJEU that EU law possesses two special characteristics in particular: it is ‘supreme’ over conflicting national law in the Member States, in other words, it prevails over such law; and it is, on occasion at least, enforceable by individuals bringing proceedings in the courts of the Member States.8 In later litigation, the CJEU has taken the opportunity to develop and refine these vital principles.9 5

6 Case 26/62 [1963] ECR 1. Art 12 of the original Treaty. [1963] ECR 1, at 12–13. See also Case 28/67 Molkerei-Zentrale Westfalen/Lippe GmbH v Hauptzollamt Paderborn [1968] ECR 143, at 152–3. 8 Reference should be made to more general works on EU law for a full discussion of these concepts, in particular, Dashwood, Dougan, Rodger, Spaventa and Wyatt (eds), Wyatt and Dashwood’s European Union Law, 6th edn (Hart Publishing, Oxford, 2011), Part III, and Craig and de Búrca, EU Law: Text, Cases, and Materials, 5th edn (Oxford University Press, Oxford, 2011), chs 7–10. The discussion which follows in the present text is confined, so far as possible, to those aspects of the concepts which have special significance in the context of anti-discrimination and equality law. 9 See further Van Gerven, ‘Bridging the Gap Between Community and National Laws: Towards a Principle of Homogeneity in the Field of Legal Remedies?’ (1995) 32 CMLRev 679. 7

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The supremacy of EU law It will be seen below that the principle of supremacy of EU law is a product of the jurisprudence of the CJEU. However, it has in recent times also acquired an element of legislative endorsement. Thus, Declaration No 17 annexed to the Final Act of the Inter-Governmental Conference which adopted the Treaty of Lisbon provides: The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.10

In Van Gend en Loos, the supremacy of EU law was to be implied from the CJEU’s statements: an individual legal person was held entitled to have Article 30 of the Treaty enforced in preference to the conflicting domestic law of The Netherlands. Having surmounted this tricky political hurdle—in effect, telling a Member State that its own law was to be ignored—the CJEU gathered courage and became bolder in its formulation of the concept of supremacy of EU law. Costa v ENEL11 was a strong case in which to test the doctrine of supremacy of EU law because the potential conflict arose in the situation where the impugned domestic law post-dated the contrary EU law, in other words, the situation where, in a purely domestic context, a court would normally hold that the later law in time prevailed. The CJEU held: The Italian Government submits that the request of the giudice conciliatore is ‘absolutely inadmissible’, inasmuch as a national court which is obliged to apply a national law cannot avail itself of Article 177. By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality and its own legal capacity and capacity of representation on the international plane, and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, and, albeit within limited fields, have thus created a body of law which binds both their nationals and themselves. The integration into the laws of each Member State of

10 The Declaration also annexes an Opinion of the Council Legal Service of 22 June 2007 which states: ‘It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case-law (Costa v ENEL [discussed in the text on p 45]) there was no mention of primacy in the treaty.The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice’.The draft Constitutional Treaty (discussed in ch 1) contained an explicit provision proclaiming the primacy of EU law but this was dropped from the Lisbon Treaty in the attempt to reduce the constitutional character of the latter Treaty. 11 Case 6/64 [1964] ECR 585.

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provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the Member State, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity ...The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail. Consequently, Article 177 is to be applied regardless of any domestic law, whenever questions relating to the interpretation of the Treaty arise.12

In subsequent cases, the CJEU has extended its formulation of supremacy so as to encompass not merely the law created directly by the Treaty but also secondary legislation made by the institutions.13 So, for example, a provision contained in a regulation must prevail over conflicting national law. However, the doctrine of supremacy does not mean simply that any conflict between EU and national law must be resolved in favour of EU law. Supremacy provides a guarantee that the minimum standards set by EU law must be achieved in all the Member States.Thus, the principle of supremacy does not prevent a Member State from exceeding the protection conferred by EU law.14 In Amministrazione delle Finanze dello Stato v Simmenthal,15 the CJEU explained that the concept of supremacy of EU law entails the automatic inapplicability of conflicting national law and that it also precludes the valid adoption of new national legislation which would conflict with EU law. This led the Commission to argue in Ministero delle Finanze v IN. CO. CE. ‘90 Srl16 that a national provision which is incompatible with EU law is ‘non-existent’. However, the CJEU rejected this view, holding that such an incompatible national law is merely inapplicable. 12 Case 6/64 [1964] ECR 585, at 593–4. The principle of supremacy means that EU law prevails over both incompatible national legislation and administrative decisions, whether the latter are general abstract rules or specific individual decisions: see Case C-224/97 Gola v Land Vorarlberg [1999] ECR I-2517. 13 See, eg, Case 43/71 Politi Sas v Minister of Finance [1971] ECR 1039; and Case 38/77 Enka BV v Inspecteur der Invoerrechten en Accijnzen [1977] ECR 2203, discussed at p 57. But note the exception contained in Art 351: ‘The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties’. The predecessor of this provision was relied upon in Case C-158/91 Levy [1993] ECR I-4287 to justify a ban on night work by women in France which had earlier been held by the CJEU in Case C-345/89 Stoeckel [1991] ECR I-4047 (discussed in ch 6) to contravene the Equal Treatment Directive; the ban was pursuant to a pre-existing commitment to an ILO Convention, which France had not at the relevant time denounced. Levy was followed in Case C-13/93 Office National de l’Emploi v Minne [1994] ECR I-371. 14 See Case C-50/96 Deutsche Telekom v Schröder [2000] ECR I-743, Joined Cases C-270 & 271/97 Deutsche Post v Sievers and Shrage [2000] ECR I-929, and Joined Cases C-234 & 235/96 Deutsche Telekom AG v Vick and Conze [2000] ECR I-799; see also the comment on these cases by Besselink in (2001) 38 CMLRev 437. 15 Case 106/77 [1978] ECR 629. See also Case C-555/07 Kücükdeveci v Swedex GmbH [2010] ECR I-365 (discussed further at p 68) and Case C-409/06 Winner Wetten GmbH v Burgermeisterin der Stadt 16 Bergheim [2010] ECR I-8015. Joined Cases C-10–22/97 [1998] ECR I-6307.

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In support of its conclusions that EU law is supreme over conflicting national law, the CJEU has put forward several reasons. The one most frequently referred to is the essentially federalist notion of a limitation of sovereignty on the part of the Member States when they acceded to the Union. The Member States are taken to have transferred a portion of their legislative powers to the new organization, and in the areas where that transfer has taken place the States are consequently now incapable of making their own national legislation.17 Another, similar line of argument which is discernible in Costa v ENEL is that it follows from the whole nature and spirit of EU law that it must be of a kind different from, and higher than, national law. The whole set-up of the Union is such that its laws must be intended to be supreme; Member States undertake to carry out certain actions and to suffer particular restrictions only provided that all the other Member States are placed in exactly the same position.18 Of course, if the Member States possessed general powers to contradict EU law by means of their own national legislation, then all Member States would not be placed in the same position. The notion of reciprocity is central to the Union, and reciprocity would not exist without the doctrine of supremacy of EU law. A related rationale which the Court has also sometimes relied on is the principle of effet utile.19 This refers to the fact that the effectiveness of the Treaty would be undermined if Member States could contradict its provisions. If, by national legislation, the Member States were able to contradict EU law, there would be absolutely no means of ensuring that EU law functioned uniformly and therefore effectively throughout the EU.20 It is important that the national courts of the Member States also accept the principle of supremacy of EU law; if, as the CJEU holds, the Union so much resembles a developed federation as to confer legal rights directly on individual legal persons, then it follows as a matter of practicality that those rights must be enforceable in national courts. If the national courts were, at this stage, unprepared to enforce EU law in preference to conflicting national law, much of the value of direct enforcement would be lost. The courts of the original six Member States took a little while to accept what must to them have seemed the very radical notion

17 This reasoning is evident in the early cases of Van Gend en Loos and Costa v ENEL and also in Case 63/83. R v Kent Kirk [1984] ECR 2689. See also Usher, European Community Law and National Law:The Irreversible Transfer? (George Allen & Unwin, London, 1981). 18 This reasoning became somewhat compromised with the recognition by the Maastricht, Amsterdam, and Nice Treaties of the concept of ‘flexibility’, namely, the principle that certain Member States might opt out of specific aspects of EU law and that integration might proceed at different rates for different groups of Member States. 19 See Case 14/68 Walt Wilhelm v Bundeskartellamt [1969] ECR 1. 20 The CJEU has also, on occasion, given other ancillary reasons for holding that EU law is supreme. In particular, it pointed out in Costa v ENEL that wherever the Treaty does allow the Member States a unilateral right to legislate, it does so in special provisions. However, these provisions are clearly by way of exception, and they would, of course, be quite unnecessary if the Member States anyway had power to pass conflicting national legislation. See [1964] ECR 585, especially at 593–4.

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of supremacy of EU law;21 however, it appears today that in all the Member States of the Union the idea of supremacy of EU law has gained general acceptance,22 albeit that the logical route which judges have followed to lead them to this conclusion has often not been the CJEU’s theory of the limitation of national legislative sovereignty and albeit that many of them retain a theory of ultimate national constitutional dominance. In the UK, the supremacy of EU law has faced a particular difficulty: that of the rival doctrine of the supremacy of the UK Parliament. If, as British judges have traditionally held, the UK Parliament can always do whatever it pleases, how could it ever be constrained by the limitation that it is not to contradict EU law? In particular, if EU law is rendered effective in the UK by an Act of Parliament, as constitutional theory dictates, what is to prevent the repeal of the implementing Act by a later piece of UK legislation which contradicts EU law? Is not the latest Act of Parliament the indication that the judges must unerringly follow if democracy is not to be undermined? This problem has, in practice, been neatly side-stepped by the European Communities Act 1972, and in particular by the artful wording of s 2(4) thereof.23 This provides that ‘any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing 21 Difficulties were encountered in particular in Italy, France, and West Germany. See, eg, the decision of the Italian Constitutional Court in Costa v ENEL [1964] 3 CMLR 425, that of the French Conseil d’Etat in Cohn-Bendit v Ministre de l’Intérieure [1980] 1 CMLR 543, and that of the Federal German Constitutional Court in Internationale Handelsgesellschaft GmbH v Einfuhr-und Vorratsstelle fur Getreide und Futtermittel [1974] 2 CMLR 540. 22 See in particular Frontini v Minister of Finance [1974] 2 CMLR 372; SpA Granital v Amministrazione delle Finanze, Decision No 170 of 8 June 1984, (1984) 21 CMLRev 756; Administration des Douanes v Société Jacques Vabre [1975] 2 CMLR 336; Nicolo [1990] 1 CMLR 173; Re EU Constitutional Treaty and the French Constitution [2005] 1 CMLR 30; Decision No 287110 of the French Conseil d’Etat of 8 February 2008, Arcelor, commented on by Pollicino in (2008) 45 CMLRev 1519; Re EU Constitutional Treaty and the Spanish Constitution [2005] 1 CMLR 39; Re the Application of Wunsche Handelsgesellschaft [1987] 3 CMLR 225; cf Brunner v European Union Treaty [1994] 1 CMLR 57; Re Ratification of the Treaty of Lisbon [2010] 3 CMLR 1; Re Honeywell [2011] 1 CMLR 33. See further Gaja, ‘New Developments in a Continuing Story: The Relationship between EEC Law and Italian Law’ (1990) 27 CMLRev 83; Hoffmeister, ‘German Bundesverfassungsgericht: Alcan Decision of 17 February 2000; Constitutional Review of EC Regulation on Bananas, Decision of 7 June 2000’ (2001) 38 CMLRev 791; Chalmers, ‘Constitutional modesty’ (2005) 30 ELRev 459; Richards, ‘The supremacy of Community law before the French Constitutional Court’ (2006) 31 ELRev 499; Fahey, ‘A Constitutional Crisis in a Teacup: The Supremacy of EC Law in Ireland’ (2009) 15 EPL 515; Doukas, ‘The verdict of the German Federal Constitutional Court on the Lisbon Treaty: not guilty, but don’t do it again!’ (2009) 34 ELRev 866; and Pliakos and Anagnostaras, ‘Who is the ultimate arbiter? The battle over judicial supremacy in EU law’ (2011) 36 ELRev 109.The supremacy of EU law in Estonia was confirmed in Re the Supremacy of EC law [2010] 2 CMLR 15. Cf Ginter, ‘Constitutional review and EC law in Estonia’ (2006) 31 ELRev 912. In relation to Latvia, see Re Ratification of the Treaty of Lisbon [2010] 1 CMLR 42. The emerging story in the Czech Republic and Slovakia is described by Havelkova in ‘Burden of proof and positive action in the Czech and Slovak Constitutional courts—milestones or millstones in implementing EC equality law?’ (2007) 32 ELRev 686. 23 Cf Wade, ‘Sovereignty—Revolution or Evolution?’ (1996) 112 LQR 568. For criticism of Wade’s view that a constitutional revolution has occurred through the fettering of Parliament’s legislative powers by s 2(4), see Allan, ‘Parliamentary Sovereignty: Law, Politics and Revolution’ (1997) 113 LQR 443.

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provisions of this section’. The ‘foregoing’ s 2(1) has already provided that all Community rights are to be available in law in the UK. The CJEU has explained, as has already been seen, for example, in Van Gend en Loos, that the right to have EU law treated as supreme is a Community right which can be claimed by a litigant. Thus, the effect of s 2(4) is that, at least until such time as the European Communities Act is repealed, all Acts of the UK Parliament must ‘be construed and have effect’ subject to the principle that EU law is always supreme over them in the event of conflict.24 The device relied upon by the European Communities Act is therefore the delegation to the EU institutions of those law-making functions which fall within the purview of the Treaty; the legal system has not gone to the full lengths which the CJEU says EU law demands and there has, in reality, been no out-and-out transfer of law-making powers from the UK Parliament to the EU institutions.25 In practice, UK judges have tried wherever possible to utilize what might be called the first limb of s 2(4) of the European Communities Act and to hold that the relevant domestic legislation is susceptible of a variety of meanings, but that, in the light of s 2(4), they will adopt the construction which most clearly accords with the demands of EU law. The first statement and application of this approach in the House of Lords came in Garland v British Rail.26 Confronted here with an apparent conflict between s 6(4) of the Sex Discrimination Act 1975, which at the time of the litigation permitted sex discrimination in relation to retirement, and what is today Article 157 of the Treaty requiring equal pay for men and women, their Lordships chose to construe the UK statute in such a way as to make it accord with the Treaty Article. Lord Diplock, delivering the only speech made, said: [E]ven if the obligation to observe the provisions of [the] Article ...were an obligation assumed by the UK under an ordinary international treaty or convention and there were no question of the treaty obligation being directly applicable as part of the law to be applied by the courts in this country without need for any further enactment, it is a principle of construction of UK statutes, now too well established to call for citation of authority, that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the UK, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation and not to be inconsistent

24

See Thoburn v Sunderland City Council [2002] 3 WLR 247. See Jaconelli, ‘Constitutional Review and s 2(4) of the European Communities Act 1972’ (1979) 28 ICLQ 65; Ellis, ‘Supremacy of Parliament and European Law’ (1980) 96 LQR 511; Eekelaar, ‘The Death of Parliamentary Sovereignty—A Comment’ (1997) 113 LQR 185; and Craig,‘Sovereignty of the United Kingdom Parliament after Factortame’ (1991) 11 YBEL 221. 26 [1982] 2 WLR 918. See also Pickstone v Freemans plc [1988] 2 All ER 803, and Lister v Forth Dry Dock and Engineering Co Ltd [1989] ICR 341, in the latter of which Lord Oliver commented at 354:‘The approach to the construction of primary and subordinate legislation enacted to give effect to the UK’s obligations under the EEC Treaty ...is not in doubt. If the legislation can reasonably be construed so as to conform with those obligations—obligations which are to be ascertained not only from the wording of the relevant Directive but from the interpretation placed upon it by the CJEU at Luxembourg—such a purposive construction will be applied even though, perhaps, it may involve some departure from the strict and literal application of the words which the legislature has elected to use.’ 25

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with it. A fortiori is this the case where the Treaty obligation arises under one of the Community treaties to which section 2 of the European Communities Act 1972 applies.27

Where, however, the ‘construction’ approach is impossible, the UK courts have also been prepared to rely on the other limb of s 2(4) of the European Communities Act, and to hold that UK law which conflicts with EU law does not take effect.28 This was most dramatically demonstrated in Macarthys Ltd v Smith.29 This case concerned a demand for equal pay by a woman who had been employed to do the same work as a man but in succession to him. In the Court of Appeal, Lord Denning MR had been prepared to adopt the ‘construction’ approach, and this led him to the conclusion that the British Equal Pay Act of 1970 was ambiguous as to whether or not it covered situations of successive, as distinct from contemporaneous, employment of a man and a woman doing the same job; the Treaty Article, on the other hand, he felt, clearly governed situations of successive employment. On this basis, he would have been prepared to construe the Equal Pay Act so as to cover successive employment.The other members of the Court of Appeal disagreed with this approach, however, holding that the Equal Pay Act was unambiguous and was clearly confined to situations of contemporaneous employment. The case was then referred to the CJEU for a preliminary ruling as to the meaning and scope of what is today Article 157, and the CJEU held that it did indeed govern successive employment cases. A head-on conflict was thus produced between an article of the Treaty and the later-enacted30 Equal Pay Act. In these circumstances it was conceivable that the judges might hold that the latest expression of Parliament’s will should prevail and that they should therefore enforce the national legislation. On the contrary, however, the Court of Appeal was unanimous in upholding the applicability of the Treaty in this situation.31 It expressly approved of the doctrine of supremacy of EU law32 and explained that it was made effective by the European Communities Act 1972, at least until such time as that Act was repealed and the Treaty repudiated by the UK.33 The same principle was reiterated obiter by the House of Lords

27 [1982] 2 WLR 918, at 934–5. Cf Duke v GEC Reliance Ltd [1988] 2 WLR 359, and Finnegan v Clowney Youth Training Ltd [1990] 2 WLR 1305. 28 An alternative view is that there are not two limbs of s 2(4) at all because the word ‘and’ in the subsection is truly conjunctive. If this were the correct analysis of the subsection, the supremacy of EU law would be denied where domestic law could not be construed so as to accord with it, which, as is discussed in the text, is not in practice found to be the case. 29 [1979] 3 CMLR 44. See also Guy and Leigh, ‘Article 119 EEC: Discrimination on Grounds of Sex’ (1979) 4 ELRev 415. 30 The Equal Pay Act 1970 was amended and then brought into operation by the Sex Discrimination Act 1975. 31 [1980] IRLR 209. On the same principle, see also Pickstone v Freemans plc [1987] 3 WLR 811 and [1988] 2 All ER 803; Parsons v East Surrey Health Authority [1986] ICR 837; and R v Secretary of State for Education, ex parte Schaffter [1987] IRLR 53. 32 See also Chief Constable of the West Yorkshire Police (No 2) v A [2004] 2 WLR 1209. 33 See Ellis, ‘Supremacy of Parliament and European Law’ (1980) 96 LQR 511, and Allan, ‘Parliamentary Sovereignty: Lord Denning’s Dexterous Revolution’ (1983) 3 OJLS 22.

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in R v Secretary of State for Transport, ex parte Factortame Ltd.34 The issue there was a potential conflict between Part II of the Merchant Shipping Act 1988, governing the registration of British fishing vessels, and EU law. Lord Bridge commented: By virtue of section 2 subsection 4 of the 1972 Act, Part II of the Act of 1988 is to be construed and take effect subject to directly enforceable Community rights, and those rights are, by section 2 subsection 1 of the Act of 1972, to be ‘recognized and available in law, and ...enforced, allowed and followed accordingly ...’. This has precisely the same effect as if a section were incorporated in Part II of the Act of 1988 which in terms enacted that the provisions with respect to registration of British fishing vessels were to be without prejudice to the directly enforceable Community rights of nationals of any Member State of the EEC. Thus, it is common ground that, in so far as the applicants succeed before the CJEU in obtaining a ruling in support of the Community rights which they claim, those rights will prevail over the restrictions imposed on registration of British fishing vessels by Part II of the Act of 1988 ...35

A practical application of the principle of supremacy in the field of discrimination occurred in Bossa v Nordstress Ltd.36 The applicant had been rejected for a job offered in the UK on the ground of his Italian nationality. His claim for unlawful race discrimination was met with the argument that s 8 of the British Race Relations Act 1976 excepted from its operation jobs performed wholly or mainly outside Great Britain, which appeared to be the situation in which the applicant found himself. The Employment Appeal Tribunal simply held that s 8 must be disapplied because it conflicted with what is today Article 45 of the Treaty, which prohibits discrimination based on nationality between workers of the Member States. In the words of Morrison J:

34

[1989] 2 WLR 997, discussed in greater detail at p 94 et seq. [1989] 2 WLR 997, at 1011, emphasis added. See also his remarks when the case returned to the House of Lords after a preliminary ruling by the CJEU: [1990] 3 WLR 818, especially at 857–8. In the Court of Appeal, Lord Donaldson MR elaborated on the way in which conflicts between UK and EU law commonly arise, saying: ‘underlying the whole of this problem is the unusual (to a British lawyer) nature of Community law, which is long on principle and short on specifics ...the result is often that the British courts are faced with an undoubted right or duty under British law and a claim that an inconsistent right or duty exists under Community law. If the British court can ascertain the nature and extent of this competing right or duty, there is little difficulty in resolving any inconsistency on the basis that Community law is paramount. That is the acte clair situation, but it is a comparative rarity. Much more commonly the British court cannot ascertain the nature and extent of the competing right or duty and it is to meet this problem that the right to seek a ruling by the European Court is provided under Article 177 of the Treaty of Rome. But it would be a mistake to think of that court merely as having a greater expertise in Community law than a British court, although this is undoubtedly true. Whatever the formal position, its true function in appropriate cases is actually to make new law by the applications of principle to specific factual situations. A challenge to national law based upon Community law may, when properly analysed, amount to a submission not that the national law is inconsistent with Community law as it then exists, but that upon a reference being made to the European Court, that court will give a ruling creating new and inconsistent rights and duties arising out of settled principles albeit with retroactive effect. In other words, national law is effective at present, but its life-span is predictably short’ (1989) 139 NLJ Pt 1, 540, at 540–1. 36 [1998] IRLR 284. See also Davies v Neath Port Talbot County Borough Council [1999] IRLR 769. 35

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It is possible to give effect to the supremacy of European law by simply disapplying, in this case, section 8. That means that the industrial tribunal will consider the complaint in the normal way and, if appropriate, make such orders with regard to remedy as lies within their competence under the Act.37

Direct enforcement of EU law by individuals (i) Origins of the principle The other twin pillar of EU constitutional law, which was first described by the CJEU in Van Gend en Loos,38 is the right of individual legal persons to have certain EU provisions enforced in the national courts of the Member States.39 Such a notion is essentially federalist in its basis. Classical international law is concerned primarily with regulating the relations of States inter se, rather than with creating rights directly for their subjects. EU law, however, as the legal system for an embryo-federation, is concerned at the levels of both States and individuals, because a major part of its raison d’être is the improvement of the position and quality of life of individuals. Apart from this somewhat philanthropic rationale, the CJEU is, however, aware of another good reason for giving individuals rights directly under EU law. Many aspects of EU law require implementing action on the part of the Member States, or at least require the Member States to refrain from taking any action which would inhibit their operation. If the Member States act in breach of these duties, Articles 258 and 259 provide for their prosecution before the CJEU by the Commission and other Member States. Such proceedings are, however, cumbersome and consuming of the Commission’s time. In practice, it would be quite impossible for all such breaches to be dealt with through these channels. If individuals, therefore, can enforce their rights directly in their national courts, the procedure is short-circuited.The national court in effect rules that the Member State’s action is in breach of EU law, and will often grant the individual a specific remedy in respect of it. So, for example, as in Van Gend en Loos itself, a demand for an increased customs duty made by a Member State in breach of Article 30 of the Treaty cannot be enforced in a national court and an individual charged is not liable to pay the sum involved.40 As the CJEU expressed the principle in Van Gend en Loos, ‘the vigilance of individuals interested in protecting their rights creates an 37

38 [1998] IRLR 284, at 287. Case 26/62 [1963] ECR 1. See generally Pescatore, ‘The Doctrine of “Direct Effect”: An Infant Disease of Community Law’ (1983) 8 ELRev 155; and Dashwood, ‘The Principle of Direct Effect in European Community Law’ (1977) 16 JCMS 229. For a powerful critique of the doctrine of direct effect, see Sebba, ‘The Doctrine of “Direct Effect”: A Malignant Disease of Community Law’ [1995] LIEI 35. 40 An example from the field of sex discrimination law is provided by Case C-317/93 Nolte v Landesversicherungsanstalt Hannover [1995] ECR I-4625, discussed in ch 10. The Commission was considering whether to proceed against Germany under what is today Art 258 in respect of the exclusion of certain categories of workers from its social security system when Ms Nolte, a victim of such exclusion, brought 39

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effective control additional to that entrusted by [what are today Articles 258 and 259] to the diligence of the Commission and the Member States’.41 A provision of EU law which, like Article 30 of the Treaty, is capable of being enforced directly by individuals is referred to in various ways. The CJEU sometimes uses the phrase ‘directly applicable’ in this context, and at other times uses the expression ‘directly effective’. International lawyers also sometimes use a third term, ‘self-executing’. Several terms to describe the same concept are at the best of times confusing. In this particular context, however, confusion is even more readily created because the TFEU itself, as has already been seen, also refers to ‘directly applicable’ provisions: Article 288 provides that regulations are ‘directly applicable in all Member States’. By ‘directly applicable’ here, it appears to mean ‘automatically the law in the Member States’.42 Whilst this matter is obviously related to the question of whether an individual can enforce the particular provision in a national court, it is not logically identical. Since the Treaty is the most authoritative source available here, the present writers therefore prefer to reserve the expression ‘directly applicable’ to describe the automatic legal force attributed to regulations by Article 288. The phrase ‘direct effect’ will be taken to refer to those provisions which are capable of enforcement by individuals.43 In the early years of its operation, the CJEU dealt with a number of cases in which the major issue was the possible direct effect of a provision of the Treaty. It gradually articulated the characteristics required of such a provision to render it ‘legally complete’ and thus directly effective. That there are four such characteristics was originally made clear in Van Gend en Loos, and was later explained further through the case law of the CJEU. The provision in question must be clear44 (since judges in a great variety of national courts will have to apply it, and should be able to do so without an unacceptable element of variation), unconditional, nondiscretionary,45 and final, in the sense of not requiring any legislative intervention an action seeking the direct enforcement of the equal treatment principle. Had her action been successful, the national legislation would have proved ineffective in the face of the contradictory EU law. 41 [1963] ECR 1, at 13. See also Lecourt, L’Europe des juges (Bruylant, Brussels, 1976). Another procedure available in the UK where it is alleged that national legislation infringes the Community’s antidiscrimination legislation, is an action for judicial review at the suit of the relevant statutory commission: R v Secretary of State for Employment, ex parte EOC [1994] 2 WLR 409, also discussed in chs 5 and 6. See also Moore, ‘Sex Discrimination and Judicial Review’ (1994) 19 ELRev 425; Deakin, ‘Part-Time Employment, Qualifying Thresholds and Economic Justification’ (1994) 23 ILJ 151; Gordon, ‘Judicial Review and Equal Opportunities’ [1994] PL 217; and Morris, ‘Rights and Remedies: Part-Time Work42 ers and the EOC’ (1995) 17 JSWFL 1. See discussion in ch 1. 43 See also Winter, ‘Direct Application and Direct Effect: Two Distinct and Different Concepts in Community Law’ (1972) 9 CMLRev 425. Cf Steiner,‘Direct Applicability in EEC Law— A Chameleon Concept’ (1982) 98 LQR 229. 44 Case 18/71 Eunomia di Porro v Italian Ministry of Education [1971] ECR 811. See also the remarks of Warner AG in Case 131/79 R v Secretary of State for Home Affairs, ex parte Santillo [1980] ECR 1585, at 1604. 45 The precise nature of this element has evolved over the years. See in particular Case 28/67 MolkereiZentrale Westfalen/Lippe GmbH v Hauptzollamt Paderborn [1968] ECR 143, at 152–3; Case 27/67 FinkFrucht GmbH v Hauptzollamt Munchen [1968] ECR 223; Case 57/65 Lutticke v Hauptzollamt Sarrelouis

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by either the Member States or the Community institutions to make it effective. Thus, Article 19(1) of the TFEU46 is undoubtedly incapable of taking direct effect, since all it does is permit future action (forbidding discrimination) by the Union institutions. However, the fact that a particular Treaty provision is expressly addressed to the Member States does not mean that it necessarily confers any element of discretion on them, and is therefore not enough on its own to preclude direct effect;47 this principle enabled the CJEU to hold that Article 157(1) (on equal pay for men and women) takes direct effect.48

(ii) Direct enforcement of secondary EU legislation Having established the conditions under which Treaty provisions are enforceable directly by individuals, the CJEU then turned to the question of whether, and if so when, the secondary legislation of the EU might also be held to be directly effective. The problems in this area were very much simpler to resolve in the case of regulations than in the cases of directives and decisions. Since regulations are, by Article 288, ‘directly applicable’, and thus automatically the law in all the Member States without the need for any implementation on the parts of national legislatures, there can be no objection in principle to regulations being, on occasion at least, directly enforceable at the suit of individuals. There is a clear parallel with national parliamentary legislation, some of which is aimed at regulating the position of individual legal persons and so is enforceable by them in the courts, and other aspects of which are not. It thus seemed likely that the CJEU would hold regulations to be capable of producing direct effects, provided that they fulfilled the same four requirements as were applied to Treaty provisions. In practice, because of their very nature as immediately operative legislation, regulations are less likely than Treaty provisions to be too vague or general for direct effect, and so the Court has devoted little or no detailed attention to this aspect of their enforcement by individuals. It has, however, held on a number of occasions that regulations are ‘capable of creating individuals rights which the national court must uphold’.49 [1966] ECR 205; Case 13/68 Salgoil SpA v Italian Ministry of Foreign Trade [1968] ECR 453; Case 41/74 Van Duyn v Home Office [1974] ECR 1337; Case C-271/91 Marshall v Southampton and South-West Hants Area Health Authority (No 2) [1993] ECR I-4367 (discussed in detail in ch 6); Joined Cases C-6 & 9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357 (discussed at p 78 et seq.); and Case C-91/92 Faccini Dori v Recreb Sri [1994] ECR I-3325 (discussed at p 62). 46 47

Discussed in ch 1. See, eg, Case 28/67 Molkerei-Zentrale Westfalen/Lippe GmbH v Hauptzollamt Paderborn [1968] ECR

143. 48 Case 43/75 Defrenne v Sabena [1976] ECR 455, discussed in ch 5; the case actually concerned a predecessor to Art 157(1), namely Art 119 of the original Treaty. 49 Case 93/71 Leonesio v Italian Ministry of Agriculture and Forestry [1972] ECR 287, at 293. See also Case 43/71 Politi Sas v Minister of Finance [1971] ECR 1039, especially at 1048–9, and Case 41/74 Van Duyn v Home Office [1974] ECR 1337, especially at 1347.

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In the cases of directives and decisions, however, the problems were acute. Not being ‘directly applicable’ under the terms of Article 288, these instruments clearly require legislation by the national authorities of the Member States before they can penetrate into the national legal orders.The intention of the drafters of the Treaty, it is clear from Article 288, was to make directives and decisions binding legal instruments, but the spheres of obligation which they create were undoubtedly intended to be limited. If directives and decisions are not therefore the law in the Member States until implemented, how could it ever be said that such instruments, taken on their own and in isolation from national implementing legislation, create rights which individuals may enforce in their national courts? It will be recalled that this issue is of special significance in the field of anti-discrimination law, where all of the secondary legislation takes the form of directives. Notwithstanding the basic logical obstacle, there is an obvious reason of policy for seeking to hold directives and decisions capable of direct effect. Member States are notoriously slow in legislating to give effect to their EU obligations. The remedy of imposing a penalty on them for non-compliance with a decision of the CJEU became available only when it was introduced by the Maastricht Treaty in 1993.50 Thus, at least in the early years of the Union, the main inducements for States in practice to comply with rulings of the CJEU were the political embarrassment and corresponding diminution in their negotiating power vis-à-vis their partners which would result if they disobeyed them, together with the fear that other Member States might retaliate. This being so, it is understandable that the Court should have been eager to extend the notion of direct effect to directives and decisions: by doing so, it was enabled to rule that that which ought to have been done had in effect been done, even where a Member State was in default and had not in fact passed the required legislation. The argument discussed earlier in the context of the direct effect of Treaty provisions, that the vigilance of individuals provides an important additional means of ensuring that the Member States carry out their EU obligations, is a particularly compelling one where directives and decisions are concerned. The CJEU, in the 1970s, seems to have been carried away by the utility of the notion of direct effect as applied to directives and decisions. This led it to pronounce such instruments capable of direct effect without giving sufficient attention to the underlying difficulties of principle. The process began with Grad v Finanzampt Traunstein,51 where it held that a combination of a decision, a Treaty provision, and two directives was directly effective; and SACE v Italian Ministry of Finance,52 in which it held a Treaty provision together with a directive to be directly effective. In neither case was there detailed discussion by the Court of the critical question as to how an instrument which was not the law in the Member States could be enforced in the courts of those Member States. For example, in Grad the Court held: 50 52

51 See today Art 260. Case 9/70 [1970] ECR 825. Case 33/70 [1970] ECR 1213.

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However, although it is true that by virtue of [what is today Article 288], regulations are directly applicable and therefore by virtue of their nature capable of producing direct effects, it does not follow from this that other categories of legal measures mentioned in that Article can never produce similar effects. In particular, the provision according to which decisions are binding in their entirety on those to whom they are addressed enables the question to be put whether the obligation created by the decision can only be invoked by the Community institutions against the addressee or whether such a right may possibly be exercised by all those who have an interest in the fulfilment of this obligation. It would be incompatible with the binding effect attributed to decisions by [what is today Article 288] to exclude in principle the possibility that persons affected may invoke the obligation imposed by a decision. Particularly in cases where, for example, the Community authorities by means of a decision have imposed an obligation on a Member State or all the Member States to act in a certain way, the effectiveness (l’effet utile) of such a measure would be weakened if the nationals of that state could not invoke it in the courts and the national courts could not take it into consideration as part of Community law. Although the effects of a decision may not be identical with those of a provision contained in a regulation, this difference does not exclude the possibility that the end result, namely the right of the individual to invoke the measure in the courts, may be the same as that of a directly applicable provision of a regulation. [What is today Article 267], whereby the national courts are empowered to refer to the Court all questions regarding the validity and interpretation of all acts of the institutions without distinction, also implies that individuals may invoke such acts before the national courts.Therefore, in each particular case, one must examine whether the nature, background and wording of the provision in question are capable of producing direct effects in the legal relationships between the addressee of the act and third parties.53

Such a statement amounts to little more in reality than a vindication of the principle that directives and decisions ought to be capable of direct effect. However, these cases marked the beginning of a series of decisions in which the CJEU upheld the direct effect in particular of the provisions of certain directives. Perhaps the most important case in the series was Van Duyn v Home Office,54 in which the Court upheld the direct effect of Article 3 of Directive 64/22155 on the exceptions to the principle of the free movement of workers.The UK Government argued that, since the Treaty Article distinguished between the effects of regulations, directives, and decisions, it was to be presumed that the Council, in issuing a directive here rather than a regulation, must have intended that the directive should have an effect other than that of a regulation, and accordingly that the former should not be ‘directly applicable’.56 The CJEU nevertheless repeated its remarks in Grad almost verbatim, and held that the necessity for direct effect in this situation justified the Court in reaching its conclusion.57 53

54 [1970] ECR 825, at 837. Case 41/74 [1974] ECR 1337. OJ Sp Ed [1963–4] 117. 56 This argument was somewhat undermined by the fact that the relevant enabling article in the Treaty, today Art 52(2), only permits action here by directive and not by regulation. 57 Mayras AG tried to be a little more analytical than the Court itself. He pointed out that the Court had said in the SACE case (Case 33/70 [1970] ECR 1213, at 1223) that a directive is directly effective ‘whenever by its nature the provision establishing (the) obligations is directly applicable’. Mayras AG 55

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A significant development as regards the doctrine of direct effect of directives occurred in 1977 in the Verbond case.58 The CJEU was asked about the possible direct effect of a provision of a directive harmonizing turnover taxes. The Court upheld the direct effect of the provision, notwithstanding that the directive had been made under the authority of what is today Article 115 of the Treaty. Although the express reasoning of the Court in this case adds nothing to that of its predecessors, the substance of the decision does. In the earlier cases, the enabling article of the Treaty on which the directive was based had itself always been directly effective; the direct effect of the directive could thus be seen as, in a sense, merely an extension of the Treaty. There can be no question, however, of Article 115 being directly effective: it is exclusively an enabling provision, and certainly does not produce any ‘final’ or complete legal right for individuals.The directive itself therefore, in such a situation, is the source of the whole of the individual’s rights.This is, of course, vital in the field of discrimination, where the existing secondary legislation (apart from that authorized by Article 157(3)) is based on general and non-directly effective enabling provisions. This fact alone does not present a barrier to the enforcement by an individual of such a directive. A further important principle which seemed to have been implicitly assumed hitherto was articulated in the Enka case.59 The CJEU held here that the provisions of a directly effective directive must take precedence over any national measures which prove to be incompatible with its terms. In particular, an individual can rely on a directive before a national court in order to ask that court to check whether, in the exercise of any discretion left to it by the directive, the Member State has kept within the permissible bounds of that discretion. The directive therefore can act either as a ‘sword’, giving the individual legal rights where national law does not do so, or as a ‘shield’, protecting that individual from having national law enforced against him or her where it conflicts with the terms of the directive. Again, this principle is of great potential significance in the field of anti-discrimination law, where the Member States have a corpus of national laws on the subject, which may on occasion conflict with the EU directives. Given the policy-driven way in which the CJEU’s doctrine of direct effect of directives developed, it hardly seems surprising—at least in retrospect—that serious criticism came to be levelled at it. The clearest and most persuasive criticism came

concluded that ‘when faced with a directive, it is therefore necessary to examine in each case whether the wording, nature and the general scheme of the provisions in question are capable of producing direct effects between the Member States to which the directive is addressed and their subjects’ ([1974] ECR 1337, at 1355). For decisions as to the direct effect of provisions of Directive 64/221, see Case 67/74 Bonsignore v City of Cologne [1975] ECR 297; Case 48/75 State v Royer [1976] ECR 497; Case 30/77 R v Bouchereau (1977) 2 CMLR 800; and Case 36/75 Rutili v Minister of the Interior [1975] ECR 1219. See also Easson, ‘The “Direct Effect” of EEC Directives’ (1979) 28 ICLQ 319, and Green, ‘Directives, Equity and the Protection of Individual Rights’ (1984) 9 ELRev 295. 58 59

Case 51/76 Verbond v Inspecteur der Invoerrechten en Accijnzen [1977] ECR 113. Case 38/77 Enka BV v Inspecteur der Invoerrechten en Accijnzen [1977] ECR 2203.

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from the French Conseil d’Etat in Cohn-Bendit v Ministre de l’Intérieure.60 CohnBendit, a West German citizen and a leader of the Paris student revolts in 1968, had been deported from France in that same year. In 1975, the Minister of the Interior refused Cohn-Bendit’s request to cancel the deportation order, without giving any reasons. Cohn-Bendit argued that this action breached Article 6 of Directive 64/221, which required a ‘worker’ such as himself to be given an explanation for a refusal to allow him to enter another Member State on the ground of public policy.61 He claimed the right to enforce Article 6 of the Directive62 before the Conseil d’Etat.63 The Commissaire du Gouvernement lucidly summed up the logical arguments against the direct effect of directives. The validity of the CJEU’s case law in this area did not, he considered, ‘spring forcefully to the eye’.64 In particular, he pointed out that the CJEU had never explained how an unimplemented directive could have an internal legal effect in the Member States. As to the argument so often referred to by the CJEU that the direct effect of directives greatly helps the enforcement of EU law, he commented: [According to the third paragraph of Article 288] a directive should limit itself to formulating an obligation as to the aim to be achieved while leaving to the Member States the task of laying down the form and the means which will allow it to be achieved. And one cannot refrain from thinking that it is not only the effectiveness of the directive that has to be promoted; the effectiveness of the third paragraph of Article [288] deserves as much and even more to be protected by reason of the primacy of primary Community law over secondary Community law.65

He also made the point that to permit directives to take direct effect is to blur the Treaty-made distinction between regulations and directives and this makes nonsense of the Treaty’s stipulation in many instances that the institutions may act by directive, but not by regulation. The Commissaire’s preferred solution would have been to refer the case to the CJEU and ask it to reconsider its jurisprudence on the direct effect of directives. Notwithstanding this advice, the Conseil d’Etat nevertheless declined to seek a preliminary ruling and, after pointing out that Directive 64/221 was based on what is today Article 52(2) of the Treaty, which authorizes the issue of directives only and not of regulations, it held: It follows clearly from Article [288] ...that while ...directives bind the Member States ‘as to the result to be achieved’ and while, to attain the aims set out in them, the national authorities are required to adapt the statute law and subordinate legislation and administrative practice of the Member States to the directives which are addressed to them, those authorities alone 60

[1980] 1 CMLR 543. Art 6 provided: ‘The person concerned shall be informed of the grounds of public policy, public security, or public health upon which the decision taken in his case is based, unless this is contrary to the interests of the security of the State involved.’ 62 Following the CJEU’s decision on the direct effect of this provision in Case 36/75 Rutili [1975] ECR 1219. 63 The Conseil d’Etat is the highest court in the hierarchy of French administrative courts. 64 65 [1980] 1 CMLR 543, at 550. [1980] 1 CMLR 543, at 554. 61

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retain the power to decide on the form to be given to the implementation of the directives and to fix themselves, under the control of the national courts, the means appropriate to cause them to produce effect in national law. Thus, whatever the detail that they contain for the eyes of the member States, directives may not be invoked by the nationals of such states in support of an action brought against an individual administrative act. It follows that M Cohn-Bendit could not effectively maintain ...that [the deportation] decision infringed the provisions of the directive ...66

The gauntlet was thus thrown down to the CJEU to go back to first principles and surmount the logical hurdle which it had hitherto avoided. This it finally did in Pubblico Ministero v Ratti,67 where it held that a ‘Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails’.68 Reischl AG explained the mechanism, which is essentially a procedural one, rather more fully: It is certainly inappropriate to speak of the direct applicability of a directive. That term is used in Article [288] of the Treaty only for regulations, that is to say, for directly applicable Community legislation, which may also create legal relations between individuals. However, it is clear from the Treaty and has also been emphasized again and again in the case law that a clear distinction must be drawn between regulations and directives, the latter creating obligations only for the Member States. So under no circumstances can one say ...that directives may also have the contents and effects of a regulation; at most directives may produce similar effects ...The essence of such effects is that in certain cases, which however constitute the exception to the rule, Member States which do not comply with their obligations under the directive are unable to rely on provisions of the internal legal order which are illegal from the point of view of Community law, so that individuals become entitled to rely on the directive as against the defaulting state and acquire rights thereunder which the national courts must protect. So in such cases one should more properly speak—and that has always happened in the case law—only of the direct effect of directives.69

This method of explaining how an unimplemented directive may take direct effect in internal law expressly requires the Member State to be in the wrong; this will not be the case until the time stipulated in the directive for compliance with its terms

66 [1980] 1 CMLR 543, at 562–3. See Simon and Dowrick, ‘Effect of EEC Directives in France: The 67 Views of the Conseil d’Etat’ (1979) 95 LQR 376. Case 148/78 [1979] ECR 1629. 68 Case 148/78 [1979] ECR 1629, at 1642. 69 Case 148/78 [1979] ECR 1629, at 1650.These remarks were foreshadowed by Warner AG in Case 38/77 Enka BV [1977] ECR 2203, at 2226, when he said: ‘Article [288] of the Treaty, although it leaves to each Member State the choice of the “form and methods” whereby it is to give effect to a directive, does not allow it the choice of not giving effect to the directive at all, or of giving effect to it only in part. On the contrary, Article [288] says in terms that a directive “shall be binding, as to the result to be achieved, upon each Member State to which it is addressed.” A Member State that fails fully to give effect to a directive is in breach of the Treaty, so that to allow it (through its executive or administrative authorities) to rely upon that fact as against a private person in proceedings in its own courts would be to allow it to plead its own wrong’. See also Warner, ‘The Relationship between European Community Law and the National Laws of Member States’ (1977) 93 LQR 349.

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has run out. It follows that there is an additional requirement to be satisfied before a directive can take direct effect. Again in the words of Reischl AG: [A]s far as directives are concerned, direct effect is hardly an automatic consequence, but merely a reflex effect: it occurs when a Member State does not comply with its obligations and consists in the fact that the state is deprived of the possibility of relying as against individuals and undertakings on its failure to comply with Community law. Accordingly the fact that a directive becomes binding on its notification is not sufficient to produce that legal consequence, rather is it the expiry of the period laid down in the directive for the adaptation of national law which is material.70

As to the other requirements for direct effect of a directive, he said: The decisive test is whether it may be said from the nature, general scheme and wording of a directive that it imposes clear, complete and precise obligations on the Member States, does not lay down any conditions other than precisely defined ones and does not leave the Member States any margin of discretion in the performance of the obligations.71

The utility of the concept of direct effect is not, however, confined to cases in which a directive has not been implemented correctly; it may also come to the aid of an individual where a Member State has enacted proper implementing legislation. This emerged from Marks & Spencer plc v Commissioners of Customs & Excise,72 where the CJEU explained that: [T]he adoption of national measures correctly implementing a directive does not exhaust the effects of the directive. Member States remain bound actually to ensure full application of the directive even after the adoption of those measures. Individuals are therefore entitled to rely before national courts, against the State, on the provisions of a directive which appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise whenever the full application of the directive is not in fact secured, that is to say, not only where the directive has not been implemented or has been implemented incorrectly, but also where the national measures correctly implementing the directive are not being applied in such a way as to achieve the result sought by it. ...[I]t would be inconsistent with the Community legal order for individuals to be able to rely on a directive where it has been implemented incorrectly but not to be able to do so

70

[1979] ECR 1629, at 1653. [1979] ECR 1629, at 1650. In its later decision in Case 8/81 Becker v Finanzampt Munster-Innenstadt [1982] ECR 53, the CJEU confirmed this approach, saying (at 71): ‘[W]herever the provisions of a directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the state’. Cf the remarks of Warner AG in Case 131/79 R v Secretary of State for Home Affairs, ex parte Santillo [1980] ECR 1585, at 1609. See also Usher, ‘Direct Effect of Directives: Dotting the i’s . . . ’ (1980) 5 ELRev 470. 72 Case C-62/00 [2002] ECR I-6325, commented upon by Ruffert in (2003) 40 CMLRev 729. 71

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where the national authorities apply the national measures implementing the directive in a manner incompatible with it.73

(iii) Directives and horizontal effect At least one highly significant consequence follows from the CJEU’s chosen method of explaining how a directive may take direct effect: it does not provide any mechanism for the enforcement of a provision contained in a directive by an individual against another individual. The capacity of EU law to be enforced against an individual—in other words, the creation of obligations as well as rights for individuals by EU law—is usually termed ‘horizontal direct effect’.74 It has long been clear that a Treaty provision may create obligations not just for Member States but also for individuals.75 It was sometimes argued that there was little real difference between a Treaty provision addressed to the Member States, such as Article 157 which was held to create obligations for individuals in Defrenne v Sabena,76and a directive. Furthermore, it was pointed out that anomalies would arise in practice if directives could not be enforced against individuals, whilst Treaty provisions could.77 However, the estoppel-type reasoning adopted in the Ratti case is inapposite where a directive is sought to be enforced against an individual: the individual is not at fault in consequence of the non-implementation of the directive by the Member State, and thus there can be no question of the individual relying on his or her own wrongdoing before the court.78 The CJEU perhaps believed that it had made this matter clear in the Ratti case and in its later jurisprudence on the direct effect of directives.79 However, its history of policy-led decisions in this area created a slim possibility that it would find a way around this difficulty and that it would eventually rule in favour of the horizontal direct effect of directives.80 73 Case C-62/00 [2002] ECR I-6325, at 6358–9. For an interesting discussion of the role of the doctrine of direct effect in the modern EU legal order, see Prechal, ‘Does Direct Effect Still Matter?’ (2000) 37 CMLRev 1047. 74 The term ‘vertical direct effect’ refers to the situation where EU law is enforced against the State or one of its organs. 75 See, eg, Case 36/74 Walrave and Koch v Association Union Cycliste Internationale [1974] ECR 1405, and Case C-281/98 Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECR I-4139. 76 Case 43/75 [1976] ECR 455, discussed in detail in chs 4 and 5. The case of course concerned the predecessor Art 119 of the original Treaty. 77 See also Szyszczak, ‘Future Directions in European Union Social Policy Law’ (1995) 24 ILJ 19. 78 In addition, before the amendment of what is now Art 297 (as to which see ch 1) by the TEU, directives were not required to be published in the Official Journal, and it was argued that grave injustice would result if an individual could be placed under an obligation by an instrument whose terms he or 79 she had no means of discovering. See, eg, its remarks in Case 8/81 Becker, cited at n 71. 80 For discussion, see Dashwood, Dougan, Rodger, Spaventa and Wyatt (eds), Wyatt and Dashwood’s European Union Law, 6th edn (Hart Publishing, Oxford, 2011), 261-8; Arnull, ‘Sanctioning Discrimination’ (1984) 9 ELRev 267; Green, ‘Directives, Equity and the Protection of Individual Rights’ (1984) 9 ELRev 295; Easson, ‘Can Directives Impose Obligations on Individuals?’ (1979) 4 ELRev 67; Easson, ‘The Direct Effect of EEC Directives’ (1979) 28 ICLQ 319; Wyatt, ‘The Direct Effect of Community

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That this was not to be was demonstrated by Marshall v Southampton and SouthWest Hants Area Health Authority,81 where the CJEU held: ‘[A] directive may not of itself impose obligations on an individual and ...a provision of a directive may not be relied upon as against such a person ...’.82 This conclusion was reiterated by the full Court in Faccini Dori v Recreb Srl,83 a stronger case in this respect than Marshall84 since the application of the principle here actually resulted in the plaintiff losing her action. Whilst waiting on Milan station, Ms Faccini Dori had entered into a contract with a private commercial undertaking to take an English language correspondence course. She later sought to cancel this contract, and relied for her right to do so on Directive 85/577 concerning the protection of the consumer in respect of contracts negotiated away from business premises.85 At the material time, Italy had not taken any steps to implement this directive, even though the time for doing so had expired. Notwithstanding that the relevant provisions of the directive were held to take direct effect, the Court ruled that they could not be relied upon against a private person.86 Despite the apparent force of the Court’s determination not to accord directives horizontal direct effect, there have nevertheless been subsequent decisions which have cast renewed doubt on the scope of the doctrine by creating a kind of ‘incidental’ horizontal effect for directives in certain circumstances. It appears that the Court is currently in the process of working out the exact extent of this incidental effect and it cannot be pretended that its case law is consistent in this respect.87 A significant characteristic shared by the earliest of these cases is the involvement

Social Law—Not Forgetting Directives’ (1983) 8 ELRev 241; and Craig, ‘The legal effect of Directives: policy, rules and exceptions’ (2009) 34 ELRev 349. 81 Case 152/84 [1986] ECR 723, discussed in detail in ch 6. See Foster, ‘Equal Treatment and Retirement Ages’ (1986) 11 ELRev 222, and Arnull, ‘The Direct Effect of Directives: Grasping the Nettle’ 82 (1986) 35 ICLQ 939. [1986] ECR 723, at 749. 83 Case C-91/92 [1994] ECR I-3325, noted by Bernard in ‘The Direct Effect of Directives: Retreating from Marshall (No 1)?’ (1995) 24 ILJ 97, and by Robinson in (1995) 32 CMLRev 629. See also Case 14/86 Pretore di Salo v Persons Unknown [1987] ECR III-2545, Case C-168/95 Arcaro [1996] ECR I-4705, and Case C-192/94 El Corte Inglés SA v Rivero [1996] ECR I-1281. 84 In Marshall, the defendants were found to be an organ of the State and the directive could therefore 85 be enforced vertically. OJ [1985] L372/31. 86 For an analogous case in relation to decisions, see Case C-80/06 Carp [2007] ECR I-4473. The denial by the CJEU of horizontal direct effect to directives has been the subject of considerable criticism. See in particular the submissions of Van Gerven AG in Case C-271/91 Marshall v Southampton and South-West Hants Area Health Authority (No 2) [1993] ECR I-4367, those of Jacobs AG in Case C-316/93 Vaneetveld v SA Le Foyer [1994] ECR I-763, at 770–6, and those of Lenz AG in Case C-91/92 Faccini Dori v Recreb Srl [1994] ECR I-3325. See also Tridimas, ‘Horizontal Effect of Directives: a Missed Opportunity?’ (1994) 19 ELRev 621; Coppel, ‘Rights, Duties and the End of Marshall’ (1994) 57 MLR 859; Mastroianni, ‘On the Distinction Between Vertical and Horizontal Direct Effects of Community Directives: What Role for the Principle of Equality?’ (1999) 5 EPL 417; and Colgan, ‘Triangular Situations: The Coup de Grâce for the Denial of Horizontal Direct Effect of Community Directives’ (2000) 8 EPL 545. 87 Evidence of its doubts in this sphere may be derived from Case C-282/10 Dominguez v CICOA [2012] ECR I-000 in which Trstenjak AG undertook an extensive analysis of the existing theories and opinions about the incidental effects of directives but the Court itself ducked the issue entirely.

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in them of two private parties, in addition to the State.88 Foremost amongst these decisions is CIA Security v Signalson.89 CIA marketed an alarm system in Belgium, which had not received type approval under the relevant Belgian legislation. In a commercial dispute with a rival organization, in which it was also argued that CIA was criminally liable, CIA argued that the national legislation enacted during the 1990s was invalid because it had not been communicated to the Commission as required by Directive 83/189.90 An important issue for the Court was whether CIA could rely on the directly effective notification requirement in its dispute with another individual; if it were allowed to do so, this would be seriously detrimental to that other individual’s case. Elmer AG distinguished this situation from that in Faccini Dori because, in his view, it was the intention of the present directive only to impose obligations on the Member States; it did not seek to impose obligations on individuals. He submitted that it was clear that if the State had tried to bring criminal proceedings against CIA for non-compliance with the national legislation, it would have been precluded from so doing by the direct effect of the directive. He continued: The fact that the question in this case has been raised in the context of a private action, however, in my view can make no difference whatsoever. It is the State which lays down rules on penalties, prohibitions on marketing etc, and it is the courts who must impose such sanctions regardless of who, under the national rules on procedure, might have brought the case.91

The full Court, without referring to Faccini Dori, agreed that individuals could rely on the notification requirement contained in the directive, with the result that the national court must decline to apply a national technical regulation which had not been notified in accordance with the directive.92 Bernáldez93 concerned civil liability in respect of a road accident caused by a drunk driver. The driver had been held liable, and his insurers absolved from liability, under Spanish legislation. However, the Public Prosecutor appealed against this decision, seeking joint liability for the insurers on the basis of the requirements of two directives. Without making any mention of Faccini Dori and basing its reasoning entirely on the policy underlying the directives, namely, the harmonization 88 Sometimes called ‘triangular’ or ‘multi-angular relationships’: see Prechal, Directives in European Community Law, 2nd edn (Oxford University Press, Oxford, 2005), especially 262–71. 89 Case C-194/94 [1996] ECR I-2201. See Coppel, ‘Horizontal Effect of Directives’ (1997) 26 ILJ 90 69. OJ [1983] L109/8. 91 [1996] ECR I-2201, at 2226. See also the view of Lord Hoffmann, delivering the judgment of the House of Lords in R v Secretary of State for Employment, ex parte Seymour-Smith [1997] 1 WLR 473, at 478. 92 See the Court’s similar ruling in Case C-443/98 Unilever Italia SpA v Central Food SpA [2000] ECR I-7535, but note the powerful dissent of Jacobs AG and the strong criticism of the Court’s ruling by Weatherill in ‘Breach of Directives and Breach of Contract’ (2001) 26 ELRev 177. See also Case C-77/97 Unilever GmbH v Smithkline Beecham GmbH [1999] ECR I-431. In Case C-226/97 Lemmens [2000] ECR I-3711, the Court limited the scope of its ruling in CIA Security by stating that failure to notify technical regulations rendered such regulations inapplicable only inasmuch as they hindered the use or the marketing of a product which did not comply with them. 93 Case C-129/94 [1996] ECR I-1829.

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of insurance and the protection of victims of accidents throughout the Community, the Court held that the directives precluded national legislation from relieving insurers of the obligation to compensate the victims of drunk drivers, although national legislation might provide that in such cases the insurer had a right of recovery against the insured. The net effect of this ruling was thus that, irrespective of the provisions of national law, the directives placed an obligation on a body which was not part of the State (an insurance company), and this obligation could be invoked by another private party (the victim). In the same vein was Panagis Pafitis v Trapeza Kentrikis Ellados AE,94 concerning an inconsistency between a company law directive95 and a provision of Greek law which permitted an increase in a company’s capital without the consent of the general meeting of its shareholders. Again without making any reference to Faccini Dori, the Court held that this national law was precluded by the directive, thereby implying that the directive created rights enforceable against the temporary administrator of the company concerned. Tesauro AG, however, regarded the situation as one of vertical effect, saying that the administrator’s appointment and duties were subject to legislative ratification.96 Several explanations were advanced for these, apparently aberrant, decisions.97 Stuyck maintained98 that everything depends on the nature of the proceedings pending in the national court; where proceedings are brought by an individual with the aim of enforcing a right against State interference, he concluded that the CJEU allows a directive to confer obligations on individuals. Slot,99 in commenting on CIA Security, pointed out that the parties in that case did not base their claims directly on the directive, and their situation could therefore be distinguished from that of the plaintiffs in Marshall and Faccini Dori. He reasoned that private parties can indirectly invoke a directive in order to prevent the application of contradictory national legislation, concluding that ‘[j]ust as the public authorities cannot enforce national legislation that is contrary to provisions of directives...., so individuals cannot achieve such a result’.100 These views have much to commend them and further supporting and explanatory dicta can be found in the CJEU’s decisions. It is important to note the Court’s formulation that a directive may not ‘of itself ’ impose obligations on an 94 Case C-441/93 [1996] ECR I-1347. See also Case C-215/97 Bellone v Yokohama [1998] ECR 95 I-2191. Directive 77/91, OJ [1977] L26/1. 96 [1996] ECR I-1347, at 1358. For the view that Case C-180/95 Draehmpaehl v Urania Immobilenservice ohG [1997] ECR I-2195, discussed in ch 6, also constitutes an exception to the principle that directives do not take horizontal effect, see Ward’s comments on the case in (1998) 23 ELRev 65. Cf Dougan, ‘The Disguised “Vertical” Direct Effect of Directives?’ (2000) 59 CLJ 586, and Dougan, ‘The Equal Treatment Directive: Retaliation, Remedies and Direct Effect’ (1999) 24 ELRev 664. 97 Lackhoff and Nyssens argue that the crux of the matter is to find a balance between ensuring the effet utile of Community law and protecting the rule of law as set out in the Treaty: see ‘Direct Effect of Directives in Triangular Situations’ (1998) 25 ELRev 397. See also Dougan, ‘The “Disguised” Vertical 98 Direct Effect of Directives?’ (2000) 59 CLJ 586. (1996) 33 CMLRev 1261. 99 100 (1996) 33 CMLRev 1035. (1996) 33 CMLRev 1035, at 1049–50.

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individual.101 This appears to imply that obligations may nevertheless result for the individual as a more circuitous consequence of a directive. Elucidation may be found in the Court’s case law on the supremacy of EU law, which emphasizes, as has been seen above, the limitation of national sovereignty and legislative power which the CJEU considers to flow from adherence to the Union.102 At the very least, this means that national legislation which contradicts EU law in the shape of the Treaty or a regulation is inapplicable; some might go further and argue that it is invalid or ultra vires. The effect of this reasoning in the sphere of directives was examined many years ago by Mancini AG in Teuling v Bedrijfsvereniging voor de Chemische Industrie:103 The Commission takes up and develops a view which has received authoritative support in academic circles according to which even where the directive does not contain an express standstill clause, its notification generates a ‘blocking effect’ inasmuch as it prohibits Member States from adopting measures contrary to its provisions ...[T]he particular objective of the directive [here] ...is to harmonize the laws of the Member States by removing existing legislative and administrative differences. Clearly, therefore, the very fact of its adoption places an obligation on the Member States to refrain from introducing new measures which may increase those differences. It may be suggested that such a proposition conflicts with ...Ratti ...In paragraph 44 of the decision in that case the Court held that until the expiry of the period prescribed for the implementation of the directive ‘the Member States remain free in that field’. As with all freedoms, however, that freedom too is subject to limits, and primarily to limits dictated by common sense. Thus there is no doubt that it entails the power to retain in force rules or practices which do not comply with the directive. However, as I have just stated, it is equally certain that such freedom does not include the power to aggravate the defect which the directive is intended to remedy. Indeed it may be that measures adopted during the prescribed period must of necessity be measures intended to transpose the Community provisions. Such measures must at least not conflict with the requirements laid down in those provisions. That is not, however, sufficient. Further support for the solution which I propose is to be found in the Treaty.The second paragraph of Article 5 [now Article 4(3) of the TEU] requires Member States to abstain from adopting measures liable to ‘jeopardize the attainment of the objectives’ of the Treaty. The failure to fulfil that general obligation, the lack of co-operation 101 Case 152/84 Marshall, [1986] ECR 723, at 749. See also Case C-192/94 El Corte Inglés [1996] ECR I-1281, at 1303, and Joined Cases C–74 & 129/95 Criminal Proceedings Against X [1996] ECR I-6609, where the CJEU said that it had consistently held ‘that a directive may not of itself create obligations for an individual and that a provision of a directive may not therefore, as such, be relied upon against such a person’ (at 6636). In Case C-443/98 Unilever Italia SpA v Central Food SpA [2000] ECR I-7535, the Court stated (at 7584–5): ‘Whilst it is true ...that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual (see Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 20), that case-law does not apply where non-compliance with Article 8 or Article 9 of Directive 83/189, which constitutes a substantial procedural defect, renders a technical regulation adopted in breach of either of those articles inapplicable.’ See also Case T-172/98 and T-175-177/98 Salamander AG v European Parliament and Council [2000] ECR II-2487, Case C-456/98 Centrosteel Srl v Adipol GmbH [2000] ECR I-6007, and Case C-185/97 Coote v Granada Hospitality Ltd [1998] ECR I-5199. 102 See also Lenz, Sif Tynes, and Young, ‘Horizontal What? Back to Basics’ (2000) 25 ELRev 509. 103 Case 30/85 [1987] ECR 2497, also discussed in ch 10.

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and solidarity which form the substance of that obligation, is in fact the first ground on which the Commission should rely as against Member States which it charges under Article 169 of the EEC Treaty [now Article 258 of the TFEU] with having disregarded the ‘blocking effect’, and thus the prohibition of the adoption of retrograde measures, which follows the notification of the directive. Moreover, the Court has often referred to the second paragraph of Article 5 and clarified the limits of Member States’ powers in connection with Community measures which are not directives, but which, like them, generate rights and obligations at the end of a prescribed period ...104

This position was confirmed by the decision of the CJEU in Inter-Environnement Wallonie ASBL v Region Wallonne,105 where it held that, during the period permitted for implementation of a directive, the Member States must refrain from taking any measures liable seriously to compromise the result prescribed by the instrument;106 it added that a national court which is called upon to assess the ‘legality’ of a national measure enacted during the implementation period must determine whether the measure passes this test.107 These remarks effectively equate the contravention by a Member State of a directive with its contravention of a Treaty provision or regulation.108 In other words, they suggest that a lightly modified version of the doctrine of supremacy applies to directives: whilst the implementation period for a directive is running, although contradictory domestic law remains applicable, no new contradictory domestic legislation may be enacted and, once the implementation period has elapsed, existing contradictory domestic legislation

104 Case 30/85 [1987] ECR 2497, at 2513–14. See also Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, at 1937 in which Van Gerven AG submitted that a directive has, ‘as from the time of its adoption and a fortiori as from the expiry of the period prescribed for its transposition into national law, become part of Community law and as such takes precedence over all provisions of national law’ (quoted more extensively at p 75). See also the submissions of Darmon AG in Case C-229/89 Commission v Belgium [1991] ECR I-2216, and of Saggio AG in Case C-187/98 Commission v Greece [1999] ECR I-7713. For a limited exception to the ‘blocking effect’ principle, see Case C-420/92 Bramhill v Chief Adjudication Officer [1994] ECR I-3191, discussed in ch 10. 105 Case C-129/96 [1997] ECR I-7411, discussed by Kaczorowska in ‘A New “Right” Available to Individuals under Community Law’ (1999) 5 EPL 79. 106 It is immaterial for this purpose whether or not the rule of domestic law in question, adopted after the directive entered into force, is concerned with the transposition of the directive: Case C-14/02 ATRAL [2003] ECR I-4431 and Case C-144/04 Mangold v Helm [2005] ECR I-9981. 107 In his submissions in Inter-Environnement Wallonie, Jacobs AG did not, however, subscribe to such a wide general proposition: ‘I do not rule out the possibility that a Member State might in some circumstances ...be considered to be in breach of its duty of faithful co-operation under [Article 4(3) of the TEU] (although possibly not its duty to implement under Article [288]) if it were to enact without justification, after the adoption of a directive, measures which were wholly contrary to the spirit and tenor of a directive, especially one which conferred rights on individuals. That might particularly be so where the measures, although repealed before the final date for implementation, continued to produce practical effects after that date ...However, such cases would be exceptional ...I do not think it would be appropriate to interpret Articles [4(3)] and [288] as entailing a general blocking effect’ ([1997] ECR I-7411, at 7422). 108 See also the submissions of Tizzano AG in Case C-144/04 Mangold v Helm [2005] ECR I-9981 at paras 98 and 102; cf para 122.

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becomes inapplicable.109 Powerful support for this analysis is to be found in the Opinion of Saggio AG in Quintero,110 where he submitted: I believe that a correct application of the principle of the primacy of Community law over national law and the need to guarantee uniform application of the Community provisions imply that non-transposed directives may, once the period prescribed for their transposition into national law has expired, have the effect of precluding application of the conflicting national rule, even if, for want of precision or because they have no effect in horizontal relations, they do not confer upon individuals rights that can be relied on before the courts.The duty to co-operate ...which is incumbent on every national body within the framework of its own powers, requires courts and administrative authorities to ‘set aside’, as it were, the incompatible national law ... [T]he Court has ...recently examined other consequences resulting from the fact that directives rank higher, in the hierarchy of sources, than rules of domestic law. And this—it should be emphasised—has also been the case with disputes involving private persons only, a correct distinction being made here, albeit implicitly, between the direct effect of a provision of Community law, understood in the strict sense as the right to rely upon that provision as against another person in judicial proceedings, and its capacity to serve as a parameter of legality for a provision which ranks lower in the hierarchy of sources.111

This would mean that a distinction is rightly to be made between those cases where a directive is the only relevant legal provision and those cases where there is contradictory national law. Where a directive stands alone, Faccini Dori makes it clear that a claim cannot succeed where the defendant is a private party; the directive does 109 See also Case 21/78 Delkvist v Public Prosecutor [1978] ECR 2327. In Case C-144/04 Mangold v Helm [2005] ECR I-9981 (also discussed in ch 3) the CJEU followed Inter-Environnement Wallonie and held that German domestic legislation enacted in 2002 which breached Art 6 of the Framework Directive of 2000 (discussed further in ch 9) must be set aside by the national court, even where the period prescribed for transposition of the directive had not yet expired. (Cf the Opinion of Tizzano AG, especially at paras 106–11).This conclusion was reinforced by the Court’s finding—which came as a surprise to many commentators—that the directive reflected a general principle of EU law. In Case C-427/06 Bartsch v Bosch [2008] ECR I-7245, both the CJEU and Sharpston AG explained that in Mangold the impugned domestic legislation fell within the scope of EU law because it implemented a provision of EU law (specifically, Directive 1999/70, OJ [1999] L175/43, discussed in ch 6) and it was therefore subject, on normal principles (discussed further in ch 3), to review on the basis of its compatibility with the general principles of EU law. See also the Opinion of Sharpston AG in Joined Cases C-395 & 396/08 INPS v Bruno [2010] ECR I-5119 and the Opinion of Bot AG in Case C-555/07 Kücükdeveci v Swedex GmbH [2010] ECR I-365. Note the critical views of Mangold expressed by Geelhoed AG in Case C-13/05 Chacόn Navas v Eurest [2006] ECR I-6467, by Mazak AG in Case C-411/05 Palacios de la Villa v Cortefiel Servicios SA [2007] ECR I-8531, and by Ruiz-Jarabo Colomer AG in Cases C-55 & 56/07 Michaeler v Amt für sozialen Arbeitsschutz [2008] ECR I-3135. See also Editorial Comments, ‘The scope of application of the general principles of Union law: An ever expanding Union?’ (2010) 47 CMLRev 1589; Tobler ‘Putting Mangold in perspective’ (2007) 44 CMLRev 1177; Arnull, ‘Out with the old ...’ (2006) 31 ELRev 1; Ross, ‘Effectiveness in the European legal order(s): Beyond supremacy to constitutional proportionality?’ (2006) 31 ELRev 476; and Schiek, ‘The CJEU Decision in Mangold’ (2006) 35 ILJ 329. 110 Case C-240-244/98 Océano Grupo Editorial SA v Quintero [2000] ECR I-4941. 111 Case C-240-244/98 Océano Grupo Editorial SA v Quintero [2000] ECR I-4941, at 4955–7. The CJEU decided the case on a different basis, as to which see Stuyck’s comment in (2001) 38 CMLRev 719. See also Case C-287/98 Luxembourg v Linster [2000] ECR I-6917, especially the submissions of Léger AG, and Case C-157/02 Reiser GmbH v Asfinag [2004] ECR I-1477.

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not ‘substitute’ a new EU legal obligation. However, where there is contradictory national law, once the period allowed for implementing the directive has passed, the directive might render that national law unenforceable; this is sometimes described as the ‘exclusionary’ effect of a directive, and it would produce the indirect consequence that a legal obligation flowing from the directive is thereby placed on a private party.112 This was demonstrated recently in Kücükdeveci v Swedex GmbH113 where a litigant employed by a private employer challenged a provision of German law on the basis that it discriminated on the ground of age. The Grand Chamber of the CJEU found that the national law, which had its genesis in legislation first enacted in 1926, did indeed breach the provisions of the Framework Directive.114 The implementation period prescribed for the directive had expired by the time of the events giving rise to the litigation. The Court went on to hold that the Framework Directive gives expression to, but does not lay down, the principle of equal treatment in employment and that the principle of non-discrimination on the ground of age is a general principle of EU law in that it constitutes a specific application of the general principle of equal treatment.115 It concluded: In those circumstances, it is for the national court, hearing a dispute involving the principle of non-discrimination on grounds of age as given expression in [the Framework Directive] to provide, within the limits of its jurisdiction, the legal protection which individuals derive from EU law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle.116

If the exclusionary reasoning is correct, it would mean that, even disregarding the other principles developed by the CJEU to mitigate the lack of horizontal direct effect of directives (discussed below), the scope of the rule that directives cannot take horizontal effect is narrower than was initially appreciated.117 Even if only an 112 In Case C-411/05 Palacios de la Villa v Cortefiel Servicios SA [2007] ECR I-8531, Mazak AG expressed himself strongly opposed to the exclusionary theory, saying that he considered it decisive, in particular with due respect to the principle of legal certainty, that the legal position of an individual is affected to his detriment as a result of the invocation of a directive, regardless of whether technically that adverse effect is brought about by the exclusion of national law or in consequence of its substitution by a directive (at para 126). He went on to say that cases such as Case C-194/94 CIA Security v Signalson [1996] ECR I-2201 and Case C-443/98 Unilever Italia SpA v Central Food SpA [2000] ECR I-7535 have to be understood in the light of their specific circumstances, involving directives concerned with public law duties of a technical or procedural kind (at para 128). See also the Editorial Comment, ‘Horizontal direct effect—A law of diminishing coherence?’ (2006) 43 CMLRev 1. 113 Case C-555/07 [2010] ECR I-365, commented on critically by Thüsing and Horler in a casenote: (2010) 47 CMLRev 1161 and also by Peers in ‘Supremacy, equality and human rights’ (2010) 35 ELRev 849. See para 63 of the Opinion of Bot AG for a statement of the substitution/exclusion 114 dichotomy. See further discussion in chs 6 and 9. 115 The Court here referred to its decision in Case C-144/04 Mangold v Helm [2005] ECR I-9981. 116 [2010] ECR I-365, at para 51. See also Case C-212/04 Adeneler v ELOG [2006] ECR I-6057; the discussion in Dashwood, Dougan, Rodger, Spaventa and Wyatt (eds), Wyatt and Dashwood’s European Union Law, 6th edn (Hart Publishing, Oxford, 2011), 278–85; and Craig and de Búrca, EU Law: Text, Cases, and Materials, 5th edn (Oxford University Press, Oxford, 2011), 200–16. 117 See further Lenaerts and Corthaut, ‘Of birds and hedges: the role of primacy in invoking norms of EU law’ (2006) 31 ELRev 287. However, for a forceful criticism of the substitution/exclusion reason-

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attenuated version of the exclusion doctrine were accepted by the Court, in other words restricting it to the situation in which the directive in question is the expression of a more general principle of EU law, this would still be of great importance in the context of anti-discrimination law where the secondary legislation generally takes the form of directives and those directives can all be said to express the general principle of equality.118

(iv) Meaning of the ‘State’ The case law limiting the direct enforceability of directives against defendants who are private parties has focused attention on the meaning to be attached to the term ‘State’. In Marshall v Southampton and South-West Hants Area Health Authority,119 the CJEU indicated the broad stance which it was to take on this matter, saying: [W]here a person involved in legal proceedings is able to rely on a directive as against the state he may do so regardless of the capacity in which the latter is acting, whether employer or public authority. In either case it is necessary to prevent the state from taking advantage of its own failure to comply with Community law.120

Slynn AG explained: What constitutes ‘the state’ in a particular national legal system must be a matter for the national court to decide. However (even if contrary to the trend of decisions in cases involving sovereign immunity where the exercise of imperium is distinguished from commercial and similar activities), as a matter of Community law, where the question of an individual relying upon the provisions of a directive as against the state arises, I consider that the ‘state’ must be taken broadly, as including all the organs of the state. In matters of employment ...this means all the employees of such organs and not just the central civil service. I would, thus, reject the argument put to the court that a distinction should be drawn between the state as employer and the state in some other capacity. For present purposes the state is to be treated as indivisible, whichever of its activities is envisaged. It was argued that, where the state is acting as an employer, it should be treated in the same way as a private employer, and that it would be unfair to draw a distinction. I reject that argument. The state can legislate but a private employer cannot. It is precisely because the state can legislate that it can remedy its failure to implement the directive concerned. This consideration puts it at the outset in a

ing, see Craig, ‘The legal effect of Directives: policy, rules and exceptions’ (2009) 34 ELRev 349. See also Dougan, ‘When Worlds Collide! Competing Visions of the Relationship Between Direct Effect and Supremacy’ (2007) 44 CMLRev 931; and Muir, ‘Of ages in—and edges of—EU law’ (2011) 48 CMLRev 39. 118 For further discussion of the potential of general principles of EU law to impact on the legality 119 of national law, see ch 3. Case 152/84 [1986] ECR 723, discussed in detail in ch 6. 120 Case 152/84 [1986] ECR 723, at 749. See also the submissions of Jacobs AG in Case C-2/94 Denkavit Internationaal BV v Kamer [1996] ECR I-2827, where he said:‘the principle according to which an unimplemented directive can impose obligations only on the state is a principle which has to be understood broadly, if it is not to have arbitrary consequences’ (at 2840).

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fundamentally different position from a private employer, and justifies its being treated differently as regards the right of a person to rely upon the provisions of a directive.121

In its decision in Johnston v Chief Constable of the RUC,122 the CJEU gave a generous interpretation of the ‘State’ for the purpose of determining who derives obligations from directives. It held that the Chief Constable of the Royal Ulster Constabulary was part of the apparatus of the ‘State’, despite the UK Government’s argument that he was constitutionally independent of the executive. The CJEU ruled: [I]ndividuals may rely on the directive as against an organ of the state whether it acts qua employer or qua public authority. As regards an authority like the Chief Constable, it must be observed that ...the Chief Constable is an official responsible for the direction of the police service. Whatever its relations may be with other organs of the state, such a public authority, charged by the state with the maintenance of public order and safety, does not act as a private individual. It may not take advantage of the failure of the state, of which it is an emanation, to comply with Community law.123

The trend continued in Foster v British Gas plc.124 Six female employees of the British Gas Corporation were dismissed in 1985 and 1986 when they reached British Gas’s compulsory retirement age of 60 for women. They complained of unlawful sex discrimination, since male employees would not have been required to retire until they reached the age of 65. They could not rely on UK domestic law since, at the date in question, it did not extend to this situation. They argued, therefore, that EU law governed their case. At the relevant time, British Gas had not yet been privatized.125 The industrial tribunal dismissed their applications on the ground that Article 5 of the Equal Treatment Directive,126 which otherwise appeared to govern this situation, could be relied on only as against bodies which were ‘organs of the State’, and that British Gas was not such an ‘organ of the State’. The Employment Appeal Tribunal dismissed the applicants’ appeal, as did the Court of Appeal,127 which held that the directive gave rise to legal rights for employees of the State itself and of any organ or emanation of the State, an emanation of the State meaning an independent public authority ‘charged by the state with the performance of any of the classic duties of the state, such as the defence of the realm or the maintenance of law and order within the realm’.128 As a matter of English law the Court of Appeal found that British Gas, a nationalized industry, did not fall within this definition since its powers were not within the province of government. The House of Lords sought a preliminary ruling from the CJEU, asking whether the directive was enforceable against British Gas. The CJEU delved into the facts in unusual detail for a preliminary ruling and pointed out that, by virtue of the 121 123 125 126 127

122 [1986] ECR 723, at 735. Case 222/84 [1986] ECR 1651. 124 Case 222/84 [1986] ECR 1651, at 1691. Case 188/89 [1990] ECR I-3313. This occurred in August 1986. Now re-enacted in the Recast Directive and discussed further in ch 6. 128 [1988] 2 CMLR 697. [1988] 2 CMLR 697, at 701, per Lord Donaldson MR.

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Gas Act 1972, which governed British Gas at the relevant time, British Gas was a statutory corporation responsible for developing and maintaining a system of gas supply in Great Britain, over which it possessed a monopoly. The members of the British Gas Corporation were appointed by the Secretary of State, who also had the power to give the British Gas Corporation directions of a general character in relation to matters affecting the national interest and instructions concerning management. The British Gas Corporation was obliged to submit to the Secretary of State periodic reports (which were laid before Parliament) on the exercise of its functions, its management, and its programmes, and it had the right to submit proposed legislation to Parliament. It was required to run a balanced budget over two successive financial years and the Secretary of State could order it to pay certain funds to the Department of State, or to allocate funds to specified purposes. This emphasis on the factual background lent force to the CJEU’s ultimate conclusion on the principle of EU law at stake and left no doubt at the end of the day as to how the relevant EU principle was to be applied to the facts of the case. It pointed out that it had: held in a series of cases that unconditional and sufficiently precise provisions of a Directive could be relied on against organizations or bodies which were subject to the authority or control of the state or had special powers beyond those which result from the normal rules applicable to relations between individuals. The Court has accordingly held that provisions of a Directive could be relied on against tax authorities (the judgments of 19 January 1982 in Case 8/81 Becker ...and of 22 February 1990 in Case C-221/88 ECSC v Aciaierie e Ferriere Busseni (in liquidation) [1990] ECR), local or regional authorities (judgment of 22 June 1989 in Case 103/88 Fratelli Costanzo v Commune di Milano [1989] ECR), constitutionally independent authorities responsible for the maintenance of public order and safety (judgment of 15 May 1986 in Case 222/84 Johnston v Chief Constable of the RUC [1986] 3 WLR 1038), and public authorities providing public health services (judgment of 26 February 1986 in Case 152/84 Marshall ...).129

From all this, the Court concluded that a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the state, for providing a public service under the control of the state and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included130 in any event among the bodies against which the provisions of a Directive capable of having direct effect may be relied upon.131

129

[1990] ECR I-3313, at 3348. See also Case C-31/87 Beentjes BV v Holland [1988] ECR 4635. In NUT v Governing Body of St Mary’s School [1997] ICR 334, Schiemann LJ pointed out that it is clear from the use in this passage of the words ‘is included’ that this was not intended to be an exclusive formula. 131 [1990] ECR I-3313, at 3348–9. Cf the Court’s statement earlier in its judgment, and quoted above in the text, that ‘unconditional and sufficiently precise provisions of a Directive [can] be relied on against organizations or bodies ...subject to the authority or control of the state or [which have] special powers beyond those which result from the normal rules applicable to relations between individuals’ (at 3348, emphasis added). 130

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The EU concept of the ‘State’, for the purposes of the doctrine of horizontal direct effect, is thus characterized by the presence of four factors, namely: • • • •

the body in question must have been given its powers by the State; it must have been made responsible for providing a public service; its powers must be exercisable under the control of the State; and its powers must be special ones, distinguishable from those possessed by individuals.132

It is clear therefore that the ‘State’ in this context has the potential to cover a wide range of organizations and bodies, including, for example, educational establishments such as schools133 and universities, local government,134 the central civil service, hospitals,135 and nationalized industries.136 The editors of the Equal Opportunities Review made the point in the aftermath of the Foster decision that, even after its privatization, British Gas still seemed to fall within the CJEU’s definition of an organ of the State since it continued to have responsibility for providing a public service for which it had special powers, and it was under the control of the State at least to some extent since it was a creature of statute.137 It is perhaps not an exaggeration to comment that this issue remains a minefield, despite the efforts of the CJEU in Foster to articulate its concept of the State. Its formulation requires further elaboration, in particular as regards the meaning of ‘public service’, ‘control of the State’, and ‘special powers’. The matter of course is of critical importance in an anti-discrimination case where, if an equality directive has not been properly implemented by a Member State, the success or failure of

132 These criteria were specifically applied by the CFI in Case T-172/98 and T-175-177/98 Salamander AG [2000] ECR II-2487. 133 In NUT v Governing Body of St Mary’s School [1997] ICR 334, the Court of Appeal held that once a voluntary aided school had decided to enter the State system and had been granted voluntary aided status, its governing body was to be regarded as an emanation of the State. The Court of Appeal considered that it was incorrect to treat the Foster criteria in the same way as a statutory definition, and that the main underlying issue was whether the State would benefit from its own wrongdoing in not implementing the relevant directive if the governors were not treated as an emanation of the State. On the facts of this case, if the governors had not been treated as part of the State, the State would have directly benefited financially from its failure properly to transpose the directive. This led the Court of Appeal to its conclusion, despite the fact that not all of the Foster criteria were satisfied, namely: (1) the governors had been made responsible pursuant to a statutory instrument; (2) they provided a public service, ie the provision of education; (3) that service was under the control of the State because of the statutory powers and duties possessed by the Secretary of State and local education authorities; but (4) the governors did not have special powers beyond those applying between individuals because their one distinctive power, that of being able to spend public money, was not the sort of power which the CJEU had had in mind in Foster. 134 Case 103/88 Fratelli Costanzo v Commune di Milano [1989] ECR 1839. In NUT v Governing Body of St Mary’s School [1997] ICR 334, Schiemann LJ confirmed that, in his judgment, local authorities were certainly emanations of the State. 135 Case C-53/04 Marrosu v Azienda Ospedaliera [2006] ECR I-7213 and Case C-180/04 Vassallo v Azienda Ospedaliera [2006] ECR I-7251. 136 See also Case C-157/02 Reiser GmbH v Asfinag [2004] ECR I-1477. Cf Doughty v Rolls-Royce plc 137 [1992] ICR 538. See (1990) 33 EOR 40.

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the claim may depend on whether the employer is or is not to be regarded as an organ of the State.138 The policy of the CJEU in this area has clearly been to try to compensate for the fact that directives may not be enforced, on their own, against anybody except for an organ of the State, by giving the State as generous as possible a definition. However, this has in turn led to a certain dilution of the logic behind the doctrine of direct effect. As has been seen, the mechanism permitting the enforcement of a directive against the State is the estoppel principle, whereby the State is denied the chance to assert that it has not legislated in circumstances in which it should have legislated. The further that the concept of ‘organ of the State’ moves from the central, legislation-controlling limbs of government, the more fictitious becomes this estoppel mechanism.139 Nevertheless, in purely pragmatic terms, it is undeniable that any such development is in the interests of potential anti-discrimination claimants.

(v) Mitigating the lack of horizontal enforceability of directives The CJEU has developed two extremely significant lines of jurisprudence, the ostensible policy of which is to mitigate the failure of directives to take horizontal direct effect. The first is the so-called doctrine of ‘indirect effect’. This is the principle that, even where the defendant to an action is not part of the State, so that the directive itself cannot be enforced directly against that person, the terms of the directive may nevertheless be of assistance to the claimant. This is because the wording of the directive must be taken into account by the national court when it is interpreting any national law dealing with the same subject-matter; if the national court finds an ambiguity in that national law, then that must be resolved so as to make the national law conform to the directive wherever possible. As the CJEU explained in Von Colson and Kamann v Land Nordrhein Westfalen:140 The Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article [4(3) of the TEU] to take all appropriate measures, whether general or particular, to ensure the fulfillment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. 138 For discussion of the approach of the UK courts in sex discrimination cases to the public/private employer dichotomy, see Arnull, ‘The Incoming Tide: Responding to Marshall’ (1987) PL 383. See also Curtin, ‘The Province of Government: Delimiting the Direct Effect of Directives in the Common Law Context’ (1990) 15 ELRev 195. 139 See the comments of Van Gerven AG in this context in both Foster and Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889. In the latter case, he said: ‘individuals ...are ...allowed to rely on [a Member State’s] default vis-à-vis independent public authorities of the Member State which are not themselves responsible for failure of the latter to transpose a directive into national law.The nemo auditor principle has thus acquired a far-reaching ambit (not connected with personal default), with the result that the directive has to a degree been endowed with effect with regard to third parties, in particular to the detriment of the aforesaid public authorities’ (at 1938). 140 Case 14/83 [1984] ECR 1891.

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It follows that, in applying the national law and in particular the provisions of a national law specifically introduced in order to implement Directive 76/207, national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in Article [288(3)].141

A claimant may thus indirectly benefit from the terms of a directive, in particular where national law has been enacted in order to implement it and that national law is susceptible of interpretation in accordance with it.142 Controversy, however, arose where national law dealing with the subject-matter of the directive pre-dated that directive, so that it could not properly be said to have been enacted in response to the directive. The wording adopted by the CJEU in the Von Colson case in the passage quoted above is broad enough to encompass this situation, since the Court refers to applying ‘national law’ generally so as to conform with a directive.143 However, this aspect of the judgment was technically obiter, since the legislation in question in that case had in fact been adopted in response to the directive. In Marshall v Southampton and South-West Hants Area Health Authority, Slynn AG commented: [W]here legislation is adopted to implement a directive, or consequent upon a Treaty obligation, national courts should seek so far as possible to construe the former in such a way as to comply with the latter. To construe a pre-existing statute ...in order to comply with a subsequent directive, which the legislature or executive has not implemented, in breach of its obligation, when it has a discretion as to the form and method to be adopted, is, in my view, wholly different. I am not satisfied that it is a rule of Community law that national courts have a duty to do so—unless it is clear that the legislation was adopted specifically with a proposed directive in mind.144

Mischo AG agreed with these remarks in Public Prosecutor v Kolpinghuis Nijmegen BV,145 and also addressed himself to the question whether EU law in fact even permits pre-existing national legislation to be interpreted in the light of a directive. He concluded: There is no principle of Community law obliging a national court to be guided by the provisions of a directive which is applicable but which has not yet been implemented by the Member State in question in order to interpret a rule of national law which is insufficiently precise. The question whether it may do so in order to confirm the interpretation obtained

141 Case 14/83 [1984] ECR 1891, at 1909. See also Case C-185/97 Coote v Granada Hospitality Ltd [1998] ECR I-5199. The CJEU there refers to the UK’s Sex Discrimination Act 1975 as legislation which was specially introduced in order to comply with the Equal Treatment Directive. However, the Act was actually enacted in the year before the Equal Treatment Directive (although doubtless with the likelihood of imminent EU law uppermost in the mind of the UK’s legislature). 142 See also Case 262/84 Beets-Proper v Van Lanschot Bankiers NV [1986] ECR 773; Case 80/86 Public Prosecutor v Kolpinghuis Nijmegen BF [1987] ECR 3969; Lister v Forth Dry Dock and Engineering Co Ltd [1989] ICR 341; and Arnull, ‘Some More Equal than Others?’ (1986) 11 ELRev 229. 143 See also the Court’s remarks in Case 80/86 Public Prosecutor v Kolpinghuis Nijmegen BF [1987] 144 ECR 3969. Case 152/84 [1986] ECR 723, at 733. 145 Case 80/86 [1987] ECR 3969.

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from purely national elements of appraisal must be resolved on the basis of the national rules of interpretation. On the other hand, a court cannot rely on such a directive to alter, to the detriment of the individual, the interpretation obtained from national elements of appraisal.146

This reasoning was based on the inability of directives to produce obligations for individuals, whether directly or indirectly, and it is arguably incorrect. Since newly passed national legislation could create obligations for individuals, it is unclear why pre-existing national legislation should not be capable of being similarly construed. Van Gerven AG took a very different view of the matter in Barber v Guardian Royal Exchange Assurance Group,147 where he said: [A]n interpretation [of national law] in conformity with [a] directive may not be restricted to the interpretation of national legislation subsequent to the adoption of the directive concerned or national legislation specifically enacted for transposing the directive into national law ...Frequently, national implementing legislation will be involved as in Von Colson but that need not be the case. It is difficult to justify a restriction of the requirement of interpretation in conformity with the directive to the implementing legislation itself (quite apart from the difficulty of determining whether or not a given national provision has been enacted for the purpose of transposing a directive into national law) since the directive has, as from the time of its adoption and a fortiori as from the expiry of the period prescribed for its transposition into national law, become part of Community law and as such takes precedence over all provisions of national law.148

The matter was resolved by the decision of a chamber of the CJEU in Marleasing SA v La Comercial Internacional de Alimentacion SA,149 in which it was held that, in applying national law, whether prior to or subsequent to a relevant directive, a national court is obliged to interpret the national law so far as possible150 in the light of the wording and purpose of the directive.151 Such a conclusion is not lacking in logic to the extent that some have hitherto assumed: a Member State might deliberately 146

147 Case 80/86 [1987] ECR 3969, at 3980. Case C-262/88 [1990] ECR I-1889. Case C-262/88 [1990] ECR I-1889, at 1936–7. Differing views on this question were voiced by the House of Lords at this time. In Garland v British Rail [1982] 2 WLR 918, Lord Diplock (delivering the opinion of the House) envisaged the possibility of the meaning of the Sex Discrimination Act 1975 being influenced by the Equal Treatment Directive of 1976. However, in Duke v GEC Reliance Ltd [1988] 2 WLR 359, the House refused to take this course. See also Finnegan v Clowney Youth Training Ltd [1990] 2 WLR 1305, where the Northern Ireland Court of Appeal and the House of Lords refused to refer effectively the same issue to the CJEU. 149 Case C-106/89 [1990] ECR I-4135, noted by Stuyck and Wytinck in (1991) 28 CMLRev 205, and by Maltby in ‘Marleasing: What is All the Fuss About?’ (1993) 109 LQR 301. 150 But note that much play has been made in the literature of the fact that the Court was inconsistent in its use of the phrase ‘as far as possible’; contrast paras 8 and 13 of the judgment. 151 Marleasing was expressly followed by the CJEU in Case C-456/98 Centrosteel Srl v Adipol GmbH [2000] ECR I-6007 and Case C-240-244/98 Océano Grupo Editorial SA v Quintero [2000] ECR I-4941. The principle was also accepted and applied by the House of Lords in Webb v EMO (Air Cargo) Ltd [1995] 4 All ER 577, commented on by Szyszczak in both ‘Pregnancy and Sex Discrimination’ (1996) 21 ELRev 79, and ‘Pregnancy Discrimination’ (1996) 59 MLR 589, and by Deards in ‘Indirect Effect After Webb v EMO (Air Cargo) Ltd: How Must National Law be Interpreted to Comply with a Directive?’ (1996) 2 EPL 71. See also Chessington World of Adventures v Reed [1997] IRLR 556. 148

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draft national legislation in broad terms specifically in order that its meaning should be developed by later EU legislation. Alternatively, a Member State might leave an old Act on the statute book even after the passage of a directive because it believed that statute to be capable of being construed in accordance with the directive and therefore to constitute compliance by the State with its EU obligations.152 The CJEU added in Wagner Miret v Fondo de Garantia Salarial153 that, when interpreting and applying national law, ‘every national court must presume that the state had the intention of fulfilling entirely the obligations arising’ from a directive.154 In Pfeiffer155 it explained that the requirement for national law to be interpreted in conformity with EU law is inherent in the system of the Treaty, because it permits the national courts, for matters within their jurisdiction, to ensure the full effectiveness of EU law when they are determining disputes; furthermore, the principle that national law must be interpreted in conformity with EU law requires national courts, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognized by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it. Marrying together the principle expressed in Inter-Environnement Wallonie156 and the doctrine of consistent interpretation, the Court held in Adeneler v ELOG157 that, from the date on which a directive enters into force, national courts must refrain as far as possible from interpreting domestic law in a manner which might, after expiry of the implementation period, seriously compromise attainment of the objective pursued by that directive; in addition, when a directive is transposed belatedly into domestic law, it added that: the national courts are bound to interpret domestic law, so far as possible, once the period for transposition has expired, in the light of the wording and purpose of the directive concerned with a view to achieving the results sought by the directive, favouring the interpretation of the national rules which is the most consistent with that purpose in order thereby to achieve an outcome compatible with the provisions of the directive.158

However, there are limits to this principle of loyal interpretation. In particular, the CJEU has held that a directive ‘cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining 152 See Ellis, ‘EEC Law and the Interpretation of Statutes’ (1988) 104 LQR 379; Arnull, ‘The Duke Case: An Unreliable Precedent’ [1988] PL 313; and Arnull, ‘When is Pregnancy Like an Artificial Hip?’ 153 (1992) 17 ELRev 265. Case C-334/92 [1993] ECR I-6911. 154 Case C-334/92 [1993] ECR I-6911, at 6932. 155 Joined Cases C-397/01-C-403/01 [2004] ECR I-8835. See also Drake, ‘Twenty years after Von Colson: the impact of “indirect effect” on the protection of the individual’s Community rights’ (2005) 156 30 ELRev 329. Case C-129/96 [1997] ECR I-7411, discussed at p 66. 157 Case C-212/04 [2006] ECR I-6057. 158 Case C-212/04 [2006] ECR I-6057, at para 124. See further Klamert, ‘Judicial implementation of directives and anticipatory direct effect: connecting the dots’ (2006) 43 CMLRev 1251.

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or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive’.159 In Public Prosecutor v Kolpinghuis Nijmegen BV,160 the Court explained that the ‘obligation on the national court to refer to the content of the directive when interpreting the relevant rules of its national law is limited by the general principles of law which form part of Community law and in particular the principles of legal certainty and non-retroactivity’.161 In Criminal Proceedings Against X,162 it added: More specifically, in a case such as that in the main proceedings, which concerns the extent of liability in criminal law arising under legislation adopted for the specific purpose of implementing a directive, the principle that a provision of the criminal law may not be applied extensively to the detriment of the defendant, which is the corollary of the principle of legality in relation to crime and punishment and more generally of the principle of legal certainty, precludes bringing criminal proceedings in respect of conduct not clearly defined as culpable by law.That principle, which is one of the general legal principles underlying the constitutional traditions common to the Member States, has also been enshrined in various international treaties ...163

In Pupino,164 the Court also stated that the obligation on the national court to refer to underlying EU law when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by the EU law; in other words, the principle does not extend so far as to require an interpretation of national law contra legem.165 The obligation to interpret domestic law, so far as possible, in accordance with the requirements of a directive has been extended by the CJEU to a recommendation. This is of particular significance in the light of the fact that, according to Article 288 of the Treaty, a recommendation has no binding legal force. In Grimaldi

159 Case 14/86 Pretore di Salo v Persons Unknown [1987] ECR III-2545, at 2570. See also Case C-168/95 Arcaro [1996] ECR I-4705. But note that this principle is confined to criminal liability and does not preclude the imposition of civil liability on an individual: Case C-456/98 Centrosteel Srl v 160 Adipol GmbH [2000] ECR I-6007. Case 80/86 [1987] ECR 3969. 161 Case 80/86 [1987] ECR 3969, at 3986. 162 Joined Cases C-74 & 129/95 [1996] ECR I-6609. 163 Joined Cases C-74 & 129/95 [1996] ECR I-6609, at 6637. 164 Case C-105/03 [2005] ECR I-5285. 165 See also Case C-269/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483 and Case C-444/09 Gavieiro v Conselleria de Educaciόn [2010] ECR I-14031. In Case C-98/09 Sorge v Poste Italiane SpA [2010] ECR I-5837, Jääskinen AG commented: ‘I should add that, in my opinion, the obligation to interpret national law in conformity with European Union law cannot in any circumstances have the effect of rendering applicable national rules which are not formally valid and relevant either ratione materiae or ratione temporis. It is necessarily the applicable national provision which must be interpreted in conformity with [a directive] ..., as well as with European Union law in general. While the primacy of European Union law may mean that a national provision is not applied, European Union law cannot grant formal validity or confer applicability in casu within the legal system of a Member State on a provision forming part of that legal system. I should stress that European Union law cannot “bring back from the dead” a domestic provision which is no longer in force and which, in the absence of specific provisions to that effect, is not applicable ratione temporis to a dispute ...’ (at para 68 of the Opinion).

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v Fonds des Maladies Professionelles,166 the Court held that, even though the recommendation there in question produced no direct rights on which individuals could rely in their national courts, it did not follow that a recommendation had no legal effect whatsoever. It ruled that: [N]ational courts are bound to take ...[r]ecommendations into consideration in order to decide disputes submitted to them, in particular where they clarify the interpretation of national provisions adopted in order to implement them or where they are designed to supplement binding Community provisions.167

The expression ‘soft law’ has been used by some writers to describe those EU instruments which are not themselves binding but which act as aids to construction for national courts.168 Wellens and Borchardt have defined soft law as rules which, although not formally binding, have as their aim and outcome an influence on the behaviour of the Community institutions, the Member States, and/or individuals and undertakings.169 The second major milestone in the CJEU’s efforts to mitigate the lack of horizontal direct effect of directives was its decision in Francovich and Bonifaci v Italy.170 This proclaimed the liability in damages as a matter of EU law of a Member State where loss is caused to an individual by the State’s non-implementation of a directive, provided that the directive prescribes the grant of rights to individuals, the content of those rights is identifi able on the basis of the provisions of the directive itself, and there is a causal link between the breach of the State’s obligation and the loss suffered by the individual.171 The directive in this instance was held not to take direct effect for want of precision,172 but it would appear that the consequences for the individual claimants and the Member State would have been identical even had it done so, since the defendants to the action were not organs of the State and no action could therefore have succeeded on the basis of direct enforcement of the 166

167 Case 322/88 [1989] ECR 4407. Case 322/88 [1989] ECR 4407, at 4421. See, eg, ‘EEC Sexual Harassment Resolution’ (1990) 32 EOR 28. See further Klabbers, ‘Informal Instruments Before the European Court of Justice’ (1994) 31 CMLRev 997. 169 Wellens and Borchardt, ‘Soft Law in the European Community’ (1989) 14 ELRev 267. 170 Cases C-6 and 9/90 [1991] ECR I-5357, noted by Bebr in (1992) 29 CMLRev 557, by Curtin in ‘State Liability under Community Law: A New Remedy for Private Parties’ (1992) 21 ILJ 74, by Szyszczak in (1992) 55 MLR 690, and by Parker in ‘State Liability in Damages for Breach of Community Law’ (1992) 108 LQR 181. See also Craig, ‘Francovich, Remedies and the Scope of Damages Liability’ (1993) 109 LQR 595; Steiner, ‘From Direct Effects to Francovich: Shifting Means of Enforcement of Community Law’ (1993) 18 ELRev 3; Ross, ‘Beyond Francovich’ (1993) 56 MLR 55; and Tridimas, ‘Member State Liability in Damages for Breach of Community Law: An Assessment of the Case Law’, in Beatson and Tridimas (eds), New Directions in European Public Law (Hart Publishing, Oxford, 1998). 171 As Tesauro AG commented in his submissions in Joined Cases C-46 & 48/93 Brasserie du Pécheurv Germany and R v Secretary of State for Transport, ex parte Factortame [1996] ECR I-1029 (discussed further at p 79 et seq.), this principle has its origins, as has the doctrine of direct effect, in the CJEU’s desire to ensure the effective implementation of Community law. 172 Thus giving rise to speculation as to the precise meaning of the requirement set out by the Court in Francovich that the directive must envisage the grant of rights to individuals. See further Joined Cases C-178, 179, 188, 189, & 190/94 Dillenkofer v Germany [1996] ECR I-4845, discussed at p 84 et seq. 168

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instrument.173 The principle was formulated in terms of the liability of a Member State for loss resulting from breach of any of its Community obligations and was not restricted to the situation of non-implementation of a directive;174 such a principle was held to be ‘inherent in the system of the Treaty’.175 In Francovich, the Member State’s non-implementation of the relevant directive was patently culpable since the period for implementation had expired many years before the action and the State had been successfully prosecuted before the CJEU by the Commission in respect of its inaction. The unanswered question posed was thus whether any, and if so what, lesser level of ‘fault’ on the part of the Member State would be sufficient to trigger such liability.The CJEU addressed this matter in Brasserie du Pêcheur v Germany and R v Secretary of State for Transport, ex parte Factortame.176 In both cases, the Court had already held that the relevant Member State’s actions breached the Treaty. The Court explained that the conditions under which a Member State incurs liability for damage caused to individuals by a breach of Community law cannot, in the absence of particular justification, differ from those governing the liability of the Community in similar circumstances, since the legal position of the individual should not depend on who is the author of the breach. It went on to draw a distinction between cases where the Member State enjoys little or no discretion, such as where it is required to implement a directive, and those in which it has a wide discretion. Where there is a wide discretion, the parallel with Community liability for normative injustice required that three conditions must be met in order for there to be State liability to an individual: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the State’s breach and the individual’s damage.177 As to the requirement that the breach be sufficiently serious, the decisive test is said to be whether the State has manifestly and gravely disregarded the limits on its discretion.178 The Court went on to spell out that:

173 Francovich has now, however, entered the ranks of ground-breaking decisions whose own protagonists proved unable to take advantage of the new principle expressed: the directive in question was found not to include within its terms Mr Francovich’s employer. See Case C-479/93 Francovich v Italy [1995] ECR I-3843. 174 See also Garden Cottage Foods Ltd v Milk Marketing Board [1984] 1 AC 130; Bourgoin v Ministry of Agriculture and Fisheries [1985] 3 All ER 585 (especially the dissenting judgment of Oliver LJ); and Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1992] 3 WLR 170. 175 [1991] ECR I-5357, at 5414. 176 Joined Cases C-46 & 48/93 [1996] ECR I-1029, noted by Oliver in (1997) 34 CMLRev 635. See also Craig, ‘Once More Into the Breach: The Community, the State and Damages Liability’ (1997) 113 LQR 67. 177 See also Case C-127/95 Norbrook Laboratories v MAFF [1998] ECR I-1531. For further discussion of causation in this context, see Anagnostaras, ‘Not as Unproblematic as You Might Think: the Establishment of Causation in Governmental Liability Actions’ (2002) 27 ELRev 663. 178 See further Steiner, ‘The Limits of State Liability for Breach of European Community Law’ (1998) 4 EPL 69, and Van den Bergh and Schäfer, ‘State Liability for Infringement of the EC Treaty: Economic Arguments in Support of a Rule of “Obvious Negligence”’ (1998) 23 ELRev 552.

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The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national ...authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law. On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case-law of the Court on the matter from which it is clear that the conduct in question constituted an infringement.179

The Court added that such liability on the part of a Member State can be incurred through the actions of its legislature, and that it makes no difference of principle whether or not the Community provisions breached take direct effect. The amount of reparation payable180 must be commensurate with the loss suffered by the individual;181 it appears that, although the individual must mitigate the damage, damages are obtainable for loss of profit. Further, where exemplary damages would be obtainable in a similar claim under domestic law, they must be obtainable in a claim against the State for a breach of EU law. Subsequent cases182 have answered further questions about the respective liabilities of different constitutional organs of a State.183 In Konle v Austria,184 the CJEU was asked whether damage caused to an individual by national measures in a federal State must be paid by the State itself. The Court held that this was not necessary: It is for each Member State to ensure that individuals obtain reparation for damage caused to them by non-compliance with Community law, whichever public authority is responsible for the breach and whichever public authority is in principle, under the law of the Member State concerned, responsible for making reparation. A Member State cannot, therefore, plead

179 [1996] ECR I-1029, at 1150. Cf Case C-445/06 Danske Slagterier v Germany [2009] ECR I-2119. In R v Secretary of State for Transport, ex parte Factortame Ltd (No 5) [1999] 3 WLR 1062, the House of Lords subsequently held that the UK’s conduct had been sufficiently serious to ground Francovich liability; for discussion of this decision, see Cygan, ‘Defining a Sufficiently Serious Breach of Community Law: The House of Lords Casts its Net into the Waters’ (2000) 25 ELRev 452. 180 Note that Dougan has questioned whether the CJEU in its recent jurisprudence is departing from its original insistence that damages (as distinct from other remedies prescribed by national law) must be payable in successful Francovich claims: see ‘The Francovich Right to Reparation: Reshaping the Contours of Community Remedial Competence’ (2000) 6 EPL 103. 181 Tesauro AG explained that the compensation awarded must be ‘real and effective’; furthermore, it must be quantified so as to restore the situation to that which would have obtained had the infringement not taken place, at least in financial terms ([1996] ECR I-1029, at 1123). Such a test, of course, accords with the usual measure of tortious damages in English law. 182 On these ‘second generation’ Francovich cases generally, see Tridimas, ‘Liability for Breach of Community Law: Growing Up and Mellowing Down?’ (2001) 38 CMLRev 301. 183 See further Anagnostaras, ‘The Allocation of Responsibility in State Liability Actions for Breach of Community Law: A Modern Gordian Knot’ (2001) 26 ELRev 139; and Granger, ‘National applications of Francovich and the construction of a European administrative ius commune’ (2007) 32 ELRev 157. 184 Case C-302/97 [1999] ECR I-3099, commented upon by Lengauer in (2000) 37 CMLRev 181.

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the distribution of powers and responsibilities between the bodies which exist in its national legal order in order to free itself from liability on that basis. Subject to that reservation, Community law does not require Member States to make any change in the distribution of powers and responsibilities between the public bodies which exist on their territory. So long as the procedural arrangements in the domestic system enable the rights which individuals derive from the Community legal system to be effectively protected and it is not more difficult to assert those rights than the rights which they derive from the domestic legal system, the requirements of Community law are fulfilled.185

Haim II186 concerned the refusal by a regional German Association of Dental Practitioners to enrol the applicant on grounds which were alleged to breach EU law. The CJEU repeated what it had said in Konle and added that, whether or not the Member State has a federal structure, where legislative or administrative tasks have been devolved to autonomous territorial bodies, or to other public law bodies which are legally distinct from the State, reparation to individuals in respect of national measures which breach Community law may be made by those bodies. The most important of the group of cases concerning the liability of different constitutional parts of a State is Köbler v Austria,187 in which it was established that the judiciary can engage Francovich liability.188 An Austrian law provided for a special length-of-service increment to be included in the retirement pensions of professors who had worked in Austrian State universities for at least 15 years. Mr Köbler was refused the increment on the ground that, although he had been a university professor in various Member States for more than 15 years, he did not comply with the requirement that those universities be Austrian. He challenged this decision on the ground that it breached what is today Article 45 on the free movement of workers, and the Austrian Supreme Administrative Court hearing the action sought a preliminary ruling from the CJEU.The CJEU queried whether the national court wished to maintain its request for a preliminary ruling in the light of the judgment in Schóning-Koigebetopoulou v Freie und Hansestadt Hamburg,189 which had been delivered in the meantime.This appeared to settle the issue in Mr Köbler’s favour. The national court thereupon withdrew its request, 185 [1999] ECR I-3099, at 3140. See also Case C-118/00 Larsy v Institut nationale d’assurances sociales pour travailleurs indépendants [2001] ECR I-5063. 186 Case C-424/97 Haim v KVN [2000] ECR I-5123. 187 Case C-224/01 [2003] ECR I-10239. 188 For a prescient discussion of State liability for judicial acts and its potential consequences, some years before the CJEU’s decision in Köbler, see Anagnostaras, ‘The Principle of State Liability for Judicial Breaches: The Impact of European Community Law’ (2001) 7 EPL 281. The CJEU’s decision in Köbler is commented upon by Wattel in (2004) 41 CMLRev 177; the author there makes the entertaining point that the logical deduction to be made from Köbler is that the Community itself should be liable in damages for manifestly erroneous decisions of the CJEU. See also Classen in (2004) 41 CMLRev 813; Scott and Barber, ‘State Liability under Francovich for decisions of national courts’ (2004) 120 LQR 403; Davis, ‘Liability in damages for a breach of Community law: some reflections on the question of who to sue and the concept of “the State”’ (2006) 31 ELRev 69; and Anagnostaras, ‘Erroneous judgments and the prospect of damages: the scope of the principle of governmental liability for judicial breaches’ (2006) 31 ELRev 735. 189 Case C-15/96 [1998] ECR I-47.

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but then, surprisingly, dismissed the application on the ground that the length-ofservice increment constituted a loyalty bonus which objectively justified a derogation from the provisions on the free movement of workers; in so doing, it expressly contradicted its earlier finding (namely, that the payment did not constitute a reward for loyalty). Mr Köbler asserted that this judicial decision, made by a court from whose decisions there was no appeal under Austrian law, breached his Community rights and entitled him to Francovich damages. The court hearing this second application referred the matter to the CJEU. Léger AG gave a very full review of the existing case law and concluded that, in principle, the actions of a supreme court should be able to trigger Francovich liability, and that they might indeed do so on the facts of this case, since the administrative court’s decision was ‘inexcusable’ (the actual decision on the facts being one for the national court). The CJEU agreed with the principle that the decision of a supreme court which breached Community law could engage State liability.190 It repeated its familiar assertions that the principle of State liability for damage caused to individuals as a result of a breach of EU law is inherent in the Treaty and that it matters not which authority within the Member State is responsible for the breach. It went on to emphasize the essential role played by the judiciary in the protection of Community rights: [A] court adjudicating at last instance is by definition the last judicial body before which individuals may assert the rights conferred on them by Community law. Since an infringement of those rights by a final decision of such a court cannot thereafter normally be corrected, individuals cannot be deprived of the possibility of rendering the state liable in order in that way to obtain legal protection of their rights.191

The conditions under which a final court can engage State liability are the same as those for any other organ of a State. As regards the seriousness of the breach, the Court explained: [R]egard must be had to the specific nature of the judicial function and to the legitimate requirements of legal certainty....State liability for an infringement of Community law by a decision of a national court adjudicating at last instance can be incurred only in the exceptional case where the court has manifestly infringed the applicable law. In order to determine whether that condition is satisfied, the national court hearing a claim for reparation must take account of all the factors which characterise the situation put before it. Those factors include, in particular, the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, the position taken, where applicable, by a Community institution, and noncompliance by the court in question with its obligation to make a reference for a preliminary ruling ...

190 For analysis of the differences between the Advocate General’s and the Court’s approaches in this case, see Breuer, ‘State Liability for Judicial Wrongs and Community Law: the Case of Gerhard Köbler 191 v Austria’ (2004) 29 ELRev 243. [2003] ECR I-10239, at 10306.

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In any event, an infringement of Community law will be sufficiently serious where the decision concerned was made in manifest breach of the case law of the Court of Justice in the matter ...192

Although the determination of the question of whether liability has actually been established is normally a matter for the national court, the CJEU, according to its usual practice, was prepared in this case to supply guidance. It accepted that the prima facie indirect discrimination on the ground of nationality might be justifiable,193 but denied that it was so justifiable on the argument adopted by the Austrian court; this was because the special increment involved in this case did not solely have the effect of rewarding the employee’s loyalty to the employer,194 and also because it led to a partitioning of the employment market for university professors in Austria and ran ‘counter to the very principle of freedom of movement for workers’.195 However, the CJEU accepted that the Austrian court had simply misunderstood the law on justification and, in particular, the judgment in Schóning-Koigebetopoulou (which had not answered the question of whether the loyalty argument could provide justification). The Austrian court, as a court of final instance, should indeed have referred this matter to the CJEU, and it breached Community law in not doing so.196 Nevertheless, in these circumstances, the court’s misconduct was not sufficiently ‘manifest’ for liability to be incurred. R v HM Treasury, ex parte British Telecommunications plc197 provided another illustration of a situation in which a Member State’s breach of Community law was insufficiently grave to found a Francovich claim.198 After reiterating that it is normally for the national courts to determine this matter, the CJEU held that in this instance it was in possession of all the necessary information to enable it to assess the gravity of the State’s conduct itself. The allegation was that the UK had incorrectly implemented a directive and had caused consequential loss to BT. The Court held, however, that the relevant directive was imprecisely worded and reasonably capable of bearing the meaning which the UK had in good faith given to it,199 albeit that this interpretation later turned out to be erroneous. It was specifically noted that other Member States had shared the UK’s interpretation of the directive, which was

192 [2003] ECR I-10239, at 1031I-12. See also Case C-173/03 Traghetti del Mediterraneo SpA v Italy [2006] ECR I-5177. 193 See ch 4 for discussion of the justification of indirect discrimination. 194 This was because the increment rewarded professors who had worked for 15 years in any State university in Austria, not just in the university which was their current employer. 195 [2003] ECR I-10239, at 10320. 196 For an interesting illustration of the obligations of final appellate courts pursuant to the principle of cooperation arising from what is now TEU, Art 4(3), see Case C-453/00 Kuhne & Heitz NV v Produktschap voor Pluimvee en Eieren [2004] ECR I-837. 197 Case C-392/93 [1996] ECR I-1631, noted by Oliver in (1997) 34 CMLRev 658. 198 See also Cases C-283, 291, & 292/94 Denkavit International v Bundesamt für Finanzen [1996] ECR I-5063, and Case C-319/96 Brinkmann Tabakfabriken GmbH v Skatteministeriet [1998] ECR I-5255. 199 The concept of good faith as applied to a State and its legislative machinery might be said to be somewhat elusive.

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not manifestly contrary to its wording or objective, and that there was no case law of the Court to provide guidance as to its correct meaning.200 This decision is to be contrasted with those in R v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd201 and Dillenkofer v Germany.202 In the former, the UK had refused a licence for the export of live sheep for slaughter in a specified Spanish slaughterhouse because it suspected that the slaughterhouse in question was in breach of a directive on animal welfare.This was held to be a breach of what is now Article 35 on the free movement of goods and could not be justified by reference to Article 36, which allows exceptions ‘for the protection of health and life of ...animals’, because one Member State is not permitted to adopt unilateral measures designed to obviate a breach of EU law by another Member State. In relation to the issue of whether this conduct was sufficiently serious to provide the basis for a claim in damages against the UK, the Court held: [W]here, at the time when it committed the infringement, the Member State in question was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach. In that respect, in this particular case, the UK was not even in a position to produce any proof of non-compliance with the directive by the slaughterhouse ...203

In Dillenkofer, the main issue was the liability of Germany to would-be holidaymakers who had lost money when certain tour operators became insolvent; had Germany implemented a 1990 directive on package travel by the date stipulated, national law would have been in place guaranteeing the reimbursement of the claimants. Germany argued that, since in its view the period provided for transposition of the directive was inadequate, it was not liable because its breach of EU law had not been manifest and grave; late transposition in itself, Germany maintained, was not enough to render a State liable in damages. The CJEU rejected these submissions, explaining that there was no inconsistency as between its decisions in Francovich and the later cases: [T]he condition that there should be a sufficiently serious breach, although not expressly mentioned in Francovich, was nevertheless evident from the circumstances of that case. When the Court held that the conditions under which state liability gives rise to a right to reparation depended on the nature of the breach of Community law causing the damage, that meant that those conditions are to be applied according to each type of situation. On the one hand, a breach of Community law is sufficiently serious if a Community institution or a 200 In similar vein, see also Joined Cases C-283, 291, & 292/94 Denkavit International v Bundesamt für Finanzen [1996] ECR I-5063, and Case C-319/96 Brinkmann Tabakfabriken GmbH v Skatteministeriei [1998] ECR I-5255. 201 Case C-5/94 [1996] ECR I-2553, noted by Oliver in (1997) 34 CMLRev 666. For further discussion of the Brasserie, Factortame, BT, and Hedley Lomas cases, see Emiliou, ‘State Liability Under Community Law: Shedding More Light on the Francovich Principle’ (1996) 21 ELRev 399. 202 Joined Cases C-178, 179, 188, 189, & 190/94 [1996] ECR I-4845, noted by Oliver in (1997) 34 203 CMLRev 666. [1996] ECR I-2553, at 2613–14.

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Member State, in the exercise of its rule-making powers, manifestly and gravely disregards the limits on those powers ...On the other hand, if, at the time when it committed the infringement, the Member State in question was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach ... So where, as in Francovich, a Member State fails, in breach of the third paragraph of Article [288] of the Treaty, to take any of the measures necessary to achieve the result prescribed by a directive within the period it lays down, that Member State manifestly and gravely disregards the limits on its discretion.204 Consequently, such a breach gives rise to a right to reparation on the part of individuals if the result prescribed by the directive entails the grant of rights to them, the content of those rights is identifiable on the basis of the provisions of the directive and a causal link exists between the breach of the state’s obligation and the loss and damage suffered by the injured parties; no other conditions need be taken into consideration.205

The questions then arose of whether the directive entailed the grant of rights to individuals and, if so, whether the content of those rights was sufficiently identifi able. The Court held that the purpose of the directive was the protection of consumers206 and that the fact that it might also have other objectives was irrelevant: [I]t must be concluded that the result prescribed by ...the directive entails the grant to package travellers of rights guaranteeing the refund of money that they have paid over and their repatriation in the event of the organizer’s insolvency.207

These rights were fully defined in the directive, as were the consumers it was intended to protect. It made no difference that the directive left the Member State considerable latitude as to how to achieve its results.The content of the rights conferred was therefore sufficiently identifiable.208 204 Cf the CJEU’s later qualification of this principle in Case C-319/96 Brinkmann Tabakfabriken GmbH v Skatteministeriet [1998] ECR I-5255. 205 [1996] ECR I-4845, at 4879–80. See Hervey, ‘Francovich Liability Simplified’ (1997) 26 ILJ 74. 206 If such a general aim is sufficient for this purpose, it being clear from Francovich that the instrument need not be precise enough to take direct effect, it is difficult to imagine a provision which would not entail the grant of rights to individuals. All legislation is surely enacted with the ultimate goal of benefiting human beings. But for a more limited view of this requirement, see Anagnostaras, ‘State Liability and Alternative Courses of Action: How Independent Can an Autonomous Remedy Be?’ (2002) 21 207 YEL 355. [1996] ECR I-4845, at 4883. 208 Dillenkofer was followed in Case C-140/97 Rechberger and Greindl v Austria [1999] ECR I-3499, in which the CJEU held that the transposition of one article of the Package Travel Directive in a way which limited the protection it conferred to trips with a departure date four months or more after the period prescribed for transposing the directive, constituted a sufficiently serious breach of Community law to ground a Francovich claim; this was notwithstanding the fact that the Member State concerned had properly implemented all the other provisions of the instrument. See also Tridimas, ‘Member State Liability in Damages’ [1996] CLJ 412. Considerable uncertainty remains in the UK as to the relevant procedure applicable to Francovich actions: are they, eg, subject to the three-month limitation period for public law claims, or should they be equated to private law claims and thus subject to a six-year limitation period? What is the appropriate forum for such an action? For further discussion of the enforcement in the UK of the principles analysed in this section, see Convery, ‘State Liability in the United

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Considerable importance is to be attached to the Court’s statement in the Brasserie and Factortame cases that the rights of the individual must not be permitted to depend on who is the author of the impugned breach of EU law. The statement caused renewed interest to arise in the question of whether one individual is to be held liable to another where he or she causes loss to that other by infringing a directly effective Treaty provision. The question had been asked, but not answered, in Banks Ltd v British Coal Corporation,209 where Van Gerven AG submitted: [T]he right to obtain reparation in respect of loss and damage sustained as a result of an undertaking’s infringement of Community competition rules which have direct effect is based on the Community legal order itself. Consequently, as a result of its obligation to ensure that Community law is fully effective and to protect the rights thereby conferred on individuals, the national court is under an obligation to award damages for loss sustained by an undertaking as a result of the breach by another undertaking of a directly effective provision of Community competition law.210

In Courage Ltd v Crehan,211 which concerned a breach of the EU’s competition rules by a brewery and resulting commercial losses to one of its tenants, the CJEU held that a claim by one legal person against another was indeed possible: [A]ny individual can rely on a breach of [what is today Article 101(1) of] the Treaty before a national court even where he is a party to a contract that is liable to restrict or distort competition within the meaning of that provision. As regards the possibility of seeking compensation for loss caused by a contract or by conduct liable to restrict or distort competition, it should be remembered from the outset that, in accordance with settled case-law, the national courts whose task it is to apply the provisions of Community law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals . . .The full effectiveness of Article [101] of the Treaty and, in particular, the practical effect of the prohibition laid down in Article [101(1)] would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition. Indeed, the existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, which are frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the Community.212

Kingdom after Brasserie du Pécheur’ (1997) 34 CMLRev 603, and Hervey and Rostant, ‘After Francovich: State Liability and British Employment Law’ (1996) 25 ILJ 259. 209

Case C-128/92 [1994] ECR I-1209. Case C-128/92 [1994] ECR I-1209, at 1251. See also Van Gerven, ‘Bridging the Unbridgeable: Community and National Tort Laws After Francovich and Brasserie’ (1996) 45 ICLQ 507. 211 Case C-453/99 [2001] ECR I-6297. 212 Case C-453/99 [2001] ECR I-6297, at 6323. See also Joined Cases C-295–298/04 Manfredi [2006] ECR I-6619 and Case C-421/05 City Motors [2007] ECR I-653. 210

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Although this justification of its decision relies heavily on the importance of the effective enforcement of the competition rules specifically, it seems likely that the CJEU was giving its support to a general principle that one individual is liable to another for loss caused by the breach of a directly effective Treaty provision. This appears from its formulation earlier in the Courage judgment of the familiar ‘new legal order’ principle: It should be borne in mind, first of all, that the Treaty has created its own legal order, which is integrated into the legal systems of the Member States and which their courts are bound to apply. Just as it imposes burdens on individuals, Community law is also intended to give rise to rights which become part of their legal assets. Those rights arise not only where they are expressly granted by the Treaty but also by virtue of obligations which the Treaty imposes in a clearly defined manner both on individuals and on Member States and the Community institutions ...213

(vi) The need to implement directives In the light of all that has now been decided about the direct effect of directives, it might appear that the distinction between regulations and directives has been largely eroded and that, in particular, the requirement of the legislative implementation of directives—at least where those directives take direct effect—has now been dispensed with. After all, if a directive is immediately enforceable by individuals in the national courts, why should the Member States go to the trouble of legislating to give it legal force? One reason for doubting the validity of this argument has already been discussed: a directive cannot of itself take horizontal direct effect so that, in the absence of national legislation, its provisions will not be fully effective and enforceable by everybody who falls within its purview. In order to render it fully enforceable against persons other than the State (where this is envisaged by the terms of the directive itself), national legislation will be required.214 Further reasoning supporting the continuing necessity to implement even directly effective directives was provided by the CJEU in Commission v Belgium.215 It held that legal certainty and clarity require that national legislation be enacted, 213 [2001] ECR I-6297, at 6321, emphasis added. See further Drake, ‘Scope of Courage and the principle of “individual liability” for damages: further development of the principle of effective judicial protection by the Court of Justice’ (2006) 31 ELRev 841. And see also the decision of the Swedish Labour Court in the Laval case: . 214 Query whether a judicial decision could ever suffice as the entire implementation mechanism for a directive; the CJEU left this question open in Joined Cases C-178, 179, 188, 189, & 190/94 Dillenkofer v Germany [1996] ECR I-4845. In Case C-382/92 Commission v UK [1994] ECR I-2435, however, the CJEU accepted that the scope of national laws (and thus their compatibility with EU law) must be assessed in the light of the interpretation given to them by national courts. 215 Case 102/79 [1980] ECR 1473. See also Case C-354/98 Commission v France [1999] ECR I-4927.

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because individuals cannot know for sure (without legal proceedings) that the directive is directly effective and they may easily become confused, if similar national legislation remains in force, as to which law actually governs their situation. In addition, without national implementing legislation, it becomes impossible for the Commission to check whether directives are in fact being applied in a given Member State. It is therefore necessary for the Member State not only to legislate to implement all directives, but to legislate by means of provisions which are of the same type as those used by the Member State to regulate similar matters domestically. Thus, for example, if ministerial regulations are the normal method in the UK for regulating a particular matter, then a directive in the same area should also be implemented by ministerial regulations so as to avoid confusion to the ordinary person. The direct effect of directives the CJEU sees as providing only an essential safety net or ‘minimum guarantee’ where the Member State does not carry out its EU obligations. Furthermore, the Court added that domestic political difficulties, which render it difficult or impossible for a Member State’s government to procure the necessary legislation to implement a directive, are not a sufficient excuse. The Member State remains in default until such time as the implementing measures are enacted.216 The protection of individuals and their legal rights was also stressed by the CJEU in Commission v Denmark,217 where it was successfully alleged by the Commission that Denmark had not properly implemented the Equal Pay Directive:218 the relevant domestic law provided only for equal pay for the ‘same work’ performed by men and women, whereas the directive required equal pay also where the work performed by the two sexes was of ‘equal value’. The CJEU held: In that respect the Danish law in question does not exhibit the clarity and precision necessary for the protection of the workers concerned. Even accepting the assertions of the Danish government that the principle of equal pay for men and women, in the broad sense required by the Directive, is implemented in collective agreements, it has not been shown that the same implementation of that principle is guaranteed for workers whose rights are not defined in such agreements. Since those workers are not unionized and work in small or medium-sized businesses, particular care must be taken to protect their rights under the directive. The principles of legal certainty and the protection of individuals thus require an unequivocal wording which would give the persons concerned a clear and precise understanding of their rights and obligations and would enable the courts to ensure that those rights and obligations are observed.219 216 Similarly, the CJEU held in Case 48/75 State v Royer [1976] ECR 497, that ‘[t]he freedom left to the member States by Article [288] as to the choice of form and methods of implementation of directives does not affect their obligation to choose the most appropriate forms and methods to ensure the effectiveness of the directives’ (at 519). In Case C-187/98 Commission v Greece [1999] ECR I-713, the CJEU held that a constitutional guarantee of sex equality was not sufficient to satisfy the demands of the Social Security Directive (discussed in ch 10) where legislation which breached the directive also 217 remained on the statute book. Case 143/83 [1985] ECR 427, discussed further in ch 5. 218 Directive 75/117, OJ [1975] L45/19 (now repealed), discussed further in ch 5. 219 [1985] ECR 427, at 435.

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It is thus absolutely clear now that, even where a directive takes direct effect, its provisions must nevertheless be carried into full legal force by appropriate implementing measures enacted by the Member States.

(vii) The principle of procedural autonomy A further issue in relation to direct effect, which is important in practice and has been discussed many times by the CJEU, is precisely what is meant when it is said that a provision is ‘enforceable’ by individuals. Are particular means of enforcement or particular remedies required, and what procedural rules apply to the enforcement? As will be seen in chapters 5 and 6, the Recast Directive, the Race Directive, the Framework Directive, and the Goods and Services Directive all make special provision for the enforcement of their own clauses. However, the CJEU has commented in other contexts on the consequences of direct effect in general terms. In ReweZentralfinanz, eG and Rewe-Zentral AG v Landwirtschaftskammer fur das Saarland,220 the CJEU was asked whether a time-bar prescribed by national limitation legislation could operate to preclude the recovery of sums paid contrary to a directly effective provision of EU law. In holding that such a situation did not contravene EU law, the CJEU commented: Applying the principle of cooperation laid down in Article [4(3) of the TEU], it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law. Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature. Where necessary, Articles [114–117] and [352] of the Treaty enable appropriate measures to be taken to remedy differences between the provisions laid down by law, regulation or administrative action in Member States if they are likely to distort or harm the functioning of the Common Market. In the absence of such measures of harmonization the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules.The position would be different only if the conditions and time-limits made it impossible in practice to exercise the rights which the national courts are obliged to protect. This is not the case where reasonable periods of limitation of actions are fixed. The laying down of such time-limits with regard to actions of a fiscal nature is an application of the fundamental principle of legal certainty ...221 220

Case 33/76 [1976] 2 ECR 1989. Case 33/76 [1976] 2 ECR 1989, at 1997–8. See also Case 45/76 Comet BV v Produktschap voor Siergewassen [1976] 2 ECR 2043; Case 6/60 Humblet v Belgium [1960] ECR 559; Case 28/67 Molkerei-Zentrale Westfalen/Lippe GmbH v Hauptzollamt Paderborn [1968] ECR 143; Case 13/68 Salgoil SpA v Italian Ministry of Foreign Trade [1968] ECR 453; Case 120/73 Lorenz v Germany [1973] 2 ECR 1471; Case 60/75 Russo v AIMA [1976] ECR 45; Case 35/74 Mutualités Chrétiennes v Rzepa [1974] 221

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Warner AG added that this is really a matter of common sense: Where Community law confines itself to forbidding this or that kind of act on the part of a Member State and to saying that private persons are entitled to rely on the prohibition in their national courts, without prescribing the remedies or procedures available to them for that purpose, there is really no alternative to the application of the remedies and procedures prescribed by national law. The plaintiffs submitted that to allow national law to apply in such circumstances was to allow it to override Community law. I do not think that that is a correct description of the situation. I see it as a situation in which Community law and national law operate in combination, the latter taking over where the former leaves off, and working out its consequences.222

Thus it is clear that no special rules or procedures are required for the enforcement of directly effective EU law in the courts of the Member States. The applicable principle is said to be that of the ‘procedural autonomy’ of the Member States.223 This means that national remedies and procedures are satisfactory, so long as they are also applied to similar domestic areas of law (the principle of ‘equivalence’ or ‘non-discrimination’)224 and so long as they do not frustrate the enforcement of the EU law in question (the principle of ‘effectiveness’).225 The principle of effective judicial protection, which is a general principle of EU law, does not mandate a free-standing action for the enforcement of EU law, provided that the principles of equivalence and effectiveness are observed in the domestic system of judicial remedies.226 The element of effectiveness has been expressed somewhat variously by the Court; so, for example, it has held that the national procedural constraints must not be such as to render ‘virtually impossible’,227 ‘excessively difficult’,228 or

ECR 1241; Case 26/74 Roquette v Commission [1976] ECR 677; Case 61/79 Amministrazione delle Finanze dello Stato v Denkavit Italiana Srl [1980] ECR 1205; and Case C-234/04 Kapferer v Schlank & Schick GmbH [2006] ECR I-2585. 222

Case 33/76 [1976] 2 ECR 1989, at 2003. For more detailed consideration of this principle, see Craig and de Búrca, EU Law: Text, Cases, and Materials, 5th edn (Oxford University Press, Oxford, 2011), 219–41; Arnull, ‘The Principle of Effective Judicial Protection in EU law: An Unruly Horse?’ (2011) 36 ELRev 51; and Cleynenbreugel, ‘Judge-made standards of national procedure in the post-Lisbon constitutional framework’ (2012) 37 ELRev 90. 224 Clearly a considerable area of discretion surrounds the scope of the comparison implied here; see further Case 199/82 San Giorgio [1983] ECR 3595; Case 68/88 Commission v Greece [1989] ECR 2965; Case C-62/93 BP Supergas [1995] ECR I-1883; Case C-261/95 Palmisani [1997] ECR I-4025; and Case C-180/95 Draehmpaehl v Urania Immobilienservice ohG [1997] ECR I-2195. 225 See also Steiner, ‘How to Make the Action Suit the Case’ (1987) 12 ELRev 102. 226 Case C-432/05 Unibet (London) Ltd v Justitiekanslern [2007] ECR I-2271, commented on by Anagnostaras in ‘The quest for an effective remedy and the measure of judicial protection afforded to putative Community law rights’ (2007) 32 ELRev 727. 227 Case 199/82 San Giorgio [1983] ECR 3595, at 3616. 228 Joined Cases C-6 & 9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357, at 5416; Case C-268/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483. 223

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‘impossible in practice’229 the enforcement of the EU right in question. In Peterbroeck v Belgium,230 it refined this element further, saying: [E]ach case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration.231

Heukels has commented that this new formulation of the principle of effectiveness entails a detailed examination of the national procedural rules in question by the CJEU, which ‘may bring the Court into the heart of the national judicial systems, a domain traditionally reserved to the Member States’.232 The principles of effectiveness and non-discrimination have given rise to difficulties in the UK in the context of the equal pay legislation.233 UK law used to contain a two-year limitation period in respect of arrears of pay in an equal pay claim. The question was asked whether this satisfied the principle of non-discrimination; in other words, whether it was as favourable as that applied in similar purely domestic claims. In Levez v Jennings (Harlow Pools) Ltd,234 the CJEU held that, since the Equal Pay Act 1970 was passed to give effect to the EU principle of equal pay, it was not appropriate to compare the procedural rules for the two claims; the net must be cast wider in the search for a domestic action equivalent to an action for breach of what is today Article 157; in particular, Léger AG submitted that the comparator should be sought amongst domestic actions for the recovery of salary arrears, especially through employment law. And in Preston,235 the CJEU added that the national court must consider whether the respective actions are similar ‘as regards their purpose, cause of action and essential characteristics’.236 These 229 Case 33/76 Rewe Zentralfinanze eG v Landwirtschaftskammer fur das Saarland [1976] 2 ECR 1989, and Case C-128/93 Fisscher v Voorhuis Hengelo BK [1994] ECR I-4583, at 4599. In Case C-246/09 Bulicke v Deutsche Büro Service GmbH [2010] ECR I-7003, the CJEU used both ‘practically impossible’ and ‘excessively difficult’. In Case C- 63/08 Pontin v T-Comalux SA [2009] ECR I-10467, the CJEU held that a 15-day limitation period for complaining of dismissal on the ground of pregnancy was suspect because it appeared to render enforcement of the employee’s rights practically impossible. 230 Case C-312/93 [1995] ECR I-4599. 231 Case C-312/93 [1995] ECR I-4599, at 4621. See also Joined Cases C-430 & 431/93 Van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705; Hoskins, ‘Tilting the Balance: Supremacy and National Procedural Rules’ (1996) 21 ELRev 365; Szyszczak and Delicostopoulos, Intrusions into National Procedural Autonomy: The French Paradigm’ (1997) 22 ELRev 141; Prechal, ‘Community Law in National Courts: the Lessons from Van Schijndel’ (1998) 35 CMLRev 681; and Van Gerven, ‘Of Rights, Remedies and Procedures’ (2000) 37 CMLRev 501. 232 Heukels, (1996) 33 CMLRev 337. 233 See ch 5 for discussion of Case C-78/98 Preston v Wolverhampton Healthcare NHS Trust [1999] ECR I-3201, and Case C-246/96 Magorrian and Cunningham v Eastern Health & Social Services Board [1997] 234 ECR I-7153. Case C-326/96 [1998] ECR I-7835. 235 236 Case C-78/98 [1999] ECR I-3201. Case C-78/98 [1999] ECR I-3201, at 3263.

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considerations led the UK Government to conclude that the nearest similar action to one for breach of the equal pay obligation was an action for breach of contract. Since the limitation period in actions for breach of contract was six years in England and Wales,237 that same limitation period was extended to claims for arrears of pay in equal pay claims in England and Wales.238 It is to be noted, however, that the UK’s problems in this area may not yet be at an end; as will be seen in chapter 5, the Race Directive and the Framework Directive also prohibit discrimination in relation to pay. However, UK law appears to contain no limitation on the period for which arrears of pay in these claims can be made; there is thus potential for a further allegation that the principle of equivalence is still being breached in contrast to sex discrimination claims. To the principle that normal limitation periods are generally permissible in relation to the enforcement of EU rights there used to be one important exception. The CJEU held in Emmott v Minister for Social Welfare239 that where a directive had not been correctly implemented in national law, time could not begin to run against the State in any action based on the direct effect of that instrument. It explained that: So long as a directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights.That state of uncertainty for individuals subsists even after the Court has delivered a judgment finding that the Member State in question has not fulfilled its obligations under the directive and even if the Court has held that a particular provision or provisions of the directive are sufficiently precise and unconditional to be relied upon before a national court. Only the proper transposition of the directive will bring that state of uncertainty to an end and it is only upon that transposition that the legal certainty which must exist if individuals are to be required to assert their rights is created. It follows that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual’s delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.240

237 Pursuant to the Limitation Act 1980, s 5. See also Abdullah v Birmingham City Council [2011] EWCA Civ 1412, in which the English Court of Appeal held that, where the six-month limitation period for bringing an equal pay claim before an employment tribunal had expired, the claim could nevertheless be pursued before the High Court within the breach of contract limitation period of six years. 238 By the Equal Pay Act 1970 (Amendment) Regulations 2003, SI 2003 No 1656. The corresponding limitation period in Scotland is five years. In addition, the new regulations responded to the concern expressed by the CJEU in Levez that no national provision conferred discretion to depart from the strict rule that proceedings must be begun within six months of the ending of the contract of employment, even when the delay has resulted from an employer deceiving an employee into thinking that there has been no sex discrimination: see reg 4. See today the Equality Act 2010, s 132. 239 Case C-208/90 [1991] ECR I-4269, noted by Szyszczak in (1992) 29 CMLRev 604. 240 Case C-208/90 [1991] ECR I-4269, at 4299.

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The application and extent of this principle were never free from doubt.241 Later decisions of the CJEU therefore suggested an inclination to limit it. In particular, in Steenhorst-Neerings242 and Johnson (No 2),243 the Court held that it was permissible for a Member State to limit claims to arrears of a social security benefit, even where entitlement to the benefit concerned depended on a directive which the State had not properly implemented. In addition, in Denkavit Internationaal BV v Kamer,244 Jacobs AG submitted that Emmott depended heavily on its own facts: [T]he judgment in Emmott, notwithstanding its more general language, must be read as establishing the principle that a Member State may not rely on a limitation period where a Member State is in default both in failing to implement a directive and in obstructing the exercise of a judicial remedy in reliance upon it, or perhaps where the delay in exercising the remedy—and hence the failure to meet the time-limit—is in some other way due to the conduct of the national authorities. A further factor in Emmott was that the applicant was in the particularly unprotected position of an individual dependent on social welfare. Seen in those terms the Emmott judgment may be regarded as an application of the well established principle that the exercise of Community rights must not be rendered ‘excessively difficult’.245

The Emmott principle was eventually rejected by the CJEU in Fantask A/S v Industriministeriet.246 The Court dealt with the point cursorily, saying merely that Emmott must be regarded as confined to its own circumstances.247 However, Jacobs AG discussed the matter very fully, concluding: [M]y main reservations about a broad view of the Emmott ruling are that it disregards the need, recognized by all legal systems, for a degree of legal certainty for the State, particularly where infringements are comparatively minor or inadvertent; it goes further than is necessary to give effective protection to directives; and it places rights under directives in an 241 For example, was the principle affected by the TEU requirement of the publication in the Official Journal of most directives? What was the meaning of ‘properly transposed’? Could it be said that, where a Member State had adequately implemented one part of a directive but not another, the Emmott principle applied with respect to the whole instrument? How could a provision in a directive simultaneously be precise enough to take direct effect but still be legally uncertain as far as concerned the individual? 242 Case C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR I-5475, noted by Sohrab in (1994) 31 CMLRev 875 and discussed in ch 10. 243 Case C-410/92 Johnson v Chief Adjudication Officer [1994] ECR I-5483, noted by Docksey in 244 (1995) 32 CMLRev 1447 and also discussed in ch 10. Case C-2/94 [1996] ECR I-2827. 245 Case C-2/94 [1996] ECR I-2827, at 2851. See also the submissions of Jacobs AG in Case C-62/93 BP Supergas v Greece [1995] ECR I-1883, and see Coppel, ‘Time Up for Emmott?’ (1996) 25 ILJ 153. For analysis of the efficacy of the principle of procedural autonomy in the field of sex equality law, see McCrudden, ‘The Effectiveness of European Equality Law: National Mechanisms for Enforcing Gender Equality Law in the Light of European Requirements’ (1993) 13 OJLS 320. 246 Case C-188/95 [1997] ECR I-6783, commented upon critically by Notaro in (1998) 35 CMLRev 1385. 247 Mastroianni has argued that the decision of the CJEU in Fantask is at odds with its insistence that unimplemented directives cannot impose obligations on individuals (as to which, see discussion at p 61 et seq.); the effect of the Fantask ruling, in Mastroianni’s view, is that a duty is indeed cast on individuals, namely, the duty to be aware of the content of a directive in order to exercise in a timely fashion the rights it seeks to grant: see ‘On the Distinction Between Vertical and Horizontal Direct Effects of Community Directives: What Role for the Principle of Equality?’ (1999) 5 EPL 417.

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unduly privileged position by comparison with other Community rights. Moreover a broad view cannot be reconciled with the Court’s subsequent case-law on time-limits.248

Subsequent case law of the CJEU has confirmed that it is resolved to confine the Emmott principle to its own facts, specifically to situations in which the relevant time-bar has the result of depriving the claimant of any opportunity whatever of relying on the Community right in question.249

(viii) Balancing the claims of national law and EU law Another potential defect in the doctrine of direct effect was demonstrated before the British courts. It was the apparent absence of any guaranteed interim or emergency remedy where the enforceability of EU law is arguable but not yet determined. R v Secretary of State for Transport, ex parte Factortame Ltd250 involved a claim that Community rights were being defeated by British legislation. In an attempt to prevent over-fishing, the common fisheries policy had fixed quotas for national fishing fleets. In response, the Merchant Shipping Act of 1988 was passed in the UK, its aim being to define and restrict those vessels whose catch could be considered part of the UK quota. Under the Act, the Secretary of State was empowered to make regulations for a new register of British shipping vessels. The resulting Merchant Shipping (Registration of Shipping Vessels) Regulations of 1988 provided that vessels could be registered only if their owners, or their shareholders, were British citizens or domiciled in Britain. The applicants for judicial review of these regulations were the owners of a large number of vessels; most of them were Spanish, but their vessels had under the previous legislation been treated as British because their catch was landed in the UK. Unable to satisfy the nationality requirement of the new regulations, they faced enormous economic difficulties. They were ineligible to fish against the Spanish quota; to lay up their vessels pending the litigation would have been prohibitively expensive; and if they sold the vessels, the price would be disastrously low because the market would be glutted. In these dire circumstances, the applicants sought an interim remedy from the British courts, to protect their right to continue to fish against the British quota, until such time as the CJEU gave a preliminary ruling explaining their rights and the position generally under EU law; such a ruling had been sought already by the Divisional Court but was expected to take two years to obtain. The owners’ argument was that EU law gave them an enforceable right to fish against the British quota, and that the newly enacted British legislation attempted unlawfully to defeat that right.

248

[1997] ECR I-6783, at 6811. See Case C-90/94 Haahr Petroleum v benra Havn [1997] ECR I-4085; Joined Cases C-114 & 115/95 Texaco and Oliesehkabet Danmark [1997] ECR I-4263; Case C-231/96 Edis v Ministero delle Finanze [1998] ECR I-4951; Case C-260/96 Ministero delle Finanze v Spac [1998] ECR I-4997; and 250 Case C-445/06 Danske Slagterier v Germany [2009] ECR I-2119. [1989] 2 WLR 997. 249

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Nevertheless, the House of Lords at first unanimously refused to grant them any interim relief. Although conscious of the unsatisfactory nature of this result, Lord Bridge, making the only speech in the House, clearly believed that the only practicable remedy was for the CJEU to expedite the procedures by which it gave its preliminary ruling. He held: If the applicants fail to establish the rights they claim before the CJEU, the effect of the interim relief granted would be to have conferred upon them rights directly contrary to Parliament’s sovereign will and correspondingly to have deprived British fishing vessels, as defined by Parliament, of the enjoyment of a substantial proportion of the UK quota of stocks of fish protected by the common fisheries policy ...[A]s a matter of English law, the court has no power to make an order which has these consequences.251

The House of Lords faced an additional problem in this case too, namely, that for it to grant emergency relief here would have meant ordering an interim injunction against the Crown. After reviewing the fairly extensive case law on this matter, in particular since the passage of the Supreme Court Act 1981, their Lordships held that this was impossible as a matter of British law. They thereupon sought a preliminary ruling from the CJEU, asking whether, in circumstances such as those occurring in Factortame, EU law either obliges a national court to grant interim protection to the Community rights claimed, or gives the national court a discretion to grant such interim protection; in the event that the national court merely enjoys a discretion here, the House of Lords also wished for guidance from the CJEU as to the criteria it should apply in exercising that discretion. The CJEU’s reply252 was disappointingly evasive. It focused its attention on the rule of domestic law preventing the ordering of an interim injunction against the Crown. Reiterating the reasoning it had given in Amministrazione delle Finanze dello Stato v Simmenthal SpA,253 it ruled that a national court which, in a case before it concerning EU law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law, must set aside that rule. This, of course, was not really what the House of Lords was waiting to hear, because the rule about interim injunctions against the Crown was not the sole obstacle it faced.The CJEU solved only the simpler and more mechanical part of the problems posed in Factortame. It unfortunately made no attempt to deal with the much more difficult issue of the criteria which should guide a national court which is trying to decide whether to grant interim relief for the protection of disputed EU rights.The problem could be particularly acute in an anti-discrimination claim, where irreparable harm may well be done to a person’s rights in the period intervening between the claim and any preliminary ruling needed to substantiate it. The case thus returned to the House of Lords with nobody very much the wiser as to what should occur next, and with a very real danger of substantial variations 251 253

[1989] 2 WLR 997, at 1014. Case 106/77 [1978] ECR 629.

252

Case C-213/89 [1990] ECR I-2433.

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in practice developing as between the different Member States. The House itself heard further evidence as to the predicament of the Spanish applicants and then granted them an interim injunction.254 Its reasoning was given some three months later.255 Lord Goff ’s was the leading speech in the House of Lords. He explained that the jurisdiction of the English courts to grant interim injunctions was then contained in s 37 of the Supreme Court Act 1981, by virtue of which the court had power to grant an injunction in all cases in which it appeared to it to be just or convenient to do so; guidelines for the exercise of this jurisdiction were laid down by Lord Diplock in the House of Lords in American Cyanamid Co v Ethicon Ltd.256 As a result, in the words of Lord Goff: It is now clear that it is enough if [a party seeking an interim injunction] can show that there is a serious case to be tried. If he can establish that, then he has, so to speak, crossed the threshold; and the court can then address itself to the question whether it is just or convenient to grant an injunction.257

The first issue, according to Lord Goff , is thus the adequacy of damages as a remedy to either party. If damages are an adequate remedy for the claimant, this will normally preclude the grant of an injunction. If damages would not provide an adequate remedy for the claimant then the court has to consider whether, if an injunction is granted against the defendant, there will be an adequate remedy in damages to him or her under the claimant’s undertaking in damages; if so, there will be no reason on this ground to refuse to grant the interim injunction. The issue assumes special significance in cases where the validity of legislation is at stake. For example, it may not be thought right to impose an undertaking in damages against the Crown. In addition, there is no general right in the UK to indemnity in respect of damage suffered through invalid administrative action, so that no remedy in damages would have been available to the applicant fishermen in this case for loss suffered by them as a result of enforcement of the 1988 Act, should it eventually turn out that that Act was in contravention of EU law. Conversely, a public authority acting in the general public interest cannot normally be protected by a remedy in damages because it will itself have suffered none. It follows, said Lord Goff: ‘that, as a general rule, in cases of this kind involving the public interest, the problem cannot be solved at the first stage, and it will be necessary for the court to proceed to the second stage, concerned with the balance of convenience’.258 In relation to this second stage, in cases of this sort where one party is a public authority performing duties to the public, particular stress has to be placed on the importance of upholding the law.This means that if a public authority seeks to enforce what is on its face the law of the land, and the person against whom such action is taken challenges the validity of that law, ‘matters of considerable weight have to be put into the balance to outweigh the desirability of enforcing, in the public interest, what is on its 254 257

Order of 9 July 1990. [1990] 3 WLR 818, at 869.

255

256 [1990] 3 WLR 818. [1975] AC 396. 258 [1990] 3 WLR 818, at 870.

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face the law ...’.259 Nevertheless, Lord Goff was not prepared to go so far as to say that, in such cases, the party challenging the validity of the law must show ‘a strong prima facie case that the law is invalid’. He concluded that: [T]he court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken.260

Applying these principles to the facts of the case, two matters in particular appeared to weigh with the House of Lords.The first was that recent case law of the CJEU261 reinforced the likely strength in law of the applicants’ case.262 The second was the enormity and the immediacy of the damage they would suffer if the injunction was not granted and the legislation were subsequently to prove invalid. The House was therefore ultimately persuaded to exercise its discretion in favour of the grant of the injunction. Further light was thereafter shed by the CJEU on the issue of the interim protection of alleged Community rights. In Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe,263 the Court aligned the principles applicable to the suspension of national law which is alleged to conflict with Community rights with the suspension of national law implementing Community law which is alleged to be invalid; and in Kruger,264 it confirmed its earlier case law265 on the criteria on which a national court may decide to suspend implementation of a domestic administrative decision because of its doubts as to the validity of the Community act which is its basis: Interim relief can be ordered by a national court only if: — that court entertains serious doubts as to the validity of the Community act and, if the validity of the contested act is not already in issue before the Court of Justice, itself refers the question to the Court; — there is urgency, in that the interim relief is necessary to avoid serious and irreparable damage being caused to the party seeking the relief; — the national court takes due account of the Community interest; and — in its assessment of all those conditions, the national court respects any decisions of the Court of Justice or the Court of First Instance ruling on the lawfulness of the Community act or on an application for interim measures seeking similar interim relief at Community level.266 259

260 [1990] 3 WLR 818, at 870. [1990] 3 WLR 818, at 871. In particular, Case 246/89R Commission v UK [1989] ECR 3125; Case C-3/87 R v Minister of Agriculture and Fisheries, ex parte Agegate Ltd [1989] ECR 4459; and Case C-216/87 R v Minister of Agriculture and Fisheries, ex parte Jaderow Ltd [1989] ECR 4509. 262 As eventually demonstrated in Case C-221/89 R v Secretary of State for Transport, ex parte Factortame Ltd (No 3) [1991] ECR I-3905. 263 Joined Cases C-143/88 & C-92/89 [1991] ECR I-415. 264 Case C-334/95 Kruger GmbH v Hauptzollamt Hamburg-Jonas [1997] ECR I-4517. 265 Joined Cases C-143/88 & C-92/89 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe [1991] ECR I-415, and Case C-465/93 Atlanta Fruchthandelsgesellschaft [1995] ECR I-3761. 266 [1997] ECR I-4517, at 4552–3. 261

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The Commission had argued that, in taking due account of the Community interest, a national court which is contemplating granting interim relief must give the Community institution whose act is being impugned an opportunity to express its views. To this the Court merely replied: It is for the national court which has to assess the Community interest upon an application for interim relief to decide, in accordance with its own rules of procedure, which is the most appropriate way of obtaining all relevant information on the Community act in question.267

In Unibet (London) Ltd v Justitiekanslern,268 the Court equated interim protection with the principle of effective judicial protection of an individual’s EU rights. It ruled that it must be possible for interim relief to be granted until the relevant domestic court has given a ruling on whether national provisions are compatible with EU law, where the grant of such relief is necessary to ensure the full effectiveness of the judgment to be given on the existence of such rights. It added that the principle of effective judicial protection of an individual’s rights under EU law must be interpreted as meaning that, where the compatibility of national provisions with EU law is being challenged, the grant of any interim relief to suspend the application of such provisions until the competent court has given a ruling on whether those provisions are compatible with EU law is governed by the criteria laid down by the national law applicable before that court, provided that those criteria are no less favourable than those applying to similar domestic actions and do not render practically impossible or excessively difficult the interim judicial protection of those rights.

The constitutional scope of EU law When the two qualities of supremacy and direct effect of EU law are considered together and in the light of the now highly sophisticated case law of the CJEU, it is obvious that they are of the utmost potential significance from the viewpoint of individuals claiming equality of opportunity. Together they make it possible for EU law to confer a ‘constitutional’ type of protection for the principles of nondiscrimination and equality. There is a parallel here to be drawn with the attempts made some years ago in the USA to add an ‘equal rights’ amendment to the Federal Constitution, which would have protected citizens against unequal treatment by any of the States of the Union. Not only can the EU principle of equality be invoked by individuals in actions before their national courts, but it seems that it must prevail over any conflicting legislative provision in the Member States, even one contained in the country’s Constitution.

267

[1997] ECR I-4517, at 4553.

268

Case C-432/05 [2007] ECR I-2271.

3 General principles and equal treatment

General principles as part of EU law General principles of law1 form part of what the CJEU views as the ‘constitution’ of the Union. They have a status which is similar, but not superior,2 to the provisions of the Treaties. General principles have been formulated by the CJEU pursuant to its obligation under Article 19 of the TEU to ‘ensure that in the interpretation and application of the Treaties the law is observed’. They put flesh on the bones of a legal system which, being set out in framework Treaties, would in their absence have remained a skeleton of rules falling short of a proper legal order.3 Thus far the Court has recognized as general principles inter alia the rights to due process, equal treatment, non-discrimination on the grounds of age and sex, proportionality, legitimate expectation, legal certainty, and transparency. Of these principles the most relevant to this work are equal treatment, non-discrimination on the grounds of age and sex, and proportionality. The use of general principles can be traced back to a judgment of the Court of the European Coal and Steel Community (ECSC) in the mid-1950s. Alegra4 concerned a dispute between the High Commission and a member of its staff. There was no means of resolving this dispute in the ECSC Treaty itself. The Court therefore looked to the legal systems of the six Member States of the ECSC for guidance: The possibility of withdrawing such measures is a problem of administrative law, which is familiar in the case law and the learned writing of all countries of the Community, but for the solution of which the Treaty does not contain any rules. Unless the Court is to deny justice it is therefore legally obliged to solve the problem by reference to the rules acknowledged by that legislation, the learned writing and the case law of the Member States.5

1 Arnull, The General Principles of EEC Law and the Individual (St Martins Press, New York, 1990); Bernitz and Nergelis (eds), General Principles of European Community Law (Kluwer, The Hague, 2000); Tridimas, The General Principles of EC Law, 2nd edn (Oxford University Press, Oxford, 2006); Usher, General Principles of EC Law (Longmans, London, 1998). 2 Case 40/84 Sgarlata v Commission [1965] ECR 215. 3 Case C-411/05 Palacios de la Villa [2007] ECR I-8531, Opinion of Mazak AG at 8553. 4 Joined Cases 7/56 & 3-7/57 [1957–58] ECR 39. 5 Joined Cases 7/56 & 3-7/57 [1957–58] ECR 39, at 55.

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General principles of law fulfil a number of functions. First and foremost, they are a standard of review of the legality of Union measures.They are used as a means of controlling the use by the Union institutions of the many powers granted to them under the Treaties. Union measures which are in breach of the general principles are void.6 The inability of the EU itself to legislate in defiance of general principles extends in certain circumstances also to the actions of the Member States.7 In particular, the CJEU has made it clear that the Member States are constrained by the general principles when they implement Union measures.8 This is in essence because the States are, in these circumstances, operating as agents of the Union in implementing its legislation.9 It is an important principle in practice because of the huge number of instances in which the Member States are required to implement EU law. There is also a related situation in which general principles constrain the actions of Member States; in Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis,10 the CJEU explained that it had: no power to examine the compatibility with the European Convention on Human Rights of national rules which do not fall within the scope of Community law. On the other hand, where such rules do fall within the scope of Community law, and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures and which derive in particular from the European Convention on Human Rights. In particular, where a Member State relies on the combined provisions of Articles [46 and 55 of the EC Treaty] in order to justify rules which are likely to obstruct the exercise of the freedom to provide services, such justification, provided for by Community law, must be interpreted in the light of the general principles of law and in particular of fundamental rights. Thus the national rules in question can fall under the exceptions provided for by the combined provisions of Articles [46 and 55] only if they are compatible with the fundamental rights the observance of which is ensured by the Court. It follows that in such a case it is for the national court and, if necessary the Court of Justice, to appraise the application of those provisions having regard to all the rules of Community law, including freedom of expression, as embodied in Article 10 of the European Convention on Human Rights, as a general principle of law the observance of which is ensured by the Court. ...[T]he limitations imposed on the power of the Member States to apply the provisions referred to in Articles [46 and 55] of the Treaty on grounds of public policy, public security

6

See, eg, Case C-236/09 Test-Achats [2011] ECR I-000. See further Editorial, ‘The Scope of Application of the General Principles of Union Law: An Ever Expanding Union?’ (2010) 47 CMLRev 1589. 8 See Case 5/88 Wachauf v Germany [1989] ECR 2609; Case C-351/92 Graff v Hauptzollamt KölnRheinau [1994] ECR I-3361; Case C-84/95 Bosphorus [1996] ECR I-3953; and Case C-292/97 Karlsson [2000] ECR I-2737. 9 Weiler and Locknart, ‘Taking Rights Seriously: The European Court and its Fundamental Rights Jurisprudence—Part 1’ (1995) 32 CMLRev 51, at 73. 10 Case C-260/89 [1991] ECR I-2925. See also Case C-260/89 ERT [1991] ECR I-2925, and Case C-368/95 Familiapress v Bauer Verlag [1997] ECR I-3689. 7

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and public health, must be appraised in the light of the general principle of freedom of expression embodied in Article 10 of the European Convention on Human Rights.11

It is thus clear that the Member States must observe the general principles of EU law, including those derived from the ECHR,12 when they rely upon a derogation from a Union rule. However, as discussed below, the precise implications of the general principles for Member State legislation, at least in the context of non-discrimination on the ground of age, remain to be fully worked out by the Court. Second, general principles are an aid to interpretation of Union law.13 Although general principles of law will not be permitted by the Court to override specific provisions of the Treaty,14 they are from time to time utilized by the CJEU to justify a liberal interpretation of what might otherwise seem to be a narrow rule.15 Thus, for example, a principle already worked out pursuant to the ECHR might inform the interpretation by the CJEU of one of the many undefined terms used in the Race Directive and the Framework Directive. Third, the breach of the general principles may lead to the extra-contractual liability of the Union, pursuant to Article 340 of the TFEU.16

Sources of general principles The general principles derive primarily from the laws of the Member States and international legal instruments to which the Member States have subscribed. This does not mean that they need necessarily be defined in the provisions of each national legal system;17 nor indeed does it imply that they must be specifically articulated. The concept of ‘general principles of law’ is indicative of the ideas, principles, and values underlying the legal systems of the Member States: The fact is indeed that general principles of law, however new they may sometimes appear in their implementation, are also the very incarnation of legal traditions, as the values they represent find often their origin in the written or unwritten laws of bygone ages ...we can say that they constitute the wisdom of generations of lawyers.18 11

12 [1991] ECR I-2925, at 2964. As to which, see discussion at p 104 et seq. See, eg, Case T-93/94 Becker v Court of Auditors [1996] ECR II-141. 14 Case 40/64 Sgarlata v Commission [1965] ECR 215. 15 See, eg, Case C-260/89 Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis [1991] ECR I-2925. 16 TFEU, Art 340 provides that in the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties. 17 The CJEU may look at the individual legal systems of the Member States to decide whether a given principle is common to them; see, eg, Case 155/79 AM&S [1982] ECR 1575. 18 Koopmans, ‘General Principles of Law in European and National Systems of law: a Comparative View’, in Bernitz and Nergelis (eds), General Principles of European Community Law (Kluwer, The Hague, 2000), 251. 13

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They have been described as ‘commuters’.They travel from the legal systems of the Member States to the Union legal order as principles common to the legal systems of the Member States and subsequently travel back to them as principles governing the implementation and application of Union law on a national level.19 In establishing the general principles the Court has looked at the degree of convergence on a particular matter among the different national legal systems.The more convergence there is the more likely the Court is to find that a general principle of law exists.20 Convergence need not be total, but there must be at least a common approach in a large majority of Member States. In Grant21 the Court refused to accept that an employer was obliged to treat the same sex partner of an employee in a stable relationship in the same way as spouses or a partner of the opposite sex. It found in the state of the law then prevailing within the Union, stable relationships between two persons of the same sex were not regarded as equivalent to marriages or stable relationships outside marriage between persons of opposite sex. The General Court (GC) adopted the same approach in D and Sweden v Council,22 in which it held that, at the stage of development of the law within the Union at that point in time, stable relationships between persons of the same sex were not assimilated to relationships between married persons. Consequently the Council was not obliged to extend to same-sex partners, even where their relationship had been recognized by national legislation, the effects and benefits of traditional heterosexual marriage. The CJEU, upholding the judgment of the GC on appeal23 held: The principle of equal treatment can apply only to persons in comparable situations, and so it is necessary to consider whether the situation of an official who has registered a partnership between persons of the same sex, such as the partnership entered into by D under Swedish law, is comparable to that of a married official. ... In making such an assessment the Community judicature cannot disregard the views prevailing within the Community as a whole. The existing situation in the Member States of the Community as regards recognition of partnerships between persons of the same sex or of the opposite sex reflects a great diversity of laws and the absence of any general assimilation of marriage and other forms of statutory union (see paragraphs 35 and 36 above). In those circumstances, the situation of an official who has registered a partnership in Sweden cannot be held to be comparable, for the purposes of applying the Staff Regulations, to that of a married official.24

In addition to requiring a degree of commonality between the legal systems of the Member States the substance of the general principle must be sufficiently clear 19 Herdergen, ‘The Origins and Development of General Principles of Community Law’, in Bernitz and Nergelius (eds), General Principles of European Community Law (Kluwer, The Hague, 2000), 17. 20 Lenaerts, ‘Interlocking Legal Orders in the European Union and Comparative Law’ (2003) 52 21 ICLQ 873, at 886. Case C-249/96 [1998] ECR I-621, discussed in ch 5. 22 Case T-264/97 D v Council [1999] ECR II-1. 23 Case 122/99P and 125/99 P [2001] ECR I-4319. 24 Cases 122/99P and 125/99 [2001] ECR I-4319, paras 48–51.

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and precise so as to enable it to be applied by the courts. This requirement led the CJEU to deny in Audiolux25 that there was a principle of equal treatment of minority shareholders: A principle such as that proposed by Audiolux pre-supposes legislative choices, based on a weighing of the interests at issue and the fixing in advance of precise and detailed rules ...and cannot be inferred from the general principle of equality.26

More recently Trstenjak AG in Dominguez, found27 that the idea that an employee is entitled to periodic rest time permeates the legal systems of both the EU and its Member States. The fact that this idea has constitutional status at EU level and within several Member States is indicative of the prominent position afforded to that right, which suggests its classification as a general principle of law.28

However she concluded that the right to annual leave could not be regarded as a general principle since it could not be ‘regarded as substantively unconditional and does indeed require legislative configuration by the legislature’. Even in the constitutions of the Member States which explicitly recognized entitlement to annual leave as a fundamental right, the national legislature was entrusted with the implementation of that right. Therefore, in order to attain the status of a general principle of Union law, a particular principle or rule must be common to the legal systems of the Member States and be ‘legally perfect’ and capable of being applied by the courts as such.29 The general principles now receive specific acknowledgment in the Treaties in Article 6(3) of the TEU. Apart from the national constitutions and laws of the Member States, the instruments which constitute the most prominent sources of general principles are the ECHR, the European Social Charter of 1961, the Community Charter on the Fundamental Social Rights of Workers of 1989,30 and the EU Charter of Fundamental Rights agreed in 2000.31 Although space precludes extensive discussion of these instruments, their most relevant aspects in the present context will be summarized. In particular, focus is placed on the extent to which they may broaden the scope of the substantive principles of EU law discussed in the rest of the present work.

25 Case C-101/08 [2009] ECR I-9823. See also Case C-174/08 NCC Construction v Danmark [2009] 26 ECR I-10567. Case C-101/08 Audiolux [2009] ECR I-9823, para 62. 27 Case C-282/10 [2012] ECR I-000. 28 Case C-282/10 [2012] ECR I-000 Opinion, at para 111. 29 Case C-282/10 [2012] ECR I-000, at para 135. See generally on constitutionally protected general principles and those which require legislative intervention to make them viable: Lenaerts and GutierrezFons, ‘The Role of the General Principles of EU Law’, in Arnull, Barnard, Dougan and Spaventa, A Constitutional Order of States: Essays in EU Law in Honour of Alan Dashwood (Oxford University Press, Oxford, 2011), 185. 30 The so-called ‘Social Charter’, Commission of the European Communities, Luxembourg, 1990. 31 See also recital 5 of the Preamble to the Charter of Fundamental Rights.

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The European Convention on Human Rights32 The European Convention on Human Rights (ECHR) arose out of the Hague Congress of the International Committee of Movements for European Unity of May 1948, which resulted in the creation of the Council of Europe in May 1949. The Member States of the Council of Europe drafted the Human Rights Convention, guaranteeing essential civil and political rights, and it became open for signature from November 1950.33 The accession of the European Union to the ECHR has been the subject of discussion for many years.34 In Opinion 1/94 Accession of the Community to the European Human Rights Convention,35 the CJEU found that the European Community at that time lacked the competence to accede to the Convention. The position has changed since the entry into force of the Lisbon Treaty.36 Article 6(2) of the TEU now not only enables but obliges accession: The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

Protocol 14 to the ECHR also introduced Article 59(2) into the Convention, providing that the EU ‘may accede to this Convention’. When and if accession occurs, the EU will be bound by the provisions of the ECHR and its acts will be subject to review by the European Court of Human Rights.37 The scope of the protection provided by the ECHR for the principle of nondiscrimination is in a number of respects wider than that to be found in EU law.38 Such protection may be derived in three ways: (i) from the substantive provisions of the Convention itself; (ii) from Article 14; and (iii) from Protocol 12. 32 There is an extensive body of literature on the ECHR, including Feldman, Civil Liberties and Human Rights in England and Wales, 2nd edn (Oxford University Press, Oxford, 2002); Harris, Boyle and Warbrick (eds), The Law of the European Convention on Human Rights, 2nd edn (Oxford University Press, Oxford, 2009); Janis, Kay and Bradley, European Human Rights Law, 2nd edn (Oxford University Press, Oxford, 2000); Ovey, Jacobs and White, The European Convention on Human Rights, 3rd edn (Oxford University Press, Oxford, 2002); van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd edn (Kluwer, The Hague, 1998); and Starmer, European Human Rights Law (Legal Action Group, London, 1999). 33 At the time of writing, the ECHR had been ratified by 47 States, including all the Member States of the EU. 34 For a comparision of discrimination under EU and the ECHR see Bamforth,‘Prohibiting Grounds of Discrimination under EU Law and the European Convention on Human Rights: Problems of Contrast and Overlap’, in Barnard (ed), (2006–07) Cambridge Yearbook of European Legal Studies (Hart Publish35 ing, Oxford, 2007). [1996] ECR 1759. 36 TEU, Art 47 provides that the Union is to have legal personality. 37 See further Lock, ‘EU Accession to the ECHR: Implications for Judicial Review in Strasbourg’ (2010) 35 ELRev 777. 38 However, as noted in ch 5 and discussed further at p 107 et seq., the concept of discrimination which has been adopted by the European Court of Human Rights is much weaker than that adopted by the CJEU.

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(i) The rights and freedoms expressed in the Convention Several substantive provisions of the Convention in a broad sense support the right to equality and non-discrimination. The most notable examples are Article 8 guaranteeing respect for private and family life, home, and correspondence, Article 9 protecting freedom of thought, conscience, and religion, and Article 12 on the right to marry and to found a family. Thus, for example, in Goodwin v UK,39 the European Court of Human Rights held that the UK’s non-recognition of a transsexual person’s new gender for purposes such as social security, national insurance, and marriage contravened Article 8 on respect for family life and Article 12 on the right to marry. Most of the gains achieved in the fight for equality pursuant to the ECHR have indeed derived from such substantive provisions of the Convention but space precludes their further discussion here and the reader is directed to the many works specifically devoted to the operation of the ECHR.

(ii) Article 14 Article 14 provides: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.40

It is clear from the wording of this Article that, taken on its own, it confers no substantive rights; it does so only in conjunction with another Article in the Convention or its Protocols.41 However the Convention of course guarantees a broad range of fundamental civil and political rights.42 The result is thus that, where the Convention stipulates the enjoyment of a particular right, or expressly permits a specific limitation on a right, the Member States may not confer the right, or phrase the limitation, in a way which discriminates, inter alia, on any of the stipulated 39

(2002) 35 EHRR 447. The ‘Convention’ in this context includes the First and Fourth Protocols (on property, education, political rights, personal liberty, and freedom of movement) since these Protocols themselves stipulate that all provisions of the Convention are to apply to them. For a detailed analysis of the jurisprudence of the European Court of Human Rights on Art 14, see Arnardóttir, Equality and Non-Discrimination under the European Convention on Human Rights (Martinus Nijhoff , The Hague, 2003); The Prohibition of Discrimination under the European Convention on Human Rights (Council of Europe 2010); Livingston, ‘Article 14 and the Prevention of Discrimination in the European Convention on Human Rights’ [1997] EHRLR 25; Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights, 2nd edn (Oxford University Press, Oxford, 2009), ch 15. 41 National Union of Belgian Police v Belgium [1979–80] 1 EHRR 578; Inze v Austria, Judgment of 28 October 1987, Series A No 126, p 17. See also R (Pretty) v DPP [2002] 1 AC 800 and Pretty v UK (2002) 35 EHRR 1. 42 For an important addition to the procedural weaponry available for the vindication of such rights, see Schuier-Zgraggen v Switzerland [1996] 21 EHRR 404. 40

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grounds.43 Moreover, it is not necessary to show that another Convention right has actually been breached in order to rely on Article 14; it is sufficient to show that the matter as regards which discrimination is alleged falls within the ambit of a Convention right.44 It is nevertheless generally accepted that the reliance of Article 14 on other substantive rights protected by the ECHR seriously limits its effectiveness; where such another right is infringed, the European Court of Human Rights is sometimes reluctant to go on to examine the additional possible breach of Article 14.45 For example, in Dudgeon v UK46 the European Court of Human Rights found that the criminalization of adult, private homosexual acts was a breach of Article 8 and it did not consider the case under Article 14 at all. However, in subsequent cases the European Court of Human Rights has been willing to consider Article 14, especially where inequality of treatment lies at the heart of the case: Where a substantive article of the Convention has been invoked, both on its own and together with Article 14, and a separate breach has been found on the substantive Article, it is generally not necessary ...to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case.47

Pla and Puncernau v. Andorra48 was a case concerning discrimination between biological and adopted children in the enjoyment of inheritance rights. The claimant, as an adopted child, was held by a court of law in Portugal not entitled to inherit the estate of his grandmother. The European Court of Human Rights, although it was not required to settle disputes of a private nature, accepted jurisdiction stating that it could not remain passive where a national court’s interpretation of a legal act (in this case a will) was blatantly inconsistent with the prohibition established in Article 14: Since the issue of alleged discrimination of the first applicant is at the heart of the applicant’s complaint, the Court considers it appropriate to examine the complaint first under Article 14 read in conjunction with Article 8 of the Convention.49

Article 14 contains what to modern eyes looks an outmoded list of prohibited grounds; in particular, unlike the Framework Directive, it makes no express mention of disability, sexual orientation, or age. However, its wording is not exhaustive; the admission of new grounds reflecting changing social mores is made possible through the concluding words ‘or other status’, a term which must be interpreted 43 Thus, eg, in AP v Austria (1995) 20 EHRR CD 63, the European Commission of Human Rights considered that an Austrian rule limiting parental leave payments to mothers was in breach of Arts 8 and 14 of the Convention on respect for family life without discrimination on the ground of sex. 44 Belgian Linguistic Case (Merits) [1979–80] 1 EHRR 252; Van Raalte v Netherlands (1997) 24 EHRR 503; EB v France (2008) 47 EHRR 21, at para 49. 45 Art 14 has only been regarded as violated in some 20 judgments since 1968: see Koldinská, ‘Shouldn’t Fathers Raise Their Children?’ [2011] Issue 2 European Gender Equality Review 14. 46 47 [1981] 5 EHRR 573. Aziz v Cyprus (2005) 41 EHRR 164, at para 35. 48 Pla and Puncernau v Andorra (2006) 42 ECHRR 522. 49 Pla and Puncernau v Andorra (2006) 42 ECHRR 522, at para 42.

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eiusdem generis with the grounds mentioned expressly. Thus, for example, in Salgueiro da Silva Mouta v Portugal,50 the European Court of Human Rights treated as included within Article 14 discrimination on the ground of sexual orientation.51 Indeed in recent years it has condemned many practices as offending against the principle of non-discrimination on that ground.52 And in Chassagnou v France,53 an obligation imposed on small but not large landowners to join a hunting association was found to be a breach of Articles 11 and 14 of the Convention; small landowners were deprived of the right to use their property ‘with conscience’ since they could not demonstrate their disapproval of hunting by refusing to join a hunting association. However, whatever ground of discrimination is alleged, it must be linked to a ‘personal characteristic’ of the claimant54 although this concept is capable of a broad interpretation, extending to professional or trade status.55 Neither Article 14, nor Protocol 12, discussed at p 110, attempt to spell out the meaning of ‘discrimination’, although presumably the concept is intended to bear the same meaning in both provisions. The French version of Article 14 of the Convention contains an even broader formulation than the English: ‘sans distinction aucune’. The concept of discrimination has been interpreted in the context of Article 14 by the European Court of Human Rights to cover both direct and indirect discrimination. Direct discrimination has been defined as ‘treating differently, without an objective or reasonable justification, persons in relevantly similar situations.’56 However not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in analogous or relevantly similar situations enjoy preferential treatment and that this distinction is discriminatory.57 Indirect discrimination was defined thus in DH v Czech Republic:58 A general policy or measure that has disproportionality prejudicial effects on a particular group may be considered discriminatory nothwithstanding that it is not specifically aimed at that group and .... discrimination potentially contrary to the Convention may result from a de facto situation.59

Positive discrimination is acceptable under the Convention and, in some cases, may even be required by it in order to achieve true equality: 50

(1999) 31 EHRR 1055. See also the decision of the House of Lords in Ghaidan v Godin-Mendoza [2004] 3 WLR 113. Query whether, given that the Union is now obliged by virtue of TEU, Art 6(2) to accede to the ECHR, the CJEU might someday feel able to extend the general principle of non-discrimination to grounds not expressly specified in EU law. 52 See, eg, EB v France (2008) 47 EHRR 21; Baczkowski v Poland (2009) 48 EHRR 19. 53 54 (1999) 29 EHRR 615. Dudgeon v UK (1981) 4 EHRR 149. 55 Alatulkkila and Others v Finland (2006) 43 EHRR 34 (fishermen); Sidabras and Dziautas v Lithuania (2004) 42 EHRR 104 (former KGB agents). 56 Zarb Adami v Malta (2007)44 EHRR 43, at para 71. 57 58 Willis v Unired Kingdom (2002) 35 EHRR 212, at para 48. (2008) 47 EHRR 3. 59 (2008) 47 EHRR 3, at para 175. 51

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Article 14 does not prohibit a Member State from treating groups differently in order to correct ‘factual inequalities’ between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article.60

The European Court of Human Rights, faced with an allegation of unlawful discrimination, begins by inquiring whether there is a difference of treatment between two persons placed in analogous situations.61 If it finds such a difference and that the ground for that difference is one forbidden by Article 14, it proceeds to examine the issue of justification. Thus, it has explained that: It is important ...to look for the criteria which enable a determination to be made as to whether or not a given difference in treatment, concerning of course the exercise of one of the rights and freedoms set forth, contravenes Article 14. On this question the Court, following the principles which may be extracted from the legal practice of a large number of democratic States, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aims and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized.62

It thus appears that the concept of discrimination is very different for the purposes of the ECHR from that understood in EU law. In particular, even direct discrimination can in general be excused or justified under the Convention in any case where it pursues an acceptable aim and is not disproportionate to that aim.63 The European Court of Human Rights has, however, in recent times demanded a more rigorous standard for justification than in its earlier jurisprudence.64 It applies a high level of scrutiny to allegations of sex discrimination,65 and may apply a similar level 60 61

Stec v UK (2006) 43 EHRR 18, at para 51. For an example of situations not regarded as analogous, see Fredin v Sweden (1991) 13 EHRR

784. 62 Belgian Linguistic Case (Merits) [1979–80] 1 EHRR 252, at 284. It repeated these principles in Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471. The approach of British courts to an Art 14 claim was set out by the Court of Appeal in Wandsworth London Borough Council v Michalak [2003] 1 WLR 617; it involves a fourfold test: (i) do the facts fall within the ambit of a substantive Convention provision? (ii) if so, was there different treatment as respects that right between the complainant and the comparators? (iii) were the comparators in an analogous situation to the complainant? and (iv) if so, did the difference have an objective and reasonable justification? 63 Cf the confinement of justification to indirect discrimination as a general rule in EU law; see Case 170/84 Bilka-Kaufhaus GmbH v Weber Von Hartz [1986] ECR 1607 and discussion in ch 4. 64 See Hoffmann v Austria (1994) 17 EHRR 293; Burghartz v Switzerland (1994) 18 EHRR 101; and Karlheinz Schmidt v Germany (1994) 18 EHRR 513. 65 In Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471, the European Court of Human Rights commented, at 501: ‘[I]t can be said that the advancement of the equality of the sexes is today a major goal in the Member States of the Council of Europe. This means that very weighty reasons

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in relation to discrimination on the grounds of religion,66 nationality,67 and sexual orientation.68 In Timishev v Russia,69 the Court was very firm in its condemnation of racial or ethnic discrimination: [N]o difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principle of pluralism and respect for different cultures.70

Following this judgment it is clear that there is a blanket prohibition on discrimination on racial or ethnic grounds; in no circumstances will it be tolerated and any analysis by the European Court of Human Rights of allegedly discriminatory conduct will stop at the point where discrimination has been established. However, in spite of the high level of scrutiny which the European Court of Human Rights applies to allegedly discriminatory conduct, the fact remains that this is a considerably wider formulation of the law than one which (like the EU’s equal treatment provisions) contains discrete defences to be applied in particular situations, although this is probably inevitable given the ambit of Article 14. It follows that the Convention (at least potentially) builds into a general principle of EU law the right not to be discriminated against on a number of grounds in fields not otherwise governed by EU law, but that this gain is partially offset by the standard for determining whether or not discrimination has occurred.71 On the other hand, in some respects the ECHR concept of discrimination is a broad one. This breadth was demonstrated in Thlimmenos v Greece,72 where the applicant was a Jehovah’s Witness who had refused, on the ground of his religious beliefs, to serve in the Greek Army. For this offence of ‘insubordination’ he was convicted and served a sentence of imprisonment. Some years later he qualified as a chartered accountant, but could not take up this profession because Greek law prohibited the appointment to the civil service, including the accountancy profession, of those convicted of serious criminal offences. He complained that this amounted to a breach of his rights under Article 9 of the ECHR (protecting his right to freedom of thought, conscience, and religion) combined with Article 14. His argument was that his Convention rights were breached because the law excluding him from the civil service made no distinction between those convicted of serious crimes in consequence of their religious beliefs and those convicted of would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention.’ 66

Hoffmann v Austria (1993) 17 EHRR 293. In Gaygusuz v Austria (1997) 23 EHRR 364, the European Court of Human Rights held that ‘very weighty reasons’ would have to be put forward before it would regard a difference of treatment based exclusively on nationality as compatible with the ECHR. 68 69 Land v Austria (2003)36 EHRR 1022. [2005] 44 EHRR 776. 70 [2005] 44 EHRR 776, at para 58. 71 It should also be borne in mind that, as will be discussed below, the part played by general principles of EU law in the jurisprudence of the CJEU at present restricts the importance of the Conven72 tion, no matter how broad its potential scope. (2001) 31 EHRR 411. 67

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other crimes. The European Court of Human Rights, in upholding this complaint, made an important statement of principle: The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification ...However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.73

The Court went on to rule that the State’s exclusion of the applicant was not objectively and reasonably justified because, although States have a legitimate interest in excluding some people from becoming accountants, the applicant’s crime did not imply any dishonesty or immorality such as might have undermined his professional ability; furthermore, he had already served a term of imprisonment so that further punishment was disproportionate.

(iii) Protocol 12 A new Protocol to the Convention, Protocol 12, was agreed and opened for signature by Member States of the Council of Europe in November 2000. It entered into force on 1 April 2005. Protocol 12 establishes a free-standing right to equality. It provides: 1. The enjoyment of any right set forth by law shall be secured without discrimination74 on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

Despite its more recent origin, Protocol 12 thus replicates the grounds set out in Article 14. The Explanatory Report on the Protocol states that it was considered unnecessary to update the wording to include such matters as disability, sexual orientation, and age because of the non-exhaustive nature of the list of prohibited grounds, and also because any inclusion of a particular additional ground might be taken to imply that other grounds not added were not intended to be included. Article 1 appears to apply to all action taken by public authorities directed at individuals. ‘Any right set forth by law’ must therefore be interpreted broadly as 73 (2001) 31 EHRR 411, at 424, emphasis added. For the articulation of a similar view of the meaning of discrimination by the CJEU, see discussion at p 134 et seq. and ch 4. 74 The French wording of Art 1 of Protocol 12 is ‘sans discrimination aucune’ but, according to the Explanatory Report on that Protocol, no difference of meaning from Art 14 of the ECHR is intended: ‘on the contrary, this is a terminological adaptation intended to reflect better the concept of discrimination within the meaning of Article 14 by bringing the French text into line with the English’.

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referring to all acts aimed at individuals; no action of the state is to escape the nondiscrimination obligation laid down in Article 12. The Explanatory report states that Article 1 covers acts concerned with: (i) The enjoyment of any rights specifically granted to an individual under national law; (ii) the enjoyment of a right which may be inferred from a clear obligation imposed on a public authority to act in a particular manner; (iii) a public authority acting in the exercise of discretionary power (for example granting certain subsidies); (iv) any other act or omission by a public authority (for example the behaviour of law enforcement officers when controlling a riot).75

The upshot is that Protocol 12 is aimed at any action by the state towards private individuals irrespective of what form that act takes and regardless of whether its purpose is to grant rights or to impose obligations on individuals.76 It is not yet entirely clear whether it also refers to rights set out in international agreements, although the Explanatory Report states that such international rights ‘may’ be covered.77 And in Sejdic and Finci v Bosnia and Herzegovina,78 the first and only judgment to have been decided on Protocol 12 at the time of writing, and which concerned the eligibility of candidates for the Presidential elections in Bosnia and Herzegovina, the European Court of Human Rights found that Article 1 of the Protocol applied to the provision of the Constitution of Bosnia and Herzegovina which was annexed to the Daytona Peace Agreement of 14 December 1993 which is in itself an international treaty. The applicants in that case complained of their ineligibility to stand for election in the House of Peoples and for the Presidency of Bosnia and Herzegovina on the ground of their Roma and Jewish origins. They invoked a number of provisions of the ECHR, namely Articles 3, 13, and 14, together with Article 3 of Protocol 1 (on the right to free elections) and Article 1 of Protocol 12. The Constitution of Bosnia and Herzegovina provided that only persons declaring affiliation with a ‘constituent people’ (namely, Bosniacs, Croats, and Serbs) were entitled to run for election to the House of Peoples and the Presidency. The applicants did not declare affiliation with any of the ‘constituent peoples’. The Court found that their ineligibity to stand for the House of Peoples was a breach of Article 14 taken in conjunction with Article 3 of Protocol 1. With respect to the 75

Explanatory Report, at para 22. However, as Feldman has observed, even Protocol 12 does not go as far as Art 26 of the International Covenant on Civil and Political Rights 1966, which provides: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law’; see Feldman, Civil Liberties and Human Rights in England and Wales, 2nd edn (Oxford University Press, Oxford, 2002), 142–3. 77 This is one of the problems which inhibits UK acceptance of Protocol 12; the Government is particularly concerned about international instruments which have not been implemented in UK law because they are essentially aspirational. However, Fredman has pointed out that the Protocol only applies to rights ‘set forth by law’; unimplemented international rights are not, under the UK’s dualist constitution, ‘set forth by law’: see ‘Why the UK government should sign and ratify Protocol 12’ (2002) 78 105 EOR 21. App Nos 27996/06 & 34836/06, available at . 76

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ineligibility of the applicants to stand for the office of President, the Court found this to be a breach of Article 1 of Protocol 12. Whilst the Court found that the conditions attaching to eligibity to run for election to the House of Peoples or the Presidency were based upon a desire to restore peace to the area of Bosnia and Herzegovina, they were disproportionate.

The European Social Charter Economic and social rights proved harder to reach agreement on in the aftermath of the Second World War than civil and political rights. In part this was because they were not imbued with the same sense of post-war urgency, and in part also because they require constructive action, rather than a mere undertaking by States not to interfere, in order to give them content.79 The European Social Charter was, however, eventually agreed. It was subsequently revised to take account of recent ‘fundamental social changes’ and so as to include a number of additional rights. Its new version was opened for signature in May 1996.80 By its very nature it is a somewhat different type of instrument from the ECHR. Whilst the ECHR is concerned with civil and political rights, the European Social Charter focuses on economic and social rights. In particular, the European Social Charter is not drafted in terms of legal rights which can be invoked before judicial authorities by individuals, although in a number of instances it recapitulates rights also conferred by EU law. It is instead supposed to set standards to be achieved by its Contracting States, with a fluid, time-consuming, and non-binding supervision procedure. Perhaps for this reason, its content is generally not as well known as that of the ECHR. Although it adds little of direct legal substance to the anti-discrimination provisions today contained in EU law, it does provide a more detailed and sympathetic back-drop against which those provisions should be viewed and enforced, and most importantly, it has inspired the provisions of both the Community Charter of Fundamental Social Rights of Workers 1989 and the Charter of Fundamental Rights. Part I of the Charter today lists 31 rights and principles in the field of employment and social welfare which are aimed at by the Contracting States; Part II then spells out these matters in greater detail. Of particular importance in the present context are the following:

79 See further Jaspers and Betten, Twenty-Five Years, European Social Charter (Kluwer, The Hague, 1988). 80 At the time of writing, the Revised Charter had been ratified by the following Member States of the EU: Austria, Belgium, Bulgaria, Cyprus, Estonia, Finland, France, Hungary, Ireland, Italy, Lithuania, Malta, The Netherlands, Portugal, Romania, Slovakia, Slovenia, and Sweden. It had been signed but not been ratified by: Denmark, the Czech Republic, Germany, Greece, Latvia, Luxembourg, Poland, Spain, and the UK. It became operative after the first three Member States acceded to it on 1 July 1999.

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Article 8:The right of employed women to protection of maternity With a view to ensuring the effective exercise of the right of employed women to the protection of maternity, the Parties undertake: 1. to provide either by paid leave, by adequate social security benefits or by benefits from public funds for employed women to take leave before and after childbirth up to a total of at least fourteen weeks; 2. to consider it as unlawful for an employer to give a woman notice of dismissal during the period from the time she notifies her employer that she is pregnant until the end of her maternity leave, or to give her notice of dismissal at such a time that the notice would expire during such a period;81 3. to provide that mothers who are nursing their infants shall be entitled to sufficient time off for this purpose; 4. to regulate the employment in night work of pregnant women, women who have recently given birth and women nursing their infants; 5. to prohibit the employment of pregnant women, women who have recently given birth or who are nursing their infants in underground mining and all other work which is unsuitable by reason of its dangerousness, unhealthy or arduous nature and to take appropriate measures to protect the employment rights of these women. Article 15:The right of persons with disabilities to independence, social integration and participation in the life of the community With a view to ensuring persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular: 1. to take the necessary measures to provide persons with disabilities with guidance, education and vocational training in the framework of general schemes wherever possible or, where this is not possible, through specialized bodies, public or private; 2. to promote their access to employment through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled or, where this is not possible by reason of the disability, by arranging for or creating sheltered employment according to the level of disability. In certain cases, such measures may require recourse to specialized placement and support services; 3. to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure. Article 20:The right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex With a view to ensuring the effective exercise of the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex, the Parties undertake to recognize that right and to take appropriate measures to ensure or promote its application in the following fields: 81 The Appendix to the Charter nevertheless adds that this provision is not to be interpreted as laying down an absolute prohibition; it states that ‘[e]xceptions could be made, for instance,...(a) if an employed woman has been guilty of misconduct which justifies breaking off the employment relationship; (b) if the undertaking concerned ceases to operate; (c) if the period prescribed in the employment contract has expired’.

114 (a) (b) (c) (d)

General principles and equal treatment access to employment, protection against dismissal and occupational reintegration; vocational guidance, training, retraining and rehabilitation; terms of employment and working conditions, including remuneration; career development, including promotion.

The Appendix states, however, in relation to Article 20: 1. It is understood that social security matters, as well as other provisions relating to unemployment benefit, old age benefit and survivor’s benefit, may be excluded from the scope of this article. 2. Provisions concerning the protection of women, particularly as regards pregnancy, confinement and the post-natal period, shall not be deemed to be discrimination as referred to in this article. 3. This article shall not prevent the adoption of specific measures aimed at removing de facto inequalities. 4. Occupational activities which, by reason of their nature or the context in which they are carried out, can be entrusted only to persons of a particular sex may be excluded from the scope of this article or some of its provisions. This provision is not to be interpreted as requiring the Parties to embody in laws or regulations a list of occupations which, by reason of their nature or the context in which they are carried out, may be reserved to persons of a particular sex. Article 23:The right of elderly persons to social protection With a view to ensuring the effective exercise of the right of elderly persons to social protection, the Parties undertake to adopt or encourage, either directly or in co-operation with public or private organizations, appropriate measures designed in particular: • to enable elderly persons to remain full members of society for as long as possible,82 by means of (a) adequate resources enabling them to lead a decent life and play an active part in public, social and cultural life; (b) provision of information about services and facilities available for elderly persons and their opportunities to make use of them; • to enable elderly persons to choose their life-style freely and to lead independent lives in their familiar surroundings for as long as they wish and are able by means of; (a) provision of housing suited to their needs and their state of health or of adequate support for adapting their housing; (b) the healthcare and the services necessitated by their state; • to guarantee elderly persons living in institutions appropriate support, while respecting their privacy, and participation in decisions concerning living conditions in the institution.

82 The Appendix states that the term ‘for as long as possible’ here refers to the elderly person’s physical, psychological, and intellectual capacities.

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Article 26:The right to dignity at work With a view to ensuring the effective exercise of the right of all workers to protection of their dignity at work, the Parties undertake, in consultation with employers’ and workers’ organizations: 1. to promote awareness, information and prevention of sexual harassment in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct; 2. to promote awareness, information and prevention of recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct.83 Article 27: The right of workers with family responsibilities to equal opportunities and equal treatment With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers, the Parties undertake: 1. to take appropriate measures: (a) to enable workers with family responsibilities to enter and remain in employment, as well as to re-enter employment after an absence due to those responsibilities, including measures in the field of vocational guidance and training; (b) to take account of their needs in terms and conditions of employment and social security; (c) to develop or promote services, public or private, in particular child day-care services and other childcare arrangements; 2. to provide a possibility for either parent to obtain, during a period after maternity leave, parental leave to take care of a child, the duration and conditions of which should be determined by national legislation, collective agreements or practice; 3. to ensure that family responsibilities shall not, as such, constitute a valid reason for termination of employment.84

Article E provides that: The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.

This wording is very similar to that used in Article 14 of the ECHR85 and the Appendix adds, in line with the jurisprudence of the European Court of Human 83 The Appendix further provides that this Article does not require the enactment of legislation and that para 2 does not cover sexual harassment. 84 The Appendix states: ‘It is understood that this article applies to men and women workers with family responsibilities in relation to their dependent children as well as in relation to other members of their immediate family who clearly need their care or support where such responsibilities restrict their possibilities of preparing for, entering, participating in or advancing in economic activity. The terms “dependent children” and “other members of their immediate family who clearly need their care and support” mean persons defined as such by the national legislation of the Party concerned.’ 85 But note the addition of health and the subtraction of property.

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Rights discussed at p 107, that ‘differential treatment based on an objective and reasonable justification shall not be deemed discriminatory’.

The Community Social Charter86 The European Community Charter on the Fundamental Social Rights of Workers was signed in December 1989 by all of the then 12 Member States except the UK.87 It is a formal, hortatory declaration.88 Although without binding legal force many of its objectives were capable of being implemented by either specific or general legislative powers granted under the Treaties. Many of the provisions of the Charter echoed initiatives taken previously which had failed to be adopted, prompting the observation: But is also transparently the case that the Social Charter taken as a whole resurrects much of the Commission’s past agenda and stalled directives. It is, then, less of a new departure than a reflection of the Commission’s long held commitment to social justice.89

Article 28 of the Charter invited the Commission to submit proposals for the implementation of the rights set out therein. The Commission responded with alacrity and produced by the end of November 1989, ten days before the Charter itself was formally adopted, an Action Programme containing some 47 proposals for the adoption of various kinds of measures. The Charter addresses a number of fundamental rights under four broad headings. Although its title refers to the ‘Fundamental Social Rights of Workers’ some of its provisions extended beyond the workforce, to the wider community, for example to the disabled and the elderly. The eighth recital of its Preamble refers to the importance of combating every form of discrimination, ‘including discrimination on grounds of sex, colour,90 race, opinions and beliefs’. It contains three Articles specifically targeted at the types of discrimination examined in the present work: Article 16: Equal treatment for men and women Equal treatment for men and women must be assured. Equal opportunities for men and women must be developed. 86 See further Bercusson, ‘The European Community’s Charter of Fundamental Social Rights for Workers’ (1990) 53 MLR 624; Hepple,‘The Implementation of the Community Charter of Fundamental Social Rights’ (1990) 53 MLR 643; Watson, ‘The Community Social Charter’ (1991) 28 CMLRev 37. 87 The Charter on the Fundamental Social Rights of Workers provided the basis for the Maastricht Social Chapter. As discussed in ch 1, when Labour came into office in the UK in 1997, it reversed Britain’s opt-out from the Social Chapter and the Charter was given general legal recognition by the Treaty of Amsterdam. 88 See ch 2 for discussion of the requirement to interpret domestic legislation in the light of even non-binding EU instruments, so-called ‘soft law’. 89 Addison and Siebert, ‘The Social Charter of the European Community: Evolution and Controversies’ (1991) 44 Industrial and Labor Relations Review 597, at 615. 90 Note the use of the word ‘colour’ here; it is omitted from the grounds stipulated by the Race Directive although, as noted in ch 1, colour is frequently at the root of racial discrimination.

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To this end, action must be intensified to ensure the implementation of the principle of equality between men and women as regards in particular access to employment, remuneration, working conditions, social protection, education, vocational training and career development. Measures should also be developed enabling men and women to reconcile their occupational and family obligations. Articles 24 and 25: Elderly persons91 24. Every worker of the European Community must, at the time of retirement, be able to enjoy resources affording him or her a decent standard of living. 25. Every person who has reached retirement age but who is not entitled to a pension or who does not have other means of subsistence, must be entitled to sufficient resources and to medical and social assistance specifically suited to his needs. Article 26: Disabled persons All disabled persons, whatever the origin and nature of their disablement, must be entitled to additional concrete measures aimed at improving their social and professional integration. These measures must concern, in particular, according to the capacities of the beneficiaries, vocational training, ergonomics, accessibility, mobility, means of transport and housing.

The Charter of Fundamental Rights The Charter of Fundamental Rights92 was ‘solemnly proclaimed’ by the European Parliament, Council of Ministers, and the European Commission on 7 December 2000.93 It was formally adopted by the Member States on December 2007. The rights in the Charter are set out under six headings. A seventh heading, Title VII, sets out a number of horizontal provisions governing the interpretation and application of the rights, freedoms, and principles set out in the Charter. The Charter opens with a Preamble which reaffirms the value of the Union and its fundamental principles and aims. It indicates that the Charter does not seek to establish any new rights but to make more visible existing Union law rights: [The Union] ...seeks to promote balanced and sustainable development and ensures free movement of persons, services, goods and capital, and the freedom of establishment. To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter.94

The Preamble refers expressly to equality95 and to respect for ‘the diversity of the cultures and traditions of the peoples of Europe’.96 It contains a number of 91

Arts 20–23 also contain provisions protecting children and adolescents in the workplace. See further Anderson and Murphy, ‘The Charter of Fundamental Rights’, in Biondi, Eeckhout and Ripley (eds), EU Law after Lisbon (Oxford University Press, Oxford, 2012), ch 7; Craig, The Lisbon Treaty: Law Politics and Treaty Reform (Oxford University Press, Oxford, 2010), ch 6. 93 94 OJ [2000] C364/1. Recitals 3 and 4 of the Preamble. 95 96 In recital 2. In recital 3. 92

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provisions directly relevant to the principles of equality and non-discrimination.97 Article 10 guarantees freedom of thought, conscience, and religion: 1. Everyone has the right to freedom of thought, conscience and religion.This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. 2. The right to conscientious objection is recognized, in accordance with the national laws governing the exercise of this right.98

Title III of the Charter is devoted to ‘Equality’: Article 20: Equality before the law Everyone is equal before the law. Article 21: Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour,99 ethnic or social origin, genetic features, language, religion or belief, political or other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.100 2. Within the scope of application of the Constitution, and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.101 Article 22:Cultural, religious and linguistic diversity The Union shall respect cultural, religious and linguistic diversity. Article 23: Equality between women and men Equality between women and men must be ensured in all areas, including employment, work and pay.102 The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.103

97 For the view that most of the social rights and freedoms guaranteed in the Charter have either already been recognized by the CJEU or are mentioned in existing EU legal documents, see Lenaerts and Foubert, ‘Social Rights in the Case-Law of the European Court of Justice’ (2001-02) 28 LIEI 267. 98 Cf ECHR, Art 9 which does not deal expressly with conscientious objection but does contain a paragraph permitting limitations prescribed by law and necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. 99 Once again, the inclusion of ‘colour’ in this provision is noteworthy. 100 The ambit of this prohibition is noteworthy because, unlike the anti-discrimination directives, it apparently extends to discrimination over any matter within the scope of EU law, and it also includes a number of grounds not expressly covered by those instruments. 101 This formulation appears to preserve the distinction between the rights of EU citizens and those of third-country nationals and, unfortunately, to sanction covert racial discrimination in the guise of nationality discrimination, as discussed in relation to the Race Directive, in ch 9. See also Mclnerney, ‘The Charter of Fundamental Rights of the European Union and the Case of Race Discrimination’ (2002) 27 ELRev 483. 102 Once again, it is to be noted that this provision mandates sex equality ‘in all areas’, not merely in those areas dealt with by the existing directives. 103 This provision appears to permit positive action undertaken by the EU institutions, as well as by Member States. Cf the provisions discussed in ch 9 which deal only with action by the Member States.

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Article 24:The rights of the child 1. Children shall have the right to such protection and care as is necessary for their wellbeing. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. Article 25:The rights of the elderly The Union recognizes and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life. Article 26: Integration of persons with disabilities The Union recognizes and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.

In addition, Article 33 is concerned with family and professional life: 1. The family shall enjoy legal, economic and social protection. 2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity104 and the right to paid maternity leave and to parental leave following the birth or adoption of a child.105

Article 6(1) of the TEU was amended at Lisbon to accord the Charter Treaty status: The Union shall recognize the rights, freedoms and principles set out in the Charter of Fundamental rights of the European Union of 7 December 2000 as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

Although the Charter had no legal status until the entry into force of the Lisbon Treaty, it was referred to by the General Court106 and the CJEU107 in their judgments and relied upon by the legislature as an additional basis or ‘peg’ on which

104 This is noticeably broad in its reference to ‘maternity’ rather than ‘pregnancy’; it is doubtful whether it can be reconciled with a genuine right to equal treatment of the sexes, as proclaimed by Art 23. 105 Art 34 also recognizes entitlement to social security benefits and social services in relation, inter alia, to maternity and old age. 106 See Case T-177/01 Jégo-Quéré v Commission [2002] ECR II-2365. 107 See Case C-540/03 European Parliament v Council [2006] ECR I-5769, at paras 38 and 58; Case C-432/05 Unibet [2007] ECR I-2271, at para 37; Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union [2007] ECR I-10779, at paras 90 and 91; and Case C-275/06 Promusicae [2008] ECR I-271, at paras 61-5. Interestingly the European Court of Human Rights also referred to the Charter in Goodwin v United Kingdom (1996) 22 EHRR 123, at para 100, and in Bosphorus v Ireland (2006) 42 EHRR 1, at para 159.

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to hang measures,108 the result being that such measures had to be interpreted in accordance with its provisions.109 The Charter is accompanied by ‘explanations’ which clarify both the scope of Charter rights and their source.110 They have no legal status but are to be used as an interpretative tool. Article 6(1) of the TEU refers to the explanations and Article 52(7) of the Charter provides that they must be given ‘due regard’ by the courts of the Union and the Member States. The Charter is addressed to the Union’s own rule-makers and to the Member States when they are implementing111 EU law; in addition, the provisions of the Charter containing ‘principles’ are to be ‘judicially cognizable’ only in interpreting and ruling on the validity of implementing acts of the Union and the Member States.112 They do not appear, therefore, to create free-standing rights, even with respect to those potentially capable of taking direct effect. Neither does the Charter extend the field of application of EU law, establish any new power or task for the Union, or modify powers and tasks defined elsewhere in the Constitution.113 Moreover, rights recognized by the Charter for which provision is also made in the Treaties must be exercised under the conditions and within the limits defined by those Treaties.114 A number of the Charter’s provisions replicate those set out in the ECHR, although not always in identical terms; a further problem to be confronted by the CJEU will therefore be the extent to which a substantive divergence from the ECHR is intended, although in many instances it is clear that the change merely reflects modern circumstances. Article 52(3) provides that, insofar as the Charter contains rights which ‘correspond’ to those in the ECHR, their meaning and scope shall be identical. It adds that this is not to ‘prevent Union law providing more extensive protection’. Article 53 further circumscribes, in broad terms, the scope of the Charter: Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all of the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms and by the Member States’ constitutions.115

108 For example, The Goods and Services Directive (Directive 2004/113 [2004] OJ L373/37), as to which see chs 5 and 8. 109 Case C-236/09 Test-Achats [2011] ECR I-000, Opinion of Kokott AG, at para 28. 110 Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/02. 111 112 113 Art 51(1) of the Charter. Art 52(5) of the Charter. Art 51(2) of the Charter. 114 Art 52(2) of the Charter. 115 Case C-399/11 Melloni OJ [2011] C 282/5, a reference from the Spanish Constitutional Court on the meaning of this provision, asks whether Art 53 allows the constitution of a Member State to override Union law in the case of a Charter right in order to give a higher level of protection: ‘ ...does Article 53, interpreted systematically in conjunction with the rights recognized under Articles 47 and 48 of the Charter, allow a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the requesting State, thus affording those rights a greater level of protection than that deriving from European Union law, in order to avoid an interpretation which

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An important outstanding question is whether the Charter takes horizontal effect. This matter was addressed by Trstenjak AG in Dominguez v CICOA,116 a case which concerned the French legislation implementing the Working Time Directive.117 The referring national court did not allude to the Charter in its order of reference but the Advocate General considered the implications of its Article 31(2) in the context of whether a national court could rely on it in a dispute between private individuals to set aside national legislation in breach of EU law, where that national legislation could not be interpreted in conformity with the Directive. Article 31(2) provides that: Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

Having concluded that the wording of this provision was indicative of a ‘fundamental right’, the Advocate General then went on to consider whether horizontal effect could be attributed to it. She concluded that it could not. Although at first sight Article 31 could ‘induce the belief that horizontal effect is to be attributed to it’, Articles 51(1) and 52(2) ruled this out: [T]hese provisions indicate an intentional restricting of the parties to whom fundamental rights are addressed, which again sheds light on the mode of protection of fundamental rights sought by the legislature of the European Union.118

Since Articles 51(1) and 52(2) are addressed to Union rule-makers and to the Member States: [T]here could only be contravention of the guarantee element of Article 31 of the Charter if the European Union or the Member States do not afford their officials fair and reasonable working conditions or if they do not adopt rules safeguarding the rights stated in Article 31 of the Charter even though they have the competence to do so. These provisions therefore grant individuals a subjective right that primarily consists of a duty on the European Union and its Member States to provide them with protection.119

Individuals, the Advocate General concluded, have a ‘subjective right’ which consists of a duty on the part of the European Union and its Member States in the course of implementing Union law to provide them with protection. Private individuals are not directly bound by Article 31 of the Charter. They can therefore ‘at best be bound indirectly by rules implementing the duty of protection’.120 The CJEU did not deal with the issue of the horizontal effect of the Charter, but disposed of the case on other grounds. In a subsequent reference to the CJEU, restricts or adversely affects a fundamental right recognized by the Constitution of the first-mentioned Member State?’ 116 118 119 120

117 Case C-282/10 [2012] ECR I-000. Directive 2003/88, OJ [2003] L299/9. Case C-282/10 [2012] ECR I-000, at para 80 of the AG’s Opinion. Case C-282/10 [2012] ECR I-000, at para 81. Case C-282/10 [2012] ECR I-000, at para 83.

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the Landesarbeitsgericht Berlin-Brandenburg has raised the status of Article 31(2). However, this case is pending before the Court at the time of writing.121 A further question arises as to whether the Charter can be seen as a source of general principles or indeed whether the general principles can be seen as being embodied in the Charter and thus subsumed by it. Bot AG in Kücükdeveci v Swedex GmbH122 derived support for the prohibition of age discrimination as a general principle of Union law from both what is now Article 19 of the TFEU (then Article 13 EC) and Article 21(1) of the Charter but he did not go so far as to find that the general principle derived from Article 21(1). Dougan, writing on the Mangold judgment in 2011,123 remarks: Since the Charter purported merely to codify those basic rights and principles which already existed under the Union legal order, the Court would therefore have been entitled to treat the Charter as an authoritative reference point for the elucidation of its own general principles of law. On that basis the ECJ in Mangold could have saved itself much trouble simply by referring to the Charter as a sound basis for recognizing the prohibition on age discrimination constitutes a general principle of Union law.124

Later, Dougan speculates on what is now the proper legal basis for the prohibition on age discrimination, putting forward three alternatives: [W]hat does the court now consider to be the proper legal basis for the prohibition of age discrimination as a matter of primary Union law? It might be that the source will continue to be the Court’s own general principles of Union law, with the Charter being referred to in Kücükdeveci only as a useful prop for the previously scant reasoning in Mangold; it might be that the newly incorporated principles of Charter will in the future entirely displace the general principles of Union law as the primary reference point for further developing the Mangold jurisprudence; or it might be that the case law develops through some more complex combination of the general principles and the Charter.125

Only time will tell how the Court will develop its approach to general principles. A further question is the extent to which the reasoning in Mangold can be extended to the other grounds of discrimination which figure in the Framework Directive (religion or belief, disability, and sexual orientation) and indeed those figuring in the Race Directive. Arguably there are general principles prohibiting discrimination on all of those grounds too. Mazak AG in Palicios de la Villa126 appeared to be of that view: 121 Case C-317/11 Reimann. See Ladenburger, ‘European Union Institutional Report’, in Laffranque (ed), The Protection of Fundamental Rights Post Lisbon: The Interaction between the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and National Constitutions. Reports of the XXV FIDE Congress (Tartu University Press, Estonia 2012). 122 Case 555/07 [2010] ECR I-365. 123 Dougan, ‘In Defence of Mangold? In A Constitutional Order of States?’, in Arnull, Barnard, Dougan and Spaventa (eds), Essays in EU Law in Honour of Alan Dashwood (Hart Publishing, Oxford, 2011), 124 219. Dougan, ‘In Defence of Mangold? In A Constitutional Order of States?’, at 221. 125 Dougan, ‘In Defence of Mangold? In A Constitutional Order of States?’, at 223. 126 Case C-411/05 [2007] ECR I-8531 Opinion, at para 96. See also Schiek, ‘The ECJ Decision in Mangold A Further Twist on Effects of Directives and Constitutional Relevance of Community Equality Legislation’ (2006) 35 ILJ 329, at 339.

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It should be added that if the reasoning in Mangold were followed to its logical conclusion, not only prohibition on grounds of age, but all specific prohibitions of the types of discrimination referred to in Article 1 of Directive 2000/78 would have to be regarded as general principles of Community law.127

The substantive content of the general principles relevant to this work (i) A general principle of non-discrimination on the ground of age? The proceedings in Mangold v Helm128 arose in the context of the Framework Agreement on Fixed-term Employees129 and the Framework Directive.130 The Framework Agreement on Fixed-term Employees was transposed into German law by the law on Part-Time Working and Fixed Term Contracts of 21 December 2000 (hereinafter ‘the TzBfG’). It entered into force on 1 January 2001. Paragraph 14 of the TzBfG provided that fixed-term employment contracts could be concluded if there were objective reasons for doing so. A non-exhaustive list of such objective reasons was set out, which included situations where operational manpower requirements were only temporary, where the personal circumstances of the employee were involved, or where the particular nature of the work justified the fixed term. The duration of a fixed-term employment contract could be no longer than two years and, within that period, a contract could be renewed no more than three times. Fixed-term employment contracts were also prohibited in the case of a previous employment relationship of a fixed or indefinite duration with the same employer. However, according to paragraph 14(3) of the TzBfG, in the case of a worker aged 58 or above, the conclusion of a fixed-term contract did not require objective justification. By a law of 23 December 2002, that age limit was reduced to 52 years until 31 December 2006. The purpose of the legislation was accepted as being ‘to promote the vocational integration of unemployed older workers, in so far as they encounter considerable difficulties in finding work’.131 Mr Mangold, who at the relevant time was 56 years old, concluded a contract of employment with Mr Helm in 2003 which covered the period 1 July 2003 to 1 February 2004. The limited duration of this contract was justified by reference to paragraph 14(3) of the TzBfG. Mr Mangold brought proceedings contesting the validity of this paragraph in the light both of the Framework Agreement on Fixed-term Employees and the Framework Directive. As discussed in chapters 6 and 9, although the Framework Directive generally forbids age discrimination in 127 128 129 130 131

Case C-411/05 [2007] ECR I-8531 Opinion, at para 96. Case C-144/04 [2005] ECR I-9981, also discussed in chs 2, 6, and 9. Directive 99/70 [1999] OJ L175/3, discussed in ch 6. Directive 2000/78 [2000] L303/16, also discussed in ch 6. [2005] ECR I-9981, at para 39.

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the workplace, Article 6(1) permits some differences of treatment on the ground of age where they are objectively and reasonably justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary. The questions referred to the CJEU sought in essence to ascertain whether Article 6(1) must be interpreted as precluding a provision of domestic law which authorizes the conclusion of fixed-term contracts of employment once the worker has reached the age of 52 years. The Court found that paragraph 14(3) of the TzBfG, by permitting employers to conclude without restriction fixed-term contracts of employment with workers over the age of 52, introduced a difference of treatment on the ground of age. It further found that the aim of the legislation could potentially be considered to be ‘objectively and reasonably’ justified within the meaning of Article 6(1) of the Framework Directive but concluded that it went beyond what was appropriate and necessary in order to attain the objective pursued. The next issue was therefore the impact of that finding on the national legislation which was adopted prior to the period prescribed for the transposition into domestic law of the Framework Directive; Article 18 of that Directive required it to be transposed into national law by 2 December 2003 but Member States were allowed an additional period of three years, that is until 2 December 2006, to implement the provisions relating to age and disability. If Member States chose to avail themselves of this additional period they had to inform the Commission and to report annually to it on the progress they were making towards implementation. Germany requested the additional three-year period for implementation. When the employment contract between Mr Helm and Mr Mangold was concluded this period had not yet expired. Could therefore the German legislation, as it stood at the time the contract was entered into, apply to it or did it have to be set aside by the national court since the CJEU had found it to be contrary to the Directive? The Court held: [I]t is the responsibility of the national court, hearing a dispute involving the principle of non-discrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective, setting aside any provision of national law which may conflict with that law (see, to that effect, Case 106/77 Simmenthal [1978] ECR 629, paragraph 21, and Case C-347/96 Solred [1998] ECR I-937, paragraph 30).132

It advanced two reasons for reaching this conclusion. First, relying on its previous case law, it held that during the period prescribed for the transposition of a directive, the Member States must refrain from taking any measures ‘liable seriously to compromise the attainment of the result prescribed by that directive’.133 It is irrelevant whether or not the rule of domestic law in question is concerned with the 132 133

ch 2.

[2005] ECR I-9981, at para 77. Case C-126/96 Inter-Environnement Wallonie [1997] ECR I-7411, at para 45, also discussed in

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transposition of the directive in question.134 Furthermore Article 18 of the Framework Directive implies that, where a Member State is given an extended period for transposition, it is expected to take progressive, concrete steps to ensure that its legislation is brought into conformity with the directive. This obligation would be rendered redundant if the Member State were permitted to adopt measures during the implementation period which were incompatible with the objectives pursued by the directive. Second, the Court held that non-discrimination on the ground of age is a general principle of law whose application was not dependent on the expiry of an implementation period laid down in a directive: In the second place and above all, Directive 2000/78 does not itself lay down the principle of equal treatment in the field of employment and occupation. Indeed, in accordance with Article 1 thereof, the sole purpose of the directive is ‘to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation’, the source of the actual principle underlying the prohibition of those forms of discrimination being found, as is clear from the third and fourth recitals in the preamble to the directive, in various international instruments and in the constitutional traditions common to the Member States.The principle of non-discrimination on the grounds of age must thus be regarded as a general principle of Community law.135

The Court concluded: Community law and, more particularly, Article 6(1) of Directive 2000/78, must be interpreted as precluding a provision of domestic law such as that at issue in the main proceedings which authorizes, without restriction, unless there is a close connection with an earlier contract of employment of indefinite duration concluded with the same employer, the conclusion of fixed-term contracts of employment once the worker has reached the age of 52. It is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive has not yet expired.136

These pronouncements were greeted within the legal community with incredulity, not least because of their implications for the Union legal order.137 Criticism of the judgment takes two principal forms: first, it queries the existence of the alleged general principle of non-discrimination on the ground of age within the Union legal order and, second, it questions the impact of the ruling on the traditional doctrine, discussed in chapter 2, of the non-horizontal direct effect of directives.

134

Case C-14/02 ATRAL [2003] ECR I-4431, at paras 59 and 68. 136 [2005] ECR I-9981, at paras 74–5. [2005] ECR I-9981, at para 78. 137 Editorial Comments, ‘Horizontal Direct effect—A Law of diminishing Coherence?’ (2006) 43 CMLRev 1; Masson and Micheau, ‘The Werner Mangold Case: An Example of Legal Militancy’ (2007) 13 European Public Law 587; Muir, ‘Enhancing the Effects of Community law on national employment Policy: the Mangold case’ (2000) 31 ELRev 879; Editorial Comment Arnull, ‘Out with the old ...’ (2006) 31 ELRev 1; Dashwood, ‘From Van Duyn to Mangold via Marshall: Reducing Direct Effect to Absurdity?’ (2006–07) 9 Cambridge Yearbook of European Law 81. 135

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Dealing first with the existence of the general principle of non-discrimination on the ground of age, Sharpston AG stated in Lindorfer138 that it was reasonable to read Mangold as referring to a general principle of equality: ...the reference must surely be to the general principle of equality. The specific prohibition of age discrimination, in both national and international contexts, is too recent and uneven to meet such a description.The right to equality before the law however, which may be seen as the ultimate source, is fundamental to the legal systems of the Member States.139

Some months later, Mazak AG referred in Palacios de la Villa140 to the various constitutional traditions and legal instruments on which the Court relied in Mangold for its conclusions as to the existence of a general principle in relation to age and concluded: In that regard it may be noted that, indeed, various international instruments and constitutional traditions common to the Member States to which the Court refers in Mangold enshrine the general principle of equal treatment, but not—except in a few cases such as the Finnish constitution—the specific principle of non-discrimination on grounds of age as such.141

These two Advocates General thus found that the Court’s conclusion as to the existence of a general principle of non-discrimination specifically on the ground of age was not borne out by the instruments upon which that conclusion was based. Bot AG in Kücükdeveci v Swedex GmbH142 appeared to agree with his fellow Advocates General that the Court’s basis for its finding in Mangold that the prohibition on age discrimination was a general principle of EU law was not satisfactory; however, he went on to conclude that that alone did not mean that such a principle did not exist. The problem in Mangold, in his view, was not the Court’s actual conclusion but the means by which it had reached that conclusion. Had it pointed to the inclusion of age in Article 19(1) of the TFEU and to the establishment of the prohibition of age discrimination as a fundamental right by Article 21(1) of the Charter of Fundamental Rights, its reasoning would have been ‘more convincing’; instead it was based ‘merely on the international instruments and constitutional traditions common to the Member States, the majority of which do not recognize a specific principle prohibiting age discrimination’.143 However, simply because age discrimination is not prohibited in specific instruments, be they national or international, does not mean to say that a general principle cannot be found to exist within the legal systems of the Member States: I think it is important ...to emphasize that, by proclaiming that such a general principle of Community law exists, the Court is in accord with the wish expressed by the Member States 138 139 140 141 143

Case C-227/04 [2007] ECR I-6767. Case C-227/04 [2007] ECR I-6767, at para 55 of the Opinion. Case C-411/05 [2007] ECR I-8531, also discussed in ch 9. 142 Case C-411/05 [2007] ECR I-8531, at para 88. Case C-555/07 [2010] ECR I-365. Case C-555/07 [2010] ECR I-365, at para 77.

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and the Community institutions to counteract age discrimination effectively. From that point of view, it is not surprising that the prohibition of age discrimination, as a specific expression of the general principle of equal treatment and non-discrimination and as a fundamental right, should enjoy the eminent status of a general principle of Community law.144

Looked at in this way, the Court’s reliance on its chosen sources for its finding that non-discrimination on the ground of age is a general principle of EU law may be regarded as regrettably inadequate but that does not fatally undermine its conclusion that such a principle does in fact exist. The Court has since confirmed its view that there is, within the Union legal order, a principle of non-discrimination on the ground of age. In Kücükdeveci v Swedex GmbH145 it held: [T]he Court has acknowledged the existence of the principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law (see, to that effect, Mangold, paragraph 75). Directive 2000/78 gives specific expression to that principle (see, by analogy, Case 43/75 Defrenne [1976] ECR 455, paragraph 54).146

It thereafter followed this ruling in Prigge et al v Deutsche Lufthansa AG.147 Both Kücükdeveci and Prigge were decided after the entry into force of the Lisbon Treaty, which, as discussed above, gave the Charter of Fundamental Rights the status of primary law, and the Court additionally noted that: Article 6(1) TEU provides that the Charter of Fundamental Rights of the European Union is to have the same legal value as the Treaties. Under Article 21(1) of the Charter, ‘[a]ny discrimination based on ...age ...shall be prohibited’.148

Turning to consideration of the second tranche of criticisms levelled against the Mangold judgment, namely its possible wider implications for the Union legal order, these were summarized by Sharpston AG in Bartsch v Bosch:149 Mangold has attracted a certain amount of academic criticism.The general theme of the criticism is that the Court (of its own volition, without good reason and against the wishes of the legislature) extended the scope of the directive to give it effect before the end of the transitional period and in horizontal circumstances, by making an innovative reference to a general principle of Community law. Consequently, a number of commentators have expressed the opinion that the Court has undermined the purpose of direct effect. Furthermore the ruling is criticized for having produced a situation of considerable legal uncertainty.150

There are thus a number of concerns which arise out of Mangold but probably the most important is that it appears to drive a coach and horses through the traditional understanding of the purpose and legal characteristics of directives. In other words, 144 145 147 149 150

Case C-555/07 [2010] ECR I-365, also at para 77. 146 Case C-555/07 [2010] ECR I-365. Case C-555/07 [2010] ECR I-365, at para 21. 148 Case C-447/09 [2011] ECR I-000. [2010] ECR I-365, at para 22. Case C-427/06 [2008] ECR I-7245, also discussed in ch 9. Case C-427/06 [2008] ECR I-7245, at para 31 of the Opinion.

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it seems to allow a private individual to rely directly on a general principle as a source of his or her legal rights and thus to by-pass the provisions of the Framework Directive; in addition, that individual appears by this means to be enabled to invoke those rights horizontally, as against another private individual.151 This is certainly a possible interpretation of Mangold and it might be described as the more controversial view of the judgment. If it proves to be correct, it will raise a number of difficult issues which the Court will have to confront. For example, it calls into question the Court’s insistence that a directive cannot take horizontal direct effect; if the equality directives are all underscored by a directly effective general principle of equality, then why has the Court chosen to refuse a remedy to a litigant as against a private employer?152 Further, if the general principle of equality on the ground of age is a directly enforceable right in the hands of an individual, why was it necessary to enact the Framework Directive at all? And if, as the Court asserts, the Framework Directive merely spells out the detail of the general principle of non-discrimination on the ground of age, are the exceptions contained in that directive to be implied into the general principle? If not, are those exceptions invalid because they conflict with the general principle? However, there is also a more conventional explanation of the decision in Mangold. The legal basis of the dispute between the two parties in Mangold is sometimes misdescribed; it is said that Mr Mangold sought to rely on the directive to assert discriminatory conduct on the part of his employer.153 To be more precise, his argument was, as seen above, that paragraph 14(3) of TzBfG was contrary to Article 6(1) of the Framework Directive. Faced with an argument about the propriety of Germany’s implementation of the directive, the Court reviewed the Member State’s actions in the light of the general principles, one of which it found to be non-discrimination on the ground of age. In doing this, it was merely following the principles discussed above which it had developed in its earlier case law regarding the obligations of the Member States when implementing their EU obligations.154 Viewed in this way, Mangold does not undermine the general status of directives within the Union legal order. The principle of non-discrimination on the ground of age was not used to oust a directive but rather to fulfil the traditional function 151 In the words of the Editor in ‘Horizontal direct effect—A law of diminishing coherence’ (2006) 43 CMLRev 1, ‘The Court of Justice assumed, without a shred of supporting argumentation, that general principles of law are capable of conferring substantive rights and imposing substantive obligations in legal relations between individuals’. 152 As, eg, in Case 152/84 Marshall v Southampton and South West Hampshire Area Health Authority [1986] ECR 737, discussed in chs 2 and 6. As seen in ch 2, the CJEU has been at pains to escape from the strait-jacket of its view that directives cannot take horizontal direct effect; it has to be conceded that it is in the process of developing its mitigating strategies and that its existing case law in the area is hard (perhaps impossible) to reconcile. 153 See, eg, the Opinion of Trstenjak AG in Case C-80/06 Carp Snc di L Moleri e V Corsi v Ecorad Srl [2007] ECR I-4473, at para 67: ‘in its more recent case-law the Court applied a directive in the context of a horizontal relationship between two individuals most notably in Mangold’. 154 See in particular the Opinion of Sharpston AG in Case C-427/06 Bartsch v Bosch [2008] ECR I-7245, at paras 70–7.

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of general principles as a tool for the review of Union law measures and measures taken by Member States when acting within the Union law. An analogy may be drawn with Test-Achats155 in which, as discussed in chapter 5, the Court reviewed the legality of a provision in a directive in the light of the general principle of sex equality. Furthermore, in Kücükdeveci v Swedex GmbH,156 another case in which reliance was placed on a provision of German law implementing the Framework Directive, Bot AG stated: I think the conclusions which the Court drew in Mangold ...are consistent with the caselaw it has progressively developed in regard to the general principle of equal treatment and non-discrimination. The Court has thus long considered that the general principle of equal treatment is one of the fundamental principles of Community law ... As a general principle of Community law, that principle performs several functions. It permits the Community judicature to fill gaps, which might appear in secondary legislation. It is also an instrument of interpretation capable of clarifying the meaning and scope of provisions of Community law and a means of reviewing the validity of Community acts ...If it appears in the light of that interpretation that national rules are contrary to Community law, the national court will have to disapply them in accordance with the primacy of Community law. The reasoning developed by the Court in Mangold takes account of the various developments resulting from its case-law in order to ensure the effectiveness of the general principle of equal treatment independently of the expiry of the time-limit for transposing Directive 2000/78. In my view, that reasoning is in accordance with the hierarchy of norms in the Community legal order.157

Trstenjak AG in Dominguez v CICOA158 appeared to be of the same view: It is acknowledged in the case-law of the Court that individuals can rely on general principles in their relationships with the State. However the Court has not yet expressed an opinion on the basic question of whether fundamental rights as general principles are directly applicable at all in relationships between private individuals.159

She went on to state, in relation to Kücükdeveci v Swedex GmbH: With that ruling the Court expanded the principle of primacy of EU law over national law to cover so-called ‘horizontal relationships’. This approach conforms to earlier case-law on the absence of direct horizontal effect of directives in that the Court did not rule that Directive 2000/78 should apply to a relationship between private individuals but simply that the principle of non-discrimination on grounds of age was given expression therein, which—as already found in the Mangold case—constitutes a general principle of EU law as a specific application of the general principle of equal treatment. The approach followed by the Court in Kücükdeveci is essentially based on the idea that a general principle such as the principle of

155 157 158 159

156 Case C-236/09 [2011] ECR I-000. Case C-555/07 [2010] ECR I-365. Case C-555/07 [2010] ECR I-365, at paras 78–82 of the Opinion. Case C-282/10 [2012] ECR I-000. Case C-282/10 [2012] ECR I-000, at para 116 of the Opinion.

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non-discrimination on grounds of age has to be implemented consistently also at national level in the interests of individual legal protection and the effectiveness of EU law.160

It is important to note that neither in Mangold nor Kücükdeveci did the Court refer to direct effect at all, still less did it engage in any exercise to establish direct effectiveness. Moreover the Court confirmed its case law on horizontal direct effect,161 leading Muir to conclude: [N]either Mangold nor Kücükdeveci actually involve issues of direct effect; they merely illustrate the far reaching effects of the principle of primacy. The substantive rule applicable to the litigation after setting aside the national rule contravening EU law is not EU law itself but the relevant general rule of domestic labour law.162

(ii) Equal treatment The principle of equal treatment requires comparable situations to be treated equally and non-comparable situations not to be treated identically. It finds specific expression in a number of provisions of the TFEU, notably Articles 18, 19, and 157, as well as in secondary legislation such as the Recast Directive,163 the Race Directive,164 the Framework Directive,165 and the Social Security Directive.166 These provisions identify the grounds on which differentiation of treatment may not be based.They must be viewed against the backdrop of the general principle of equality of which they are a specific expression.167

(iii) Proportionality The principle of proportionality168 requires that a measure must be appropriate and necessary to achieve its objectives. It is usually engaged in the case of limitations of Union law rights. Restrictions, exceptions and derogations must be kept to a minimum: [I]n determining the scope of any derogation from an individual right such as the equal treatment of men and women provided for by the directive, the principle of proportionality, one of the general principles of law underlying the Community legal order, must be observed. That principle requires that derogations remain within the limits of what is appropriate and 160

Case C-282/10 [2012] ECR I-000, at para 146 of the Opinion (emphasis added). Case C555/07 [2010] ECR I 365 at para 46. Muir: ‘Of Ages In—and Edges of—EU law’ (2011) 48 CMLRev 39. 163 164 Directive 2006/54 [2006] OJ L204/23, at 54. Directive 2000/43 [2000] OJ L180/22. 165 166 Directive 2000/78 [2000] OJ L303/16. Directive 79/7 [1979] OJ L6/1. 167 See Cases 75 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, at paras 16–17; and Case 149/77 Defrenne v Sabena [1978] ECR 1365, at paras 26–17. 168 See Emiliou, The Principle of Proportionality in European Law (Kluwer,The Hague, 1996); De Búrca, ‘The Principle of Proportionality and its Application in EC Law’ (1993) 13 YEL 105; Ellis, The Principle of Proportionality in the Laws of Europe (Hart Publishing, Oxford, 1999). 161 162

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necessary for achieving the aim in view and requires the principle of equal treatment to be reconciled as far as possible with the requirements of public safety which constitute the decisive factor as regards the context of the activity in question.169

Establishing whether a measure limiting rights is proportionate is a three-step process. It must first be established that the measure in issue is suitable to achieve a legitimate aim,170 second that it is necessary to achieve that aim, third that there are no less restrictive means available to achieved the desired legal or policy objective. Article 5(4) of the TEU provides: Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

Protocol 2 to the TFEU, on the application of the principles of subsidiarity and proportionality, elaborates and reinforces this obligation. Examples of the application of the principle of proportionality can be found in the case law of the CJEU and some legislative instruments expressly require compliance with it. For example, the Race Directive provides in Article 4: Notwithstanding Article 2 (1) and (2) the Member States may provide that a difference in treatment which is based on a characteristic related to racial or ethnic origin shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or the context in which they are carried out, such characteristics constitute a genuine and determining occupational requirement, provided that that objective is legitimate and the requirement is proportionate.

Similarly, the Framework Directive provides in Article 6(1) that differences in treatment on the ground of age may not constitute discrimination if they are objectively and reasonably justified by a legitimate aim, which may include employment policy, the labour market and vocational training objectives, and if the means of attaining that aim are appropriate and necessary. Article 5 of the same directive specifies that an employer shall take appropriate measures to enable a person with disability to have access to, participate in, or to advance in employment or undergo training, unless such measures would place a disproportionate burden on that employer. This ensures a balance between the rights of the disabled person and his actual or potential employer.171

(iv) The general principle of non-discrimination on the ground of sex EU law has long subscribed to a general principle of non-discrimination, or consistency; it is essentially a rule of fairness and good administration. As already discussed, 169

Case 222/84 Johnston v RUC [1986] ECR 1651, at 38. See De Búrca, ‘The Principle of Proportionality and its Application in EC Law’ (1993) 13 YEL 105, at 113. In general this aim must be articulated and transparent. 171 These exceptions are discussed in ch 9. 170

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it may be expressed in broad terms as requiring like situations to be treated alike, and different situations to be treated differently, unless there is a good reason for not doing so.172 The general principle of non-discrimination has most often found application in relation to goods and their producers, and has its roots in former Article 34(2) of the TEC, now Article 40 of the TFEU, which prohibits discrimination between producers or consumers within the Community in relation to the common organization of agricultural markets.173 In this context, it is outwith the scope of the present work. However, the principle has also found precise expression in the field of sex discrimination.174 Thus, in Defrenne v Sabena,175 the CJEU held: The Court has repeatedly stated that respect for fundamental personal human rights is one of the general principles of Community law, the observance of which it has a duty to ensure. There can be no doubt that the elimination of discrimination based on sex forms part of those fundamental rights.176

In Deutsche Telekom v Schröder,177 it added that: [T]he economic aim pursued by Article 119 of the Treaty, namely the elimination of distortions of competition between undertakings established in different Member States, is secondary to the social aim pursued by the same provision, which constitutes the expression of a fundamental human right.178

This approach was moreover lent greater strength by the Amsterdam Treaty which, as seen elsewhere in the present work, considerably emphasized the importance of the principle of sex equality in a number of its provisions. 172 See further Tridimas, The General Principles of EC Law, 2nd edn (Oxford University Press, Oxford, 2006), ch 2, and Arnull, The General Principles of EEC Law and the Individual (St Martins Press, New York, 1990), ch 6. 173 In Case C-292/97 Karlsson [2000] ECR I-2737, the Court described Art 34(2) as ‘merely a specific expression of the general principle of equal treatment, which requires that comparable situations not be treated differently and different situations not be treated alike unless such treatment is objectively justified’ (at 2775). 174 See Docksey, ‘The Principle of Equality Between Women and Men as a Fundamental Right Under Community Law’ (1991) 20 ILJ 258. 175 Case 149/77 1978 ECR 1787, the so-called Third Defrenne case. 176 Case 149/77 1978 ECR 1365 , at 1378. See also Case C-13/94 P v S and Cornwall [1996] ECR I-2143. The CFI confirmed this position in Case T-45/90 Speybrouck v Parliament [1992] ECR II-33. In Case C-381/99 Brunnhofer v Bank der österreichischen Postsparkasse AG [2001] ECR I-4961 (at 4988), it described the principle of equal pay as a particular expression of the general principle of equality and as ‘part of the foundations of the Community’. 177 Case C-50/96 [2000] ECR I-743. 178 Case C-50/96 [2000] ECR I-743, at 794. See also Joined Cases C-270 & 271/97 Deutsche Post v Sievers and Shrage [2000] ECR I-929, commented on by Ellis in ‘The supremacy of Community pensions equality law: a two-edged sword?’ (2000) 25 ELRev 564. Cosmas AG, in his submissions in all these cases, said that, regardless of whether the economic objective truly reflected the intentions of the historical Community legislature, ‘it no longer corresponds to present-day thinking. In a community governed by the rule of law, which respects and safeguards human rights, the requirement of equal pay for men and women is founded mainly on the principles of human dignity and equality between men and women and on the precept of improving working conditions ...‘ ([2003] ECR I-743, at 769).

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The CJEU has relied on the principle of non-discrimination on the ground of sex both to quash discriminatory administrative decisions and to justify a broad interpretation for various pieces of EC legislation. In the words of Trabucchi AG in Defrenne v Sabena:179 [I]n interpreting Article 119, the Court cannot overlook the fact that the principle of equal treatment is enshrined in the legal systems of Member States, the majority of which have erected it into a principle formally underwritten by the constitution itself. In its judgment of 17 December 1970 in Case 11/70, Internationale Handelsgesellschaft, the Court stated that respect for fundamental human rights forms an integral part of the general principles of law and that the protection of such rights within the Community can and must be inspired by the constitutional traditions common to the Member States. In view of this it seems to me that the prohibition of all discrimination based on sex (particularly on the subject of pay) protects a right which must be regarded as fundamental in the Community legal order as it is elsewhere.180

He went on to add: Undoubtedly, action by the Member States and by the Community institutions in the form of legislation, regulations or administrative measures is essential for the reason that, if the principle of equal treatment were to apply only to pay in the strict sense of the word or to absolutely identical work, the practical effect of Article 119 would be rather small. This gives the Member States and the Community institutions enormous scope in taking action to put into effect the principle of non-discrimination laid down in Article 119 without having to rely on its direct applicability.181

A good example of the use of the principle of non-discrimination on the ground of sex to justify judicial review of administrative action came in Razzouk and Beydoun v Commission.182 The widower of a deceased Commission employee was refused a survivor’s pension by the Commission in circumstances in which, under the Staff Regulations, a surviving widow would have received such a pension. He argued that this treatment amounted either to the breach of a principle analogous to the then Article 141 of the TEC, now Article 157 of the TFEU, which applied to Union employees, or else to the breach of a general rule of EU law that employees should be treated equally in like or comparable situations. His claim was, in essence therefore, for the annulment of the Commission’s decision which had denied him the pension. Slynn AG commented that there was clearly discrimination between Union employees, and consequently between their spouses, on the ground of sex, since both male and female officials made the same pension contributions during their employment but stood to receive different benefits in the event of their predeceasing their spouses.This discrimination, he went on to say, could not be shown

179 181 182

180 Case 43/75 [1976] ECR 455. Case 43/75 [1976] ECR 455, at 490. Case 43/75 [1976] ECR 455, at 491. Cases 75 and 117/82 [1984] ECR 1509, also discussed in ch 5.

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to be justified on any objective ground,183 and he would have annulled it both on the ground that it offended against the general principle of non-discrimination and the narrower principle akin to Article 157. The Court agreed that the decision should be annulled, but based its decision wholly on the general principle of nondiscrimination, saying that the Staff Regulations were ‘contrary to a fundamental right and ...therefore inapplicable in so far as they treat the surviving spouses of officials unequally according to the sex of the person concerned’.184 Usher subsequently raised the fascinating question of whether this same principle could be used to challenge the Social Security Directive,185 which permits differential state pensionable ages for men and women; he points out that the Court has made no comment on this matter, though it has often interpreted the relevant provisions of the directive.186 The Razzouk and Beydoun case involved direct discrimination on the ground of sex. However, it has been clear since Sabbatini v European Parliament187 that the general principle of non-discrimination can also be useful when indirect discrimination is concerned. Ms Sabbatini was a Union employee who, before her marriage, had received an expatriation allowance to compensate for her having to live in a foreign country in order to work for the Communities. Once married, she ceased to be paid the allowance because of the Civil Service Regulations, which at the time provided: ‘An official loses entitlement to the allowance, if, marrying a person who, at the time of the marriage, does not fulfill the conditions required for the grant of that allowance, he (or she) does not become the head of the family’. Under the Regulations, the ‘head of the family’ was normally the husband, except in the event of his disability. Ms Sabbatini contested the decision stopping her allowance on the basis of Article 4(3), arguing that the decision was based on the Regulations, which were invalid because they breached the ‘higher’ rule prohibiting discrimination on the ground of sex. The discrimination alleged here was of course indirect, since both sexes were subjected to facially neutral treatment, but in reality that treatment disadvantaged women rather than men. Roemer AG submitted that the claim should be dismissed, in doing so denying that any general principle of nondiscrimination on the ground of sex existed in EU law.188 The Court, however, upheld the claim, saying: 183 By this, Slynn AG presumably meant that no other ‘cause’ for the differential treatment of male and female employees had been found. See discussion in ch 4 of the concept of discrimination. 184 [1984] ECR 1509, at 1530. 185 Directive 79/7, OJ [1979] L6/24, discussed in ch 10. Likewise also the Occupational Social Security Directive 86/378, OJ [1986] L225/40, discussed in ch 5, which contains a similar exemption in respect of the self-employed. 186 Usher, ‘European Community Equality Law: Legal Instruments and Judicial Remedies’, in McCrudden (ed), Women, Employment and European Equality Law (Eclipse Publications, London, 1987). See also the submissions of Van Gerven AG in Case C-9/91 R v Secretary of State for Social Security, ex parte EOC [1992] ECR I-4297, at 4324. 187 Case 20/71 [1972] ECR 345, also discussed in ch 5. 188 See in particular his remarks in Case 20/71 [1972] ECR 345, at 355.

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[I]t is ...clear that the provision the validity of which is contested does in fact create a difference of treatment as between male and female officials, in as much as it renders the retention of the expatriation allowance conditional upon the acquisition of the status of head of household within the meaning of the Staff Regulations. It is therefore necessary to examine whether this difference of treatment is such as to affect the validity of the contested provision of the Regulations. The purpose of the expatriation allowance is to compensate for the special expenses and disadvantages resulting from entry into the service of the Communities for those officials who—in the conditions more fully set out in detail in Article 4(1) of Annex VII [to the Regulations]—are thereby obliged to change their place of residence. Article 4, taken as a whole, indicates that the expatriation allowance is paid to married officials, not only in consideration of the personal situation of the recipient, but also of the family situation created by the marriage. Thus Article 4(3) takes into account the new family situation entered upon by the official when he or she marries a person who does not satisfy the conditions for the grant of the expatriation allowance. The withdrawal of the allowance following the marriage of the recipient might be justified in cases in which this change in the family situation is such as to bring to an end the state of ‘expatriation’ which is the justification for the benefit in question. In this respect, the Regulations cannot, however, treat officials differently according to whether they are male or female, since termination of the status of expatriate must be dependent for both male and female officials on uniform criteria, irrespective of sex. Consequently, by rendering the retention of the allowance subject to the acquisition of the status of ‘head of household’...the Staff Regulations have created an arbitrary difference of treatment between officials. Consequently the decisions taken with regard to the applicant are devoid of any legal basis and must be annulled ...189

A similar result was arrived at in Airola v Commission,190 where a woman Union employee ceased to be paid an expatriation allowance on her marriage to a national of the country in which she was employed; the local law concerned automatically and irrevocably granted her the husband’s nationality, which nationality, according to the Staff Regulations, disentitled her to the allowance. The Court upheld her claim to continued payment of the allowance, pointing out that the Regulations operated in a discriminatory fashion since under no national legislation in existence at the time in any of the Member States did a husband automatically acquire his wife’s nationality on marriage. It held: Though ‘expatriation’ is a subjective state conditioned by the official’s assimilation into new surroundings, the Staff Regulations of officials cannot treat officials differently in this respect according to whether they are of the male or female sex since, in either case, payment of the expatriation allowance must be determined by considerations which are uniform and disregard the difference in sex. The concept of ‘nationals’ contained in Article 4(a) must therefore be interpreted in such a way as to avoid any unwarranted difference of treatment as between male and female officials who are, in fact, placed in comparable situations. Such unwarranted difference of treatment between female officials and officials of the male sex would result from an interpretation of the concept of ‘nationals’...as also embracing the nationality which was imposed by law on an official of the female sex by virtue of her marriage, and which she 189

Case 20/71 [1972] ECR 345, at 350–1.

190

Case 21/74 [1975] ECR 221.

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was unable to renounce. It is therefore necessary to define the concept of an official’s present or previous nationality under Article 4(a) of Annex VII as excluding nationality imposed by law on a female official upon her marriage with a national of another state, when she has no possibility of renouncing it.191

However, the efficacy of the notion of indirect discrimination in the field of sex discrimination is, as has already been noted, heavily dependent on the sensitivity of the deciding court as to what is truly adverse to a greater number of women than men. The tenor of the CJEU’s remarks, although not its overall conclusion on the facts, in De Angelis v Commission192 suggested that it needed, at least in 1985, to be made more aware of the practical issues in this field. Ms De Angelis became an employee of the Commission in Brussels in December 1982. Although an Italian national, she had been living in Brussels since 1970, when she had gone there in order to accompany her husband, who at that earlier date had also become a Commission employee. She contested the Commission’s decision not to pay her an expatriation allowance. Her position was governed by Article 4(1)(a) of Annex VII to the Staff Regulations, providing: An expatriation allowance shall be paid ...(a) to officials: — who are not and never have been nationals of the state in whose territory the place where they are employed is situated, and — who during the five years ending six months before they entered the service did not habitually reside or carry on their main occupation within the European territory of that state. For the purposes of this provision, circumstances arising from work done for another state or for an international organization shall not be taken into account.

Until February 1982, the Commission had interpreted this provision benevolently, especially for the benefit of the spouses and children of Union officials who were themselves recruited by a Union institution. In practice, what this meant was that a period spent by a wife accompanying her husband to another Member State was not taken into account in relation to the expatriation allowance. However, this construction was abandoned after criticism by the Court of Auditors that it amounted to a rewriting of the Staff Regulations. Ms De Angelis argued that the denial of an expatriation allowance to her amounted to a breach of the principle of equal pay; the Commission’s new, restrictive interpretation of the Staff Regulations, she claimed, led to discrimination between male workers, who are free to carry on their occupation without delay, and female workers, who are ‘subject to social and cultural pressure to raise their children until they have reached school-age and must

191 Case 21/74 [1975] ECR 221, at 228–9. Cf Case 37/74 Van Den Broeck v Commission [1975] ECR 235, in which the Court rejected such a claim because the applicant in that case had the choice, under the local law concerned, of renouncing the nationality conferred on her by marriage. The Staff Regulations were subsequently retrospectively amended so as to reflect these rulings: Art 21(2) of Council Regulation 912/78 of 2 May 1978, OJ [1978] L119/1. See also Case 257/78 Devred v Commission [1979] ECR 3767, where the situation, though more complicated, was similar to that in Van 192 Den Broeck. Case 246/83 [1985] ECR 1253.

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therefore delay their careers by several years’.193 In so constructing her argument, Ms De Angelis would seem to have been misguided: there certainly may be indirect discrimination where an employer stipulates an age or time qualification for applicants for employment;194 however, there was no attempt made here to prove that age or time had stood in Ms De Angelis’s way.What she really appears to have been trying to argue is that, since wives accompany their husbands to the latter’s place of work more frequently than occurs vice versa, any employment stipulation which ignores that fact is potentially indirectly discriminatory. The case failed because the Court found, understandably in the circumstances, that discrimination had not been proved. However, both its remarks and those of the Advocate General had a disturbingly unperceptive quality. Darmon AG, for example, commented: No one has any intention of challenging the sociological and cultural factors relied upon by the applicant. However, neither the provision at issue nor the new application thereof can be criticized on the ground that they do not contribute towards mitigating the effects of those factors. Neither that provision nor the application thereof discriminate, either directly or indirectly, against employed women in the manner complained of by the applicant. The Staff Regulations must not contain any provisions which give rise to unequal treatment ...However, the provisions of the Staff Regulations cannot necessarily be expected to correct any pre-existing inequalities.195

This slavish commitment to the principle of formal equality of course disregarded the requirements of substantive equality which the concept of indirect discrimination is intended to facilitate.196 The Court’s remarks were hardly more encouraging: [N] either the wording of the provision in question nor the application thereof by the Commission provides the slightest indication of direct or indirect discrimination based on the sex of officials ...[T]he principle of equal treatment implies that both men and women must be afforded identical working conditions without discrimination but it cannot require the institution to interpret the provisions of the Staff Regulations in a different manner in order to offset any domestic or social expenses or obligations.197

It is vital to the efficacy of all the EU’s anti-discrimination laws that the Court should be made properly conscious of how and when indirect discrimination may occur; this is of special importance in relation to the new prohibited grounds of discrimination where the consequences of social and cultural practices may not yet be widely appreciated. As the concept of discrimination becomes more familiar to the population generally, it seems likely that the incidence of direct discrimination can be expected to decline. What people are less likely to be aware of are the ways in which indirect discrimination can take place, and it is on this level that the Court’s intervention is probably most needed. Fortunately, more recent cases display 193

In the words of Darmon AG, Case 246/83 [1985] ECR 1253, at 1257. See, eg, the British cases Price v Civil Service Commission [1977] IRLR 291, and Huppert v UGC 195 (1986) 8 EOR 38. [1985] ECR 1253, at 1257. 196 See further discussion in ch 4. 197 Case 246/83 [1985] ECR 1253, at 1264. See ch 4, at p 143 et seq. 194

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considerably more sensitivity on the part of the CJEU to the potential for indirect discrimination.198 An important instance was provided in Rinke v Ätztekammet Hamburg.199 Two directives intended to harmonize the training of doctors required a period of full-time training to be completed before a doctor could qualify as a general medical practitioner. Ms Rinke alleged that, on the usual principle200 since many more women than men have to work part-time, these instruments were unlawfully discriminatory. The CJEU accepted that there was prima facie indirect discrimination because of ‘the unequal division of domestic tasks between men and women’. However, it held that in pursuing the objectives of the free movement of doctors and a high general level of health protection, the Community legislation enjoyed a ‘wide margin of discretion’; on the facts it concluded that that discretion had not been exceeded. The adverse impact of the measures on part-time doctors was justified by the necessity for them to obtain professional relevant experience, in particular by following patients’ pathological conditions as they evolve over time. On a broader canvass, the case provided an important endorsement that sex equality is nevertheless a fundamental principle of EU law. After reiterating that the elimination of sex discrimination is a fundamental right respect for which is a condition for the legality of Community acts, it held: It follows that a provision of a directive adopted by the Council in disregard of the principle of equal treatment for men and women is vitiated by illegality. ...compliance with the prohibition of indirect discrimination on grounds of sex is a condition governing the legality of all measures adopted by the Community institutions.201

What, however, of the more proactive role perhaps accorded to general principles as a result of at least one possible reading of Mangold?202 Efforts to persuade the CJEU to regard the principle of non-discrimination on the ground of sex as a positive and enforceable right have not proved so successful as efforts to persuade it to exercise its powers of judicial review on this ground, although there can be little doubt that the Court’s frequent liberal interpretations of Article 157 and of the provisions of the Recast Directive are attributable in part to its desire to further the general principle of the equality of the sexes. However, this is an area where advances could still be made and much will depend on the way in which the Court chooses to develop the position which it took in Mangold. Its case law on the matter of sex discrimination is now of some antiquity and the time may be ripe for its evolution. This might, for sex discrimination as for age discrimination, reduce the negative impact of the rule that directives cannot take horizontal direct effect.203 The question also remains open of whether, were the Court to decide that the general principle of non-discrimination on the ground of sex constitutes a directly enforceable EU

198 See, eg, the remarks of the CJEU in Case C-243/95 Hill and Stapleton v Revenue Commissioners 199 [1998] ECR I-3739, discussed in ch 5. Case C-25/02 [2003] ECR I-8349. 200 201 Discussed in ch 4. Case C-25/02 [2003] ECR I-8349, at 8382. 202 203 See discussion at p 123 et seq. Discussed in ch 2.

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right, it would adopt the same view of non-discrimination on the other grounds currently stipulated in EU law. In Defrenne v Sabena204 it took a conventional stance.The redoubtable Ms Defrenne had brought an action before the Belgian courts claiming, inter alia, an increase in the allowance she received on the termination of her service with Sabena as her contract required when she reached the age of 40 (the airline was prepared to pay her a sum equal to 12 months’ pay), and compensation for the damage she suffered as regards her old-age pension in consequence of her enforced premature retirement. The Cour de Cassation sought a preliminary ruling from the CJEU, asking: Must Article 119 of the Treaty of Rome which lays down the principle that ‘men and women should receive equal pay for equal work’ be interpreted by reason of the dual economic and social aim of the Treaty as prescribing not only equal pay but also equal working conditions for men and women and, in particular, does the insertion into the contract of employment of an air hostess of a clause bringing the said contract to an end when she reaches the age of 40 years, it being established that no such limit is attached to the contract of male cabin attendants who are assumed to do the same work, constitute discrimination prohibited by the said Article 119 of the Treaty of Rome or by a principle of Community law if that clause may have pecuniary consequences, in particular, as regards the allowance on termination of service and pension?205

The CJEU held, first of all, that the old version of Article 157 (dealing expressly only with the principle of equal pay for equal work) did not extend to this situation. In so doing, it demonstrated that, despite the fact that it was prepared to interpret EU legislation broadly and teleologically, there were limits beyond which it would refuse to go. Ms Defrenne had argued that the Treaty Article must be given a wide interpretation because it was only a specific statement of the more general principle of non-discrimination. In particular, she claimed that her enforced retirement at the age of 40 fell within the scope of Article 157, first, because ‘a woman worker can receive pay equal to that received by men only if the requirement regarding equal conditions of employment is first satisfied’ and, secondly, because ‘the age limit imposed on air hostesses by the contract of employment has pecuniary consequences which are prejudicial as regards the allowance on termination of service and pension’. The Court rejected these arguments on the basis that the Treaty’s Social Provisions were divisible into those provisions requiring a harmonization of the laws of the Member States in relation to working conditions (today Articles 151 and 152 of the TFEU) and the more specific and prescriptive, of which Article 157 is an example.206 It implied that these two categories are mutually exclusive, and then went on to add, in somewhat sinister vein: [T]he fact that the fixing of certain conditions of employment—such as a special age-limit— may have pecuniary consequences is not sufficient to bring such conditions within the field

204 206

205 Case 149/77 [1978] 1365. Case 149/77 [1978] 1365, at 1367. See ch 1 for discussion of the origins of this distinction.

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of application of Article 119, which is based on the close connection which exists between the nature of the services provided and the amount of the remuneration.That is all the more so since the touchstone which forms the basis of Article 119—that is, the comparable nature of the services provided by workers of either sex—is a factor as regards which all workers are ex hypothesi on an equal footing, whereas in many respects an assessment of the other conditions of employment and working conditions involves factors connected with the sex of the workers, taking into account considerations affecting the special position of women in the work process.207

As to the allegation that a general principle of EC law was breached in this situation, and that that general principle was specifically enforceable, the Court had this to say: [A]s regards the relationships of employer and employee which are subject to national law, the Community had not, at the time of the events now before the Belgian court, assumed any responsibility for supervising and guaranteeing the observance of the principle of equality between men and women in working conditions other than remuneration.208

In other words, there was at the time of this action no enforceable EU law on working conditions to which the general principle of non-discrimination could be attached. This situation was of course reversed with the coming into force of the Equal Treatment Directive. It is further reinforced today by the enactment of the Charter of Fundamental Rights. In any event, it is important that the Court’s case law be developed so as to articulate the general principle of non-discrimination on the ground of sex clearly and to raise the consciousness of both judges and advocates to its presence in the background when any relevant legislation is being construed. One thing which would help this process would be a much clearer indication from the CJEU as to the precise scope of the principle. In the staff cases, of which the most numerous are those dealing with expatriation allowances,209 and in Defrenne v Sabena,210 although the principle is expressed in broad terms, in reality it boils down to little more in practice than the application of the principle of equal pay for equal work211 and, since this is guaranteed anyway by Article 157, the Court is only in effect holding that the Staff Regulations infringe the Treaty itself. Nevertheless, as seen above, the Court on several occasions has referred to the principle of equal treatment,212 and implied that it sees pay equality merely as an example of this grander principle.213 207 [1978] ECR 1365, at 1377. In later decisions, particularly Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, discussed in chs 5 and 6, the Court has considerably 208 eroded this distinction. [1978] ECR 1365, at 1378. 209 See generally O’Leary, ‘Applying Principles of EU Social and Employment Law in EU Staff Cases’ 210 (2011) 36 ELRev 769. Case 43/75 1978 ECR 455. 211 In particular in the light of Roemer AG’s words in Case 20/71 Sabbatini [1972] ECR 345, discussed in ch 5 to the effect that the expatriation allowance constitutes pay. 212 Most recently and most clearly in Case C-25/02 Rinke [2003] ECR I-8349. 213 Legislative support for this approach can now be drawn from Art 157, since it now deals with the whole field of equal treatment in employment.

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In addition, it is clear from the cases so far decided that the Court will not be satisfied by facially equal treatment but will also concern itself with the notion of indirect discrimination. What is not so clear is how far the principle of equal treatment extends: is it restricted, for example, to employment, or does it go further? If it extends, for example, to vocational training, might it not also govern education in other areas, as does the ECHR? Does it, for example, apply to taxation? Does a general principle of sex equality in fact influence all law that the Union is empowered to make, as might be implied from the complementary provisions of the ECHR and the European Social Charter? A clear positive response to these questions would be a tremendously important step towards improving the protection afforded by EU sex equality law. The potency of the principle of sex equality would, of course, be vastly increased if the Treaty were to be amended so as to contain a provision which articulated it in directly effective terms. The same is true for all the other grounds on which discrimination is today forbidden by EU law. The opportunity for such a reform was not made use of when the Amsterdam Treaty was agreed, nor when the Lisbon Treaty was drafted. Were such directly effective provisions to be included in some future version of the Treaty, the doubts surrounding the scope of the Mangold decision would be removed.The doctrine of supremacy would simply enable individual litigants to use the Treaty to assert a positive right to equality throughout the entire field of application of EU law, as well as to impugn any national (or secondary EU) law which sought to deny equality. This would amount to truly fundamental constitutional protection for these basic human rights.

4 Key concepts in EU anti-discrimination law

It was seen in chapter 1 that EU law contains specific prohibitions of discrimination on the grounds of nationality, sex, part-time and temporary working, racial or ethnic origin, religion or belief, disability, age, and sexual orientation. It was also seen that the concepts of non-discrimination and equality span a spectrum from the simple prescription of formal equality to the positive pursuit of equality of opportunity, fair participation, or even equality of results. EU law reflects a large part of this spectrum in its anti-discrimination provisions. Thus, the TFEU expressly forbids ‘discrimination’ against specified groups of people;1 however, it also refers to the broader principles of ‘equal opportunities and equal treatment’2 and offers as one of its aims ‘ensuring full equality in practice between men and women in working life’.3 Similarly, the secondary legislation seeks to put into effect in the Member States the ‘principle of equal opportunities and equal treatment’4 and makes ‘equality’ one of its express goals.5 In practice, it is to the concept of ‘discrimination’ that the CJEU has given the most attention to date. Whilst the Treaty itself refers merely to ‘discrimination’, the secondary instruments of EU law sub-divide the general concept into ‘direct’ and ‘indirect’ manifestations of discrimination. The Court’s understanding of these expressions has evolved considerably over time. It has defined discrimination as: ‘[T]he application of different rules to comparable situations or the application of the same rule to different situations.’6 Without seeking to pre-empt the detailed discussion which follows about the meaning of direct and indirect discrimination, it needs to be explained broadly at the outset that direct discrimination occurs where, on one of the protected grounds, one person is treated less favourably than another person. The prohibition therefore seeks to protect the principle of formal equality. The rule against indirect discrimination, on the other hand, represents an attempt to provide a greater degree of substantive equality, in particular equality of opportunity. Indirect discrimination 1

2 3 See, in particular, Arts 18, 19(1), 45(2), and 157(2). Art 157(3). Art 157(4). The Recast Directive, Art 1; Arts 1 of the Race and Framework Directives and of the Goods and Services Directive refer merely to ‘the principle of equal treatment’. 5 The Recast Directive and the Race and Framework Directives all refer to their objectives of ‘ensuring full equality in practice’ (respectively Arts 3, 5, and 7). 6 Case C-279/93 Finanzampt Koln-Altstadt v Schumacker [1995] ECR I-225, at 259. For a practical example in the field of sex discrimination, see Case C-218/98 Abdoulaye v Renault SA [1999] ECR I-5723. 4

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is encountered where some requirement is demanded, some practice is applied, or some other action is taken which produces an ‘adverse impact’ for a protected class of persons. For example, in Jenkins v Kingsgate (Clothing Productions) Ltd,7 Warner AG, referring to earlier cases before the CJEU on the nationality provisions, defined indirect discrimination as follows: These cases ...establish that a rule which, on the face of it, differentiates between people on the basis of a criterion other than nationality nonetheless infringes a provision of Community law forbidding such discrimination if its application leads in fact to the same result, unless the differentiation is justifiable on ‘objective’ grounds. I can see no reason for applying a different principle to sex discrimination.8

Because of their greater longevity, the areas of sex discrimination and nationality have provided the back-drop for most of the CJEU’s decisions to date on the concept of discrimination. It is clear, however, that the principles so evolved (subject to legislative modification) also today embrace the fields occupied by the Race Directive and the Framework Directive.

Direct discrimination The CJEU’s understanding of the concept of direct discrimination is largely to be gleaned from the way in which it has contrasted it with indirect discrimination. An early excursus into this distinction came with the Court’s analysis of the ambit of the equal pay principle, today contained in Article 157 of the Treaty. This requires application of the principle of equal pay for male and female workers for equal work, or for work of equal value. It thus prima facie requires simply the identical treatment of men and women as regards pay; nothing whatsoever is to be permitted to create a differential between the two groups. So formulated, the Article does not appear to distinguish between sex-related distinctions and others. It simply forbids all distinctions. However—and this is probably the only practicable line to take—this is not how the CJEU came to apply the Article. Instead, it interpreted it as meaning that there must be no discrimination between the sexes over pay where they perform equal work or work of equal value, a conclusion reinforced by the wording of the second paragraph of Article 157(2) and reflected in the national legislation of the Member States. In other words, the Court held that there must be no distinction made on the basis of sex within the scope of the Article.9 This necessarily indicates that certain other distinctions over pay will be permitted, provided 7 Case 96/80 [1981] ECR 911. See also Crisham, ‘The Equal Pay Principle: Some Recent Decision of the CJEU’ (1981) 18 CMLRev 601; Post, ‘New Decisions of the European Court on Sex Discrimination’ (1981) 1 LIEI 77; and Plender, ‘Equal Pay for Men and Women: Two Recent Decisions of the European Court’ (1982) 30 American Journal of Comparative Law 627. 8 [1981] ECR 911, at 937. The concept of adverse impact discrimination was articulated by the US Supreme Court in Griggs v Duke Power Co (1971) 401 US 425. 9 See also the remarks of Lord Lowry in Hasley v Fair Employment Agency [1989] IRLR 106, at 111.

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only that they are not in any way based on sex. It thus opens up the possibility of a causation-based defence to an equal pay claim.10 It also led the Court to have to define discrimination. The real starting point came with its decision in Defrenne v Sabena,11 where it held: [A] distinction must be drawn within the whole area of application of Article 119 between, first, direct and overt discrimination which may be identified solely with the aid of the criteria based on equal work and equal pay referred to by the Article in question and, secondly, indirect and disguised discrimination which can only be identified by reference to more explicit implementing provisions of a Community or national character. It is impossible not to recognize that the complete implementation of the aim pursued by Article 119, by means of the elimination of all discrimination, direct or indirect, between men and women workers, not only as regards individual undertakings but also entire branches of industry and even of the economic system as a whole, may in certain cases involve the elaboration of criteria whose implementation necessitates the taking of appropriate measures at Community and national level.12

This early attempt to explain the difference between direct and indirect discrimination was confusing; direct discrimination is here linked with overt conduct, while indirect discrimination is linked with disguise.Yet, notionally at least, either sort of discrimination can be either overt or disguised; and, in practice, it is more often direct discrimination which is disguised by its perpetrator, whilst indirect discrimination is frequently quite overt. To take an example, an employer will rarely openly admit to preferring to appoint a man, even if this is in fact the reality of the position. Conversely, where an employer is guilty of indirect discrimination, say through the imposition of an unnecessary qualification for a particular job, the insistence on the qualification will often be quite overt. In addition, in relation to nationality at least, the Court had not hitherto refused to apply EU law directly just because the discrimination was covert.13 Furthermore, the distinction that the CJEU appeared to be making did not correspond to the categories of direct and indirect discrimination generally recognized in national legal systems. In reality, the distinction which the Court seems to have been trying to make in Defrenne was simply between discrimination which can be identified without the need for further explanatory legislation and that which cannot. VerLoren Van Themaat AG explained this in Burton v British Railways Board,14 saying: [T]he distinction drawn in the Second Defrenne judgment between overt and disguised discrimination which is important in determining whether or not Article 119 is directly applicable, does not coincide with a factual distinction between direct discrimination or

10 But it is important to notice that no other excuses or defences are articulated by Art 157 (except in relation to positive action, which is discussed in ch 9). 11 Case 43/75 [1976] ECR 455, often referred to as the Second Defrenne case. 12 Case 43/75 [1976] ECR 455, at 473. 13 See the remarks of Warner AG in Case 69/80 Worringham v Lloyds Bank Ltd [1981] ECR 767, at 14 802–3. Case 19/81 [1982] ECR 555.

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discrimination in form, on the one hand, and indirect discrimination or discrimination in substance, on the other.15

Nevertheless, the Court repeated its original formula in Macarthys Ltd v Smith.16 However, a year later, in Worringham v Lloyds Bank Ltd,17 it changed its wording and dropped the expressions ‘direct and overt’ and ‘indirect and disguised’. It could therefore be concluded that, henceforth, direct discrimination could be both overt and covert. Today, the Recast Directive, the Race and Framework Directives, and the Goods and Services Directive all contain statutory definitions of direct discrimination governing their respective fields of operation. Thus: Direct discrimination: where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation.18 [D]irect discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin.19 [D]irect discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article l.20 ‘[D]irect discrimination’: where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation.21

The question of whether two situations are comparable for this purpose is clearly crucial. In Pensionsversicherungsanstalt v Kleist,22 the CJEU was asked about the comparability as regards the dismissal at pensionable age of male and female workers where the female workers received a statutory pension at the age of 60 but their male colleagues not until the age of 65. It held: The comparability of such situations must be examined having regard inter alia to the object of the rules establishing the difference in treatment ...In the case in the main proceedings, the rules establishing the difference in treatment at issue are designed to govern the circumstances in which employees can lose their job. In the context of that case ...the advantage accorded to female workers of being able to claim a retirement pension from an age five 15 Case 19/81 [1982] ECR 555, at 582.The direct enforceability of the non-discrimination principle 16 is discussed further at p 246 et seq. Case 129/79 [1980] ECR 1275. 17 Case 69/80 [1981] ECR 767. 18 Art 2(1)(a) of the Recast Directive. In Case C-79/99 Schnorbus v Land Hessen [2000] ECR I-10997, Jacobs AG explained further that discrimination on the ground of sex ‘arises where members of one sex are treated more favourably than the other. The discrimination is direct where the difference in treatment is based on a criterion which is either explicitly that of sex or necessarily linked to a characteristic indissociable from sex’ (at 11008). But note the unfortunate consequences of a less rigorously analytical application of such a concept in the submissions of Alber AG (not followed by the CJEU) in Case C-366/99 Griesmar [2001] ECR I-9383. Discrimination grounded on pregnancy is discussed in ch 7. 19 Art 2(2)(a) of the Race Directive. 20 Art 2(2)(a) of the Framework Directive. In the case of age, it is especially difficult to envisage how such a comparison is to occur; if someone aged (say) 60 alleges discrimination, with what other age is 21 comparison to be made? Art 2(1)(a) of the Goods and Services Directive. 22 Case C-356/09 [2010] ECR I-11939.

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years younger than that set for male workers is not directly connected with the object of the rules establishing a difference in treatment. That advantage cannot place female workers in a specific situation vis-à-vis male workers, as men and women are in identical situations so far as concerns the conditions governing termination of employment.23

It is noteworthy that the statutory definitions all embrace hypothetical comparisons, as well as comparisons with the treatment received by actual persons.24 However, it should also be noted that this is the point at which the first schism is encountered between the different grounds of discrimination covered by EU law; this body of law is in general targeted at particular types of differentiation between human beings which have been legislatively deemed ‘morally irrelevant’ in the sense discussed in chapter 1. Thus, for example (subject to any specific defences permitted), racial or ethnic origin is treated by the law as irrelevant within the fields covered by the Race Directive. However, one of the grounds contained in the Framework Directive is not defined in such general terms; disability is subjected to asymmetrical treatment. Article 1 of the instrument forbids discrimination ‘on the ground ...of ...disability’, with the result that it is only those who are disabled and not those who are able-bodied who are protected by the law. This formulation can be seen to reflect a different underlying philosophy for the disability provisions from the rest of the anti-discrimination legislation; they are more clearly directed to relieving the disadvantage experienced by the disabled section of society than to protecting a fundamental human right possessed by everybody. An important aspect of the meaning of direct discrimination was clarified by the CJEU in Coleman v Attridge Law.25 A Grand Chamber held that the Framework Directive forbade discrimination against a woman who, though not herself disabled, was subjected to detrimental treatment by her employer because she had to care for her son who was disabled. This has become known as discrimination ‘by association’. The Court explained that it does not follow from the provisions of the Framework Directive: that the principle of equal treatment which it is designed to safeguard is limited to people who themselves have a disability within the meaning of the directive. On the contrary, the purpose of the directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1.26

This wording is also strongly supportive of the view that discrimination on the basis of the perception that someone is in a protected class is covered by the legislation, since this is discrimination ‘by reference to the grounds mentioned in Article 1’. 23

Case C-356/09 [2010] ECR I-11939, at paras 34–8. See also the UK’s Equality Act 2010, s 13. 25 Case C-303/06 [2008] ECR I-5603, commented on by Pilgerstorfer and Forshaw in ‘Transferred Discrimination in European Law’ (2008) 37 ILJ 384. 26 Case C-303/06 [2008] ECR I-5603, at para 38. 24

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In addition, the logic of this emphasis on grounds clearly suggests that the inclusion within the legislative aim of discrimination by association applies to all the types of discrimination proscribed by EU law, but this has yet to be confirmed by the CJEU.27 It would also capture the situation where A treats B adversely because B refuses to discriminate against a protected class; an example would be where a shop-owner sacked an employee because that person refused to obey an instruction not to serve gay customers.28 And, in Coleman, Maduro AG clearly considered the principle to be a general one: [D]irectly targeting a person who has a particular characteristic is not the only way of discriminating against him or her; there are also other, more subtle and less obvious ways of doing so. One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them and do not themselves belong to the group. A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation, as they, too, affect the persons belonging to the suspect classifications.29

Feryn30 raised the important question of whether direct discrimination can be established in the absence of a victim.The Belgian equality body complained of a public statement by a company director that he would not recruit immigrants31 to work in his business, which involved the installation of garage doors. The director’s excuse was a familiar one, namely that his customers would not use his business if they had to admit such workers into their homes.There was no identifiable complainant contending to be the victim of this statement.The CJEU nevertheless held that this situation fell within the scope of the concept of direct discrimination: The objective of fostering conditions for a socially inclusive labour market would be hard to achieve if the scope of Directive 2000/43 were to be limited to only those cases in which an unsuccessful candidate for a post, considering himself to be the victim of direct discrimination, brought legal proceedings against the employer. The fact that an employer publicly declares that it will not recruit employees of a certain ethnic or racial origin, something which is clearly likely to strongly dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market, constitutes direct discrimination within the meaning of Directive 2000/43. The existence of such direct discrimination is not dependant on the identification of a complainant who claims to have been the victim.32

Furthermore, the Court held that there was nothing in the directive to preclude national legislation enabling associations with a legitimate interest in ensuring 27 Paras 47 and 50 of the CJEU’s judgment in Coleman by implication support the argument that discrimination by association applies at least to all the grounds listed in the Framework Directive. But note the ‘warning bells’ sounded by Waddington in relation to this conclusion in her note on Coleman: (2009) 46 CMLRev 665. 28 See also p 174 et seq. for the specific legislative prohibition of giving instructions to discriminate. 29 Para 12 of the AG’s Opinion; see also paras 14 and 23 of the Opinion. 30 Case C-54/07 Centrum v Firma Feryn NV [2008] ECR I-5187, noted by Krause in (2010) 47 31 CMLRev 917. Maduro AG states that he specifically referred to persons of Moroccan origin. 32 [2008] ECR I-5187, at paras 24 and 25.

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compliance with the directive from bringing proceedings to enforce the instrument without acting in the name of a specific complainant or in the absence of an identifiable complainant.

Indirect discrimination33 Perhaps not surprisingly in view of its more complex nature, the definition of indirect discrimination has presented more problems for the CJEU than the definition of direct discrimination. Confusion resulted, in particular, from the existence during the evolution of the concept of different definitions of indirect discrimination in the various areas of anti-discrimination law. It will be recalled that, broadly speaking, indirect discrimination occurs where an unjustified adverse impact is produced for a protected class of persons by an apparently class-neutral action. A serious problem arose over whether such adverse impact must actually have occurred, or whether it was sufficient for it merely to be anticipated. In the area of nationality discrimination, the CJEU was content, in O’Flynn v Adjudication Officer,34 with proof of merely contingent harm: [U]nless objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage. It is not necessary in this respect to find that the provision in question does in practice affect a substantially higher proportion of migrant workers. It is sufficient that it is liable to have such an effect.35

However, this was not the line taken by its case law in relation to sex discrimination. In its first decision in this area, Jenkins v Kingsgate (Clothing Productions) Ltd,36 the Court appeared to emphasize the importance of being able to prove actual adverse impact. A woman part-time employee complained that she received some 10 per cent less pay per hour than a male colleague employed full-time on the same work. At the time of the proceedings, the part-time workers employed by the respondent were all female, with the exception of one male part-timer who had just retired and who had, exceptionally and for short periods, been allowed to go on working. This situation generally reflected the employment pattern of the UK, where the great majority of part-time workers, both at the date of the case and today, are women.37 The Employment Appeal Tribunal wanted to know from 33 See Tobler, Indirect Discrimination: A Case Study into the Development of the Legal Concept of Indirect Discrimination under EC Law (Antwerp, Intersentia Publishers, 2005). 34 35 Case C-237/94 [1996] ECR I-2617. Case C-237/94 [1996] ECR I-2617, at 2638–9. 36 Case 96/80 [1981] ECR 911. See also Snaith, ‘Sex Discrimination and the Part-Time Worker’ (1981) 6 ELRev 196. 37 See Robinson, ‘Part-Time Employment in the European Community’ (1979) 118 International Labour Review 299, and the evidence presented to the CJEU by the Commission in Case 171/88 Rinner-Kühn v FWW Spezial Gebaudereinigung GmbH [1989] IRLR 493. The 1995 New Earnings

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the CJEU whether the Treaty forbade paying part-time workers less than full-time workers, when the category of part-timers is exclusively or predominantly composed of women. The CJEU ruled that: [T]he purpose of Article 119 is to ensure the application of the principle of equal pay for men and women for the same work. The differences in pay prohibited by that provision are therefore exclusively those based on the difference of the sex of the workers. Consequently the fact that part-time work is paid at an hourly rate lower than pay for full-time work does not amount per se to discrimination prohibited by Article 119 provided that the hourly rates are applied to workers belonging to either category without distinction based on sex.38

However, the Court went on to add: [I]f it is established that a considerably smaller percentage of women than of men perform the minimum number of weekly working hours required in order to be able to claim the full-time hourly rate of pay, the inequality in pay will be contrary to Article 119 of the Treaty where, regard being had to the difficulties encountered by women in arranging to work that minimum number of hours per week, the pay policy of the undertaking in question cannot be explained by factors other than discrimination based on sex.Where the hourly rate of pay differs according to whether the work is part-time or full-time it is for the national courts to decide in each individual case whether, regard being had to the facts of the case, its history and the employer’s intention, a pay policy such as that which is at issue in the main proceedings although represented as a difference based on weekly working hours is or is not in reality discrimination based on the sex of the worker. The reply to the first three questions must therefore be that a difference in pay between full-time workers and part-time workers does not amount to discrimination prohibited by Article 119 of the Treaty unless it is in reality merely an indirect way of reducing the level of pay of part-time workers on the ground that that group of workers is composed exclusively or predominantly of women.39

As will be seen in later chapters of the present work, disadvantageous treatment of part-time workers compared to full-time workers has very often been treated as prima facie indirectly discriminatory by the CJEU, on the basis that many more Survey showed that 80% of part-time workers in the UK at that date were female; in the EU as a whole at the same date over 80% of those working part-time were women: see Equal Opportunities for Women and Men in the European Union: Annual Report 1996 (Commission, Luxembourg, 1997). The figure for the whole EU was 81.4% in 2002: see Advancing Women in the Workplace: statistical analysis (EOC, Manchester, 2004). In all the Member States of the EU, a much larger proportion of women than men works part-time; in 2002, eg, 44% of the UK female workforce was part-time as against only 9.4% of the male workforce; in the EU as a whole, these figures were 33.5% and 6.6% respectively: European Foundation for the Improvement of Living and Working Conditions, . By 2008, this position remained largely unchanged, with the UK’s Office for National Statistics reporting that half of women’s employment positions in the UK were part-time, as against only one-sixth of men’s jobs. It is important to note, however, that lower proportions of ethnic minority than of white women work part-time: see Chege, Multidimensional Discrimination in EU Law: Sex, Race and Ethnicity (Nomos, Baden-Baden, 2011). 38

[1981] ECR 911, at 925. [1981] ECR 911, at 925–6. See also Case C-167/97 R v Secretary of State for Employment, ex parte Seymour-Smith [1999] ECR I-623. In Case C-333/97 Lewen v Denda [1999] ECR I-7243, the CJEU took judicial notice of the fact that women take parental leave far more often than men. 39

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women than men are obliged by their domestic responsibilities to opt for part-time work. However, this statement is deceptively simple; it can in reality be difficult to determine when there actually is disadvantageous treatment of part-timers. For example, in Elsner-Lakeberg v Land Nordrhein-Westfalen,40 a part-time teacher alleged indirect discrimination where, like her full-time colleagues, she was paid overtime only if she worked more than three extra hours per month. Was this facially equal treatment in fact disadvantageous to part-timers? Jacobs AG submitted that the critical issue was whether the overall pay of full-timers was higher than that of part-timers for the same number of hours worked. He relied for this principle on Helmig,41 where overtime supplements were paid alike to full and part-timers who worked in excess of normal full-time hours; the Court there held that there was no discrimination because all employees received the same rate of overall pay. However, in Elsner-Lakeberg, Jacobs AG pointed out that where a part-timer, normally working 15 hours per week, worked an additional 2.5 hours, and thus clocked up 17.5 hours in the relevant week, he or she would not receive the same overall pay as that received by a full-timer for 17.5 hours worked. He therefore concluded that there was prima facie indirect discrimination on these facts. The Court reached the same conclusion, but on the significantly different basis that the burden to be discharged before qualifying for overtime was greater for part-timers than full-timers: A full-time teacher must work an additional three hours over his regular monthly schedule of 98 hours, which is approximately 3 per cent extra, in order to be paid for his additional hours, whilst a part-time teacher must work three hours more than his monthly 60 hours, which is 5 per cent extra. Since the number of additional teaching hours giving entitlement to pay is not reduced for part-time teachers in a manner proportionate to their working hours, they receive different treatment compared with full-time teachers as regards pay for additional teaching hours.42

The potential factual variations presented by the cases in this context are numerous. Voss v Land Berlin43concerned a part-time teacher who, in accordance with German legislation, received overtime pay for hours she worked over and above her normal working hours; the same rule applied to full-timers. However, the pay rate for overtime for all workers was lower than that for normal working hours, with the consequence that part-timers were paid less than full-timers in respect of hours worked beyond normal hours but which were insufficient to bring them into the full-time category. The CJEU held that this gave rise to a difference in treatment between full and part-time workers which was precluded, in the absence of objective justification, if it could be shown to affect a considerably higher number of women than men.

40

Case C-285/02 [2004] ECR I-5861. Joined Cases C-399, 409, & 425/92, C-34, 50, & 78/93 [1994] ECR I-5727, discussed further at 42 p 160. Case C-285/02 [2004] ECR I-5861, at para 17. 43 Case C-300/06 [2007] ECR I-10573. 41

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An unusual application of the principle that differential treatment of the parttime workforce is potentially indirectly discriminatory is to be seen in Kachelmann v Bankhaus Hermann Lampe KG.44 German redundancy legislation required employers to have regard to ‘social reasons’ when selecting employees for redundancy; this was interpreted to mean that the employer must look at the individual circumstances of employees and decide to whom the loss of employment would cause the least harm. However, the legislation also provided that full-timers and part-timers could not be compared for this purpose. The CJEU ruled that this situation was potentially indirectly discriminatory, since the number of workers employed fulltime in Germany (and probably throughout the Community) was significantly higher in all sectors than the number of part-time workers; thus, where jobs are being cut, part-time workers are in general at a greater disadvantage because they have a lesser chance of finding another comparable job. The definition of indirect discrimination was formalized for sex discrimination generally by Article 2(2) of the Burden of Proof Directive:45 For the purposes of the principle of equal treatment referred to in paragraph 1, indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.

However, the matter became further confounded when the Race and Framework Directives were enacted, because each adopted a test for indirect discrimination based on contingent harm: [I]ndirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.46

There is much to be said in favour of such a contingent definition; in particular, although it may sometimes be fairly obvious as a matter of common sense that a practice produces an adverse impact for a particular group, it may prove very difficult to produce actual statistical evidence to support such a claim.47 This is especially true in relation to sensitive or less visible areas, such as discrimination on 44

45 Case C-322/98 [2000] ECR I-7505. Directive 97/80, OJ [1998] L14/6. Art 2(2)(b) of the Race Directive, emphasis added. In identical vein, Art 2(2)(b) of the Framework Directive refers to provisions, criteria, or practices which ‘would put’ persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a disadvantage. See also Art 2(b) of the Goods and Services Directive. It would be helpful for the CJEU to clarify how ‘particular’ is to be interpreted. 47 Recital 15 of the Preambles to both the Race Directive and the Framework Directive states that rules of national law and practice may provide for indirect discrimination to be established by any means ‘including’ on the basis of statistical evidence. 46

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the ground of sexual orientation, where statistics are unlikely to be obtainable.48 A contingent test of harm obviates the need for such evidence.49 Moreover, where a law provides that a particular situation is prohibited, it is in principle not usually necessary to wait for actual harm to occur; most legal systems try to injunct such damage before it happens. Arguments of this kind prevailed when the Race and Framework Directives were being negotiated, but it was also appreciated that it would be unacceptable to retain a different, and stricter, test for sex discrimination. Accordingly, the then Equal Treatment Directive was amended in 2002,50 so as to bring its definition of indirect discrimination into line with that operating for nationality, race, and the Framework Directive.Today the Recast Directive provides in Article 2(1)(b): [I]ndirect discrimination: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

It is clearly crucial to the establishment of indirect discrimination that the complainant is able to identify a group of persons with whom to make a comparison so that it can be alleged that the comparators receive more advantageous treatment. The selection of the comparator group is an issue over which courts possess an important element of discretion, and the extent to which they take a sensitive approach to it bears directly upon the capacity of the concept of indirect discrimination to intervene to produce effective equality. A disappointing exercise of this judicial discretion can be seen in Gruber v Silhouette International Schmied GmbH & Co KG.51 Ms Gruber terminated her contract of employment because she was unable to obtain childcare. The relevant Austrian legislation provided that, where an employment relationship had lasted for three years, the employee was entitled to a termination payment. However, this only applied to terminations instigated by the employee if the termination was for ‘important reasons’. The important reasons listed did not mention childcare responsibilities; however, another legislative provision entitled workers who had worked for at least five years to half the usual termination payment where they left their job on childbirth. Ms Gruber alleged that this situation constituted indirect discrimination in breach of the Treaty Article. It was clear that the termination payment was ‘pay’ for the purposes of that Article,52 so the main issue was whether it was provided on sex discriminatory terms. Ms Gruber argued that the groups to be compared were workers who resigned from employment because of maternity and those who resigned for 48 Some Member States, eg, Denmark and Sweden, are prohibited by their data protection laws from collecting statistical data relating to racial origin. 49 For stringent criticism of the use of statistics, in particular in the context of preliminary rulings from the CJEU, see Barnard and Hepple, ‘Indirect Discrimination: Interpreting Seymour-Smith’ (1999) 50 58 CLJ 399. By Directive 2002/73, OJ [2002] L269/15. 51 52 Case C-249/97 [1999] ECR I-5295. See discussion in ch 5.

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‘important reasons’. When this comparison was made, it was obvious that women were disadvantaged because the first group received only half the termination payment received by the second group. However, the employer responded that the comparator groups should be workers resigning for maternity and those resigning without ‘important reasons’; if this basis was used, women were not disadvantaged since they at least received half the termination payment, whereas the comparator group received nothing. The CJEU therefore reasoned that the issue was whether maternity could be aligned with ‘important reasons’. One might, in reliance on natural language and ordinary lifetime experiences, conclude that maternity must surely be regarded as an ‘important reason’. However, unfortunately for Ms Gruber and others in her situation, the CJEU held that that was not so. This was because all the ‘important reasons’ listed in the legislation were related to working conditions in the undertaking or to the conduct of the employer, rendering continuing work impossible. These situations were ‘in substance and origin’ different from Ms Gruber’s. It is noteworthy that Léger AG took a different view, saying that the comparator group should consist of those placed in circumstances such that it would not be ‘reasonable’ to require them to continue in the employment relationship. The Court itself could without difficulty have arrived at a similar conclusion since it conceded that the ‘important reasons’ given in the national legislation were essentially matters which frustrated the contract of employment, as distinct from matters of personal preference, and in addition they were listed non-exhaustively. In failing to recognize this situation as indirectly discriminatory, it ignored the reality of the plight faced by what was acknowledged to be a much larger number of women than men.53 Curiously, in view of its previous insistence on actual adverse impact in sex discrimination claims, the CJEU has not demanded very precise proof of the degree of such adverse impact. As Léger AG observed in Nolte v Landesversicherungsanstalt Hannover:54 [I]n order to be presumed discriminatory, the measure must affect ‘a far greater number of women than men’ (Rinner-Kühn) or ‘a considerably lower percentage of men than women’ (Nimz, Kowalska) or ‘far more women than men’ (De Weerd). Consequently, the proportion of women affected by the measure must be particularly marked. Thus, in the judgment in Rinner-Kühn, the Court inferred the existence of a discriminatory situation where the percentage of women was 89 per cent. 53 See Ellis, ‘The Recent Jurisprudence of the Court of Justice in the Field of Sex Equality’ (2000) 37 CMLRev 1403. See also Case C-220/02 Ósterreichischer Gewerkschaftsbund v Wirtschaftskammer Ósterreich [2004] ECR I-5907 in which the CJEU apparently treated the non-recognition for the calculation of termination payments of time spent on parental leave as potentially indirectly discriminatory against women; however, it concluded that no indirect discrimination was proved because the comparator group chosen was those (mainly males) absent from work on military service whose situation was not in fact comparable. It is submitted that, if the rule impugned was the rule denying the recognition of time spent on parental leave, the correct comparator group would have been all workers otherwise eligible for termination payments whose employment was temporarily interrupted in order to discharge an 54 important responsibility. Case C-317/93 [1995] ECR I-4625.

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In this instance per se the figure of 60 per cent ...would therefore probably be quite insufficient to infer the existence of discrimination.55

Again, in Gerster v Freistaat Bayern,56 national law provided that part-timers whose working hours exceeded two-thirds of normal working hours were deemed to have worked full-time for the purpose of calculating their length of service in relation to promotion. Part-timers whose working hours amounted to at least half of normal working hours were regarded as working two-thirds of normal working hours, but all working time was completely ignored in the case of those working less than half-time.Women accounted for 87 per cent of part-timers in the relevant department. The Court effectively ignored the benefit which this system accorded to some part-timers and concluded: It is common ground that the provision of national law at issue ...treats part-time employees less favourably than full-time employees in so far as, since the former accrue length of service more slowly, they perforce gain promotion late ... In a situation of that kind, it must be concluded that in practice provisions such as those at issue ...result in discrimination against women employees as compared with men ...57

The matter of the degree of adversity arose expressly in R v Secretary of State for Employment, ex parte Seymour-Smith,58 where the House of Lords referred to the CJEU the question of the ‘legal test for establishing whether a measure adopted by a Member State has such a degree of disparate effect as between men and women as to amount to indirect discrimination’.Two employees had been dismissed before they had completed the period of two years’ employment with the same employer, which was required under UK law before a complaint of unfair dismissal could be brought. They complained that the two-year rule constituted indirect discrimination on the ground of sex because fewer women than men were able to comply with it. The CJEU repeated its formulation that the statistics available must reveal that ‘a considerably smaller percentage of women than men’ could comply with the two-year rule.59 It went on to say: That could also be the case if the statistical evidence revealed a lesser but persistent and relatively constant disparity over a long period between men and women who satisfy the requirement of two years’ employment. It would, however, be for the national court to determine the conclusions to be drawn from such statistics. 55 Case C-317/93 [1995] ECR I-4625, at 4640. See also the account of the statistical evidence which has satisfied the Court in other cases given by Cosmas AG in Case C-167/97 R v Secretary of State for Employment, ex parte Seymour-Smith [1999] ECR I-623, at 658–9. 56 Case C–l/95 [1997] ECR I-5253. 57 Case C–l/95 [1997] ECR I-5253, at 5284–5. Cf Joined Cases C-399, 409, & 425/92 and C-34, 50, & 78/93 Stadt Lengerich v Heimig [1994] ECR I-5727, discussed at p 150.The Court did not explain why it accepted in Gerster that taking account of the shorter working time accrued by part-timers constituted indirect discrimination in relation to promotion but not (as in Helmig) in relation to pay. 58 Case C-167/97 [1999] ECR I-623. For highly critical comment on the quality of the CJEU’s decision in this case, see Barnard and Hepple, ‘Indirect Discrimination: Interpreting Seymour-Smith’ (1999) 58 CLJ 399. See also the comment on the case by Moore in (2000) 37 CMLRev 157. 59 See also Case C-50/96 Deutsche Telekom AG v Schröder [2000] ECR I-743.

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It is also for the national court to assess whether the statistics concerning the situation of the workforce are valid and can be taken into account, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant ...60

Despite the injunction on the CJEU applying the law it states to the facts of the case in giving a preliminary ruling, the Court was forthright in its view of the statistics presented in Seymour-Smith itself: In this case, it appears from the order for reference that in 1985, the year in which the requirement of two years’ employment was introduced, 77.4 per cent of men and 68.9 per cent of women fulfilled that condition. Such statistics do not appear, on the face of it, to show that a considerably smaller percentage of women than men is able to fulfil the requirement imposed by the disputed rule.61

A further practical problem in relation to the proof of adverse impact also emerged in this litigation, namely, the appropriate moment at which to judge the impact of a rule. The Court explained that this can vary according to the circumstances of the claim: [T]he requirements of Community law must be complied with at all relevant times, whether that is the time when the measure is adopted, when it is implemented or when it is applied to the case in point. However, the point in time at which the legality of a rule of the kind at issue in this case is to be assessed by the national court may depend on various circumstances, both legal and factual. Thus, where the authority which adopted the act is alleged to have acted ultra vires, the legality of that act must, in principle, be assessed at the point in time at which it was adopted. On the other hand, in circumstances involving the application to an individual situation of a national measure which was lawfully adopted, it may be appropriate to examine whether, at the time of its application, the measure is still in conformity with Community law. With regard, in particular, to statistics, it may be appropriate to take into account not only the statistics available at the point in time at which the act was adopted, but also statistics compiled subsequently which are likely to provide an indication of its impact on men and women.62

It is clearly still vital to the effectiveness of the concept of indirect discrimination that meaningful statistical data are available for making the necessary comparisons. This has been a perennial problem, especially in relation to ethnic data where there are sensitivities in relation to privacy. The Commission has observed that the collection of such data does not breach the Data Protection Directive63 and that the matter is one for the Member States to regulate.64 60 [1999] ECR I-623, at 683. See also Case C-226/98 Forgensen v Foreningen af Speciallaeger [2000] ECR I-2447 and Case C-300/06 Voss v Land Berlin [2007] ECR I-10573. 61 [1999] ECR I-623, at 683–4. See also Case C-123/10 Brachner [2011] ECR I-000, also discussed 62 in ch 10. [1999] ECR I-623, at 679–80. 63 Directive 95/46, [1995] OJ L281/31. 64 Communication from the Commission to the Council and the European Parliament on the application of the Race Directive: COM(2006) 643 final.

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Multi-dimensional discrimination In recent years, it has become increasingly evident that it is misleading to try to analyse all instances of discrimination as being attributable to a single cause. The reality is that many people experience discrimination on several grounds.The most often-cited example is that of black women, but the problem is in reality far more widespread and frequently involves age or disability in combination with another ground. Recital 14 of the Preamble to the Race Directive expressly recognizes that ‘women are often the victims of multiple discrimination’.65 The problem arises in different ways; the discrimination may be grounded on two or more prohibited classifications simultaneously (for example, being black and being a woman); this is usefully termed ‘additive’ discrimination.Alternatively, it may result from a composite of classifications (for example, being a black woman); this is sometimes referred to as ‘intersectional’ discrimination and it in effect requires the recognition of a new head of discrimination, although not the acceptance of new grounds.66 These types of discrimination, especially the second, present a number of technical and practical issues for the legal system.Where the discrimination is additive, the way is in principle open to the claimant to bring multiple claims; however, it is important that practical procedural routes are made available for the joint hearing of the related claims and also that pressure is not brought to bear on claimants to pursue only the strongest of the claims. In relation to intersectional discrimination, there appears to be nothing in the literal wording of the anti-discrimination directives to preclude the recognition of a new head of discrimination; merely because different instruments prohibit discrimination on different grounds does not mean that they cannot be compounded for the purposes of a claim, especially since the directives all place a heavy emphasis on equal treatment for all. If this were accepted, causation ought to be able to be established in the same way as for single grounds,67 although there will undoubtedly be difficulties in gathering supportive data since statistical evidence in particular—hard to obtain in many single ground cases—may be non-existent. Even more serious problems can be foreseen for the choice of comparator; as discussed above, a comparator, either actual or hypothetical, is necessary in order to establish the claimant’s less favourable treatment. If the ground alleged is an intersectional one then the comparator should arguably be someone who possesses none of the characteristics involved.Thus, in the case of discrimination against a disabled Muslim, the comparator would have to be an able-bodied non-Muslim. It should not be sufficient for the defendant to prove that either an able-bodied person or a non-Muslim would have received the same treatment. A further practical difficulty is that, as will be discussed in later chapters, the coverage of the various anti-discrimination directives 65

See also recital 3 of the Preamble to the Framework Directive. See Solanke, ‘Putting Race and Gender Together: A New Approach to Intersectionality’ (2009) 72 67 MLR 723. See the discussion of causation at p 163 et seq. 66

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is different, so that concrete instances of intersectional discrimination may not be covered in relation to all the heads of discrimination alleged. The Commission has undertaken a recent study of the subject and concluded that more needs to be done to remedy multi-dimensional discrimination.68 In particular, it believes that an EU definition of multiple discrimination should be produced. Much has been written about the subject.69 However, the CJEU has yet to give a ruling on it, although it has undoubtedly dealt with many cases which have factually involved discrimination on several grounds simultaneously.70 For example, the sex discrimination litigation initiated by Helen Marshall in the 1980s was actually inspired by the claimant’s objection to discrimination on the ground of her age, not at that date prohibited by either domestic or EU law.71 It is submitted that the recognition of multiple discrimination, both additive and intersectional, is within the legal competence of the CJEU and that, once presented with an appropriate case, it should demonstrate the proactivity which it has shown in the past, in particular in the field of sex discrimination.

Burden of proof As in any legal action, the relevant burden of proof must be discharged in order for an anti-discrimination claim to succeed. This issue is closely related to the question of how adverse impact is to be demonstrated. A claimant in a discrimination claim normally faces considerable difficulty in proving the case. If the law places the entire burden of proof throughout the proceedings upon the claimant, then all the respondent needs to do in practice is to produce a colourable story which casts doubt on the claimant’s version of events.Thus, for example, where a man has been chosen for a job in preference to a woman candidate who has slightly better qualifications than him on paper, the employer will escape liability for discrimination if the tribunal can be convinced that the man had a more appropriate personality for the particular job. This may be quite untrue, or at least an example of subconscious gender-stereotyping on the employer’s part, yet it will save the case for the employer provided only that the tribunal does not conclude that the employer is lying. The real problem from the claimant’s point of view is that it is extremely difficult, and sometimes quite impossible, to prove why she was not selected. This is a matter which is peculiarly within the employer’s own knowledge, which is why 68 European Commission, Tackling Multiple Discrimination (OOPEC, Luxembourg, 2007). See also the Roadmap for Equality Between Women and Men 2006–2010, COM (2006) 92 final. 69 See in particular Chege, Multidimensional Discrimination in EU Law: Sex, Race and Ethnicity (Nomos, Baden-Baden, 2011), together with the works cited therein. 70 See Schiek, ‘Age Discrimination before the CJEU—Conceptual and Theoretical Issues’ (2011) 48 CMLRev 777; and Koldinska, ‘Case Law of the Court of Justice on Sex Discrimination 2006–2011’ (2011) 48 CMLRev 1599. 71 Case 152/84 Marshall v Southampton and South West Hampshire Area Health Authority [1986] ECR 737 and Case C-271/91 [1993] ECR I-4367, discussed in ch 6.

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the legal burden of proof should be reversed once a prima facie case has been made out and the employer should then be required to prove to the satisfaction of the tribunal the reason for the relevant decision.72 The CJEU has considered the issue of burden of proof on a number of occasions and, although the matter is complicated by differences between the adversarial and inquisitorial approaches to be found in the various Member States, the underlying difficulty which emerges is ascertaining the kind and weight of evidence from which a court or tribunal should infer discrimination. This question was addressed in the context of equal pay in Handels-OG Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening (acting for Danfoss),73 which concerned a collective agreement between a staff union and an employers’ association. The same basic minimum wage was paid to all workers in the same pay grade. Grading was determined by job classification. However, the collective agreement allowed the company to make additional payments to individuals within a grade on the basis of the individual’s ‘flexibility’, vocational training, and seniority. The union argued that the pay system discriminated on the ground of sex because, within a pay grade, the average pay of women was less than that of men: specifically, it produced evidence of a statistical survey covering the pay of 157 Danfoss employees between 1982 and 1986, which showed a differential of 6.85 per cent between the average pay of male and female workers within the relevant pay grades.The industrial arbitration tribunal sent a number of questions to the CJEU. The first issue raised was perceived by the CJEU to be in essence related to the burden of proof in equal pay claims: [T]he issue between the parties ...has its origin in the fact that the system of individual supplements applied to basic pay is implemented in such a way that a woman is unable to identify the reasons for a difference between her pay and that of a man doing the same work. Employees do not know what criteria in the matter of supplements are applied to them and how they are applied.They know only the amount of their supplemented pay without being able to determine the effect of the individual criteria. Those who are in a particular wage group are thus unable to compare the various components of their pay with those of the pay of their colleagues who are in the same wage group. In those circumstances the questions put by the national court must be understood as asking whether ...where an undertaking applies a system of pay which is totally lacking in transparency, it is for the employer to prove that his practice in the matter of wages is not discriminatory, if a female worker establishes, in relation to a relatively large number of employees, that the average pay for women is less than that for men.74

The answer given was that the burden of proof (and it would appear from the context that the Court meant the legal as distinct from merely the evidential burden of

72 But for distinguished opinion to the opposite effect, see the 17th Report (Session 1988–9) of the House of Lords Select Committee on the European Communities, ‘Burden of Proof in Sex Discrimination Cases’, July 1989, HL Paper 76, and especially the view of Anthony Lester QC expressed therein. 73 74 Case 109/88 [1989] ECR 3199. Case 109/88 [1989] ECR 3199, at 3225.

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proof) was indeed so placed on the employer.75 The Court’s reasoning was that the employer might not shelter behind the grading scheme involved: [I]n a situation where a system of individual pay supplements which is completely lacking in transparency is at issue, female employees can establish differences only so far as average pay is concerned. They would be deprived of any effective means of enforcing the principle of equal pay before the national courts if the effect of adducing such evidence was not to impose upon the employer the burden of proving that his practice in the matter of wages is not in fact discriminatory. Finally, it should be noted that under Article 6 of the Equal Pay Directive Member States must, in accordance with their national circumstances and their legal systems, take the measures necessary to ensure that the principle of equal pay principle is applied and that effective means are available to ensure that it is observed. The concern for effectiveness which thus underlies the Directive means that it must be interpreted as implying adjustments to national rules on the burden of proof in special cases where such adjustments are necessary for the effective implementation of the principle of equality. To show that his practice in the matter of wages does not systematically work to the disadvantage of female employees the employer will have to indicate how he has applied the criteria concerning supplements and will thus be forced to make his system of pay transparent.76

Danfoss thus established the principle that, where a system of pay is non-transparent, the burden of proof is on the employer to show that that system is not sex discriminatory, where a woman can establish, by comparison with a ‘relatively large’ number of employees, that the average pay of women employees is ‘lower’ than that of male employees. This formula of course leaves uncertain how many employees must be involved (although clearly 157 was enough), for how long (here it was four years), and what percentage differential is sufficient to reverse the burden of proof (6.85 per cent being established to be enough). The Court proceeded to a more general statement of principle in Enderby v Frenchay Health Authority.77 A speech therapist employed by the UK National Health Service complained that speech therapists, who were almost all female, were less well paid than clinical psychologists and pharmacists, who were predominantly male, and who she claimed performed work of equal value. Both the Court and the Advocate General took a pragmatic approach as to how adverse impact might be demonstrated. The Court stated simply that the existence of a ‘prima 75 The UK Government had intervened in the case and argued in favour of this solution to the effect that, in the UK in such a situation, the employer would already bear the burden of proof under the Equal Pay legislation. At first sight, this appears ironic, since the UK Government vetoed a draft directive on reversal of the burden of proof in sex discrimination claims in the late 1980s. However, that draft directive was seriously defective and would probably have increased rather than decreased confusion. In addition, the Government appeared to confine its submissions in Danfoss to the equal pay field, and would probably have opposed any extension of the principle to equal treatment generally. 76 [1989] ECR 3199, at 3226. For the domestic sequel to Danfoss, see Precht, ‘Danfoss in the Danish Courts’ (1992) 21 ILJ 323. 77 Case C-127/92 [1993] ECR I-5535, noted by Fredman in ‘Equal Pay and Justification’ (1994) 23 ILJ 37, by Wynn in ‘Equal Pay and Gender Segregation’ (1994) 110 LQR 556, and by Ellis in (1994) 31 CMLRev 387. See also Kentridge, ‘Direct and Indirect Discrimination After Enderby’ [1994] PL 198.

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facie case of discrimination’ casts the burden of proving objective justification onto the employer,78 and it added that such a prima facie case might be made out where ‘significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men’.79 Lenz AG explained: The basic legal position is that Article 119 ...and the directives adopted for its implementation, as interpreted and applied by the Court of Justice, prohibit all forms of sex-related discrimination. Sex-related pay discrimination takes various forms, the categorization of which can pose a legal problem. In order to render them susceptible to legal categorization, the courts have adopted the categories of direct and indirect discrimination. The conceptual scheme applied should in no way be construed in the sense of any exclusiveness of possible forms of sex discrimination. A glance at the conceptual scheme applied in these proceedings under the laws of the UK bears this out. The reference there to intentional or unintentional direct discrimination and to intentional or unintentional indirect discrimination shows that there are four possible ways of categorizing the same phenomenon for legal purposes.80 The purpose of a conceptual scheme is to comprehend methods by which women are placed at a disadvantage in their working lives and not to create additional obstacles to claims being made before the courts in respect of sex-related pay discrimination. For this reason, a formalistic approach should not be adopted when categorizing actual instances where women are placed at a disadvantage at work.81

Later, he added: Attention should be directed less to the existence of a requirement or a hurdle by means of which women suffer a disadvantage, and more to the discriminatory result.82

It is, however, necessary to raise a prima facie case of indirect discrimination before the employer is required to justify a pay disparity.83 Stadt Lengerich v Helmig84 concerned a claim by women part-time workers that the denial to them of overtime pay when they exceeded their normal (part-time) working hours constituted indirect discrimination. Under the relevant collective agreements, all employees were entitled to overtime supplements, but only after they had worked a full-time week. The Court held that it must be asked, first of all, whether there was different treatment for part-time and fulltime employees, and whether that difference affected considerably more women than men. Only if those questions were answered in the affirmative would a prima facie case arise which would require objective justification.The Court concluded: There is unequal treatment wherever the overall pay of full-time employees is higher than that of part-time employees for the same number of hours worked on the basis of

78 See also Case C-381/99 Brunnhofer v Bank der österreichischen Postsparkasse AG [2001] ECR 79 I-4961. [1993] ECR I-5535, at 5573. 80 The relevance of intention in EU anti-discrimination law is discussed at p 163 et seq. 81 82 [1993] ECR I-5535, at 5557. [1993] ECR I-5535, at 5560. 83 For an example of a case in which this initial hurdle was not surmounted, see Case C-297/93 Grau-Hupta v Stadtgemeinde Bremen [1994] ECR I-5535. 84 Joined Cases C-399, 409, & 425/92 and C-34, 50, & 78/93 [1994] ECR I-5727.

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an employment relation. In the circumstances considered in these proceedings, part-time employees do receive the same overall pay as full-time employees for the same number of hours worked. A part-time employee whose contractual working hours are 18 receives, if he works 19 hours, the same overall pay as a full-time employee who works 19 hours. Parttime employees also receive the same overall pay as full-time employees if they work more than the normal working hours fixed by the collective agreements because on doing so they become entitled to overtime supplements. Consequently, the provisions at issue do not give rise to different treatment as between part-time and full-time employees and there is therefore no discrimination ...85

Most of the cases so far litigated have involved alleged sex discrimination where work is paid at time rates. However, Specialarbejderforbundet i Danmark v Dansk Industri, acting for Royal Copenhagen A/S86 raised questions relating to proof of discrimination in a piece-work system. The CJEU explained in Royal Copenhagen that the kind of group comparison which it uses in cases involving work paid at time rates cannot usually as a matter of logic be applied in piece-work systems: [I]n a piece-work pay scheme the principle of equal pay requires that the pay of two groups of workers, one consisting predominantly of men and the other predominantly of women, is to be calculated on the basis of the same unit of measurement. Where the unit of measurement is the same for two groups of workers carrying out the same work or is objectively capable of ensuring that the total individual pay of workers in the two groups is the same for work which, although different is considered to be of equal value, the principle of equal pay does not prohibit workers belonging to one or the other group from receiving different total pay if that is due to their different individual output. It follows that in a piece-work pay scheme the mere finding that there is a difference in the average pay of two groups of workers, calculated on the basis of the total individual pay of all the workers belonging to one or the other group, does not suffice to establish that there is discrimination with regard to pay. It is for the national court, which alone is competent to assess the facts, to decide whether the unit of measurement applicable to the work carried out by the two groups of workers is the same or, if the two groups carry out work which is different but considered to be of equal value, whether the unit of measurement is objectively capable of ensuring that their total pay is the same. It is also for that court to ascertain whether a pay differential relied on by a worker belonging to a group consisting predominantly of women as evidence of sex discrimination against that worker compared with a worker belonging to a group consisting predominantly of men is due to a difference between the units of measurement applicable to the two groups or to a difference in individual output.87

The principles relating to the burden of proof formulated by the CJEU in relation to equal pay came to be reflected in its case law on other aspects of sex discrimina85 Joined Cases C-399, 409, & 425/92 and C-34, 50, & 78/93 [1994] ECR I-5727, at 5754–5. For criticism of the excessive devotion paid by the CJEU in this case to the concepts of formal equality and the male norm, see Holmaat, ‘Overtime Payments for Part-time Workers’ (1995) 24 ILJ 387. 86 Case C-400/93 [1995] ECR I-1275; see Bourn, ‘The Devil is in the Detail’ (1995) 20 ELRev 612, and Hervey, ‘The Rise and Rise of Conservatism in Equal Pay’ (1996) 18 JSWFL 107. 87 [1995] ECR I-1275, at 1305–6.

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tion.88 In time, they were broadly consolidated for the purposes of sex discrimination claims by the Burden of Proof Directive89 and are today contained in Article 19 of the Recast Directive: Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.90

This Article does not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs;91 it does not, however, apply to criminal proceedings unless otherwise provided by the Member States92 and need not be applied to inquisitorial proceedings.93 Substantially identical rules are also today contained in the Race Directive,94 the Framework Directive,95 and the Goods and Services Directive.96 In Feryn,97 the CJEU held that statements by which an employer publicly lets it be known that, under its recruitment policy, it will not recruit any employees of a certain ethnic or racial origin may constitute facts which give rise to a presumption of discrimination. It is then up to the employer to adduce evidence that it has not breached the principle of equal treatment which it can do, for example, by showing that

88 See in particular Lenz AG in Case C-127/92 Enderby v Frenchay Health Authority [1993] ECR I-5535,Van Gerven AG in Joined Cases C-63 & 64/91 Jackson and Cresswell v Chief Adjudication Officer [1992] ECR I-4737, and Darmon AG in Case C-189/91 Kirsammer-Hack v Sidal [1993] ECR I-6185. Cf McGlynn, ‘Equality, Maternity and Questions of Pay’ (1996) 21 ELRev 327. 89 Directive 97/80, which was extended to the UK and amended by Directive 98/52, OJ [1998] L205/66. 90 It is submitted that, in the light of this provision, Case 233/85 Bonino v Commission [1987] ECR 739 (in which the CJEU held that the principle of equal treatment did not require a respondent to provide reasons for decisions on promotion even though some of the candidates were women) and Case 111/86 Delauche v Commission [1987] ECR 5345, should no longer be considered good law. See however the Court’s somewhat restrictive decision on the claimant’s right to information from the respondent in Case C-104/10 Kelly v National University of Ireland [2011] ECR I-000. 91 92 Recast Directive, Art 19(2). Recast Directive, Art 19(5). 93 Recast Directive, Art 19(3). The Commission has expressed the view that there is considerable confusion about the meaning of this provision and that it undermines legal certainty: see COM (2003) 657 final, at 16. The rules contained in Art 19(1), (2) and (3) also cover equal pay claims and those in relation to pregnancy and parental leave: Art 19(4)(a). 94 Art 8 and recital 21 of the Preamble to the Race Directive. In Case C-54/07 Centrum v Firma Feryn NV [2008] ECR I-5187, Maduro AG commented on the burden of proof: ‘what is true for cases of discrimination based on sex is true for cases of discrimination based on ethnic origin’ (at para 22 of his Opinion). 95 Art 10 and recital 31 of the Preamble to the Framework Directive; the latter adds: ‘However, it is not for the respondent to prove that the plaintiff adheres to a particular religion or belief, has a particular disability, is of a particular age or has a particular sexual orientation.’ 96 Art 9 and recital 22 of the Preamble to the Goods and Services Directive. 97 Case C-54/07 Centrum v Firma Feryn NV [2008] ECR I-5187.

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the actual recruitment practice of the undertaking does not correspond with the reported statements. These are matters for the national courts.

Causation A further vital aspect of the concept of discrimination was elucidated in the case law relating to sex discrimination. No intention or subjective motivation is required; it is enough simply that the adverse treatment received by the victim is grounded upon, or caused by, a prohibited classification. This was a logical conclusion for the CJEU to draw given that Article 157 was originally included in the Treaty in order to obviate inequalities in pay attributable to sex. It is in principle irrelevant to that objective to examine an employer’s intention or motives where the effect of what has been done is in reality to the disadvantage of one sex. In the words of Lenz AG in Enderby v Frenchay Health Authority:98 [F]orms of direct sex discrimination are quite conceivable without sex being expressly mentioned in the contract of employment, pay scales or collective agreement as the criterion for the higher or lower pay.The conceptual scheme of that category makes it clear that discrimination does not even have to have been intentional.99

This view is also inherent in the CJEU’s attitude to so-called ‘gender-plus’ discrimination; it is today of particular importance in relation to multi-dimensional discrimination. The expression ‘gender-plus’ was coined by the American courts in the context of sexual harassment. The problem was to know whether the law caught discrimination against a class or sub-class of women, so that the conduct had to be analysed as discrimination on the ground of sex-plus-something-else.100 In common with their American counterparts, UK courts came to accept that such conduct breached the national anti-discrimination legislation: ‘but for’ the sex of the victim, the person would have been treated more favourably, and therefore the discrimination was ‘on the ground of sex’; questions of intention and motivation are quite irrelevant to such a test.101 In Liefting v Directie van het Academisch Ziekenhuis bij de Universiteit van Amsterdam,102 where the gender-plus point was argued, the CJEU held that there was a breach of what is today Article 157 where a system of making employer-contributions to certain types of pension scheme discriminated against women civil servants who were married to civil servants. There was no allegation that the system discriminated against women generally, or even against women civil servants generally, but only against that class whose husbands were also civil 98

99 Case C-127/92 [1993] ECR I-5535. Case C-127/92 [1993] ECR I-5535, at 5558. See, eg, Barnes v Costle (1977) 15 FEP Cases 345; Hurley v Mustoe [1981] IRLR 208; Horsey v Dyfed District Council [1982] IRLR 395; and Hayes v Malleable Working Men’s Club [1985] ICR 703. Cf Turley v Allders Department Stores Ltd [1980] IRLR 4. 101 See also the decision of the House of Lords in James v Eastleigh Borough Council [1990] 3 WLR 55. Cf Watt, ‘Goodbye “but-for”, hello “but-why?”’ (1998) 27 ILJ 121. 102 Case 23/83 [1984] ECR 3225. 100

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servants. Similarly, in Roca Álvarez v Sesa Start España ETT SA,103 the CJEU accepted as unlawful discrimination the unfavourable treatment of a sub-category of men, namely those with babies under nine months whose wives were not employed. Although the CJEU has not yet expressly addressed the issue of discrimination attributable to several prohibited grounds, multi-dimensional discrimination,104 it is strongly argued that this approach would provide good authority for upholding such a claim, albeit that it does not dispose of problems in relation, for example, to the measure of damages to be awarded. In Worringham v Lloyds Bank Ltd,105 the discrimination challenged was not against women employees generally but only against those aged under 25. In this later decision, the CJEU made a statement which is really only compatible with an objective test for direct discrimination, unrelated to any requirement of motivation or intention on the part of the employer. It said: Article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the Article in question, without national or Community measures being required to define them with greater precision in order to permit of their application ...This is the case where the requirement to pay contributions applies only to men and not to women and the contributions payable by men are paid by the employers in their name by means of an addition to the gross salary the effect of which is to give men higher pay within the meaning of the second paragraph of Article 119 than that received by women engaged in the same work or work of equal value.106

The CJEU in Dekker v Stichting Vormingscentrum Voor Jonge Volwassen Plus107 also implicitly ruled out the need for intention in relation to direct discrimination, saying that: if the employer’s liability for infringement of the principle of equal treatment were made subject to proof of a fault attributable to him and also to there being no ground of exemption recognized by the applicable national law, the practical effect of those principles would be weakened considerably.108

103

104 Case C-104/09 [2010] ECR I-8661. Discussed at pp156–7. Case 69/80 [1981] ECR 767. 106 Case 69/80 [1981] ECR 767, at 792, emphasis added. See also Case C-7/93 Bestuur Van Het Algemeen Burgerlijk Pensioenfonds v Beune [1994] ECR I-4471, at 4520. 107 Case 177/88 [1990] ECR I-3941. 108 Case 177/88 [1990] ECR I-3941, at 3976. Cf Watt, ‘Goodbye “but-for”, hello “but-why?”’ (1998) 27 ILJ 121; the author there argues that the CJEU abandoned its ‘but for’ approach in Case 179/88 Handels-OG Kontorfunktionaerernes Forbund I Danmark v Dansk Arbejdsgiveforening (acting for Aldi Marked K/S) [1990] ECR I-3979; in Aldi, the CJEU refused to hold that there had been unlawful discrimination where a woman was dismissed for taking long periods of sick leave which were caused by an illness, which in turn was caused by an earlier pregnancy. (In ch 7, it is argued that this decision is explicable on the basis that the complainant did not receive adverse treatment, compared to that receivable by a male comparator, rather than on the basis of causation.) Watt also draws attention to the decisions of some UK courts, suggesting that they too are re-focusing on intention in determining causation in discrimination claims. But see today R v Governing Body of JFS [2010] 2 AC 728. 105

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As with direct discrimination, so also for indirect discrimination: no motive or intention is required on the part of the discriminator. The test for causation is an objective one. Although the CJEU appeared ambivalent about this matter in Jenkins v Kingsgate (Clothing Productions) Ltd,109 in Bilka-Kaufhaus GmbH v Weber Von Hartz110 it held that what is today Article 157 extended to unintentional indirect discrimination.111 Ms Weber complained of indirect discrimination in that her ex-employer’s pension scheme conferred rights on part-time workers only where they had been in full-time employment with the company for 15 years out of a total of 20 years. Ms Weber, a part-time worker who could not satisfy this requirement, argued that it worked to the detriment of women workers, because they were more likely than their male colleagues to have to opt for part-time work because of their family and childcare commitments. The CJEU held: Since, as was stated above, such a pension falls within the concept of pay for the purposes of the second paragraph of Article 119 . . . it follows that, hour for hour, the total remuneration paid by Bilka to full-time workers is higher than that paid to part-time workers. If, therefore, it should be found that a much lower proportion of women than of men work full time, the exclusion of part-time workers from the occupational pension scheme would be contrary to Article 119 of the Treaty where, taking into account the difficulties encountered by women workers in working full time, that measure could not be explained by factors which exclude any discrimination on grounds of sex. However, if the undertaking is able to show its pay practice may be explained by objectively justified factors unrelated to any discrimination on grounds of sex, there is no breach of Article 119. The answer to the first question referred by the national court must therefore be that Article 119 of the EEC Treaty is infringed by a department store company which excludes part-time employees from its occupational pension scheme, where that exclusion affects a far greater number of women than men, unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex.112

Since a lack of intention to discriminate cannot sensibly be regarded as an objectively justified factor unrelated to sex discrimination, it followed that the Court

109

110 Case 96/80 [1981] ECR 911. Case 170/84 [1986] ECR 1607. See also the opinion of Van Gerven AG in Joined Cases C-63 & 64/91 Jackson and Cresswell v Chief Adjudication Officer [1992] ECR I-4737, especially at 4770. In Case C-317/93 Nolte v Landesversicherungsanstalt Hannover [1995] ECR I-4625, Léger AG submitted: ‘There is a presumption that indirect discrimination is present “once an apparently neutral measure in fact has a preponderant effect on workers of a given sex—without there being any need to establish the intention to discriminate”’ (at 4632, quoting from Commission DGV ‘Equal Treatment in Community Law’ Social Europe, 3/91, p 79). 112 [1986] ECR 1607, at 1626–7. See also Case 33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR I-2591. 111

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was saying here that even unintentional indirect discrimination is caught by Article 157.113 This principle was established even more clearly in Rinner-Kühn v FWW Spezial-Gebaudereinigung GmbH.114 Ms Rinner-Kühn worked for ten hours a week. Her employers, strictly in accordance with the relevant German statutory provision, refused to pay her for a period of six days’ absence owing to sickness. She complained to her local Labour Court, which referred to the CJEU the question: Is a legislative provision excluding from the principle of continued payment of salary by the employer during illness those workers whose normal period of work does not exceed 10 hours a week or 45 hours a month compatible with Article 119 of the EEC Treaty and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of Member States relating to the application of the principle of equal pay for men and women—although the proportion of female workers suffering adverse effects from this exclusion is much higher than that of male workers?

The CJEU replied: Under the German legislative provision in question only those employees whose contract of employment provides for a normal period of work of more than 10 hours a week or 45 hours a month are entitled to the continued payment of wages by their employer in the event of illness. Since such payment falls within the concept of ‘pay’ within the meaning of the second paragraph of Article 119, the German legislative provision in question accordingly allows employers to maintain a distinction relating to total pay between two categories of employees: those who perform the minimum number of weekly or monthly hours and those who, although performing the same type of work, do not work the minimum number of hours. It is also clear from the order requesting a preliminary ruling that in percentage terms considerably less women than men work the minimum number of weekly or hourly hours required to entitle an employee to the continued payment of wages in the event of inability to work due to illness. In such a situation, it must be concluded that a provision such as that in question results in discrimination against female workers in relation to male workers and must, in principle, be regarded as contrary to the aim of Article 119 of the Treaty. The position would be different only if the distinction between the two categories of employees were justified by objective factors unrelated to any discrimination on grounds of sex ...115 113 The objective quality of what is required for indirect discrimination was also emphasized by Léger AG in Case C-249/97 Gruber v Silhouette International Schmied GmbH & Co KG [1999] ECR I-5295, when he submitted that the ‘absolute nature of the protection conferred by [Article 157] on individuals who invoke it cannot be limited by considerations relating to the cause of the discriminatory situation’ 114 (at 5313). Case 171/88 [1989] ECR 2743. 115 Case 171/88 [1989] ECR 2743, at 2760–1. Shaw comments, in ‘The Burden of Proof and the Legality of Supplementary Payments in Equal Pay Cases’ (1990) 15 ELRev 260, that the Court in Rinner-Kühn effectively grasped the legislative nettle and enacted the long-stalled proposal for a directive granting equality of treatment to part-time employees (OJ [1982] C62/7, and OJ [1983] C18/5); for discussion of the framework agreement on part-time work which was subsequently reached, see ch 6. It is noteworthy that no minimum number of hours of service per week was required by the CJEU in order to trigger the Rinner-Kühn principle.

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It seems safe to assume that this same principle applies for the purposes of the Race, Framework, and Goods and Services Directives. In other words, whether the alleged discrimination is direct or indirect, all that is required to establish causation is that ‘but for’ belonging to the protected category, the victim would not have sustained the disadvantage alleged. For this purpose, it is unnecessary to prove any particular motive or intention on the part of the respondent. An important rider, however, needs to be added in the context of the newer grounds of discrimination in EU law. Whilst a person’s sex is normally obvious, this is not the case in relation to some of the other prohibited classifications. As far as the victim is concerned, it is nevertheless irrelevant whether the treatment received is attributable to an actual state of affairs, or whether it is attributable merely to the discriminator’s perceptions or assumptions; for example, it matters not to the victim whether, on the one hand, the reason for non-selection is that he or she is a Muslim, or, on the other hand, is because the discriminator thought this to be the case. It is therefore important that the CJEU articulates the principle that causation is demonstrated both where the action is based on an actual ground and also where it is grounded on the discriminator’s perception that that ground exists.116 As discussed at p 146, its comments in Coleman v Attridge Law117 suggest that this is the approach which it is beginning to take. In the case of sex discrimination, the CJEU has taken a firm line in relation to pregnancy and established the rule that discrimination is grounded on sex where it is attributable to an attribute (pregnancy) which can be demonstrated only by one sex.118 To the extent that such a principle of causation can be extended to other grounds, it is likely to constitute a precedent. Thus, for example, even though colour is not specifically mentioned in the Race Directive, it seems probable that a requirement that a person be of a particular colour could similarly be inextricably connected to race. However, some new difficulties in the field of causation are likely to be encountered by litigants who seek to rely on the Framework Directive. For example, in the field of disability, it is unclear from the wording of the instrument whether discrimination on the ground of disability covers not only adverse treatment which is based on the disability itself, but also extends to adverse treatment which is based on consequences which stem from that disability. It is to be hoped that the CJEU will construe disability to encompass its consequences, since otherwise the protection against discrimination will be seriously limited in this important area. Whilst there is certainly some discrimination simply on the grounds of particular 116 Express support for this principle in the context of sexual orientation discrimination was given by Richards J in R (on the application of Amicus—MSF section) v Secretary of State for Trade and Industry [2004] IRLR 430, especially at 442. See further Oliver, ‘Sexual Orientation Discrimination: Perceptions, Definitions and Genuine Occupational Requirements’ (2004) 33 ILJ 1. 117 Case C-303/06 [2008] ECR I-5603. 118 Case 177/88 Dekker v Stichting Vormingscentrum Voor Jonge Volwassen Plus [1990] ECR I-3941 and Case C-506/06 Mayr v Flöckner OHG [2008] ECR I-1017, discussed in ch 7.

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disabilities (such as mental ill-health and epilepsy), it is undoubtedly the case that most discrimination results from the consequences of disability (such as restricted mobility). For religious discrimination, the question also arises as to whether the ‘religion or belief ’ which lies at the heart of the alleged discrimination can be that of the discriminator. In part this will depend on how the CJEU opts to define ‘religion or belief ’;119 if it chooses to include absence of belief in its definition, this will widen the scope of the conduct prohibited, since it will then have the potential to cover adverse treatment meted out by somebody on the ground of his or her own religion or belief where that does not coincide with that of the victim. Thus, the usual case will no doubt involve A choosing, for example, not to employ B because of B’s religion; however, the law would also embrace the situation where A, perhaps holding fundamentalist views, refuses to employ B because B has no particular religion, or does not share the beliefs of A. Even if the CJEU does not adopt this view, it is still open to it to hold (admittedly bullishly) that A has discriminated against B in the situation posited because A’s conduct is grounded upon ‘religion or belief ’. In addition, it is not yet clear where the line is to be drawn between ‘religion or belief ’ and the manifestation of religion or belief. For example, where an employer requires employees to wear a particular form of head-dress, is this direct discrimination against Sikhs whose religion demands the wearing of a turban; or is it instead indirect discrimination against them?120 In the field of sexual orientation discrimination, a similar issue arises. It will not be clear until the CJEU determines the matter whether the prohibition is restricted to orientation, or whether it also extends to behaviour which is associated with sexual orientation. If the former, the law would only forbid adverse treatment grounded upon a person’s sexual orientation: ‘I will not employ you because you are (or I believe you to be) homosexual’; if the latter, it would extend, much more widely, to adverse treatment grounded upon the manifestations of sexual orientation: ‘I will not employ you because you dress and speak in a camp manner.’121 Very difficult questions arise where there is a collision between the different grounds of discrimination now covered by EU law. The most obvious example is where one employee holds religious views which proscribe homosexuality and expresses those views to the offence of a gay colleague. The gay employee may claim that this constitutes discrimination on the ground of homosexuality; but, equally, the religious employee may claim that disciplinary action taken by the 119

See discussion in ch 1. This question is important because, as will be discussed below, indirect discrimination is subject to the defence of justification, whereas direct discrimination cannot usually be justified. 121 In a decision on the interpretation of the UK’s implementing legislation, Richards J held that ‘sexual orientation and its manifestation in sexual behaviour are both inextricably connected with a person’s private life and identity’: R (on the application of Amicus—MSF section) v Secretary of State for Trade and Industry [2004] IRLR 430, at 436; he added that ‘the protection against discrimination on grounds of sexual orientation relates as much to the manifestation of that orientation in the form of sexual behaviour as it does to sexuality as such’ (at 446). 120

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employer infringes the right not to be discriminated against on the ground of religion or belief. The resolution of these sorts of difficulty is not a clear-cut matter but depends in part on the availability of the exceptions to the non-discrimination principle which are discussed in more detail in chapter 9.

Defences to a discrimination claim122 Since only discrimination based on the specified grounds is prohibited by EU law, it follows that differences between persons in otherwise comparable circumstances which are not based on such specified grounds are themselves lawful. Thus, for example, where the allegation is of direct discrimination contrary to Article 157, the way is open for the employer to plead that some factor other than sex is the cause of the pay discrepancy. As the CJEU explained in Macarthys Ltd v Smith:123 ‘[I]t cannot be ruled out that a difference in pay between two workers occupying the same post but at different periods in time may be explained by the operation of factors which are unconnected with any discrimination on grounds of sex’.124 The CJEU chose its words carefully here; this is in essence a matter of causation and not a matter of justification. Properly analysed, this is a situation where there is no discrimination, not one where proven discrimination can be excused.125 There is a logical, though not a verbal, parallel as regards causation in cases of indirect discrimination. Here, the respondent can defend the conduct if it can be shown that the discriminatory effect is explicable, in the words of the CJEU in Bilka-Kaufhaus GmbH v Weber Von Hartz,126 by ‘objectively justified factors which are unrelated to any discrimination’: in other words, where the apparently objectionable effect is in fact not grounded in discrimination.127 The Court went on in that case to explain that this principle is subject to a stringent test of proportionality: It falls to the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker’s sex, but in fact affects more women than men may be regarded as objectively justified [on] economic grounds. If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued, and 122 On this subject generally, see Hervey, Justifications for Sex Discrimination in Employment (Butter123 worths, London, 1993). Case 129/79 [1980] ECR 1275. 124 Case 129/79 [1980] ECR 1275, at 1289. See also the remarks of Capotorti AG in the same case, especially at 1295, and see Case C-381/99 Brunnhofer v Bank der österreichischen Postsparkasse AG [2001] ECR I-4961. 125 See also Case 177/88 Dekker v Stichting Vormingscentrum Voor Jonge Volwassen Plus [1990] ECR I-3941, where this point was specifically recognized by the CJEU, and Ellis, ‘The Definition of Discrimination in European Community Sex Equality Law’ (1994) 19 ELRev 563. 126 Case 170/84 [1986] ECR 1607. 127 This analysis was confirmed by the CJEU in Case C-381/99 Brunnhofer [2001] ECR I-4961, and by Jacobs AG in Case C-79/99 Schnorbus v Land Hessen [2000] ECR I-10997.

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are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119.128

This sets up a formidable hurdle for a respondent seeking to justify indirectly discriminatory conduct. The respondent must show to the satisfaction of the national court that there is a genuine need on behalf of the enterprise for the discriminatory factor,129 that the means chosen are suitable for attaining the objective, and, most strictly of all, that the means chosen are ‘necessary’ to attain the objective; it follows that, if reasonable alternative means are available to the respondent to attain the objective, the behaviour will breach the non-discrimination principle. There is a good reason for the law to take this approach, effectively reversing the burden of proof once adverse impact has been demonstrated in an indirect discrimination claim.130 It will usually be very difficult, if not impossible, for the claimant to demonstrate that discrimination lies at the root of the adverse impact in these sorts of cases, and it therefore makes practical sense to place the burden of disproving discrimination on the shoulders of the respondent, who is in a much better position to explain what has occurred.131 An equivalent principle also applies where the alleged indirect discrimination stems from a legislative act of one of the Member States. Thus, in the words of the CJEU in R v Secretary of State for Employment, ex parte Seymour-Smith:132 [I]t is for the Member State, as the author of the allegedly discriminatory rule, to show that the said rule reflects a legitimate aim of its social policy, that that aim is unrelated to any discrimination ..., and that it could reasonably consider that the means chosen were suitable for attaining that aim.133

When it comes to justifying alleged indirect discrimination contained in a Member’s State’s law, the respondent is not restricted to relying on the reasons put forward when the measure introducing the differential treatment was adopted.134

128 [1986] ECR 1607, at 1628. For further discussion of the role played by proportionality in the defence of discrimination, see Hervey, ‘EC Law on Justifications for Sex Discrimination in Working Life’, in Blanpain (ed), Collective Bargaining, Discrimination, Social Security and European Integration (Kluwer, Deventer, 2003). 129 In other words, the subjective beliefs of the respondent are (as discussed at p 163 et seq.) not the essence of the matter. Unfortunately, the CJEU is not always scrupulously consistent in applying this requirement; see, eg, Case C-79/99 Schnorbus [2000] ECR I-10997, which concerned a provision which expedited the entry into practical legal training of those who had completed military service. This provision was prima facie indirectly discriminatory, since only men were required to perform compulsory military service. Nevertheless, the Court held it to be justified in part because it was ‘prompted solely by the desire’ to counterbalance the delay caused to those concerned in embarking on their careers. 130 See the Opinion of Léger AG in Case C-317/93 Nolte v Landesversicherungsanstalt Hannover [1995] ECR I-4625, at 4641. 131 Cf the decisions of the House of Lords in Strathclyde Regional Council v Wallace [1998] SC 72 and Glasgow City Council v Marshall [2000] 1 WLR 333, and the decision of the British Employment Appeal Tribunal in Parliamentary Commissioner for Administration v Fernandez [2004] IRLR 22. 132 133 Case C-167/97 [1999] ECR I-623. Case C-167/97 [1999] ECR I-623, at 686. 134 Joined Cases C-4 & 5/02 Schönheit v Stadt Frankfurt am Main [2003] ECR I-12575.

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The role of justification in indirect discrimination was so well-established in EU law by the date of enactment of the Race and Framework Directives that the concept was expressly incorporated into those instruments. Thus, the definition of indirect discrimination contained in Article 2(2)(b) of the Race Directive135 concludes with the words: ‘unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’. The Framework Directive contains identical wording,136 as do the Recast Directive137 and the Goods and Services Directive.138 The application of the principle of justification in the substantive fields occupied today by EU anti-discrimination law will be discussed further in the later chapters of this work.

Can direct discrimination be justified as a matter of EU law? It has sometimes been suggested that it is not only indirect discrimination which may be justified, but that this concept may also be applied so as to legalize direct discrimination.139 For example, in Birds Eye Walls Ltd v Roberts,140 both the Commission and the defendant employers argued for the justification of alleged discrimination in relation to bridging pensions where it involved female ex-employees aged between 60 and 65 who had retired early. Van Gerven AG agreed that ‘exceptionally’ direct discrimination might be justified, apparently largely on the basis that it can be difficult to distinguish between direct and indirect discrimination.141 He concluded: Since I consider that Birds Eye Walls can justify on objective grounds the policy with regard to pensions at issue here, I have come to the conclusion ...that an employer is not in breach of Article 119 ...if, taking account of the difference between the pensionable age for men and that for women applied by the state and authorized for the time being, he operates an occupational scheme involving payment of a bridging pension using a method of calculation designed to ensure the same overall retirement pension (occupational pension and state pension combined) for male and female ex-employees.142 135

See at p 151. Art 2(2)(b)(i) of the Framework Directive. Additionally, indirect discrimination can be defended in cases of disability through the principle of ‘reasonable accommodation’: Art 2(2)(b)(ii); this is discussed 137 further in ch 6. Art 2(1)(b) of the Recast Directive. 138 Art 2(b) of the Goods and Services Directive. 139 See discussion in McCrudden, Equality of Treatment Between Men and Women in Social Security (But140 terworths, London, 1994), especially at 215–17. Case C-132/92 [1993] ECR I-5579. 141 See the Advocate General’s submissions, Case C-132/92 [1993] ECR I-5579, at 5593. See also the somewhat ambiguous submissions of La Pergola AG in his Opinion in Case C-l/95 Gerster v Freistaat Bayern [1997] ECR I-5253, at 5363–4, and in Case C-243/95 Hill and Stapleton v Revenue Commissioners [1998] ECR I-3739, at 3748. 142 [1993] ECR I-5579, at 5596; the supplied emphasis suggests that the Advocate General was in fact satisfied with subjective rather than objective justification. See also the same Advocate General’s submissions in Case C-152/91 Neath v Hugh Steeper Ltd [1993] ECR I-6935. 136

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The Court avoided dealing with the issue in this case by holding that there was no discrimination at all on the facts. This appeared consistent with its earlier holding in Dekker v Stichting Vormingscentrum Voor Jonge Volwassen Plus143 that the concept of justification has no place in the law relating to direct discrimination.144 However, an indication that the Court might be able to be persuaded of the possibility of justifying direct discrimination was provided in Smith v Avdel Systems Ltd.145 Van Gerven AG had again argued in favour of such a solution: Such a possibility ...may be used only in exceptional situations, more specifically in order to take account of circumstances which are entirely unconnected with discrimination on grounds of sex and which meet an acute need concerning the very existence of the undertaking or the solvency of its occupational pension scheme.146

The Court itself held that what is now Article 157 forbade raising the pension age for women members of the scheme from 60 to 65 in the period intervening between the operative date of the Barber judgment147 and the date on which the scheme rules were equalized for men and women. It went on to add: Even assuming that it would, in this context, be possible to take account of objectively justifiable considerations relating to the needs of the undertaking or of the occupational scheme concerned, the administrators of the occupational scheme could not reasonably plead, as justification for raising the retirement age for women during this period, financial difficulties as significant as those of which the Court took account in the Barber judgment, since the space of time is relatively short and attributable in any event to the conduct of the scheme administrators themselves148

Similarly, in relation to direct discrimination contrary to the Equal Treatment Directive, the Court sometimes countenanced the possibility of justification but without actually applying the principle.149 However, more recently, it has insisted that direct sex discrimination cannot be justified; in Pensionsversicherungsanstalt v Kleist,150 it held that only indirect sex discrimination could be justified under the Equal Treatment Directive and therefore that the discriminatory dismissal of women at a younger age than men could not be justified by the objective of promoting the employment of younger workers. In the view of the present authors, this latest expression of the position is the correct one; to allow the justification of direct discrimination generally

143

[1990] ECR I-3941, also discussed in ch 7. See also Elmer AG in Case C-249/96 Grant v South-West Trains Ltd [1998] ECR I-621. 145 146 Case C-408/92 [1994] ECR I-4435. Case C-408/92 [1994] ECR I-4435, at 4448. 147 148 Discussed in ch 5. [1994] ECR I-4435, at 4468. 149 See Case C-32/93 Webb v EMO (Air Cargo) Ltd [1994] ECR I-3567 and Case C-421/92 Habermann-Beltermann [1994] ECR I-1657. Cf Case C-109/00 Tele Danmark A/S v Handels-OG Kontorfunktionaerernes Forbund I Danmark (HK) [2001] ECR I-6993 and Case C-320/01 Busch v Klinikum Neustadt GmbH [2003] ECR I-2041. All of these decisions are discussed in greater detail in ch 7. 150 Case C-356/09 [2010] ECR I-11939. 144

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would be a misconceived and undesirable route for the CJEU to pursue.151 It is misconceived because it is based upon a fl awed analysis of the concept of discrimination.152 Discrimination occurs where a person is treated adversely on a prohibited ground. The concept is a remedial one and, as Lenz AG pointed out in Enderby v Frenchay Health Authority,153 it makes no sense to make technical distinctions between its direct and indirect manifestations.154 There are, therefore, broadly speaking, two elements of the tort of discrimination, whichever form it takes: adverse treatment (harm) and the grounding of that treatment in a prohibited classification (causation). It has already been seen that the CJEU recognized expressly in Macarthys Ltd v Smith155 that where there is no causation there can be no discrimination.156 It has also been seen that objective justification reflects the element of causation where the discrimination is indirect: if the adverse consequences to one group can be shown to be attributable to an acceptable and discrimination-neutral factor, then there is no discrimination. The cause of the adverse impact is something other than discrimination. When one is dealing with direct discrimination, however, once adverse treatment and causation have been proved, this is the end of the matter; there can logically be no room for any further arguments about the roots of the adverse treatment. Justification is, therefore, not an applicable notion.157

151 It is, however, important to note that the European Court of Human Rights has adopted a markedly different analysis of the concept of discrimination from the CJEU; for it, any prima facie discriminatory treatment (that is to say, the unequal treatment of comparable situations, or the equal treatment of different situations) can be excused by objective and reasonable justification: see the Belgian Linguistics (No 2) Case (1968) Series A, No 6, 1 EHRR 252, and discussion in ch 3. It is submitted that this is a much weaker model for anti-discrimination law than that adopted by the CJEU, and that the EU approach is therefore to be preferred. 152 This view was endorsed by Jacobs AG in Case 79/99 Schnorbus [2000] ECR I-10997. 153 Case C-127/92 [1993] ECR I-5535. 154 Cf the analysis adopted by Forshaw and Pilgerstorfer in ‘Direct and Indirect Discrimination: Is there Something in Between?’(2008) 37 ILJ 347. 155 Case 129/79 [1980] ECR 1275. 156 It is submitted that this is how the CJEU’s statement at para 55 of Case C-303/06 Coleman v Attridge Law [2008] ECR I-5603 should be understood. See also Case C-132/11 Tyrolean Airways v Betriebsrat Bord [2012] ECR I-000, where the differential treatment experienced by staff working for different airlines was not attributable to age. 157 It is submitted that this is what was intended by Lenz AG in Enderby. Although he spoke of an employer ‘justifying’ differences of pay in cases of direct discrimination, he was dealing with proof that the pay difference was caused by sex discrimination; see the Advocate General’s submissions: [1993] ECR I-5535, at 5558–9. See also the Opinion of Sharpston AG in Case C-427/06 Bartsch v Bosch [2008] ECR I-7245 (at para 99) and the comment of the CJEU in Case C-388/07 R v Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulation Reform [2009] ECR I-1569 (at para 62). For further support for this analysis, see Watson, ‘Equality of Treatment: A Variable Concept?’ (1995) 24 ILJ 33; Hepple, ‘Equality and Discrimination’, in Davies, Lyon-Caen. Sciarra, and Simitis (eds), European Community Labour Law: Principles and Perspectives (Clarendon Press, Oxford, 1996); Szyszczak, ‘“The Status to be Accorded to Motherhood”: Case C-32/93 Webb v Emo Air Cargo (UK) Ltd’ (1995) 58 MLR 860; and Ellis, ‘The Definition of Discrimination in European Community Sex Equality Law’ (1994) 19 ELRev 563.

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The possibility of justifying direct discrimination is also undesirable158 because it permits a raft of undefined excuses for discrimination which are not articulated in EU law.159 This has the potential gravely to undermine the operation of the principle of equality and is, furthermore, contrary to the Court’s usual rule that exceptions to fundamental principles are to be construed narrowly.160 It must, however, be conceded that there are today a few situations in which direct discrimination is expressly deemed capable of justification.161 In particular, in relation to discrimination on the ground of age, Article 6(1) of the Framework Directive provides: Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

This provision is considered further in chapter 9. In addition, the Directives on Part-Time Work162 and Fixed-Term Employees,163 discussed in chapter 6, permit the justification of direct discrimination.164

Harassment and instructions to discriminate There was a growing consciousness of the existence and prevalence of sexual harassment in both the USA and the EU during the closing decades of the twentieth century. The action taken by the EU in this field is discussed in chapter 6. The damaging potential of harassment in relation to all the groups protected from discrimination in EU law today is reflected in specific provisions outlawing both harassment and the giving of instructions to discriminate. Thus, the Race, Framework, and Goods and Services Directives all include harassment and instructions

158 See Hepple, Coussey, and Choudhury, Equality: A New Framework (Cambridge Centre for Public Law and the Judge Institute of Management Studies, Cambridge, 2000); the vast majority of people questioned pursuant to this inquiry did not consider that direct discrimination should be justifiable. 159 See Hepple, ‘Can Direct Discrimination Be Justified?’ (1994) 55 EOR 48; Bowers and Moran, ‘Justification in Direct Sex Discrimination Law: Breaking the Taboo’ (2002) 31 ILJ 307; Gill and Monaghan, ‘Justification in Direct Sex Discrimination Law: Taboo Upheld’ (2003) 32 ILJ 115; and Bowers, Moran, and Honeyball, ‘Justification in Direct Sex Discrimination: A Reply’ (2003) 32 ILJ 185. 160 Case 222/84 Johnston v Chief Constable of the RUC [1986] ECR 1651, also discussed in ch 9. 161 162 See, eg, the Goods and Services Directive, Art 4(5). Directive 97/81, OJ [1998] L14/9. 163 Directive 99/70, OJ [1999] L175/43. 164 Gill and Monaghan argue in ‘Justification in Direct Sex Discrimination Law: Taboo Upheld’ (2003) 32 ILJ 115 that these directives are labour market, rather than human rights, measures; thus, justification reflects the balance which has to be struck between the interests of the workers concerned and their employers. ‘Such differential treatment does not undermine the dignity of the worker’ (at 119).

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to discriminate within the concept of discrimination.165 Article 2(3) of the Race Directive provides: Harassment shall be deemed to be discrimination within the meaning of paragraph 1, when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.

Article 2(3) of the Framework Directive is cast in identical terms in relation to its field of operation.166 In Coleman v Attridge Law,167 the CJEU held that the prohibition of harassment contained in the Framework Directive is not limited to those who are themselves disabled but that it also extends to the detrimental treatment of a mother on the ground of her son’s disability. The same doubt exists in relation to harassment as to direct discrimination in this context, namely whether this principle of discrimination by association applies to the other proscribed grounds besides disability. Article 2(1)(c) of the Recast Directive defines harassment similarly to the Race and Framework Directives,168 but paragraph (d) adds that ‘sexual harassment’ occurs ‘where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment’.169 Article 2(2) states that, for its purposes, ‘discrimination’ includes harassment and sexual harassment, ‘as well as any less favourable treatment based on a person’s rejection of or submission to such conduct’.170 The difficulties caused both by the specificity of these texts and of the verbal disparities between them are examined in chapter 6. The Race and Framework Directives, the Goods and Services Directive, and the Recast Directive all prohibit the giving of instructions to discriminate, but none gives any definition of what is meant by this term.171 In particular, the CJEU will 165 It has been argued, however, that the restriction of the concept of harassment to cases which involve discrimination is too limiting, and that a broader Community measure outlawing bullying and mobbing is required: see Driessen-Reilly and Driessen, ‘Don’t Shoot the Messenger: A Look at Community Law Relating to Harassment in the Workplace’ (2003) 28 ELRev 493. 166 See Vickers, ‘Is All Harassment Equal? The Case of Religious Harassment’ (2006) 65 CLJ 579; the author there argues that freedom from religious harassment is a more complicated issue than sexual or racial harassment, in particular because freedom of religion itself entails a right to express religious 167 opinions. Case C-303/06 [2008] ECR I-5603. 168 As does Art 2(c) of the Goods and Services Directive. 169 See also Art 2(d) of the Goods Services Directive which is expressed in identical terms. For criticism of this legislative formulation, see Holtmaat, ‘Sexual Harassment and Harassment on the Ground of Sex in EU law: a Conceptual Clarification’ (2011) 2 European Gender Equality Law Review 4. 170 See also Art 4(3) of the Goods and Services Directive. Recital 6 of the Preamble to the Recast Directive reminds the Member States that harassment and sexual harassment take place not only in the workplace, but also in the context of access to it, vocational training, and promotion. 171 See Art 2(4) of the Race Directive, Art 2(4) of the Framework Directive, Art 4(4) of the Goods and Services Directive, and Art 2(2)(b) of the Recast Directive.

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have to decide whether ‘instructions’ have to be mandatory, or whether, alternatively, an expressed preference or encouragement would be included.The provision is presumably intended to catch such situations as where an employer tells a job agency not to send, for example, black or Muslim applicants for a post; however, it ought arguably also to extend to the situation where the (perhaps more wily) employer expresses a mere preference in this regard.

Positive action Through its now quite sophisticated view of direct discrimination, EU law protects the principle of formal equality. However, as discussed in chapter 1, many factors inhibit the capacity of this principle alone to produce real equality (however that is defined). Thus, legal systems often reach out beyond the pure principle of consistency of treatment to try to tackle the obstacles which stand in the path of genuine equality of opportunity.The chief means by which it is sometimes said that EU law attempts this difficult task is through the concept of indirect discrimination. As has been seen, the CJEU has been quite rigorous in its formulation of this concept, although later chapters will reveal that it is not invariably faithful to this approach in its application of the law. However, even if it were unfailingly rigorous, the concept of indirect discrimination in itself is essentially a non-dynamic, non-redistributive one. Although it seeks to take note of the hidden obstacles facing protected groups of people and to set them aside where they are irrelevant to the matter in hand, it does nothing to dismantle those obstacles or to change customarily stereotyped roles.172 Thus, for example, in enthusiastically applying the concept of indirect discrimination to protect part-time workers, the Court recognizes the commitment of women (predominantly) to the care of their families and homes; however, this recognition arguably concretizes the position of women, giving implicit judicial blessing to the way in which domestic life is currently usually organized.173 It does nothing to break down a work culture of long hours and family-unfriendly work conditions, yet these are the sorts of measures which are needed to give men and women truly equal opportunities in the workplace. It is for this reason that the more positive measures referred to in chapter 1 are sometimes resorted to.174 Such measures often run counter to the principle of formal equality and create a difficult tension which has to be resolved by the legal system. EU law contains several provisions permitting positive action, and these will 172 See also Morris, ‘On the Normative Foundations of Indirect Discrimination Law: Understanding the Competing Models of Discrimination Law as Aristotelian Forms of Justice’ (1995) 15 OJLS 199. 173 See also McGlynn and Farrelly, ‘Equal Pay and the “Protection of Women Within Family Life”’ (1999) 24 ELRev 202. 174 See, eg, Godard, ‘Women in Politics in France: Is Parité the Best Way to Redress the Balance?’ [2006] Public Law 124; and Villiers, ‘Achieving gender balance in the boardroom: is it time for legislative action in the UK?’ (2010) 30 Legal Studies 533.

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be discussed in chapter 9. It will be seen that the legislative philosophy underlying these provisions has not yet been fully fleshed out by the CJEU. In particular, it is not clear whether they are restricted to operating in the shadow of the principle of formal equality, or whether, on the other hand, they are sometimes permitted to trump it.

Mainstreaming It is also widely recognized that non-discrimination and equality law must be complemented by wider measures of social policy, designed to relieve historical and other types of structural disadvantage and to promote social inclusion.175 The limits of a complaints-led model for the achievement of non-discrimination and a fortiori equality were noted in chapter 1; the effective pursuit of these goals also requires measures to promote equality specifically, such as placing positive duties on public authorities and the legislature. There can be no doubt that the EU today wields enormous practical power in this area, in particular through its Employment Strategy and the deployment of its Structural Funds. However, one especially noteworthy way in which the EU today gives voice to the promotion of equality is through ‘mainstreaming’. According to the Commission’s section of the Europa website: Gender mainstreaming is the integration of the gender perspective into every stage of policy processes—design, implementation, monitoring and evaluation—with a view to promoting equality between women and men. It means assessing how policies impact on the life and position of both women and men—and taking responsibility to re-address them if necessary. This is the way to make gender equality a concrete reality in the lives of women and men creating space for everyone within the organisations as well as in communities—to contribute to the process of articulating a shared vision of sustainable human development and translating it into reality.

Even before the adoption of what is today Article 19 of the TFEU, the Commission had committed itself to a policy of mainstreaming in relation to many of the classes of people protected by the Article.176 For example, its 1998 Action Plan against Racism pledged it to mainstream race when considering a number of important policy areas.177 In November 2000, as a counterpart to the Race and Framework Directives, the Council established a Community Action Programme to combat discrimination during the period from 2001 until 2006.178 This addressed all forms of discrimination prohibited under EU law, apart from sex discrimination, and 175 See the discussion of the role of mainstreaming in Fredman, ‘Transformation or Dilution? Fundamental Rights in the EU Social Space’ (2006) 12 European Law Journal 41. For a powerful critique of the gap between the EU’s policy aims and outcomes in the area of sex equality, see Macrae, ‘The EU as a Gender Equal Polity: Myths and Realities’ (2010) 48 Journal of Common Market Studies 155. 176 See further Bell, ‘Equality and the European Union Constitution’ (2004) 33 ILJ 242. 177 178 COM (1998) 183. Decision 2000/750, OJ [2000] L303/23.

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aimed to provide practical support and underpinning for the legislation. It sought, for example, to foster the exchange of information, networking, and good practice, and it gave express emphasis to the mainstreaming of anti-discriminatory policies and practices.179 A Framework Strategy on Non-Discrimination and Equal Opportunities for All was adopted in 2005.180 This again laid stress on the importance attached by the Commission to mainstreaming for the achievement of effective equality.181 Legislative underpinning for this type of activity in the field of sex equality is provided by the founding Treaties which in numerous provisions, as described in chapter 1, affirm their support for the practical achievement of sex equality. Such legislative backing certainly legitimizes, for example, the promotion of sex equality in public procurement, so-called ‘contract compliance’.182 Article 29 of the Recast Directive also addresses ‘Gender Mainstreaming’ directly, providing: Member States shall actively take into account the objective of equality between men and women when formulating and implementing laws, regulations, administrative provisions, policies and activities in the areas referred to in this Directive.183

The Commission has over past decades pursued a series of official Programmes directed towards the achievement of equality between the sexes and including the objective of gender mainstreaming.184 The current Strategy for Equality between Women and Men covers the period 2010–15. It follows the dual approach of specific initiatives and gender mainstreaming. It is backed up by PROGRESS (2007–13), a financial programme for supporting the effective implementation of the principle of gender equality.The Council’s European Pact for Gender Equality (2011-20) also reaffirms the Council’s commitment to gender mainstreaming ‘by integrating the gender perspective into all policy areas including external EU actions, also taking into account the critical role of men and boys in the promotion of gender equality, and by ensuring that gender equality effects are taken into account in impact assessments of new EU policies’.185 In relation to the other protected categories, mainstreaming is authorized by Article 10 of the TFEU, which provides that: In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. 179

180 See the Annex to the instrument, para 1(g). COM (2005) 224 final. Assessment of the effectiveness of mainstreaming as a tool for the achievement of equality is outside the scope of the current work. However, an interesting account of the matter in relation to race is to be found in Bell, Racism and Equality in the European Union (Oxford University Press, Oxford, 2008). 182 See Tobler, ‘Encore: “Women’s Clauses” in Public Procurement under Community Law’ (2000) 25 ELRev 618. 183 See also Art 12 of the Directive on Equal Treatment Between Men and Women Engaged in an Activity in a Self-employed Capacity, Directive 2010/41, OJ [2010] L180/1, discussed in ch 6. 184 See further Beveridge, ‘Building against the past: the impact of mainstreaming on EU gender law 185 and policy’ (2007) 32 ELRev 193. [2011] OJ C155/10. 181

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The Commission was required to draw up a report to the European Parliament and the Council on the application of both the Race Directive and the Framework Directive; this report had, in accordance with the principle of gender mainstreaming, to provide an assessment of the impact of measures taken pursuant to the Directives on women and men.186 The Commission produced its report on race in 2006187 and on the Framework Directive in 2008.188

186 188

Race Directive, Art 17(2); Framework Directive, Art 19(2). COM (2008) 225 final/2.

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5 Equal pay

Scope of the obligation The principle that there must be no discrimination as regards pay applies in all the areas of substantive EU anti-discrimination law covered in the present work. Article 1571 on equal pay for men and women devotes considerable attention to the scope of this principle, providing in particular: 1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.2 2. For the purpose of this Article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. Equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement: (b) that pay for work at time rates shall be the same for the same job.

It was not until the CJEU’s decision in Allonby v Accrington and Rossendale College3 that it ruled on the meaning of ‘worker’ for the purposes of Article 157. It pointed out that there is no single definition of ‘worker’ in Community law, and that the concept varies according to the area under consideration.4 Because of the fundamental importance of the principle of sex equality in pay, ‘worker’ in this context must have a Community meaning and it must not be interpreted restrictively. A ‘worker’ for this purpose is: A person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration ...5 [T]he authors of the Treaty

1 As explained in ch 1, the present Art 157 of the TFEU was formerly Art 119 of the original Treaty and later Art 141 of the Treaty Establishing the European Community. 2 Before its amendment by the Amsterdam Treaty, this provision read: ‘Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.’ 3 Case C-256/01 [2004] ECR I-873. 4 Case C-85/96 Martinez Sala [1998] ECR I-2691. 5 It would therefore appear that the CJEU would not consider a voluntary worker to be included.

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did not intend that the term ‘worker’, within the meaning of Article 141(1) EC, should include independent providers of services who are not in a relationship of subordination with the person who receives the services.6

The Court added: Provided that a person is a worker within the meaning of Article 141(1) EC, the nature of his legal relationship with the other party to the employment relationship is of no consequence in regard to the application of that article ...The formal classification of a self-employed person under national law does not exclude the possibility that a person must be classified as a worker within the meaning of Article 141(1) EC if his independence is merely notional, thereby disguising an employment relationship within the meaning of that article.7

There would appear to be no reason to suppose that a different approach will be applied to persons who seek to invoke the equal pay provisions of the Race and Framework Directives.8 The definition of ‘pay’ contained in Article 157 has provided the starting point for a large body of case law, in which the CJEU has developed the meaning of the concept for the purposes of sex equality. Both the Race and the Framework Directives also expressly forbid discrimination over ‘pay’ in the fields which they occupy.9 The CJEU held in Maruko10 that the sex equality case law applies to the meaning to be attached to pay for the purposes of the Framework Directive11 and there is no reason to doubt that the same applies to the Race Directive. The discussion of the meaning of ‘pay’ which follows proceeds on this basis. The tricky dividing line between ‘pay’ and social security benefits for the purpose of Article 157 is discussed at p 188 et seq. Article 157 is to be found under Title X of the TFEU, ‘Social Policy’. The opening provision of this Title, Article 151, sets the agenda: The Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 6 [2004] ECR I-873, at paras 67 and 68. For a UK domestic application of this principle, see Jivraj v Hashwani [2011] UKSC 40, commented on by Buxton in ‘Discrimination in employment: the Supreme Court draws a line’ (2012) 128 LQR 1. 7 [2004] ECR I-873, at paras 70 and 71. The Court added: ‘In the case of teachers who are, vis-à-vis an intermediary undertaking, under an obligation to undertake an assignment at a college, it is necessary in particular to consider the extent of any limitation on their freedom to choose their timetable, and the place and content of their work.The fact that no obligation is imposed on them to accept an assignment is of no consequence in that context’ (at para 72). 8 See also discussion in ch 6 of Directive 2008/104 on Temporary Agency Work (OJ [2008] L327/9); this instrument expressly states in Art 5(1) that temporary agency workers are to be protected by the anti-discrimination legislation. 9 Art 4(1)(c) of the Race Directive and Art 3(1)(c) of the Framework Directive. 10 Case C-267/06 Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757. 11 The Court’s conclusion was fortified by recital 13 of the Preamble to the Framework Directive: ‘This Directive does not apply to social security and social protection schemes whose benefits are not treated as income within the meaning given to that term for the purpose of applying Article 141 of the EC Treaty, nor to any kind of payment by the State aimed at providing access to employment or maintaining employment’. This use of the word ‘income’ in this provision is infelicitous since the Treaty Article does not use the word ‘income’.

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1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonization while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion ...

Article 157 is thus an unusual type of Treaty provision. On the one hand, it represents a social ideal and an instrument with which at least indirectly to harmonize social policy. On the other hand, it states a complete legal obligation, a social and economic end in its own right. Its wording is based on that of Article 2(1) of International Labour Organization (ILO) Convention No 100, 1951,12 which provides: [E]ach Member State shall, by means appropriate to the methods in question for determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.13

The meaning of ‘pay’ for the purposes of Article 157 The CJEU’s now-famous statement in Defrenne v Sabena14 about the purpose of the equal pay provision was quoted in chapter 1. It will be recalled the Court reasoned that the original Article 119 aimed both to eliminate competitive imbalances between the Member States and also to ensure social progress. It concluded that the principle of equal pay forms part of the foundations of the Community. This important statement of principle has conditioned the view the Court has taken of what is today Article 157, and has in general led it to attach a broad, purposive meaning to the word ‘pay’. In particular, the CJEU has developed a large and influential body of case law on the relationship between Article 157 and occupational pensions, and for this reason, pensions and their legislative regulation in EU law are dealt with at an early stage in the present chapter. Certain immediate conclusions can be drawn from the wording of Article 157(2) (set out on p 180). For example, it is clear that the material form of the consideration is irrelevant for the purpose of Article 157; thus, all perks provided for employees by their employers are likely to constitute ‘pay’, so that Article 157 catches such things as company cars, and health and other insurance cover paid for by employers. It also follows that Article 157 must also cover compensatory 12

UNTS, Vol 165, 303. The Editor of the Common Market Law Reports pointed out in [1976] 2 CMLR, at 114, that the authentic English text of what was then Art 119 was translated from the original languages of the EEC Treaty and the translators did not, in doing so, pay any regard to the English authentic text of the ILO Convention. The major difference between Art 119 as it was originally phrased and the ILO Convention lay in the use of the phrases ‘equal work’ (Art 157) and ‘work of equal value’ (ILO Convention). However, the Amsterdam Treaty added ‘work of equal value’ to the EC text. 14 Case 43/75 [1976] ECR 455. 13

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payments made by an employer to an employee, such as the refund of expenses incurred in travelling or entertaining. In Garland v British Rail,15 the Article was held to extend to concessionary rail fares provided for employees and ex-employees. Similarly, the notion of ‘pay’ is not confined to basic pay, but covers overtime pay,16 special bonus payments made by employers,17 and termination payments.18 Article 157 refers specifically to consideration which the worker receives ‘in respect of his employment’. This indicates that the payment must arise out of the worker’s employment, but not that it is necessarily confined to payment for the work actually done.19 One type of situation in which such a distinction may become relevant was highlighted in Sabbatini v European Parliament.20 Two Community employees brought a staff action before the CJEU asking to have overturned the decisions of the Community institutions denying them ‘expatriation allowances’. These allowances were paid to people having to live in a foreign country in order to work for the Community. One of the applicants’ arguments was that the denial of these allowances amounted in the circumstances to a breach of Article 157. The issue therefore arose as to whether the allowances constituted ‘pay’. The Commission argued that they were not ‘pay’ because they represented not payment for work done, but compensation for having to live away from home in order to work; they were therefore payable quite independently of the work done. The CJEU decided the case on a different basis,21 but the Advocate General dealt with this issue. He submitted that account should be taken not just of wages stricto sensu, but also of all other payments made by reason of the links binding workers to their employers. Expatriation allowances fell within the notion of ‘pay’ because they were so closely linked with the employee’s work. 15

Case 12/81 [1982] ECR 359, noted by Bradley in (1982) 19 CMLRev 625. This was assumed by the CJEU in Joined Cases C-399, 409, & 425/92, C-34, 50, & 78/93 Stadt Lengerich v Helmig [1994] ECR I-5727; Darmon AG said that it was ‘agreed that overtime supplements constitute pay for the purposes of the first paragraph of Art 119’ (at 5731). 17 See Case 58/81 Commission v Luxembourg [1982] ECR 2175, where the CJEU held a special ‘head of household’ allowance to be ‘pay’. See also Case C-281/97Krüger v Kreiskrankenhaus Ebersberg [1999] ECR I-5127, where an annual Christmas bonus was held to be ‘pay’. 18 Case C-249/97 Gruber v Silhouette International Schmied GmbH & Co KG [1999] ECR I-5295. 19 In Case 19/81 Burton v British Railways Board [1982] ECR 555, VerLoren Van Themaat AG said ‘[T]he decisive question is whether the benefits are received by the worker concerned from his employer owing to his employment. The French and Italian texts of Article 119 containing the words “en raison de l’emploi” and “in regione dell’ impiego” also show that the test is not whether the payment is consideration for work performed. Only the English text of Article 119, which contains the words “in respect of his employment”, might perhaps point to a more restrictive meaning. What is required for the purposes of the final words of the second paragraph of Article 119, and what incidentally I believe is also required by the English text logically construed, is rather an unseverable causal link between the payment and a worker’s employment’ (at 588–9). See also the remarks of Lamothe AG in Case 80/70 Defrenne v Belgium [1971] ECR 445. In Case C-342/93 Gillespie v Northern Health and Social Services Board [1996] ECR I-475, the CJEU stated: ‘ ...the concept of pay ...includes all consideration which workers receive directly or indirectly from their employers in respect of their employment. The legal nature of such consideration is not important for the purposes of the application of Article 119 provided that it is granted in respect of employment ...’ (at 498). 20 21 Case 32/71 [1972] ECR 345. See ch 3. 16

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Similarly, the Court has held that payments made by an employer to an employee who is absent from work can also constitute ‘pay’;22 thus, maternity benefit paid by an employer pursuant to legislation or to the woman’s contract of employment is ‘pay’ because it is ‘based on the employment relationship’,23 and therefore a woman is subjected to unlawful sex discrimination where she does not receive a pay rise awarded to her colleagues during the period of her maternity pay.24 In Lewen v Denda,25 the CJEU held that a Christmas bonus paid by an employer to all his employees constituted ‘pay’; the reason for which the employer paid it was of ‘little importance’ provided that it was granted in connection with employment. Thus, even if paid voluntarily and as an incentive for future work, it fell within Article 157.26 The fact that the payment is notional only and never actually passes into the hands of the employee does not prevent it from falling within Article 157. This became evident in Worringham v Lloyds Bank Ltd,27 where a bank had separate pension schemes for its male and female employees. The schemes were contributory for all male employees but only for those female employees who were over 25. In order to maintain pay parity with the other clearing banks, Lloyds added an extra 5 per cent, corresponding to the cost of the contribution, to the salaries of all its contributing employees. This sum passed straight to the pension fund and was thus in effect merely a notional payment to the employee. However, if a man left Lloyds Bank before qualifying for a pension benefit, he received a refund of the contributions paid on his behalf, whereas if a woman under 25 left she received nothing. Two women under 25 complained that this treatment breached Article 157 and the CJEU held that it did. The 5 per cent additions were included in an employee’s gross salary and directly determined the calculation of other advantages linked to 22 See, eg, Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Bötel [1992] ECR I-3589; Case C-457/93 Kuratorium fur Dialyse und Nierentranslantation eV v Lewark [1996] ECR I-243; and Case C-278/93 Freers v Deutsche Bundespost [1996] ECR I-1165. Cf the decision of the British Employment Appeal Tribunal in Manor Bakeries Ltd v Nazir [1996] IRLR 604, which emphasized that the alleged pay must be received in respect of ‘work’; this decision was later disapproved in Davies v Neath Port Talbot County Borough Council [1999] IRLR 769, but on the basis that the activity in issue there did in fact constitute ‘work’. 23 Case C-342/93 Gillespie [1996] ECR I–475, at 499, and Case C-218/98 Abdoulaye v Renault SA [1999] ECR I-5723; in the latter, the CJEU held that it made no difference that the payment was oneoff, not indexed on salary, and paid to pregnant employees when they went on maternity leave. See McGlynn, ‘Pregnancy, Parenthood and the Court of justice in Abdoulaye’ (2000) 25 ELRev 654, and McGlynn, ‘Equality, Maternity, and Questions of Pay’ (1996) 21 ELRev 327. 24 Case C-342/93 Gillespie [1996] ECR I-475. See also Case C-147/02 Alabaster v Woolwich plc and Secretary of State for Social Security [2004] ECR I-3101, but note the dissent of Léger AG from the principle that Art 157 applies to a woman on maternity leave, and see further discussion in ch 7. 25 Case C-333/97 [1999] ECR I-7243. 26 See also the submissions of Warner AG in Case 69/80 Worringham v Lloyds Bank Ltd [1981] ECR 767, at 805. And see Snaith, ‘Article 119 EEC and Private Occupational Pension Schemes’ (1981) 6 ELRev 193; Crisham, ‘The Equal Pay Principle: Some Recent Decisions of the CJEU’ (1981) 18 CMLRev 601; Post, ‘New Decisions of the European Court on Sex Discrimination’ (1981) 1 LIEI 77; Plender, ‘Equal Pay for Men and Women: Two Recent Decisions of the European Court’ (1982) 30 American Journal of Comparative Law 627; and Szyszczak, ‘Occupational Pension Schemes and Article 27 119 EEC’ (1981) 1 NLJ 527. Case 69/80 Worringham [1981] ECR 767.

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salary (such as redundancy payments, unemployment benefits, family allowances, and credit facilities). It did not matter that they were immediately deducted by the employer and paid into the pension fund. Similarly, in Liefting v Directie van het Academisch Ziekenhuis bij Universiteit van Amsterdam,28 the CJEU held: [A]lthough the portion which employers are liable to contribute to the financing of statutory social security schemes to which both employees and employers contribute does not constitute pay within the meaning of Article 119 of the Treaty, the same is not true of sums which are included in the calculation of the gross salary payable to the employee and which directly determine the calculation of other benefits linked to the salary such as redundancy payments, unemployment benefits, family allowances and credit facilities.This is also the case if the amounts in question are immediately deducted by the employer and paid to a pension fund on behalf of the employee.29

Can this principle be extended to compulsory deductions from salary demanded by an employer on a discriminatory basis, where the gross salary itself does not vary according to sex? In Newstead v Department of Transport,30 a male civil servant, who described himself as ‘a confirmed bachelor’, complained of discrimination contrary to Article 157 in the requirement contained in the civil service pension scheme that all male employees contribute 1.5 per cent of their gross salary to a fund for widows’ pensions. If the employee never married, his contribution was returned to him with interest when he left the civil service, or was paid to his estate if he died before then, but no such contribution was required of his female colleagues. He therefore contended that he was denied the immediate enjoyment of his full salary, unlike his female colleagues.The CJEU held that this situation did not breach Article 157, since gross pay was not affected and, unlike the situation in Worringham and Liefting, there was no consequential effect as regards other salary-related benefits. Critical to this ruling seems to have been the fact that the deduction was made for the purpose of providing a survivor’s benefit in an occupational pension scheme which substituted for a part of the state scheme, a matter over which EU law appeared at the time of this case to permit sex discrimination.31 It would seemingly have been otherwise had the purpose of the deduction been unrelated to an area where sex discrimination was permitted. So, for example, it would certainly appear to constitute a breach of Article 157 where an employer requires his male employees only to donate a percentage of their gross salaries to the local cats’ home. Although the CJEU has not yet determined this question, the Commission has committed itself to the view that the taxation of income from employment must also respect the principle of equality pursuant to Article 157. Thus, it argues that

28

29 Case 23/83 [1984] ECR 3225. Case 23/83 [1984] ECR 3225, at 3239. Case 192/85 [1987] ECR 4753. See Arnull, ‘Widows’ Mite’ (1988) 13 ELRev 135. 31 The CJEU’s decisions in Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889 and succeeding pensions cases subsequently made it clear that sex discrimination was not permissible in such situations. See discussion at p 191 et seq. 30

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the Member States must ensure that their tax systems do not discriminate on the ground of sex.32

(i) Are pensions ‘pay’ within Article 157? It was seen above that Article 157 provides that, in order to be ‘pay’, the consideration must come, either directly or indirectly, from the employer. This requirement has presented a problem in relation to the practically very important issue of whether pension benefits fall within Article 157, a matter which has been raised before the CJEU many times.33 The issue has proved to be specially significant in the field of sex equality for a number of reasons, not least the different state pension ages traditionally stipulated in the Member States for men and women,34 and the different working lives of the two sexes. However, it is also highly relevant to discrimination on the newer grounds introduced into EU law, especially discrimination on the grounds of disability, age, and sexual orientation. Probably the first real hint from the CJEU itself that pensions might sometimes be within Article 157 came in Burton v British Railways Board.35 The question here was whether the provision of early retirement pensions under a voluntary redundancy scheme contravened EU law because women became eligible at 55, but men only at 60. The Court held that the question of interpretation which has been referred to the Court concerns not the benefit itself, but whether the conditions of access to the voluntary redundancy scheme are discriminatory. This is a matter covered by the provisions of Council Directive 76/207 ...and not by those of Article 119.36

Later, it pointed out specifically that: The option given to workers by the provisions at issue ...enables a worker who leaves his employment at any time during the five years before he reaches normal pensionable age to receive certain allowances for a limited period. The allowances are calculated in the same manner regardless of the sex of the worker.37

Commenting on this case in the British Employment Appeal Tribunal, BrowneWilkinson J said that he considered its implication to be that ‘the quantum of benefit payable under a retirement scheme may be “pay” within the meaning of Article 119’.38 32

See COM (2003) 657 final, at 5. The issue was originally ducked by the CJEU in Case 69/80 Worringham [1981] ECR 767. For further discussion, see Curtin, ‘Occupational Pension Schemes and Article 119: Beyond the Fringe?’ 34 (1987) 24 CMLRev 215. See further ch 10. 35 Case 19/81 [1982] ECR 555, noted by Bradley in (1982) 19 CMLRev 625. 36 Case 19/81 [1982] ECR 555, at 575, emphasis added. 37 Case 19/81 [1982] ECR 555, at 576–7. 38 Barber v Guardian Royal Exchange Assurance Group [1983] IRLR 240, at 243. 33

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Razzouk and Beydoun v Commission39 concerned sex discrimination contained in the Community’s own Staff Regulations as regards the provision of survivors’ benefits to the relatives of deceased employees. Slynn AG submitted that a retirement pension received by a Community employee, and also a survivor’s pension received by such a person’s widow or widower, was ‘pay’ and subject to a principle ‘analogous’ to Article 157. He explained that: In substance the official’s entitlement to, for example, a retirement pension is part of the consideration (albeit deferred) which he receives in respect of his employment ...The same can, in my view, be said of the survivor’s pension even though it is not received directly by the official himself but is paid to his surviving spouse. It is still consideration received in respect of the official’s employment for which in part he also makes general pension contributions.40

The Court itself preferred to base its conclusion in this case on the general principle of equal treatment of the sexes and said that: [I]n relations between the Community institutions on the one hand and their employees and those claiming under them on the other, the requirements arising from this principle are by no means limited to those flowing from Article 119 ...41

The Court was much more forthcoming on the pensions issue in Bilka-Kaufhaus GmbH v Weber Von Hartz.42 Bilka was part of a chain of department stores in Germany which employed several thousand people. Ms Weber Von Hartz, who had been employed by the company for a number of years, alleged that its occupational pension scheme discriminated against female employees because of the conditions it imposed for entry into the scheme. Darmon AG submitted that each pension scheme has to be examined individually in order to test whether it falls within the scope of Article 157, in particular in the light of the relevant national legislation. However, he considered that the pension provided by Bilka was within Article 157: [I]t is a voluntary scheme which complements and ‘tops up’ the statutory scheme, even if it was encouraged or organized by the authorities, and ...it applies only in so far as it is incorporated in the employment relationship, after negotiations between the employer and the employees.43

The Court itself agreed, saying: [T]he occupational pension scheme at issue in the main proceedings, although adopted in accordance with the provisions laid down by German legislation for such schemes, is based on an agreement between Bilka and the staff committee representing its employees and has the effect of supplementing the social benefits paid under national legislation of general application with benefits financed entirely by the employer.The contractual rather than the statutory nature of the scheme 39

40 Cases 75 & 117/82 [1984] ECR 1509. Cases 75 & 117/82 [1984] ECR 1509, at 1540. Cases 75 & 117/82 [1984] ECR 1509, at 1530. 42 Case 170/84 [1986] ECR 1607. See Arnull,‘Sex Discrimination in Occupational Pension Schemes’ 43 (1986) 11 ELRev 363. Case 170/84 [1986] ECR 1607, at 1614. 41

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in question is confirmed by the fact that, as has been pointed out above, the scheme and rules governing it are regarded as an integral part of the contracts of employment between Bilka and its employees. It must therefore be concluded that the scheme ...does not constitute a social security scheme governed directly by statute and thus outside the scope of Article 119. Benefits paid to employees under the scheme therefore constitute consideration received by the worker from the employer in respect of his employment, as referred to in the second paragraph of Article 119.44

It followed that there were in essence two requirements for payments under this type of supplementary pension scheme to fall within Article 157: the scheme must be funded in part at least by the employer, because otherwise payments would not represent consideration received from the employer within the wording of Article 157;45 and the scheme must be contractual in origin rather than set up by statute.46 The second of these criteria represented an attempt by the CJEU to differentiate between social security payments and pay. Such a distinction appears to be implied by the social policy provisions of the TFEU, since they make separate reference to the harmonization of social security systems. The first case to explore the dividingline was Defrenne v Belgium.47 Ms Defrenne had been a cabin steward employed by Sabena Airlines. In common with her other female colleagues, the company required her to retire at the age of 40. She then found that she faced discrimination in relation to her pension arrangements. A Belgian Royal Decree established a pension scheme for ‘all members of air crews with the exception of air hostesses’; this special scheme was far more lucrative than the general state pension and payable at the age of 55. Under the general state scheme, women could not claim their pensions until the age of 60. Ms Defrenne voiced two objections in particular: her years of service with Sabena before she reached the age of 40 were taken into consideration only under the less favourable general scheme; and she could not claim any pension at all until she was 60. The Belgian court before which she brought 44 Case 170/84 [1986] ECR 1607, at 1625–6, emphases added. It is noteworthy (particularly with the benefit of hindsight) that the Court did not follow the argument of the UK Government in this case to the effect that this was a problem of ‘access’ to benefits and therefore within the principle of Case 19/81 Burton [1982] ECR 555. For further discussion of this issue, see ch 6. 45 Thus, in Case C-226/98 Forgensen v Foreningen af Speciallaeger [2000] ECR I-2447, the CJEU held that the price which a doctor receives for goodwill on selling her practice when she retires is not equivalent to a pension: ‘The transfer of a practice is not necessarily linked to the age of the transferor and may occur at any time, whereas a pension is obtained only at a certain age and subject to a certain period of activity and payment of a specific amount of contributions. Furthermore, it is the person taking over the practice who pays the purchase price and not those who normally provide the doctor’s remuneration ...’ (at 2483). 46 Provided that the origin of the payment is not statutory, it has long been clear that it is not taken outside the scope of Art 157 simply because statute regulates certain aspects of the payment. VerLoren Van Themaat AG commented in Case 19/81 Burton [1982] ECR 555: ‘I do not think that it is relevant, for the purpose of determining whether Article 119 applies, that the method of calculating the amount of the benefits partly depends on statutory provisions. As was rightly pointed out in the course of the proceedings, such a criterion would mean that statutory minimum wages which discriminated between the sexes would not fall under Article 119 either’ (at 588). 47 Case 80/70 [1971] ECR 445, the so-called First Defrenne case. See also the remarks of Mayras AG in Case 207/78 Ministère Public v Even [1979] ECR 2019, at 2038–9.

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proceedings asked the CJEU whether a ‘retirement pension granted under a social security scheme financed by workers’ and employees’ contributions, as well as by state grants’, constituted ‘pay’ within the meaning of Article 157. The CJEU ruled that both general and special state pension schemes are excluded from the ambit of Article 157: Although payments in the nature of social security benefits are therefore in principle not alien to the concept of pay, there cannot be brought within this concept, as defined in Article 119, social security schemes or benefits, in particular retirement pensions, directly governed by legislation without any element of agreement within the undertaking or the occupational branch concerned, which are obligatorily applicable to general categories of workers. These schemes assure for the workers the benefits of a legal scheme, to the financing of which workers, employers and possibly the public authorities contribute in a measure determined less by the employment relationship between the employer and the worker than by considerations of social policy. Accordingly, the part due from the employers in the financing of such schemes does not constitute a direct or indirect payment to the worker. Moreover, the worker will normally receive the benefits legally prescribed not by reason of the employer’s contribution but solely because the worker fulfils the legal conditions for the grant of benefits.48

A social security payment thus appeared to be one whose qualifying conditions were exclusively laid down by legislation and which was payable irrespective of whether the particular employer concerned had in fact contributed to its financing. In the words of Lamothe AG: [T]here is no relationship at all between the employer’s contribution and the pension and it is this absence of relationship which in this case as in that of the general scheme prevents the pension from being regarded as consideration which the employed person receives from his employer within the meaning of the provisions of Article 119.49

In more graphic terms, he explained that social security benefits are: no more consideration received indirectly from the employer than are the road, water mains or sewer, the benefit of which the employed person has as a citizen and to finance which the taxes and duties paid by the employer have contributed.50

However, this analysis proved to be deceptively simple. In reality, there is considerable overlap between the notions of ‘pension’ and ‘social security’, in particular in the UK, where occupational pension schemes may be ‘contracted-out’ of the 48 Case 80/70 [1971] ECR 445, at 451. The Court appears to consider that the origins of a particular scheme are relevant in helping it to decide whether it falls within the definition of a social security scheme: in Case C-109/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf [1993] ECR I-4879, a scheme was differentiated from that in the Defrenne case where ‘the rules ...were not laid down directly by law but were the result of an agreement between both sides of the industry concerned’, notwithstanding that ‘at the request of such employers’ and trade union organisations as were considered to be representative,...the scheme [was declared] compulsory for the 49 whole of the industry concerned’ (at 4943). Case 80/70 [1971] ECR 445, at 461. 50 Case 80/70 [1971] ECR 445, at 458.

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earnings-related element of the state pension scheme, provided that they satisfy certain statutory requirements. The occupational pension in such a situation thus substitutes, at least in part, for the state pension. Is such a contracted-out pension therefore removed from the scope of Article 157? This question was first put to the CJEU in Worringham v Lloyds Bank Ltd.51 The CJEU itself managed to avoid answering it on this occasion. However, Warner AG did deal with it. He considered that benefits under the Lloyds Bank scheme would have fallen within Article 157 were it not for the ‘contracting-out’ element. It had been argued that the rights under such a contracted-out scheme were not received, even indirectly, from the employer because others were concerned in their elaboration and financing. However, the Advocate General submitted: In my view the circumstances that the terms of a scheme have to be discussed with and to be approved by others does not detract from the fact that, at the end of the day, its adoption is the act of the employer. Nor is the element of tax saving in my opinion relevant. Wages and salaries, which are undoubtedly ‘pay’, are also deductible in computing the employer’s profits for tax purposes; and I hardly think that the circumstance that a member of the scheme is taxable on benefits he receives from it and not on contributions he makes to it can affect the issue. It was also pointed out that some of the benefits under the scheme were payable not to the member but to his dependants. The conferment of the right to those benefits on his dependants can, however, in my opinion, properly be regarded as an advantage to the member arising from his employment.52

But he went on to add: To hold that Article 119 applied in relation to [these] schemes would mean holding that ever since that Article took effect (ie since the end of the first stage of the transitional period in the case of the original Member States and since 1 January 1973 in the case of the [UK]) a Member State operating such a system was under an obligation to ensure that a contractedout scheme afforded equal rights for men and women whilst it was under no such obligation as regards its state scheme. That would, it seems to me, be an unbalanced result to reach, as well as one calculated to deter contracting-out. In my opinion, where a privately established pension scheme is designed, not as a supplement to the state social security scheme ...but as a substitute for it or for part of it, it must be regarded as outside the scope of Article 119 and as falling to be dealt with under the broader headings in Article 118.53 51

52 Case 69/80 [1981] ECR 767. Case 80/70 [1971] ECR 445, at 805. Case 80/70 [1971] ECR 445, at 806. Cf Cases 75 & 117/82 Razzouk and Beydoun [1984] ECR 1509, where Slynn AG commented: ‘The judgment of the Court in Case 80/70 Defrenne v Belgium excluded from the scope of Article 119 “social security schemes or benefits, in particular retirement pensions, directly governed by legislation without any element of agreement within the undertaking or the occupational branch concerned, which are obligatorily applicable to general categories of workers”. That description cannot, in my view, be applied to the benefits and pensions made available under pension schemes entered into by employers and employees outside a national system of social security. Nor does it in my view fit the benefits provided under the Staff Regulations. True, they are independent of and replace social security legislation for the officials concerned. On the other hand, although based on Community “legislation”, ie a Council Regulation, the scheme in the Staff Regulations applies only to persons employed by the institutions and is therefore closer to a scheme applicable to employees rather than to citizens or workers generally. In substance the official’s entitlement to, for example, a retirement 53

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The full CJEU itself ultimately reached a different conclusion on this matter in Barber v Guardian Royal Exchange Assurance Group.54 The effect of its forthright ruling in the latter case was to bring contracted-out pensions squarely within the scope of Article 157.55 It held: [T]he second question must be understood as seeking in substance to ascertain whether a retirement pension paid under a contracted-out private occupational scheme falls within the scope of Article 119 of the Treaty, in particular where that pension is awarded in connection with compulsory redundancy. It must be pointed out in that regard that [in the First Defrenne case] the Court stated that consideration in the nature of social security benefits is not in principle alien to the concept of pay. However, the Court pointed out that this concept, as defined in Article 119, cannot encompass social security schemes or benefits, in particular retirement pensions, directly governed by legislation without any element of agreement within the undertaking or the occupational branch concerned, which are compulsorily applicable to general categories of workers. The Court noted that those schemes afford the workers the benefit of a statutory scheme, to the financing of which workers, employers and possibly the public authorities contribute in a measure determined less by the employment relationship than by considerations of social policy. In order to answer the second question therefore it is necessary to ascertain whether those considerations also apply to contractedout private occupational schemes ... [I]t must be pointed out first of all that the schemes in question are the result either of an agreement between workers and employers or of a unilateral decision taken by the employer. They are wholly financed by the employer or by both the employer and the workers without any contribution being made by the public authorities in any circumstances. Accordingly, such schemes form part of the consideration offered to workers by the employer. Secondly, such schemes are not compulsorily applicable to general categories of workers. On the contrary, they apply only to workers employed by certain undertakings, with the result that affiliation to those schemes derives of necessity from the employment relationship with a given employer. Furthermore, even if the schemes in question are established in conformity with national legislation and consequently satisfy the conditions laid down by it for recognition as contracted-out schemes, they are governed by their own rules. Thirdly, it must be pointed out that, even if the contributions paid to those schemes and the benefits which they provide are in part a substitute for those of the general statutory scheme, that fact cannot preclude the application of Article 119. It is apparent from the documents before the Court that occupational schemes such as that referred to in this case may grant to their members benefits greater than those which would be paid by the statutory scheme, with the result that their economic function is similar to that of the supplementary schemes which exist in certain Member States, where affiliation and contribution to the statutory scheme is compulsory and no derogation is allowed. In its judgment [in the

pension is part of the consideration (albeit deferred) which he receives in respect of his employment ...’ (at 1540). 54 Case C-262/88 [1990] ECR I-1889. See Honeyball and Shaw, ‘Sex, Law and the Retiring Man’ (1991) 16 ELRev 47, and Fitzpatrick, ‘Equality in Occupational Pensions—The New Frontiers After Barber’ (1991) 54 MLR 271. 55 Recital 13 of the Preamble to the Recast Directive states that in Barber the CJEU ‘determined that all forms of occupational pension constitute an element of pay ...’.

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Bilka-Kaufhaus case] the Court held that the benefits awarded under a supplementary pension scheme fell within the concept of pay, within the meaning of Article 119. It must therefore be concluded that, unlike the benefits awarded by national statutory social security schemes, a pension paid under a contracted-out scheme constitutes consideration paid by the employer to the worker in respect of his employment and consequently falls within the scope of Article 119 of the Treaty.That interpretation of Article 119 is not affected by the fact that the private occupational scheme in question has been set up in the form of a trust and is administered by trustees who are technically independent of the employer, since Article 119 also applies to consideration received indirectly from the employer.56

The consequence of Barber was that both supplementary and contracted-out occupational pension schemes were clearly subject to the principle of equality as between the sexes, and discrimination within their terms was therefore actionable via Article 157 itself.57 The full Court subsequently analysed the relationship between State social security schemes and occupational pension schemes in the Beune case.58 The main question referred to the CJEU was whether a statutory pension scheme for civil servants in The Netherlands fell within Article 157. The Court referred to Jacobs AG’s exhaustive and lucid exposition of the factors which had been regarded as relevant in the earlier case law. It summed them up as follows: the statutory nature of a pension scheme, negotiation between employers and employees’ representatives, the fact that the employees’ benefits supplement social security benefits, the manner in which the pension scheme is financed, its applicability to general categories of employees and, finally, the relationship between the benefit and the employees’ employment.59

However, it went on to point out that most of these criteria do not, at least taken alone, provide a conclusive answer to whether the payment is within Article 157. Thus, the fact that a scheme is directly governed by statute may provide an indication that it is a social security scheme, but both the Barber and Second Defrenne cases expressly included as within Article 157 discrimination which was statutory in origin. The Court stated that it has attached more importance to the criterion of whether the scheme is a result of a formal agreement. As to the supplementary nature of schemes, the Court pointed out that the Barber case itself 56 [1990] ECR I-1889, at 1950–2. Part of the Commission’s motivation for its arguments in the Barber case, and probably part of the Court’s motivation in reaching its ultimate decision, was the aim of ensuring equality of treatment as between the Member States in this matter; in other words, if German employers operating Bilka-Kaufhaus supplementary pension schemes were to be bound by Art 157, then so ought British employers operating under the British system of contracted-out pensions. 57 The enforceability of Art 157 is discussed at p 246 et seq.The relationship between Art 157 and the principle of equal treatment as regards other aspects of employment is examined in ch 6. See also Case C-559/07 Commission v Hellenic Republic [2009] ECR I-47*. 58 Case C-7/93 Bestuur van Het Algemeen Burgerlijk Pensioenfonds v Beune [1994] ECR I-4471. This was followed in Case C-147/95 DEI v Evrenopoulos [1997] ECR I-2057. 59 Case C-7/93 Bestuur van Het Algemeen Burgerlijk Pensioenfonds v Beune [1994] ECR I-4471, at 4512.

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demonstrates that this is not invariably required. In relation to funding arrangements, even though a pension is funded by employers’ and employees’ contributions and is managed independently in accordance with rules similar to those applicable to occupational pension funds, this does not in truth differentiate it from a social security scheme; the Court added that even the fact of a contribution to the scheme by the State is not necessarily decisive. The applicability of the scheme to a ‘general category of employees’, which Defrenne I indicates is typical of a social security scheme, is a difficult test to apply in practice. All this led that Court to conclude: [T]he only possible decisive criterion is whether the pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say the criterion of employment based on the wording of Article 119 itself. Admittedly, as the Court has recognised ever since Defrenne I, the employment criterion cannot be regarded as exclusive.Thus, as regards the inception and determination of pension rights, the pensions paid by statutory social security schemes may reflect, wholly or in part, pay in respect of work, but nevertheless fall outside the scope of Article 119. On the other hand, considerations of social policy, of state organisation, or of ethics or even budgetary preoccupations which influenced, or may have influenced, the establishment by the national legislature of a scheme such as the scheme at issue cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service and if its amount is calculated by reference to the civil servant’s last salary. The pension paid by the public employer is therefore entirely comparable to that paid by a private employer to his former employees. It follows from all the foregoing considerations that a civil service pension scheme of the type at issue in the main proceedings, which essentially relates to the employment of the person concerned, forms part of the pay received by that person and comes within the scope of Article 119.60

It is submitted that this ruling was unacceptably vague both in not expressing clearly which indicia it regarded as critical to determining whether a payment is made by reason of an employment relationship and also in saying that the employment criterion is not exclusive. The Court has, however, subsequently gone some way towards remedying these deficiencies. In Griesmar,61 it held that a pension scheme applicable to all French civil servants fell within the scope of the Treaty.62 Following its reasoning in Beune, it pointed out specifically that civil 60 Case C-7/93 Bestuur van Het Algemeen Burgerlijk Pensioenfonds v Beune [1994] ECR I-4471, at 4518. This decision was followed in Case C-50/99 Podesta v CRICA [2000] ECR I-4039. See also Case C-267/06 Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757. Beune rendered highly doubtful the decision of the Employment Appeal Tribunal in Griffin v London Pension Fund Authority [1993] ICR 564, to the effect that pension payments made to local government workers throughout the country under the Local Government Superannuation Scheme are not pay. 61 Case C-366/99 [2001] ECR I-9383. 62 Alber AG reached the same conclusion, albeit reluctantly, on the basis of Beune. Griesmar was followed by the CJEU in Case C-206/00 Mouflin v Recteur de l’académie de Reims [2001] ECR I-10201.

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servants constituted a particular category of workers and that the pension paid to them took account of the level, duration, and nature of their services. It was therefore paid by reason of the employment relationship. This conclusion was not ousted by the fact that, unlike The Netherlands scheme, in Beune the French scheme was not merely supplementary but also provided a basic pension; nor by the fact that The Netherlands scheme relied on contributions accumulated in a fund managed by a board, whereas the French benefits were paid directly out of the State budget. Not long afterwards, in Pirkko Niemi,63 the Court was faced with an even wider pension scheme, this time established under Finnish law, for all persons employed by the State. It reiterated its earlier formula: [C]onsiderations of social policy, of State organisation, of ethics, or even the budgetary concerns which influenced or may have influenced the establishment by the national legislature of a scheme such as the one in question in the main proceedings cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service completed and if its amount is calculated by reference to the public servant’s last salary. The pension paid by the public employer is in that case entirely comparable to that paid by a private employer to his former employees.64

Applying these three indicia, the CJEU concluded that the scheme in question did indeed fall within Article 157: [P]ublic servants who benefit under a pension scheme such as that at issue in the main proceedings must be regarded as constituting a particular group of workers. They are distinguished from employees grouped within an undertaking or group of undertakings in a particular sector of the economy, or in a trade or inter-trade sector, only by reason of the specific features governing their employment relationship with the State, or with other public employers or bodies ...Second,...a person is entitled ...only if he is in a relationship with the State as a public servant or ordinary employee ...[T]he age-limit which gives rise to compulsory retirement, which in turn gives rise to entitlement to pension benefits, is in the present case directly related to the period of service completed .... [T]he level of the pension paid ...is determined by how long the person concerned has worked. Third, as regards the amount of the benefit, it must be noted that [the] pension benefits paid ...are calculated on the basis of the pay received over a period limited to a few years directly preceding retirement. Such a basis of calculation essentially satisfies the criterion applied by the Court in Beune and Griesmar, according to which the amount of the pension is calculated on the basis of the official’s last salary.65

63

Case C-351/00 [2002] ECR I-7007. Case C-351/00 [2002] ECR I-7007, at 7049.The CJEU repeated this formulation in Joined Cases C-4 & 5/02 Schönheit v Stadt Frankfurt am Main [2003] ECR I-12575. 65 Case C-351/00 [2002] ECR I-7007, at 7049–50. 64

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(ii) The principle of equality as applied to pensions66 The CJEU’s decision in Barber left a number of issues unresolved.67 First, there were problems as to the temporal scope of Article 157 in relation to pensions. It will be seen below that Article 157 generally takes direct effect and that it and its predecessors have been able to be relied upon since 8 April 1976.68 However, in this specific context, the Court took a restrictive stance: [T]he direct effect of Article 119 of the Treaty may not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of this judgment, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.69

The date of the judgment was 17 May 1990. The Court gave unusually full reasons for reaching this conclusion, saying that it could: by way of exception, taking account of the serious difficulties which its judgment may create as regards events in the past, be moved to restrict the possibility for all persons concerned of relying on the interpretation which the Court, in proceedings on a reference to it for a preliminary ruling, gives to a provision ... With regard to this case, it must be pointed out that Article 7(1) of [the Social Security Directive]70 authorized the Member States to defer the compulsory implementation of the principle of equal treatment with regard to the determination of pensionable age for the purposes of granting old-age pensions and the possible consequences thereof for other benefits. That exception has been incorporated in Article 9(a) of [the Occupational Social Security Directive]71 which may apply to contracted-out schemes such as the one at issue in this case. In the light of those provisions, the Member States and the parties concerned were reasonably entitled to consider that Article 119 did not apply to pensions paid under contracted-out schemes and that derogations from the principle of equality between men and women were still permitted in that sphere. In those circumstances, overriding considerations of legal certainty preclude legal situations which have exhausted all their effects in the past from being called in question where that might upset retroactively the financial balance of many contracted-out pension schemes. It is appropriate, however, to provide for an exception in favour of individuals who have taken action in good time in order to 66 For general discussion of this matter, see Whiteford, ‘Lost in the Mists of Time: the CJEU and Occupational Pensions’ (1995) 32 CMLRev 801; Whiteford, Adapting to Change: Occupational Pension Schemes,Women and Migrant Workers (Kluwer, The Hague, 1997); and Fredman, ‘The Poverty of Equality: Pensions and the CJEU’ (1996) 25 ILJ 91. 67 See Moore, ‘“Justice Doesn’t Mean a Free Lunch”: The Application of the Principle of Equal Pay to Occupational Pension Schemes’ (1995) 20 ELRev 159. 68 The date of the CJEU’s decision in Case 43/75 Defrenne v Sabena [1976] ECR 455. 69 Case C-262/88 Barber [1990] ECR I-1889, at 1956. In Case C-147/95 DEI v Evrenopoulos [1997] ECR I-2057, Jacobs AG submitted that ‘the exception in favour of those who [have] already introduced a claim should not be narrowly construed. Rather, it is the temporal limitation introduced by the Barber judgment which, as a departure from the normal canons of interpretation, should be subject to strict 70 construction’ (at 2071). Directive 79/7, OJ [1979] L6/24, discussed in ch 10. 71 Directive 86/378, OJ [1986] L225/40, subsequently amended in this respect and discussed further at p 209 et seq.

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safeguard their rights. Finally, it must be pointed out that no restriction on the effects of the aforesaid interpretation can be permitted as regards the acquisition of entitlement to a pension as from the date of this judgment.72

It was far from clear how the Court’s formulation of this prospective direct effect would actually work on the facts of particular cases involving occupational pension schemes. The Editors of the Equal Opportunities Review, for example, commented that the Court’s statement was capable of being read in at least five different ways.73 The financial implications were so serious for the pensions industry that the Member States took the unprecedented step of legislating directly on the matter. The TEU annexed the so-called ‘Barber Protocol’ to the Treaty Establishing the European Community, providing: For the purposes of Article 119 of this Treaty, benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law.

This rule is reiterated in Article 12(1) of the Recast Directive and the CJEU has held that it was anyway what it had intended in Barber;74 in Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf,75 it held: The Court’s ruling [in Barber] took account of the fact that it is a characteristic of this form of pay that there is a time lag between the accrual of entitlement to the pension, which occurs gradually throughout the employee’s working life, and its actual payment, which is deferred until a particular age. The Court also took into consideration the way in which occupational pension funds are financed and thus of the accounting links existing in each individual case between the periodic contributions and the future amounts to be paid. Given the reasons explained in ...the Barber judgment for limiting its effects in time, it must be made clear that equality of treatment in the matter of occupational pensions may be claimed only in relation to benefits payable in respect of periods of employment subsequent to 17 May 1990,...subject to the exception in favour of workers or those claiming under them who 72 [1990] ECR I-1889, at 1955–6, emphasis added. The French text of the same passage omits the word ‘all’ in the emphasized section: ‘Dans ces conditions, des considérations impérieuses de sécurité juridique s’opposent à ce que des situations juridique qui ont épuisé leurs effets dans le passé soient remises en cause alors que, dans un tel cas, 1’équilibre financier de nombre de régimes de pensions conventionellement exclus risquerait d’être rétroactivement bouleversé.’ 73 In ‘Occupational Pensions are Pay under EEC Law’ (1990) 32 EOR 30. See also the analysis of Van Gerven AG in Joined Cases C-109, 110, 152, & 200/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf, Moroni v Collo GmbH, Neath v Hugh Steeper Ltd, and Coloroll Pension Trustees Ltd v Russell [1993] ECR I-4879. 74 This was fortunate in the sense that a battle between the EU’s legislature and its judiciary would have had disastrous consequences for the rule of law in the EU; on the other hand, it was unfortunate in that it meant that full equality in the area of pensions will not be achieved until about 2030. 75 Case C-109/91 [1993] ECR I-4879.Van Gerven AG commented in his submissions that the Protocol had not been intended to alter the meaning to be placed on the Court’s words in Barber; his view was that this was clear from what was then the fifth indent of TEU, Art 2, which stated that one of the Union’s objectives was ‘to maintain in full the “acquis communautauire” and build on it’.

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have, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law.76

The consequence of this interpretation is that pension-providers must now calculate the proportions of each pension which are attributable to service before and after 17 May 1990, and make the necessary mathematical adjustments to ensure equality of treatment for the later period and not the earlier one. Where a particular pension benefit is not linked to length of service, such as a lump sum paid on the death of an employee during employment, then whether or not the principle of equality applies depends upon whether the triggering event occurred before or after 17 May 1990.77 The coincidentally named Defreyn v Sabena SA78 raised the issue of what sorts of payments fall within the definition of ‘benefits under occupational social security schemes’ for the purpose of the Barber Protocol. The case concerned additional redundancy payments made pursuant to a collective agreement (on terms which were sex discriminatory); they were paid by the individual’s last employer to workers receiving unemployment benefit. Ms Defreyn became redundant in 1987. The CJEU held that an occupational scheme such as the one in issue, ‘which provides protection against the risk of unemployment by providing workers employed by an undertaking, in this case Sabena, with benefits intended to supplement the unemployment benefit provided under a statutory social security scheme’, fell within the scope of the Barber Protocol. It followed that Ms Defreyn could not claim the protection of Article 157, since the payments to her were made in respect of an employment relationship which had ended before 1990 and she had not by that date already initiated legal proceedings. The complexity surrounding this area is increased by the fact that the Court has also ruled that the temporal limitation contained in Barber applies only to claims for pension payment, not to claims in relation to the right to join a pension scheme; the right to join a scheme on non-discriminatory terms had been established in

76 Case C-109/91 [1993] ECR I-4879, at 4944–5. Case C-110/91 Moroni v Collo GmbH [1993] ECR I-6591 and Case C-200/91 Coloroll Pension Trustees Ltd v Russell [1994] ECR I-4389 established that the same temporal limitation applies to non-contracted-out pension schemes; the logic of this holding is dubious in the light of the Court’s reasoning in Barber, because it has been known since Case 170/84 Bilka-Kaufhaus Gmbh v Weber Von Hartz [1986] ECR 1607 (discussed at p 187 et seq.) that pensions paid under such schemes fall within Art 157; Van Gerven AG got over this difficulty by arguing that in Bilka the Court had ruled only on the questions of whether a scheme of the type in point fell within Art 157 and whether the exclusion of part-timers constituted unlawful discrimination, and that it was not until Barber that the Court addressed the lawfulness of an age condition which was different for men and women. In Case C-152/91 Neath v High Steeper Ltd [1993] ECR I-6935, the Court added: ‘As regards transfer benefits and lump-sum options ...since by virtue of the Barber judgment Article 119 cannot be invoked to call in question the financial basis of pension rights accrued before 17 May 1990 on the basis of different retirement ages, it follows ...that its capital equivalent must necessarily be subject to the consequences of that temporal limitation’ (at 6959). 77 78 Case C-200/91 Coloroll [1994] ECR I-4389. Case C-166/99 [2000] ECR I-6155.

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Bilka-Kaufhaus GmbH v Weber Von Hartz,79 and in Fisscher v Voorhuis Hengelo BV80 the Court held that this made it impossible to argue that it was thereafter unclear that Article 157 applied to this situation: [T]he limitation of the effects in time of the Barber judgment concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible, owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions ...[A]s far as the right to join an occupational pension is concerned, there is no reason to suppose that the professional groups concerned could have been mistaken about the applicability of Article 119. It has indeed been clear since the judgment in the Bilka case that a breach of the rule of equal treatment committed through not recognising such a right is caught by Article 119. Moreover, since the Court’s judgment in the Bilka case included no limitation of its effect in time, the direct effect of Article 119 can be relied upon in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme and this may be done as from 8 April 1976, the date of the Defrenne judgment in which the Court held for the first time that Article 119 has direct effect.81 ...[T]he limitation of the effects in time of the Barber judgment does not apply to the right to join an occupational pension scheme.82

Furthermore, the Court also held in this case and in Vroege v NCIV Instituut voor Volkshuisvesting BV83 that the Barber Protocol did not apply to claims in relation to the right to join a pension scheme; in the latter case, it explained that: It is clear that Protocol No 2 is linked to the Barber judgment, since it refers to the date of that judgment ...While extending it to all benefits payable under occupational social security schemes and incorporating it into the Treaty, Protocol No 2 essentially adopted the same interpretation of the Barber judgment as did the Ten Oever judgment. It did not, on the other hand, any more than the Barber judgment, deal with, or make any provision for, the conditions of membership of such occupational schemes.84

This is a perceptive decision on the part of a Court which did not wish to see its earlier decision in Bilka effectively restricted by later legislation. Magorrian and 79 Case 170/84 [1986] ECR 1607. See also Case C-256/01 Allonby [2004] ECR I-873, where a requirement of being employed under a contract of employment as a pre-condition for membership of a statutory teachers’ pension scheme was held to be potentially indirectly discriminatory against teachers who were technically regarded as self-employed under national law. 80 Case C-128/93 [1994] ECR I-4583. The pension scheme in this case excluded married women from membership at the material date. See also Case C-57/93 Vroege v NCIV Instituut voor Volkshuisvesting BV [1994] ECR I-4541, where part-time workers were excluded; the Court reached the same conclusions as in Fisscher, the only significant difference between the two cases being that the discrimination alleged in Vroege was indirect whilst that in Fisscher was direct. See also Case C-7/93 Beune [1994] 81 ECR I-4471. As to which see discussion at p 246 et seq. 82 [1994] ECR I-4583, at 4595–6. In addition, the CJEU later held in Case C-50/96 Deutsche Telekom v Schröder [2000] ECR I-743, Joined Cases C-270 & 271/97 Deutsche Post v Sievers and Shrage [2000] ECR I-929, and Joined Cases C-234 & 235/96 Deutsche Telekom AG v Vick and Conze [2000] ECR I-799, that EU law does not preclude a Member State from providing an even more extensive retroactive right to membership of a pension scheme. 83 Case C-57/93 [1994] ECR I-4541. See to the same effect Case C-435/93 Dietz v Stichting Thu84 iszorg Rotterdam [1996] ECR I-5223. Case C-57/93 [1994] ECR I-4541, at 4579.

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Cunningham v Eastern Health and Social Services Board85 then raised the issue of what precisely is meant by access to a pension scheme; in particular, where workers transfer from full-time working to part-time working, and thereby suffer a diminution in what would otherwise be their pension entitlement, is this an example of discrimination over access or over terms? Cosmas AG submitted that it was an example of discriminatory access. The CJEU agreed and went on to hold that reg 12 of the Northern Ireland Occupational Pension Regulations,86 which limited the right to join pension schemes to a period no more than two years prior to the initiation of proceedings, was illegal. As seen in chapter 2, national rules on limitation of action may be applied to the enforcement of Community rights, provided that they do not have the effect of frustrating such Community rights and that they are not less favourable than the rules applied to similar domestic law claims. Here the Court found that the national limitation period rendered the enforcement of Community rights ‘impossible in practice’. The same principle was vindicated on a grander scale in Preston v Wolverhampton Healthcare NHS Trust.87 Some 60,000 part-time workers had sought to ascertain their rights in relation to access to pension schemes; they claimed that their exclusion from the relevant schemes, which was grounded on their part-time status, constituted indirect sex discrimination. They went on to argue that the rule contained in reg 12 of the UK Occupational Pension Regulations,88 barring their rights to claim pensions based on their service more than two years before they instituted proceedings, infringed EU law because it made it virtually impossible to exercise their rights. The CJEU observed that the objective of their claims was not to obtain retroactively arrears of benefits under the pension schemes, but to secure the recognition of their rights to retroactive membership of the schemes for the purpose of calculating benefits to be paid in the future.This it appeared to regard as a crucial distinction, since it has long adhered to the principle that normal limitation periods conduce to legal certainty and are entirely acceptable in EU law. The facts presented to the Court in Preston were very similar to those with which it had recently been confronted in Magorrian and Cunningham v Eastern Health and Social Services Board, and it repeated its earlier remarks: [U]nlike the rules which, in the interests of legal certainty, merely [limit] the retroactive scope of a claim for certain benefits and [do] not therefore strike at the very essence of the rights conferred by the Community legal order, a procedural rule such as that in issue ...[is] such as to render any action by individuals relying on Community law impossible in practice ...Even though the procedural rule at issue does not totally deprive the claimants of access to membership, the fact nevertheless remains that ...[it] prevents the entire record of service completed by those concerned before the two years preceding the date on which

85

Case C-246/96 [1997] ECR I-7153. The Occupational Pension Schemes (Access to Membership) Regulations (Northern Ireland), SI 87 1976 No 238. Case C-78/98 [2000] ECR I-3201. 88 SI 1976 No 142. 86

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they commenced their proceedings from being taken into account for the purposes of calculating the benefits which would be payable even after the date of the claim.89

The House of Lords therefore held that reg 12 of the Occupational Pension Regulations was precluded by EU law and that, subject to the employees concerned paying contributions owing in respect of the periods for which membership was claimed retroactively, they were entitled to pensions calculated by reference to all their service, whether full or part-time, subsequent to 8 April 1976.90 The fact that a worker can claim retroactively to join an occupational pension scheme is somewhat undermined in practice (at least as far as contributory schemes are concerned) by the fact that this does not permit the worker to escape paying contributions in relation to the period in question.91 The meaning of ‘workers or those claiming under them who have [before 17 May 1990] initiated legal proceedings or introduced an equivalent claim under the applicable national law’ was in issue in DEI v Evrenopoulos.92 The CJEU held that such proceedings must be brought in accordance with the procedural rules applicable in the relevant Member State. The plaintiff had applied to the Director of the Insurance Fund governing the Greek electricity industry for a pension on the death of his wife, a pensioner of the Fund. His letter remained unanswered, so he brought an action before the Greek Administrative Court of First Instance against the implied rejection of his claim on 12 June 1989. While this action was pending, the Director of the Fund refused his application. By a judgment of November 1990, the Greek Administrative Court rejected his action on the ground that he had not first lodged an objection against the rejection of his claim by the Director with the Staff Insurance Board. However, because the Director had not informed him of the possibility of lodging such an objection, the Court granted him a further three months in which to do so. He then lodged his objection with the Insurance Board in February 1991, and it too was rejected. The plaintiff successfully appealed against this rejection, and in the course of these appellate proceedings, a ruling was sought from the CJEU. The CJEU held that the judicial proceedings between the plaintiff and the defendant began with the original action, namely the proceedings of 12 June 1989, and were thus commenced before the crucial date of the ruling in the Barber case. Further problems have arisen with respect to transitional arrangements where, pursuant to Barber, pension schemes changed their rules so as to stipulate the same pension age for men and women. These problems highlight the mixed blessing which sex equality in pension schemes has proved to be from the point of view of women.93 In Smith v Avdel Systems Ltd,94 the Court held that, until equalizing 89

90 [2000] ECR I-3201, at 3259. [2001] 2 AC 455. 92 Case C-128/93 Fisscher [1994] ECR I-4583. Case C-147/95 [1997] ECR I-2057. 93 For an interesting analysis of the effect of EU pension equality provisions on the financial position of older people, see Luckhaus and Moffat, Serving the Market and People’s Needs? (Joseph Rowntree 94 Foundation,York, 1996). Case C-408/92 [1994] ECR I-4435. 91

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measures are adopted by a pension scheme, the only way in which there can be compliance with Article 157 is to grant to persons in the disadvantaged class the advantages of those in the favoured class;95 thus, where a scheme had pension ages of 60 for women and 65 for men, between 17 May 1990 and the date on which the fund rules were changed, the pension rights of men must be calculated on the basis of a pension age of 60. However, after the fund rules changed, the Court held weakly and with little explanation that Article 157 did not preclude measures producing equality by reducing the advantage of the persons formerly favoured, so that from this date onwards it was permissible to have a common pension age of 65. As to the period before 17 May 1990, the Court held that since Article 157 did not affect the matter, EU law did not justify the retroactive reduction of the advantages which women at that time enjoyed. It added that: once discrimination has been found to exist, and an employer takes steps to achieve equality for the future by reducing the advantages of the favoured class, achievement of equality cannot be made progressive on a basis that still maintains discrimination, even if only temporarily ...[T]herefore ...the step of raising the retirement age for women to that for men, which an employer decides to take in order to remove discrimination in relation to occupational pensions as regards benefits payable in respect of future periods of service, cannot be accompanied by measures, even if only transitional, designed to limit the adverse consequences which such a step may have for women.96

A second series of difficulties which emerged from Barber concerned precisely what amounts to unlawful discrimination within a pension scheme. In Barber itself, the discrimination took the seemingly blatant form of setting different pensionable ages for men and women.97 The Court held: Article 119 prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality. Accordingly, it is contrary to Article 119 to impose an age condition which differs according to sex in respect of pensions paid under a contracted-out scheme, even if the difference between the pensionable age for men and that for women is based on the one provided for by the national statutory scheme.98

But does the notion of discrimination extend to more subtle differentiation, such as the payment of a survivor’s pension to widows but not to widowers? The Court gave an affirmative answer to this in the Ten Oever case, saying that: 95

See below for more general discussion of the principle of ‘equalization upwards’ in relation to Art

157. 96

[1994] ECR I-4435, at 4467. See also Case C-28/93 Van Den Akker v Stichting Shell Pensioenfonds [1994] ECR I-4527, and Case C-200/91 Coloroll [1994] ECR I-4389. 97 But the setting of different pensionable ages for the two sexes is less obviously discrimination forbidden by Art 157 if a rigid separation is maintained as between the quantum of a pension and the terms of access to it. See further discussion of this distinction in ch 6. 98 [1990] ECR I-1889, at 1953. For the same principle in relation to supplementary pension schemes, see Case C-110/91 Moroni [1993] ECR I-6591. For the application of the principle to survivors’ benefits, see Case C-50/99 Podesta v CRICA [2000] ECR I-4039.

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entitlement to such a benefit is a consideration deriving from the survivor’s spouse’s membership of the scheme, the pension being vested in the survivor by reason of the employment relationship between the employer and the survivor’s spouse and being paid to him or her by reason of the spouse’s employment ...[A] survivor’s pension ...[therefore] falls within the scope of Article 119.99

It added in Coloroll Pension Trustees Ltd v Russell100 that the survivor’s rights are directly effective. Furthermore, the Article can be relied upon against the trustees of an occupational pension scheme, even though the trustees are not technically party to the employment relationship, since ‘the effectiveness of Article 119 would be considerably diminished and the legal protection required to ensure real equality would be seriously impaired if an employee or an employee’s dependants could rely on that provision only as against the employer’.101 This principle holds good whatever the legal form of the pension scheme; furthermore, it is not undermined by the fact that the pension beneficiary can also proceed against the employer in the case of default by the pension fund, nor by the fact that national legislation guarantees the beneficiary’s rights in the event of the employer’s insolvency.102 The temporal limitation in Barber also applies to a survivor’s pension.103 The Coloroll case also established that, although Article 157 applies to all benefits payable to an employee by an occupational pension scheme irrespective of whether that scheme is contributory or non-contributory, it does not apply to additional benefits consequent on additional voluntary contributions made by the employee, since these do not arise out of employment.104 It has also been held that the equality principle contained in Article 157 does not apply to an employer’s contributions paid under a defined-benefit scheme, and that these may therefore vary as between male and female employees as a result, for example, of the use of gender-specific actuarial tables. This emerged from Neath v Hugh Steeper Ltd,105 which involved a scheme providing employees with a pension 99 [1993] ECR I-4879, at 4944. See also Case C-267/06 Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757, where the Court confirmed that a pension for a surviving same-sex partner is also protected. The editors of the Equal Opportunities Review have made the interesting point that this principle might be extended so as to outlaw private medical insurance schemes provided for the spouses of employees (as well as employees themselves) which exclude pregnancy coverage: see (1994) 53 EOR 48. 100 Case C-200/91[1994] ECR I-4389. See also Case C-147/95 Evrenopoulos [1997] ECR I-2057. 101 Case C-200/91[1994] ECR I-4389, at 4411. See also Case C-128/93 Fisscher [1994] ECR I-4583, and Case C-435/93 Dietz [1996] ECR I-5223. 102 Case C-379/99 Pensionkasse für die Angestellten der Banner Ersatzkasse VvaG v Menauer [2001] ECR I-7275. 103 [1994] ECR I-4389, at 4419–20. Cf the view of Van Gerven AG, who had proposed a temporal limitation on the survivor’s rights from the date of the Ten Oever judgment itself (rather than from the date of the Barber judgment). In his submissions in Vroege and Fisscher, the Advocate General said that he had only one explanation for the Court’s choice of the date of the Barber judgment: ‘the Court is disposed to consider that the temporal limitation of the effects of the Barber judgment is also applicable in the other situations for which Directive 86/378 allows exceptions to the application of the principle 104 of equal treatment ...’: [1994] ECR I-4541, at 4560. [1994] ECR I-4389, at 4427–8. 105 Case C-152/91 [1993] ECR I-6935. See also Case C-200/91 Coloroll [1994] ECR I-4389.

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corresponding to one-sixtieth of their final salary for each year of service.The scheme was contributory on the part of both employees and the employer. The employees’ contributions consisted of a percentage of salary, and in this there was no distinction as between men and women. However, the employer’s contributions had to cover the balance of the cost of the pensions promised and so varied over time; they were also higher for female employees than for male employees, because the actuarial tables used reflected the fact that women, on average, live longer than men. Where an employee left employment before reaching the prescribed age, either acquired pension rights could be transferred into another fund or the former employee could receive a capital sum by way of commutation; however, in calculating such transfer value or a capital sum, gender-specific actuarial calculations would again be used, with the result that a man would receive less than a woman. The Court held: The assumption ...is that the employer commits himself, albeit unilaterally, to pay his employees defined benefits or grant them specific advantages and that the employees in turn expect the employer to pay them those benefits or provide them with those advantages. Anything that is not a consequence of that commitment and does not therefore come within the corresponding expectations of the employees falls outside the concept of pay. In the context of a defined–benefit occupational pension scheme ..., the employer’s commitment to his employees concerns the payment, at a given moment in time, of a periodic pension for which the determining criteria are already known at the time when the commitment is made and which constitutes pay within the meaning of Article 119. However, that commitment does not necessarily have to do with the funding arrangements chosen to secure the periodic payment of the pension, which thus remain outside the scope of application of Article 119. In contributory schemes, funding is provided through the contributions made by the employees and those made by the employers. The contributions made by the employees are an element of their pay since they are deducted directly from an employee’s salary, which by definition is pay (see the judgment in Case 69/80 Worringham v Lloyds Bank [1981] ECR 767). The amount of those contributions must therefore be the same for all employees, male and female, which is indeed so in the present case.This is not so in the case of the employer’s contributions which ensure the adequacy of the funds necessary to cover the cost of the pensions promised, so securing their payment in the future, that being the substance of the employer’s commitment. It follows that, unlike periodic payment of pensions, inequality of employers’ contributions paid under funded defined–benefit schemes, which is due to the use of actuarial factors differing according to sex, is not struck at by Article 119. That conclusion necessarily extends to the specific aspects referred to in the questions submitted, namely the conversion of part of the periodic pension into a capital sum and the transfer of pension rights, the value of which can be determined only by reference to the funding arrangements chosen.106

106 It is submitted that this is a particularly obscure passage in the Court’s judgment; it is far from clear why it is a ‘necessary’ extension from the mathematics adopted to calculate the employer’s contribution to the scheme that the capital equivalent of a payment which certainly falls within the equality principle contained in Art 157 should cease to be subject to this principle.

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The answer to be given to the national court must therefore be that the use of actuarial factors differing according to sex in funded defined–benefit occupational pension schemes does not fall within the scope of Article 119 ...107

In Coloroll Pension Trustees Ltd v Russell,108 the Court extrapolated from its reasoning in Neath to defined-benefit schemes in the situations involved in the later case, namely: ...where a reversionary pension is payable to a dependant in return for the surrender of part of the annual pension and where a reduced pension is paid when the employee opts for early retirement. [In these cases too] the funding arrangements chosen must also be taken into account. Since those arrangements are not covered by Article 119, any inequality in the amounts of those benefits, arising from the use of actuarial factors in the funding of the scheme, is not struck at by that Article.109

The acceptability of such gender-specific actuarial calculations to the CJEU was regrettable,110 especially since it meant that it was more expensive to employ women than men, clearly an obstacle to the principle of equal treatment.There is considerable force in the arguments expressed by the Commission: [T]he principle of equal pay for men and women must be applied individually and not on a category basis. The fact that women generally live longer than men has no significance at all for the life expectancy of a specific individual and it is not acceptable for an individual to be penalised on account of assumptions which are not certain to be true in his specific case.111 Moreover, there are a number of risk factors which are not taken into account: risks associated with certain occupations, smoking, state of health and so on. Finally, there is no technical necessity for pension schemes to have a distinction based on life expectancies: some pension schemes, and all state pension schemes, use a system of risk compensation which covers differences in the probable lifespan of men and women ...[T]he Supreme Court of the United States has held that similar discrimination in pension schemes is incompatible with the Civil Rights Act 1964.112

Van Gerven AG himself likewise rejected the use of such calculations:

107 [1993] ECR I-6935, at 6962–3.The apparently general nature of the final paragraph quoted in the text must, it is submitted, be read in the context of the preceding paragraphs; thus, it is restricted to the use of sex-specific actuarial calculations in relation to employer contributions only and does not permit their use in relation to employee contributions or benefits. Query the applicability of the Neath ruling in the case of defined–contribution schemes, as to which see further discussion below. 108 109 Case C-200/91 [1994] ECR I-4389. Case C-200/91 [1994] ECR I-4389, at 4425–6. 110 See also Curtin, ‘Occupational Pension Schemes and Article 119: Beyond the Fringe?’ (1987) 27 CMLRev 215. 111 It might be added that statistics which held good for a past generation might well not do so for later generations: eg, it would not be surprising if a generation of women who have been subject to the stresses and strains of paid employment (as well as their seemingly inevitable domestic responsibilities) proved to have a shorter average longevity than their male counterparts. 112 See the submissions of Van Gerven AG in Case C-109/91 Ten Oever [1993] ECR I-4879, at 4913.

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The unequal treatment of men and women may ...not constitute unlawful discrimination if the difference in treatment is based on objective differences which are relevant, that is to say which bear an actual connection with the subject of the rules entailing unequal treatment. In this regard, I could for instance imagine that factors having a direct impact on the life expectancy of a specific individual, such as risks associated with a particular occupation, smoking, eating and drinking habits and so forth, would be taken into account, if this is technically possible, in order to justify individual differences in contributions and/or benefits. As regards differences in average life expectancy between men and women, the situation is different, however. These differences bear no relation to the life expectancy of a specific individual and are thus irrelevant for the calculation of the contributions and/or benefits which may be ascribed to that individual.113

The use of gender-based actuarial tables in insurance appeared to become outlawed with the enactment in 2004 of the Goods and Services Directive,114 Article 5(1) of which provides: Member States shall ensure that in all new contracts concluded after 21 December 2007 at the latest, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services shall not result in differences in individuals’ premiums and benefits.

Recital 18 of the Preamble to the directive further explains: The use of actuarial factors related to sex is widespread in the provision of insurance and other related financial services. In order to ensure equal treatment between men and women, the use of sex as an actuarial factor should not result in differences in individuals’ premiums and benefits. To avoid a sudden readjustment of the market, the implementation of this rule should apply only to new contracts concluded after the date of transposition of this Directive.

However, in deference to the powerful insurance industry lobby, Article 5(2) goes on to state: Notwithstanding paragraph 1, Member States may decide before 21 December 2007 to permit proportionate differences in individuals’ premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. The Member States concerned shall inform the Commission and ensure that accurate data relevant to the use of sex as a determining actuarial factor are compiled, published and regularly updated. These Member States shall review their decision five years after 21 December 2007, taking into account the Commission report referred to in Article 16, and shall forward the results of this review to the Commission.

Recital 19 of the Preamble to the directive contains similar words and adds that sex-based exemptions will only be allowed ‘where national legislation has not already applied the unisex rule’. 113 Case C-200/91 [1994] ECR I-4389, at 4919. See also the strongly worded Opinions of Jacobs AG and Sharpston AG in Case C-277/04P Lindorfer v Council [2007] ECR I-6767. 114 Discrimination contrary to the Goods and Services Directive is discussed more generally in ch 8.

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In its important decision in Association Belge des Consommateurs Test-Achats ASBL v Conseil des Ministres,115 a Grand Chamber of the CJEU struck down Article 5(2) on the ground of its breach of the principle of sex equality. It pointed out that the EU is obliged to respect fundamental rights as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States; such rights are incorporated in the Charter of Fundamental Rights which, since 1 December 2009, has the same legal status as the Treaties. It pointed out that Articles 21 and 23 of the Charter provide that any discrimination based on sex is prohibited and that equality between men and women must be ensured in all areas. It concluded that, since Recital 4 of the Preamble to the Goods and Services Directive expressly refers to Articles 21 and 23 of the Charter, the validity of Article 5(2) of the Directive must be assessed in the light of those provisions.116 It went on to hold that, in exercising its discretion to legislate against discrimination on grounds which include sex pursuant to Article 19(1) of the TFEU, the legislature must act in accordance inter alia with Article 3(3) of the TEU which mandates the Union to combat social exclusion and discrimination and to promote social justice and protection, equality between men and women, solidarity between generations and protection of the rights of the child; it must also respect Article 8 of the TFEU which requires the Union in all its activities to aim to eliminate inequalities and to promote equality between men and women. Although it is up to the Union legislature to decide to take specific action, once such action is decided upon, the Court held that it must contribute, in a coherent manner, to the achievement of the intended objective, without prejudice to the possibility of providing for transitional periods or derogations of limited scope. In the present context, the Court accepted that the use of sex-based actuarial tables was in widespread use in the insurance industry at the date of adoption of the Goods and Services Directive and that it was therefore permissible for the EU legislature to implement the principle of sex equality, specifically the rule of unisex premiums and benefits, gradually with appropriate transitional periods. It was thus permissible for the Directive to prescribe implementation by 21 December 2007. However, Article 5(2) of the directive of course goes further and grants ‘certain’ Member States—in other words, those in which national law did not yet apply the unisex rule at the date of adoption of the directive—the option of deciding before 21 December 2007 to permit proportionate differences in individuals’ premiums and benefits where the use of sex is a determining factor in the assessment of risks based on relevant and accurate actuarial and statistical data. The problem with this, in the view of the Court, was that although any decision to make use of this exemption had to be reviewed five years after 21 December 2007 in the light of the Commission report, the directive is silent as to the length of time during which those differences may thereafter continue to be 115

Case C-236/09 [2011] ECR I-000. The Court also cited its earlier decision in Case C-93/09 Volker und Markus Schecke and Eifert [2010] ECR I-11063, para 46, to similar effect though in a different context. 116

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applied. Thus, the Court concluded, ‘Member States which have made use of the option are permitted to allow insurers to apply the unequal treatment without any temporal limitation’.117 The Court proceeded to examine the Council’s submission that, in the context of insurance, the positions of men and women are not ‘comparable’ within the meaning of anti-discrimination law since the industry assesses risks for categories of people on the basis of statistics and such statistics are different for men and women. It held that the comparability of situations must be assessed in the light of the subject-matter and purpose of the EU measure which makes the distinction in question, in this case, Article 5(2) of the directive. It was not disputed that the purpose of the directive in the insurance sector was the application of unisex rules on premiums and benefits; recital 18 of the Preamble expressly states that, in order to guarantee equal treatment between men and women, the use of sex as an actuarial factor must not result in differences in premiums and benefits for insured individuals; and recital 19 describes the option not to apply the unisex rule as an option to permit ‘exemptions’. Accordingly, proclaimed the Court, the directive is based on the premiss that, for the purposes of applying the principle of equal treatment for men and women enshrined in Articles 21 and 23 of the Charter, the respective situations of men and women with regard to insurance premiums and benefits contracted by them are comparable.118 It concluded: [T]here is a risk that EU law may permit the derogation from the equal treatment of men and women, provided for in Article 5(2) ..., to persist indefinitely. Such a provision, which enables the Member States in question to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits, works against the achievement of the objective of equal treatment between men and women, which is the purpose of Directive 2004/113, and is incompatible with Articles 21 and 23 of the Charter.That provision must therefore be considered to be invalid upon the expiry of an appropriate transitional period.119 117

Judgment of the Court, para 26. But see Watson, ‘Equality, Fundamental Rights and the Limits of Legislative Discretion: Comment on Test-Achats’ (2011) 36 ELRev 895, for the argument that the situations of men and women may not be comparable for all insurance purposes and therefore that unisex premia may on occasion themselves be discriminatory. See also the Communication from the Commission following Test-Achats, C(2011) 9497 final, at para 14 of which is stated: ‘the unisex rule means that premiums and benefits cannot be different between two individuals for the same insurance policy simply because their gender is not the same. There are however other risk factors eg health status or family history, on the basis of which differentiation is possible and for the assessment of which insurers needs to take gender status into account, in light of certain physiological differences between men and women’. See further Annex 3 to this Communication. 119 Judgment of the Court, paras 31-3. As Kokott AG pointed out, the Race Directive prohibits a person’s race or ethnic origin from being used as a ground for differentiation in insurance (see ch 8). She went on to say (at para 50 of her Opinion): ‘It is equally inappropriate to link insurance risks to a person’s sex. There is no material reason to assume that the prohibition of discrimination on grounds of sex under European Union law provides less protection than the prohibition of discrimination on the basis of race or ethnic origin under European Union law. Like race and ethnic origin, gender is also a characteristic which is inseparably linked to the insured person as an individual and over which he has no influence. In addition, a person’s gender, unlike, for instance, his age, is not subject to any natural changes.’ She added, by way of footnote: ‘It is true that age is a characteristic which is also inseparably 118

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It held that this ‘appropriate transitional period’ would expire on 21 December 2012.120 Unfortunately, the Court in Test-Achats made no reference to either Neath or the gender-specific actuarial aspects of Coloroll and the question remains open as to the effect of the later judgment on these earlier rulings. It is to be noted that the scope of the Goods and Services Directive is defined in Article 3 and, in paragraph 4, it excludes ‘matters of employment and occupation’. Nevertheless, it is submitted that the effect of Test-Achats is to reverse the old rulings. First, they were arrived at expressly on the basis that the employer’s funding arrangements fell outside the concept of pay and were not referable to the employment relationship.121 They therefore fall within the general category of ‘access to and supply of ’ goods and services, over which the directive prohibits sex discrimination. Even if this were not accepted, any EU legislative instrument which sought to protect the legality of gender-specific actuarial calculations in relation to pension arrangements (and, as will be seen, such provisions are contained in the Recast Directive) would be invalid on the same basis as Article 5(2) of the Goods and Services Directive, namely, that it contravened the principle of sex equality. The legality of a so-called ‘bridging pension’ was raised in Birds Eye Walls Ltd v Roberts.122 The bridging pension was intended to equalize the financial package received by male and female employees retiring early in the UK; but in order to achieve this result, smaller sums were paid to women aged between 60 and 65 than to men of the same age because of the women’s earlier entitlement to a state pension (at 60 rather than 65). Ms Roberts argued that this amounted to a breach of Article 157, but the CJEU disagreed. It held that, albeit that the bridging pension constituted pay, like must be compared with like in order to establish discrimination: It should be noted that the principle of equal treatment laid down by Article 119 of the Treaty, like the general principle of non-discrimination which it embodies in a specific form, presupposes that the men and women to whom it applies are in identical situations. However, that would not appear to be so where the deferred payment which an employer makes linked to an individual but every human being passes through different categories of age in his life. If insurance premiums and benefits are therefore calculated differently according to age, that does not yet as such give rise to any fear that the insured person will be disadvantaged as an individual. Everyone may, on the basis of age, in the course of his life be in receipt of insurance products which are more or less favourable to him.’ Cf Case C-144/04 Mangold v Helm [2005] ECR I-9981. And quaere potential future legislation which prohibited discrimination in insurance but permitted exceptions in relation to the other grounds protected in EU law, namely, religion or belief, sexual orientation, and disability; this would depend on whether the Court was prepared to recognize a general principle of non-discrimination on these grounds, as to which see discussion in ch 3. For further comment on Test-Achats, see Caracciolo di Torella, ‘On lies and statistics: the relationship between gender equality and insurance’ ERA Forum (2011) 12:59; and Tobler’s note in (2011) 48 CMLRev 2041. 120 Although the Court does not actually say this, this date is the same as stipulated in Art 5(2) of the directive for review by the Member States of their decision to make use of the option conferred by that paragraph. 121 See the remarks to this effect by Kokott AG in Case C-236/09 Test-Achats [2011] ECR I-000, 122 at paras 55–8. Case C-132/92 [1993] ECR I-5579.

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to those of his employees who are compelled to take early retirement on grounds of ill health is regarded as a supplement to the financial resources of the man or woman concerned. It follows clearly from the mechanism for calculating the bridging pension that the assessment of the amount thereof is not frozen at a particular moment but necessarily varies on account of changes occurring in the financial position of the man or woman concerned with the passage of time. Accordingly, although until the age of 60 the financial position of a woman taking early retirement on grounds of ill health is comparable to that of a man in the same situation, neither of them as yet entitled to payment of the state pension, that is no longer the case between the ages of 60 and 65 since that is when women, unlike men, start drawing that pension. That difference as regards the objective premise, which necessarily entails that the amount of the bridging pension is not the same for men and women, cannot be considered discriminatory.123

Although it has been emphasized above that much of the CJEU’s case law on the meaning of ‘pay’ for the purposes of Article 157 can be extrapolated into the fields covered by the Race and Framework Directives, there appears to be one very important exception as far as occupational pensions are concerned.This is the consequence of Article 6(2) of the Framework Directive, which permits the Member States to provide that: The fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.124

(iii) Occupational social security schemes Before it became clear just how extensive was the protection extended by Article 157 to the various types of pension schemes, the Council legislated specifically to deal with this matter. The legislation took the form of the so-called Occupational Social Security Directive,125 today repealed but largely re-enacted in Chapter 2 of 123 Case C-132/92 [1993] ECR I-5579, at 5604–5. See also Case C-19/02 Hlozek [2004] ECR I-11491.The Court’s approach is today codified in Art 8(2) of the Recast Directive. In Case C-356/09 Pensionsversicherungsanstalt v Kleist [2010] ECR I-11939, Kokott AG explained (at para 41 of her Opinion) that the Birds Eye Walls and Hlozek cases concerned isolated situations and could not be applied generally; the bridging pensions there served to cover the employee’s loss of income where the early retirement was either for health reasons or where there was a special risk of long-term unemployment. For comment on the post-Barber cases, see also Hanlon, ‘Some Backward Steps for Equality’ (1995) 17 JSWFL 237, and Hanlon, ‘Some Further Backward Steps for Equality’ (1995) 17 JSWFL 399. 124 Emphasis supplied. As will be seen at p 212, Art 9(1)(c) of the Recast Directive expressly highlights choice of age for access to benefits under an occupational social security scheme as an example of a way in which sex discrimination may arise. See also the remarks of Kokott AG, quoted above, in Case C-236/09 Test-Achats [2011] ECR I-000. 125 Directive 86/378, OJ [1986] L225/40. The directive was foreshadowed by Art 3(3) of the Social Security Directive (Directive 79/7, OJ [1979] L6/24, as to which see ch 10), which provides: ‘With

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the Recast Directive. The expressed objective of the Occupational Social Security Directive was to ‘implement’ the principle of equal treatment in occupational social security schemes.126 Ironically, in the light of the treatment later accorded by the CJEU to Article 157 in relation to pensions, the chief effect of the directive was actually a negative one; as seen above, its existence, and in particular the exemptions which it contained in its original form, provided an important part of the reasoning which underlay the Court’s temporal restriction of the effect of the Treaty in the Barber case.127 The directive was subsequently amended by Directive 96/97,128 so as to reflect the substance of the Court’s rulings in Barber and its later jurisprudence on pensions equality; the main changes that this entailed were to make it clear that the substantive right to equality in this field flows from Article 157, not the directive,129 and to reduce the number of exceptions permitted. The Member States were required by this later instrument to legislate to comply with its terms by 1 July 1997.130 Today the Recast Directive defines ‘occupational social security schemes’ as schemes not governed by Directive 79/7/EEC ...whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional.131

Although both the Bilka-Kaufhaus-type supplementary pension scheme and the Barber-type substitutive pension scheme are thus within the scope of the directive, the practical importance of the instrument was largely undermined by the Court’s rulings that Article 157 also applies to such schemes. Article 157 has proved to be a far more potent weapon, in part because it is not handicapped by the directive’s lack a view to ensuring implementation of the principle of equal treatment in occupational schemes, the Council, acting on a proposal from the Commission, will adopt provisions defining its substance, its scope and the arrangements for its application’. In Case C-7/93 Beune [1994] ECR I-4471, Jacobs AG commented that ‘at first sight the combination of the terms “occupational”, apparently in the sense of “non-statutory”, and “social security” may seem surprising’ (at 4481). 126 Art 1 of the original directive and today Art 1(c) of the Recast Directive. According to Jacobs AG in Case 7/93 Beune [1994] ECR I-4471, Art 157 and the directive were not intended to be mutually exclusive. 127 However, recital 12 of the Preamble to the Recast Directive states that: ‘Specific measures should be adopted to ensure the implementation of the principle of equal treatment in occupational social security schemes and to define its scope more clearly’. 128 OJ [1997] L46/20, also repealed by the Recast Directive. 129 For an application of this principle, see Joined Cases C-4 & 5/02 Schönheit v Stadt Frankfurt am Main [2003] ECR I-12575. There is a parallel to be drawn with the Equal Pay Directive, Directive 75/117, OJ [1975] L45/19. As discussed below, this merely fleshes out the bare principles contained in Art 157. 130 Art 3(1) of the amending directive. France failed to comply within this implementation period: see Case C-354/98 Commission v France [1999] ECR I-4927. 131 Art 2(1)(f ) of the Recast Directive.

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of horizontal direct effect,132 and in part because the original version of the directive provided for a number of exceptions not contained in Article 157.133 The directive does not apply to: (a) (b) (c) (d)

individual contracts for self-employed workers; single-member schemes for self-employed persons; insurance contracts to which the employer is not a party, in the case of workers: optional provisions of occupational social security schemes offered to participants individually to guarantee them: (i) either additional benefits,134 (ii) a choice of date on which the normal benefits for self-employed persons will start, or a choice between several benefits; (e) occupational social security schemes insofar as benefits are financed by contributions paid by workers on a voluntary basis.135 Legislative blessing is maintained for the ruling in Birds Eye Walls Ltd v Roberts136 by Article 8(2) of the Recast Directive, which states: This Chapter does not preclude an employer granting to persons who have already reached the retirement age for the purposes of granting a pension by virtue of an occupational social security scheme, but who have not yet reached the retirement age for the purposes of granting a statutory retirement pension, a pension supplement, the aim of which is to make equal or more nearly equal the overall amount of benefit paid to these persons in relation to the amount paid to persons of the other sex in the same situation who have already reached the statutory retirement age, until the persons benefiting from the supplement reach the statutory retirement age.

The Recast Directive applies to members of the working population, ‘including self-employed persons, persons whose activity is interrupted by illness, maternity, accident or involuntary unemployment and persons seeking employment and to retired and disabled workers, and to those claiming under them, in accordance with national law and/or practice’.137 The hazards against which the scheme must provide protection in order to fall within the ambit of the directive are defined, apparently exhaustively: This Chapter applies to: (a) occupational social security schemes which provide protection against the following risks: 132

See ch 2 for discussion of the concept of horizontal direct effect. The directive, however, covers the self-employed, as regards whom the exceptions contained in its original version (namely, for pensionable age, survivors’ benefits, and actuarial calculations) are maintained by Art 11; see further at p 215. It must, however, be remembered that some workers who are regarded by national law as self-employed are regarded by EU law as ‘workers’ for the purposes of Art 157: see Case C-256/01 Allonby [2004] ECR I-873, discussed at pp 180-1. 134 As to which, see Case C-200/91 Coloroll [1994] ECR I-4389, discussed at p 202. 135 Art 8(1) of the Recast Directive. 136 Case C-132/92 [1993] ECR I-5579, discussed at pp 208-9. 137 Art 6 of the Recast Directive. 133

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(i) sickness, (ii) invalidity, (iii) old age, including early retirement, (iv) industrial accidents and occupational diseases, (v) unemployment; (b) occupational social security schemes which provide for other social benefits, in cash or in kind, and in particular survivors’ benefits and family allowances, if such benefits constitute a consideration paid by the employer to the worker by reason of the latter’s employment.138

Article 5 of the Recast Directive prohibits discrimination in occupational social security schemes: Without prejudice to Article 4,139 there shall be no direct or indirect discrimination on grounds of sex in occupational social security schemes, in particular as regards: (a) the scope of such schemes and the conditions of access to them; (b) the obligation to contribute and the calculation of contributions; (c) the calculation of benefits, including supplementary benefits due in respect of a spouse or dependants, and the conditions governing the duration and retention of entitlement to benefits.

The phrase ‘in particular’ of course indicates that any other form of discrimination, unless specifically excepted elsewhere in the directive, is also forbidden. Article 9(1) of the directive contains considerable detail as regards the ways in which sex discrimination may arise: Provisions contrary to the principle of equal treatment shall include those based on sex, either directly or indirectly, for: (a) determining the persons who may participate in an occupational social security scheme; (b) fixing the compulsory or optional nature of participation in an occupational social security scheme; (c) laying down different rules as regards the age of entry into the scheme or the minimum period of employment or membership of the scheme required to obtain the benefits thereof; (d) laying down different rules, except as provided for in points (h) and (j), for the reimbursement of contributions when a worker leaves a scheme without having fulfilled the conditions guaranteeing a deferred right to long-term benefits; (e) setting different conditions for the granting of benefits or restricting such benefits to workers of one or other of the sexes; (f) fixing different retirement ages; (g) suspending the retention or acquisition of rights during periods of maternity leave or leave for family reasons which are granted by law or agreement and are paid by the employer; (h) setting different levels of benefit, except in so far as may be necessary to take account of actuarial calculation factors which differ according to sex in the case of defined-contribution 138

Art 7(1) of the Recast Directive.

139

Which prohibits pay discrimination.

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schemes; in the case of funded defined-benefit schemes, certain elements may be unequal where the inequality of the amounts results from the effects of the use of actuarial factors differing according to sex at the time when the scheme’s funding is implemented; (i) setting different levels for workers’ contributions; (j) setting different levels for employers’ contributions, except: (i) in the case of defined contribution schemes if the aim is to equalise the amount of the final benefits or to make them more nearly equal for both sexes, (ii) in the case of funded defined-benefit schemes where the employer’s contributions are intended to ensure the adequacy of the funds necessary to cover the cost of the benefits defined; (k) laying down different standards or standards applicable only to workers of a specified sex, except as provided for in points (h) and (j), as regards the guarantee or retention of entitlement to deferred benefits when a worker leaves a scheme.

As discussed above, the CJEU’s decision in Test-Achats140 renders highly doubtful the legality of paragraph (h) of this Article since it appears to constitute a breach of the principle of sex equality.141 Article 9(2) of the Occupational Social Security Directive states that: ‘[w]here the granting of benefits ...is left to the discretion of the scheme’s management bodies, the latter shall comply with the principle of equal treatment’. In response to the argument that it was to be implied from the forerunner to this provision that Article 157 itself was not directly effective as against the trustees of a pension fund, Van Gerven AG commented in Coloroll Pension Trustees Ltd v Russell:142 I see in that provision merely a confirmation of the Community legislature’s intention to give effect to the principle of equal treatment as effectively as possible and certainly not any argument a contrario according to which the worker or the person (or persons) claiming under him could not, as regards pay discrimination directly caught by Article 119, rely on Article 119 against trustees as well. In any case, that directive [namely, the Occupational Social Security Directive] cannot detract from the effect of Article 119 ...143

Article 8(1) of the old Occupational Social Security Directive used to provide that the Member States were to take all necessary steps to ensure that the provisions of occupational schemes contrary to the principle of equal treatment were revised by 1 January 1993. However, the ruling of the CJEU in Barber that, albeit subject to the temporal limitation set out in that decision, Article 157 takes direct effect in relation to pension schemes, rendered Article 8(1) nugatory; the Court later explained in Moroni v Collo GmbH:144 By its second question, the national court wishes to know whether or not Article 8(1) of Directive 86/378 prevents the legal consequences of the incompatibility with Article 119 of 140

Case C-236/09 Test-Achats [2011] ECR I-000. However, the Commission considers that Test-Achats has no legal implications for this provision, which it says ‘applies in the different and clearly separable context of occupational pensions and which is also drafted in a very different way ...’: see its Communication following Test-Achats, C(2011) 9497 142 final, at para 23. Case C-200/91, AG’s submissions at [1993] ECR I-4879. 143 144 Case C-200/91, [1993] ECR I-4879, at 4940–1. Case C-110/91 [1993] ECR I-6591. 141

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the Treaty of the setting of different retirement ages for men and women for the purposes of the payment of company pensions from being drawn before 1 January 1993 ... This question is essentially concerned with the relationship between Article 119 and Directive 86/378. It is sufficient to point out in this regard that it is settled law that Article 119 applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by that Article, without national or Community measures being required to define them with greater precision in order to permit their application ...145 Since with the aid of the constitutive elements of the pay in question and of the criteria laid down in Article 119 discrimination may be directly identified as arising from the setting of different retirement ages for men and women in the matter of company pensions, the effects of the Directive do not matter, for its provisions cannot in any way restrict the scope of Article 119. It follows that, subject to [the temporal limitation contained in the Barber case] a worker who is discriminated against by the setting of different retirement ages for men and women may in principle assert his rights to payment of the company pension at the same age as his female counterpart and any reduction in the event of early departure from the service of the undertaking must be calculated on the basis of that age. The answer to the second question ...must therefore be that, subject to [the temporal limitation contained in Barber], Council Directive 86/378 cannot prevent Article 119 of the Treaty from being relied upon directly and immediately before national courts.146

Similarly, although Article 8(2) used to provide that the Occupational Social Security Directive was not to preclude ‘rights and obligations relating to a period of membership of an occupational scheme prior to revision of that scheme from remaining subject to the provisions of the scheme in force during that period’, the Court held in Beune147 that ‘Article 8(2) ...cannot limit the scope of Article 119 in relation to pension rights in respect of periods of membership prior to revision of the scheme concerned’.148 Article 10 of the Recast Directive is today restricted in its scope so as to provide: 1. Member States shall take the necessary steps to ensure that the provisions of occupational social security schemes for self-employed workers contrary to the principle of equal treatment are revised with effect from 1 January 1993 at the latest or for Member States whose accession took place after that date, at the date that Directive 86/378/EEC became applicable in their territory. 2. This Chapter shall not preclude rights and obligations relating to a period of membership of an occupational social security scheme for self-employed workers prior to revision of that scheme from remaining subject to the provisions of the scheme in force during that period.149

145 146 148

For further discussion of the direct effect of Art 157, see p 246. 147 [1993] ECR I-6591, at 6616–17. Case C-7/93 Beune [1994] ECR I-4471. 149 Case C-7/93 Beune [1994] ECR I-4471, at 4523. Emphases added.

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Furthermore, Article 12(1) of the Recast Directive mandates that: Any measure implementing this Chapter, as regards workers, shall cover all benefits under occupational social security schemes derived from periods of employment subsequent to 17 May 1990 and shall apply retroactively to that date, without prejudice to workers or those claiming under them who have, before that date, initiated legal proceedings or raised an equivalent claim under national law. In that event, the implementation measures shall apply retroactively to 8 April 1976 and shall cover all the benefits derived from periods of employment after that date ...

Article 12(2) goes on to spell out the Court’s customary position in relation to the procedural autonomy of the Member States:150 The second sentence of paragraph 1 shall not prevent national rules relating to time limits for bringing actions under national law from being relied on against workers or those claiming under them who initiated legal proceedings or raised an equivalent claim under national law before 17 May 1990, provided that they are not less favourable for that type of action than for similar actions of a domestic nature and that they do not render the exercise of rights conferred by Community law impossible in practice.

Article 9 of the original Occupational Social Security Directive contained exceptions, in particular for pensionable age and survivors’ benefits, which were later ruled by the CJEU to fall within the scope of Article 157. The current Article 11 of the Recast Directive is therefore restricted to the self-employed and provides: As regards occupational social security schemes for self-employed workers, Member States may defer compulsory application of the principle of equal treatment with regard to: (a) determination of pensionable age for the granting of old-age or retirement pensions, and the possible implications for other benefits; (i) either until the date on which such equality is achieved in statutory schemes, (ii) or, at the latest, until such equality is prescribed by a directive; (b) survivors’ pensions until Community law establishes the principle of equal treatment in statutory social security schemes in that regard; (c) the application of Article 9(1)(i) in relation to the use of actuarial calculation factors until 1 January 1999 ...151

Article 28(1) of the Recast Directive permits provisions concerning the protection of women, particularly as regards pregnancy and maternity. The words used here are substantially identical to those of the Social Security Directive,152 and they are presumably intended to mean that especially favourable benefits can be extended to women having babies. Does this provision constitute an ‘exception’? The CJEU, 150

See ch 2. The legality of para (c) is suspect in the light of the CJEU’s decision in Case C-236/09 Test-Achats [2011] ECR I-000. Indeed, the whole of Art 11 could be argued to be enacted in breach of the fundamental principle of sex equality. 152 Directive 79/7, OJ [1979] L6/24, discussed in detail in ch 10. 151

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of course, usually gives a narrow reading to exceptions to general principles which themselves confer fundamental liberties. But it might not analyse pregnancy and maternity as exceptions and might instead see the fundamental right as the right to maternity and thus be persuaded to give this provision a broad reading, so as to confer the maximum protection on mothers.The extent of the discretion intended to be left to the Member States by the pregnancy and maternity provision is thus far from clear.153 It is submitted that the Court ought to countenance the legality of positive measures in favour of pregnant women and those who have recently given birth, since otherwise substantive equality is certainly not accorded to both sexes. The issue is more one of construing the basic right to equality than of implying exceptions into the text of the Article.154 Article 13 of the Recast Directive provides that, where men and women may claim a flexible pension age under the same conditions, ‘this shall not be deemed to be incompatible with this Chapter’.

(iv) Other statutorily regulated payments made by employers to their employees Once the CJEU had conceded in Bilka-Kaufhaus GmbH v Weber Von Hartz155 that an element of statutory regulation of a payment made by employer to employee did not deprive the payment of its status as ‘pay’ under Article 157,156 the way was clear for that Article to be extended to a variety of payments made as a result of statutory obligations157 cast on employers.158 Very importantly in practice, the issue arose as to the applicability of Article 157 to redundancy payments. These were involved in Burton v British Railways Board,159 but since the issue was not discrimination in relation to the amount of the payments receivable, the Court did not there decide whether they fell within

153 Whether any such positive measures in favour of pregnancy and maternity are permitted under Art 157 has not yet been decided by the CJEU. For discussion of Art 157(4), added by the Amsterdam Treaty and apparently permitting certain measures of positive action, see ch 9. 154 Some support for this view is to be derived from the comments of Slynn AG in Case 318/86 Re Sex Discrimination in the Civil Service, Commission v France [1988] ECR 3559, especially at 3572, where he said: ‘Pregnancy of female staff has to be accommodated by employers as one of the consequences of ...equal treatment.’ Cf Case 177/88 Dekker v Stichting Vormingscentrum Voor Jonge Volwassen Plus [1990] 155 ECR I-3941. Case 170/84 [1986] ECR 1607, discussed at pp 187-8. 156 See also Jacobs AG in Case C-7/93 Beune [1994] ECR I-4471, at 4486. 157 See, eg, Case C-249/97 Gruber [1999] ECR I-5295. 158 The CJEU had, in fact, pointed the way to this conclusion many years earlier in Case 43/75 Defrenne v Sabena [1976] ECR 455, where it held that ‘Article 119 may be relied upon before the national courts and ...these courts have a duty to ensure the protection of the rights which this provision vests in individuals, in particular as regards those types of discrimination arising directly from legislative provisions or collective labour agreements ...’ (at 476, emphasis added). 159 Case 19/81 [1982] ECR 555. See also Snaith, ‘Equal Pay and Sex Discrimination’ (1982) 7 ELRev 301.

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the Article 157 notion of ‘pay’. However, in Worringham v Lloyds Bank Ltd,160 the Court commented that: ‘Sums ...which are included in the calculation of the gross salary payable to the employee and which directly determine the calculation of other advantages linked to the salary, such as redundancy payments ...form part of the worker’s pay ...’.161 The position was finally clarified as a matter of EU law162 by Barber v Guardian Royal Exchange Assurance Group.163 The CJEU there held all forms of redundancy payment, whether contractual, statutory, or ex gratia, to be within the scope of Article 157:164 [T]he concept of pay ...comprises any other consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer ...Accordingly, the fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being in the nature of pay, within the meaning of Article 119 of the Treaty. As regards, in particular, the compensation granted to a worker in connection with his redundancy, it must be stated that such compensation constitutes a form of pay to which the worker is entitled in respect of his employment, which is paid to him on termination of the employment relationship, which makes it possible to facilitate his adjustment to the new circumstances resulting from the loss of his employment and which provides him with a source of income during the period in which he is seeking new employment. It follows that compensation granted to a worker in connection with his redundancy falls in principle within the concept of pay for the purposes of Article 119 of the Treaty. At the hearing, the UK argued that the statutory redundancy payment fell outside the scope of Article 119 of the Treaty because it constituted a social security benefit and not a form of pay. In that regard it must be pointed out that a redundancy payment made by the employer ...cannot cease to constitute a form of pay on the sole ground that, rather than deriving from the contract of employment, it is a statutory or ex gratia payment. In the case of statutory redundancy payments it must be borne in mind that, as the Court held in its judgment of 8 April 1976 in Case 43/75 . . .Article 119 of the Treaty also applies to discrimination arising directly from legislative provisions. This means that benefits provided for by law may come within the concept of pay for the purposes of that provision . . . [B]enefits paid by an employer to a worker in connection with the latter’s compulsory redundancy fall within the scope of the second paragraph of Article 119, whether they are paid under a contract of employment, by virtue of legislative provisions or on a voluntary basis.165

160

161 Case 69/80 [1981] ECR 767. Case 69/80 [1981] ECR 767, at 790, emphasis added. The UK legislature implicitly acknowledged the applicability of Art 157 to redundancy payments when, in the Employment Act 1989, s 16, it removed the discriminatory age limits applying to eligibility 163 for statutory redundancy pay. Case C-262/88 [1990] ECR I-1889. 164 See also Case C-220/02 Ősterreichischer Gewerkschaftsbund v Wirtschaftskammer Ősterreich [2004] ECR I-5907, where the CJEU held that a ‘benefit’ consisting of the taking into account of a period of leave for the calculation of a termination payment is ‘pay’ within the meaning of Art 157. Cf the submissions of Kokott AG. 165 [1990] ECR I-1889, at 1949–50. This decision was followed shortly afterwards by that of the CJEU in Case 33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR I-2591. 162

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The Court also made another significant statement of general principle in Barber. It held that: Although it is true that many advantages granted by an employer also reflect considerations of social policy, the fact that a benefit is in the nature of pay cannot be called in question where the worker is entitled to receive the benefit in question from his employer by reason of the existence of the employment relationship.166

Once it had become clear that redundancy payments were within Article 157, a large part of the UK’s employment protection legislation fell under suspicion. People covered by the legislation were divided into two classes: employees working for more than 16 hours a week were protected after two years’ continuous employment with the same employer; whereas those working between eight and 16 hours a week were entitled to protection only after five years of such employment. The argument was that since the first group of workers was predominantly male and the second predominantly female, this constituted unlawful indirect sex discrimination. The Equal Opportunities Commission (EOC) therefore brought judicial review proceedings against the Secretary of State for Employment, alleging that this discrimination in relation to the availability of statutory redundancy pay and compensation for unfair dismissal contravened EU law.167 The House of Lords granted declarations that the discrimination in relation to redundancy pay contravened what is today Article 157,168 and that that in relation to compensation for unfair dismissal contravened the Equal Treatment Directive;169 in the absence of any ruling on the matter by the CJEU, the House left open the question of whether compensation for unfair dismissal constituted ‘pay’ within the meaning of Article 157, though it conceded that there was ‘much to be said in favour’ of this view.170 However, in Mediguard Services Ltd v Thame,171 the British Employment Appeal Tribunal held that such compensation is within Article 157, so entitling a worker with two years’ service of between eight and 16 hours a week to bring an action for unfair dismissal. Eventually, the issue was referred to the CJEU in R v Secretary of State for Employment, ex parte Seymour-Smith,172 where the House of Lords asked whether compensation for unfair dismissal constitutes pay within the meaning of Article 157 and, if so, whether the right to complain of unfair dismissal also falls under Article 157.The CJEU held that compensation for unfair dismissal does indeed fall within the purview of Article 141:173 166

[1990] ECR I-1889, at 1950. It emerged in the course of the proceedings that no other Member State, apart from Ireland, had similar thresholds; Ireland, where statute had at one time provided for an 18 hours per week threshold, 168 had recently introduced legislation reducing this to eight hours. [1994] 2 WLR 409. 169 The predecessor of the Recast Directive, discussed further in ch 6. The legislation was subsequently amended so as to remove the qualifying thresholds. 170 See the remarks of Lord Keith of Kinkel in [1994] 2 WLR 409, at 423. In the Court of Appeal, Dillon LJ commented: ‘ ...compensation for unfair dismissal, which is compensation payable by the employer for the unfair premature determination of the contract of employment, must, in my judgment, 171 fall within the definition of “pay”’: [1993] 1 WLR 872, at 884. [1994] IRLR 504. 172 173 [1997] 1 WLR 473. Case C-167/97 [1999] ECR I-623. 167

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In this case, the compensation awarded to an employee for unfair dismissal, which comprises a basic award and a compensatory award, is designed in particular to give the employee what he would have earned if the employer had not unlawfully terminated the employment relationship. The basic award refers directly to the remuneration which the employee would have received had he not been dismissed. The compensatory award covers the loss sustained by him as a result of the dismissal, including any expenses reasonably incurred by him in consequence thereof and, subject to certain conditions, the loss of any benefit which he might reasonably be expected to have gained but for the dismissal. It follows that compensation for unfair dismissal is paid to the employee by reason of his employment, which would have continued but for the unfair dismissal. That compensation therefore falls within the definition of pay for the purposes of Article 119 of the Treaty. The fact that the compensation at issue in the main proceedings is a judicial award made on the basis of the applicable legislation cannot, of itself, invalidate that conclusion. As the Court has already stated in this connection, it is irrelevant that the right to compensation, rather than deriving from the contract of employment is, for instance, a statutory right ...174

Furthermore, the CJEU added that, since the claim in Seymour-Smith was for compensation, the complaint was about access to pay and therefore fell within Article 157.175 Another important decision of the CJEU in this context was that in RinnerKühn v FWW Spezial-Gebaudereinigung GmbH.176 This concerned sick pay under the German statutory scheme. Under this scheme, an employer was obliged to pay an employee’s full salary for the first six weeks of sickness, after which the social security system took over payments at the level of 80 per cent of normal earnings for a statutorily defined period.The employer was not entitled to be reimbursed by the State in respect of the first six weeks, unless there were fewer than 20 employees in the enterprise concerned, in which case the State reimbursed 80 per cent of the payments. In a terse judgment, making very little mention of its other relevant jurisprudence, the CJEU held that the employer’s payments under this scheme constituted ‘pay’ for the purpose of what is today Article 157. It stated simply that: ‘[T]he continued payment of wages to a worker in the event of illness falls within the definition of “pay” within the meaning of Article 119 of the Treaty.’177 What was unclear from this judgment was whether the Court regarded the ultimate source of the payment as significant (under the German scheme, of course, all employers had to make at least a contribution to the first six weeks’ sick pay). It was seen earlier that the Court laid stress in the Bilka-Kaufhaus case on the fact that the benefits concerned there were financed solely by the employer; and in Barber it noted specifically that the schemes were financed either wholly by the employer, or by both 174

Case C-167/97 [1999] ECR I-623, at 675–6. It would have been otherwise if the applicants had been seeking reinstatement or re-engagement: in this case the conditions laid down by national law would have concerned working conditions, and the claim would therefore have fallen within the ambit of what is today Chapter 3 of the the Recast Direc176 tive. Case 171/88 [1989] ECR 2743. 177 Case 171/88 [1989] ECR 2743, at 2759. 175

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the employer and the workers. It adopted a similar approach in Commission v Belgium.178 A scheme, which originated in a collective agreement but was subsequently given statutory force, established special payments for elderly workers on redundancy; however, eligibility for the payments depended upon eligibility for unemployment benefit. Since women were not entitled to unemployment benefit after the age of 60, although men remained so entitled until the age of 65, women were correspondingly excluded from the special redundancy payment after 60. The payments were made by the worker’s last employer. The Belgian Government argued that the payments were in the nature of social security since they supplemented the State unemployment benefit, and that the difference between male and female entitlement reflected the difference in state pension age, so that the situation was exempted by the Social Security Directive. The CJEU rejected this contention: [T]he additional payment at issue, although sui generis in certain respects, must be deemed to constitute ‘pay’ within the meaning of Article 119 of the Treaty. It is clear from Collective Agreement No 17 that that payment is to be received from the redundant worker’s last employer ...and that it is payable by reason of the employment relationship which existed between those two persons, the agreement being applicable only to workers employed in pursuance of a contract of employment and their employers ...It is also apparent that the additional payment is contractual since it is the result of negotiations between employers and employees. The fact that it was subsequently made compulsory erga omnes by legislation cannot therefore detract from its contractual nature ... The Belgian government’s argument that the additional payment and the unemployment benefit form an indivisible unit, namely the ‘contractual early-retirement pension’, and that consequently the additional payment should, like unemployment benefit, be regarded as a social security benefit cannot be upheld. It must be observed, first, that whilst it is true that the amount of the payment is dependent both on the reference wage and on the unemployment benefit, the additional payment nevertheless constitutes consideration received by the worker from the employer in respect of the employment relationship which existed between them. Secondly, the fact that the payment supplements a social security benefit such as unemployment benefit is not decisive. Under Collective Agreement No 17, the additional payment, although linked to the unemployment benefit as regards the manner in which it is made, is independent of the general social security scheme as regards both its structure and its financing, the latter being the responsibility of the employer alone.179

On the other hand, in its ruling in Barber in relation to redundancy pay, the Court appeared unconcerned as to the original source of the funds involved, provided only that the payment was actually made by the employer and received by the employee in respect of his or her employment. In addition, it has also been seen that in Beune,180 in relation to pension schemes, the Court pointed out that none of the criteria for distinguishing between pay and social security payments is decisive when taken alone, but that the fundamental issue is whether the payment is made 178 179 180

Case C-173/91 [1993] ECR I-673. Case C-173/91 [1993] ECR I-673, at 698–9, emphasis added. Case C-7/93 [1994] ECR I-4471, discussed at p 192.

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to the worker by reason of the employment relationship between the worker and the employer. This view was confirmed by the Court’s decision in Gillespie181 that maternity pay in the UK182 is within Article 157; the Court arrived at this conclusion without making any explicit reference to the fact that employers making statutory maternity payments were to all intents and purposes totally reimbursed by the State, and it based its decision wholly on the payment’s foundation in the employment relationship. It must therefore now be concluded that a payment can constitute pay within the meaning of Article 157 even if it is not funded to any extent at all by the employer.

(v) Are all employment benefits ‘pay’? Unlike the British Equality Act of 2010, which in s 66(1) refers to discrimination in respect of any term of a claimant’s work, Article 157(1) and (2) refers specifically only to the term ‘pay’.183 However, as has been seen above, ‘pay’ is not to be confined to the physical contents of the wage packet, but clearly extends to many other forms of consideration granted even indirectly by the employer to the employee in respect of the employment. This being so, is not any benefit extended to the employee via the contract of employment to be regarded as ‘pay’?184 Such benefits as holiday entitlements, periods of sick leave, access to canteen facilities, and so on would also appear to fall within an extended notion of ‘pay’: the employer does not grant them out of the goodness of his or her heart but as a reward for the job done. Such an argument found favour with the House of Lords in Hayward v Cammell Laird Shipbuilders (No 2).185 However, it appears to be less attractive to the CJEU.186 If the Court were to accept the argument, the scope of Article 157 would of course be enormously widened, and in this context the difficulties arising as regards the direct enforcement of the Recast Directive against persons other than organs of the 181

Case C-342/93 [1996] ECR I-475, also discussed at pp 183 and 184. The Court was actually asked in this case about both statutory and contractual maternity pay. Since it drew no distinction between the two categories, it seemingly attached no significance to the provenance of the payments. 183 However, other aspects of the treatment accorded by an employer to the workforce are also governed by the Recast Directive, the Race Directive, and the Framework Directive, as discussed in ch 6. 184 It is noteworthy that Art 4 of the Recast Directive, discussed further below, prohibits sex discrimination ‘with regard to all aspects and conditions of remuneration’. 185 [1988] 2 WLR 1134. The employers in that case had convinced the Court of Appeal that a distinction could be drawn for the purposes of the British Equal Pay Act 1970 between those terms of a contract of employment relating to the general category of ‘pay’, and other terms. The House of Lords rejected this argument and Lord Goff said: ‘[A]lmost any, indeed perhaps any, benefit will fall within “pay” in the very wide sense favoured by [the Court of Appeal]’ (at 1145). 186 Certain remarks of the CJEU in Case 149/77 Defrenne v Sabena [1978] ECR 1365 seem at first sight to reject this argument. However, the issue before the Court there was the enforced retirement of female employees at the age of only 40, and thus concerned working conditions generally, not consideration passing from the employer to the employee. See also Gerster v Freistaat Bayern Case C-l/95[1997] ECR I-5253, and Case C-236/98 Fämställdhetsombudsmannen v Ӧrebro läns landsting [2000] ECR I-2189. 182

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State would be avoided,187 although such difficulties would remain for discrimination contrary to the Race and Framework Directives. However, whatever its ultimate position on the question of how far ‘pay’ can be taken, the CJEU has taken a perceptive approach to how pay levels are to be compared. In Barber v Guardian Royal Exchange Assurance Group,188 the Court was pressed to apply a global type of assessment to the pay received by each sex, as the House of Lords had been in the Hayward case. The national court had asked the CJEU whether, in EU law, equal pay must be ensured at the level of each element of remuneration, or only on the basis of a comprehensive assessment of the consideration paid to the workers concerned. The CJEU, demonstrating considerable sensitivity to the risk of subconscious bias on the part of those carrying out such an assessment, replied that it had already: emphasized the fundamental importance of transparency and, in particular, of the possibility of a review by the national courts in order to prevent and, if necessary, eliminate any discrimination based on sex. With regard to the means of verifying compliance with the principle of equal pay, it must be stated that if the national courts were under an obligation to make an assessment and a comparison of all the various types of consideration granted, according to the circumstances, to men and women, judicial review would be difficult and the effectiveness of Article 119 would be diminished as a result. It follows that genuine transparency, permitting an effective review, is assured only if the principle of equal pay applies to each of the elements of remuneration granted to men or women.189

It continued to take this approach in the difficult circumstances presented to it in Jämställdhetsombudsmannen v Örebro läns landsting.190 The case concerned a pay comparison between two (female) midwives and a (male) technician. The basic monthly salaries of the midwives were less than that of the technician, but the midwives were required to work a shift system which resulted in an inconvenienthours supplement being paid to them. The technician would have been entitled to such a supplement had he worked inconvenient hours, but he did not in fact do so. In addition, the midwives worked a slightly shorter week than the technician, in recognition of their duty to perform shift-work. When the inconvenient-hours supplement and the reduced working hours were taken into account, it was alleged that the midwives did not receive less pay than the technician. The Court ruled that the constituent elements of the pay package must be compared; thus, the basic monthly salaries should be compared. If it was found that they were indeed of unequal value, then a prima facie breach of the equal pay principle would be established; this breach could, however, be rebutted by proof that the pay differential was

187

See ch 2 for discussion of the impossibility of enforcing directives per se horizontally. Case C-262/88 [1990] ECR I-1889. Cf the remarks of Cosmas AG in Case C-167/97 Ex parte 189 Seymour-Smith [1999] ECR I-623, at 641. Case C-262/88 [1990] ECR I-1889, at 1953. 190 Case C-236/98 [2000] ECR I-2189. Likewise in Case C-381/99 Brunnhofer v Bank deiösterreichischen Postsparkasse AG [2001] ECR I-4961. For the application of the same principle in relation to equal treatment, see Case C-226/98 Jørgensen [2000] ECR I-2447. 188

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attributable to the difference in the hours worked, provided that this was unrelated to any discrimination on the ground of sex. As the Finnish Government pointed out, these sorts of problems are particularly acute in equal value claims, where the relevant contractual conditions may diverge completely. This argument led Jacobs AG to make an exception: Where ...for historical or other reasons the pay structures are complex, so that individual elements or the bases on which they are granted are difficult or impossible to disentangle, it may be both unrealistic and unprofitable to look at individual components of the pay package in isolation. Moreover, to do so may lead to discrimination against the other sex. In such cases a global assessment may be the only valid—or even feasible—method, pending a re-structuring of the system .... That does not mean, however, that one element in the overall package can necessarily be set off against another. Thus in Barber itself, in which men who had been made redundant were entitled to an immediate pension if they had attained the age of 55 whereas women who had been made redundant were entitled to an immediate pension if they had attained the age of 50, it is understandable that the Court regarded it as inappropriate to seek to offset discriminatory pension rights by taking into account possible differences in redundancy payments.191

The meaning of ‘equal work’ (i) Equal pay for ‘equal work’ Article 157 expressly mandates equal pay where men and women perform ‘equal work’. The same concept must be taken to apply to pay discrimination within the terms of the Race and Framework Directives since both instruments are predicated on the EU notion of ‘non-discrimination’ which, as seen in chapter 4, refers to the application of different rules to comparable situations. The clearest and most obvious case where equal work is performed is, of course, where, as in Defrenne v Sabena,192 two people perform identical jobs for the same employer in a single establishment. Does the Article extend also to the performance of identical jobs for the same employer in different establishments, or to the performance of identical jobs for different employers? It is submitted that, as a matter of logic, the answer should be ‘Yes’ to both questions. The underlying issue concerns what precisely is being valued when two jobs are classified as constituting equal work. Broadly, there are two approaches: to analyse the value of the jobs in terms of their content and the demands they place on workers; or, alternatively, to measure the value of the jobs to the employer by means of measuring, for example, the benefits they bring to the business, or the cost that the employer would incur by buying in other services to replace the jobs in issue. Both approaches have their 191

Case C-236/98 [2000] ECR I-2189, at 2199–2200.

192

Case 43/75 [1976] 455.

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drawbacks. The job content approach involves the elusive task of putting a price on particular skills and requirements and, moreover, carries with it the risk that in so assessing job factors subconscious prejudices and discrimination are allowed to creep into the calculation. So, for example, if heavy manual work (performed in the past at least largely by men) has traditionally been rewarded at higher rates than repetitive tasks requiring considerable manual dexterity (largely the domain of women workers), then there is a real danger that a job evaluator may be swayed in the direction of rating heavy work more highly than dextrous work. On the other hand, if the approach taken is value to the employer then the legislation’s potential for radically changing women workers’ economic status is wholly undermined: where there is job segregation according to sex, and the women’s jobs have come to be paid less than the men’s, then the cost of finding another woman to perform the job in issue will be correspondingly depressed. Putting it another way, the ‘market value’ of women’s jobs is the very thing which Article 157 seeks to address and to remedy. For this reason, the first approach to job evaluation is to be preferred.The CJEU has made it clear that this is its preference too. So, for example, in Macarthys Ltd v Smith193 it held: [T]he decisive test lies in establishing whether there is a difference in treatment between a man and a woman performing ‘equal work’ within the meaning of Article 119. The scope of that concept ...is entirely qualitative in character in that it is exclusively concerned with the nature of the services in question ...194

Recital 9 of the Preamble to the Recast Directive confirms that: In accordance with settled case-law of the Court of Justice, in order to assess whether workers are performing the same work or work of equal value, it should be determined whether, having regard to a range of factors including the nature of the work and training and working conditions, those workers may be considered to be in a comparable situation.

It follows that it does not, therefore, matter where or for whom equal work is performed. If the nature of the services is identical then it must be rewarded equally. In its early judgments on the subject, the CJEU did not appear to recognize this argument, and in Defrenne v Sabena195 it said:

193 Case 129/79 [1980] ECR 1275, at 1288–9. See also Crisham, ‘The Equal Pay Principle: Some Recent Decisions of the CJEU’ (1981) 18 CML Rev 601. 194 Case 129/79 [1980] ECR 1275, at para 11. As Lord Bridge explained in Leverton v Clwyd County Council [1989] 2 WLR 47, this involves examining the nature of what is done, not the hours at which or frequency with which the tasks are performed. He commented: ‘[I]n job evaluation studies the demands made by different jobs have in practice always been assessed under whatever headings are adopted on a qualitative, not a quantitative, basis. That this is the correct basis, if English law is to conform to Community law seems to be amply borne out by the judgment of the CJEU in Macarthys Ltd v Smith ...I have no doubt that demand in terms of hours worked is not only beyond the expertise of the job evaluator but is, on the true construction of s l(2)(c) and (5) [of the Equal Pay Act 1970], a factor which is outside 195 the scope of job evaluation’ (at 74–5). Case 43/75[1976] ECR 455.

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[T]he principle of equal pay contained in Article 119 may be relied upon before the national courts and ...these courts have a duty to ensure the protection of the rights which this provision vests in individuals, in particular as regards those types of discrimination arising directly from legislative provisions or collective labour agreements, as well as in cases in which men and women receive unequal pay for equal work which is carried out in the same establishment or service, whether public or private.196

However, as will be discussed later in the present chapter, the CJEU was concerned in this passage to distinguish between those situations in which Article 157 takes direct effect and those in which it does not. Furthermore, the factual situation with which it was presented in Defrenne v Sabena involved identical work in the same establishment or service.197 Later cases suggested that the CJEU might consider that Article 157 extends to comparisons with colleagues in other establishments belonging to the same employer, and even perhaps with comparators working for different employers.198 This matter has proved particularly significant in Britain where the scope of comparison permitted under the Equality Act 2010199 is limited to cases where the man and woman are working either in the same establishment, or else at different establishments of the same employer or an associated employer at which common terms and conditions apply.200 This restriction is self-evidently even narrower than a requirement that the claimant and the comparator must have a common employer. The Employment Appeal Tribunal has held that the scope of the domestic legislation is narrower than that permitted under Article 157, and allowed a claimant to enforce the Treaty directly so as to make a pay comparison with a comparator doing a similar job for another employer.201 The scope of comparison under Article 157 was raised, but not answered by the CJEU, in Commission v Denmark;202 VerLoren Van Themaat AG did, however, comment that in his opinion Article 157 extended to comparisons outside the worker’s 196 Case 43/75[1976] ECR 455, at 476, emphasis added. On the other hand, the addition of the word ‘service’ to ‘establishment’ provided a seed from which a wider principle might be permitted to emerge. 197 In Case 96/80 Jenkins v Kingsgate (Clothing Productions) Ltd [1981] ECR 911, the CJEU also appeared to confine its remarks to discrimination within a particular ‘undertaking’, but that again was the situation presented to it on the facts of the case. 198 In Hasley v Fair Employment Agency [1989] IRLR 106, Lord Lowry, in the Northern Ireland Court of Appeal, said: ‘It has to be observed that neither the Defrenne nor the Macarthy judgment treats the remedy given by Article 119 as confined to work carried out in the same establishment or service’ (at 111). 199 Section 79(3) and (4). Formerly, Equal Pay Act 1970, s 1(6). 200 However, this provision has in recent times been given an increasingly broad interpretation by the higher courts; see in particular Leverton v Clwyd County Council [1989] 2 WLR 47 and British Coal Corporation v Smith [1996] 3 All ER 97. 201 See Scullard v Knowles [1996] IRLR 344; the Tribunal there emphasized that the phrase used in Defrenne v Sabena was ‘same establishment or service’, and it proceeded to initiate further inquiries as to whether the claimant could be said to be in the same service as her comparator. See also the decision of the Inner House of the Scottish Court of Session in South Ayrshire Council v Morton [2002] ICR 956: a headteacher was permitted to compare her pay with a comparator employed by another education authority, both because of the existence a national collective agreement covering the pay of all head-teachers in Scotland and because the two head-teachers could be said to be in the same ‘service’ as each other. 202 Case 143/83 [1985] ECR 427.

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immediate workplace.203 And the Court’s statements in relation to the Equal Pay Directive204 have contained at least the suggestion that this instrument requires comparisons outside the employer’s establishment; for example, in Commission v UK,205 it held that the directive requires that a worker ‘be entitled to claim before an appropriate authority that his work has the same value as other work’.206 When coupled with its frequent statements that the directive does not extend, but merely gives greater articulation to, Article 157,207 it would appear to follow that the Court meant that Article 157 itself can require comparisons with the pay of employees outside the claimant’s immediate working environment. The CJEU has now been required to confront this issue head-on. In Lawrence v Regent Office Care Ltd,208 it was asked whether a group of women workers could compare their pay with that of men working for a different employer, in circumstances in which it had already been established that the jobs concerned were of equal value. The Court gave an extremely brief judgment. It acknowledged that there is nothing in the wording of Article 157 to suggest that its applicability is limited to situations in which men and women work for the same employer.209 However, it went on to say that where pay differences between men and women doing equal work or work of equal value ‘cannot be attributed to a single source’, there is no body which is responsible for the inequality and which can restore equal treatment, and the situation does not therefore fall within Article 157. It repeated this formulation in Allonby v Accrington and Rossendale College,210 which concerned a woman lecturer who had been dismissed by the college but re-engaged as an independent contractor via an agency called ELS. She sought to compare her pay conditions with those of a male lecturer employed directly by the college. The CJEU held that the fact that the level of pay received by Ms Allonby was influenced by the amount which the college paid ELS was not a sufficient basis for concluding that the college and ELS constituted a ‘single source’ to which the relevant differences in the employment conditions could be attributed.211 The Court in neither case gave any explanation as to why the employer paying the lower wage cannot be treated, in the absence of rebutting evidence, as responsible for remedying the breach. Geelhoed AG in Lawrence was rather more 203 See also the remarks of Capotorti AG in Case 129/79 Macarthys [1980] 1275, especially at 204 1293–4. Directive 75/117, OJ [1975] L45/19, discussed in detail below. 205 Case 61/81 [1982] ECR 2601. 206 Case 61/81 [1982] ECR 2601, at 2615–16, emphasis added. 207 See, eg, Case 96/80 Jenkins [1981] ECR 911, especially at 927, and see also further discussion at 208 p 256 et seq. Case C-320/00 [2002] ECR I-7325. 209 This is reiterated by recital 10 of the Preamble to the Recast Directive. 210 Case C-256/01 [2004] ECR I-873. See also Fredman, ‘Marginalising Equal Pay Laws’ (2004) 33 ILJ 281. 211 It is, however, noteworthy that Geelhoed AG drew attention in Allonby to the increasingly prevalent practice by employers of contracting-out jobs, often with the consequence that the equal pay requirement is evaded; he agreed with the Commission that the only solution would be new legislation. For discussion of the subsequently enacted Directive on Temporary Agency Work, Directive 2008/104, OJ [2008] L327/9, see ch 6.

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forthcoming, and it has to be assumed that the Court intended to follow his line of reasoning. He considered that a pay comparison could be made in three cases: The first covers cases in which statutory rules apply to the working and pay conditions in more than one undertaking, establishment or service . . . Second, there are cases in which several undertakings or establishments are covered by a collective works agreement or regulations governing the terms and conditions of employment. Finally, the third category concerns those cases in which the terms and conditions of employment are laid down centrally for more than one organisation or business within a holding company or conglomerate. In all of these cases it is possible, going beyond the boundaries of the individual undertaking or service, to compare male with female employees in order to determine whether there is discrimination prohibited by Article 141 EC. The feature common to these three categories is that regulation of the terms and conditions of employment actually applied is traceable to one source, whether it be the legislature, the parties to a collective works agreement, or the management of a corporate group.212

The Advocate General’s answer to why this single source was important was the employer’s right of defence: [The employer] is entitled to argue that an established difference in pay is justified on the basis of objective factors unrelated to discrimination on grounds of sex. It is impossible for an employer against whom a claim for equal treatment has been made to examine the reasons why another employer remunerates activities ‘of equal value’ ‘differently’ to him. Even if he were able to do so, it is still not certain, given his distinct economic situation, that he would be able to align himself accordingly.213

It is respectfully submitted that this is a flawed approach which takes insufficient account of the essentially tortious nature of discrimination.214 Where it has been established that two jobs are of equal value, the question which has to be answered is whether their unequal remuneration is grounded on discrimination. If it is, the source of that discrimination—the reason why it has come about—is irrelevant. Because it is sometimes difficult to prove discrimination, the way that the law is designed is to assume that discrimination exists where a prima facie case can be demonstrated; the employer is then given the opportunity to defend the claim by proving that the unequal pay has its roots in some different cause (for instance, the different qualifications of the persons concerned). This is the stage which had been reached in Lawrence and Allonby, but the Court, instead of hearing the arguments of the employers, simply gave them the benefit of the doubt. These decisions do not therefore survive analytical scrutiny.

212 [2002] ECR I-7325, at 7340–1. It might perhaps be useful to add that the Directive on Part-Time Work (Directive 97/81, OJ [1998] L14/9) and the Directive on Fixed-Term Employees (Directive 1999/70, OJ [1999] L175/43) permit comparisons with the work of full-timers and those on indefinite contracts outside the establishment in which the part-timer or fixed-term worker is employed: 213 see ch 6. [2002] ECR I-7325, at 7342. 214 See discussion in ch 4.

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A similar criticism can be levelled against the Court’s decision in Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse.215 Psychotherapy services were provided in the circumstances of this case by both doctors and psychologists; the latter group was predominantly female and complained of receiving lower pay than the doctors.The CJEU was asked whether the different qualifications of the two groups meant that their work could not be considered equal.To this question there are two logical responses: first, that different qualifications may indeed mean that different jobs are required to be done;216 but, secondly, that where this is not the case and the jobs are in fact the same, different qualifications may provide an objective justification for different pay levels. In other words, in this second instance the reason for the pay difference would be shown to be unrelated to reasons of sex.217 However, following the advice of Cosmas AG, the CJEU obfuscated this vital distinction and held that different qualifications may mean that what seem to be identical jobs are not in reality the same. The Court concluded that, although the doctors and the psychologists concerned performed ‘seemingly identical activities’, they drew upon ‘knowledge and skills acquired in very different disciplines’.218 In what appears to the present authors to be a vain attempt to validate this conclusion, it added that, ‘even though doctors and psychologists both in fact perform work of psychotherapy, the former are qualified also to perform other tasks in a field which is not open to the latter, who may only perform psychotherapy’.219 The Court was thus led to a ruling which was patently self-contradictory: ‘The term “the same work” does not apply ...where the same activities are performed over a considerable length of time by persons the basis of whose qualification to exercise their profession is different.’ The fact that two employees are classified in the same job category under a collective agreement is of course not enough to prove conclusively that they are doing equal work.220 In Brunnhofer,221 the CJEU explained that although such a collective agreement provides a general indication, it has to be corroborated by ‘precise and concrete factors’ based on the activities actually performed by the employees concerned: It is therefore necessary to ascertain whether, when a number of factors are taken into account, such as the nature of the activities actually entrusted to each of the employees in 215

Case C-309/97 [1999] ECR I-2865. Thus, eg, where somebody recruits two people to work in a garden, one a trained landscaper and the other a person untrained in horticulture, on one level it might be said that both were performing the job of ‘gardener’; on closer inspection it might, however, be found that the jobs were not equal because the landscaper was employed to re-design the whole garden, whereas the unskilled employee was employed to weed a flowerbed. 217 On similar lines, note the comment of Jacobs AG in Case C-236/98 Jämställdhetsombudsmannen [2000] ECR I-2204, at 2204, that ‘working conditions may be relevant both to whether work is of equal value and to whether there is objective justification for any inequality of pay for work of equal value’. 218 [1999] ECR I-2865, at 2917. 219 [1999] ECR I-2865, at 2917. The present writers’ view has received the support of Craig and de Búrca, EU Law:Text, Cases, and Materials, 5th edn (Oxford University Press, Oxford, 2011), at 876. 220 Because it has been clear since Case 43/75 Defrenne v Sabena [1976] ECR 455 that discrimination 221 may be contained in a collective agreement. Case C-381/99 [2001] ECR I-4961. 216

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question in the case, the training requirements for carrying them out and the working conditions in which the activities are actually carried out, those persons are in fact performing the same work or comparable work.222

The Court went on to say that equal work is to be understood on the basis of objective criteria, not subjective matters such as an individual’s productivity. It followed that: [As concerns work paid at time rates], circumstances linked to the person of the employee which cannot be determined objectively at the time of that person’s appointment but come to light only during the actual performance of the employee’s activities, such as personal capacity or the effectiveness or quality of the work actually done by the employee, cannot be relied on by the employer to justify the fixing, right from the start of the employment relationship, of pay different from that paid to a colleague of the other sex performing identical or comparable work ... [However], there is nothing to stop individual work capacity from being taken into account and from having an effect on the employee’s career development as compared with that of her colleague, and hence on the subsequent posting and pay of the persons concerned, even though they might, at the beginning of the employment relationship, have been regarded as performing the same work or work of equal value.223

It has been clear for many years that the concept of ‘equal work’ is not restricted to jobs held simultaneously. In Macarthys Ltd v Smith,224 the company employed a man as manager of their stockroom until 1975 and paid him £60 per week. After he left, his job was unfilled for four months, and then Ms Smith was appointed to it. However, she was paid only £50 per week. The situation was apparently not covered by the British Equal Pay Act of 1970, since that extended only to contemporaneous comparisons between employees.225 However, the CJEU held that what is today Article 157 did cover this situation and that its ambit ‘could not be restricted by the introduction of a requirement of contemporaneity’.226 It ruled that: The principle of equal pay enshrined in Article 119 applies to the case where it is established that, having regard to the nature of her services, a woman has received less pay than a man who was employed prior to the woman’s period of employment and who did equal work for the employer.227

It will be observed that this ruling makes no reference to the length of time which has elapsed between the two periods of employment. It would therefore appear that this is not a relevant factor and that, other things being equal, the comparison 222

Case C-381/99 [2001] ECR I-4961, at 4993. Case C-381/99 [2001] ECR I-4961, at 4999–5000. 224 Case 129/79 [1980] ECR 1275. See Wyatt, ‘Article 119 EEC: Equal Pay for Female Successor to Male Worker’ (1980) 5 ELRev 374. 225 See the judgment of the Court of Appeal at [1979] 3 CMLR 44. 226 [1980] ECR 1275, at 1289. 227 [1980] ECR 1275, at 1290. In Diocese of Hallam Trustee v Connaughton [1996] IRLR 505, the British Employment Appeal Tribunal permitted an applicant to rely on the Treaty Article to compare her pay rate with that of a male successor. 223

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can be made even if there has been a very long interval between the two periods of employment. If this is correct then presumably a domestic court applying Article 157 would be entitled to take into account the effect of inflation during the interval, since otherwise there would be little point in seeking parity with a wage paid a number of years before. Although a comparison may be made under Article 157 with the wage of a predecessor, the CJEU was not prepared in Macarthys Ltd v Smith to go further than this and permit hypothetical comparisons.228 Ms Smith had argued that Article 157 also extends to workers who cannot compare their work with that of persons of the opposite sex because the employer has segregated the jobs into ‘women’s work’ and ‘men’s work’; she therefore wanted the CJEU to adopt an interpretation of Article 157 which would encompass comparison with a hypothetical, as well as an actual, male worker doing the same job.229 The Court held that this situation: is to be classed as indirect and disguised discrimination, the identification of which ...implies comparative studies of entire branches of industry and therefore requires, as a prerequisite, the elaboration by the Community and national legislative bodies of criteria of assessment. From that it follows that, in cases of actual discrimination falling within the scope of the direct application of Article 119, comparisons are confined to parallels which may be drawn on the basis of concrete appraisals of the work actually performed by employees of different sex within the same establishment or service.230

It is to be noted that the Court’s remarks on the subject were confined to the context of the direct effect of Article 157.231 In Dekker v Stichting Vormingscentrum Voor Jonge Volwanen Plus,232 in relation to the Equal Treatment Directive, the CJEU held that the existence of a comparator was essentially an evidential matter, so that where direct discrimination could be proved without such a comparator this should be enough to satisfy a court.233 Were the CJEU now to hold that Article 157 228 Thus Trabucchi AG exaggerated in Case 43/75 Defrenne v Sabena [1976] ECR 455, when he said: ‘[A]s regards the abolition, in connection with pay, of all discrimination based on sex, Article 119 imposes an obligation which is clear, precise and unconditional’ (at 486, emphasis added). 229 The possibility of making such a comparison became less important as a consequence of the extension of the Treaty Article to equal value claims. See discussion at p 231 et seq. 230 [1980] ECR 1275, at 1289. See also Case C-200/91 Coloroll [1994] ECR I-4389, where the Court held: ‘a worker cannot rely on Article 119 in order to claim pay to which he could be entitled if he belonged to the other sex in the absence, now or in the past, in the undertaking concerned of workers of the other sex who perform or performed comparable work. In such a case, the essential criterion for ascertaining that equal treatment exists in the matter of pay, namely the performance of the same work and receipt of the same pay, cannot be applied’ (at 4430–1). See also Stix-Hackl AG in Case C-196/02 Nikoloudi v OTE [2005] ECR I-189 (at para 36 of her Opinion). 231 As to which see p 246. Note also the qualified way in which the principle was expressed by Geelhoed AG in Case C-256/01 Allonby [2004] ECR I-873: ‘[I]t is the case that a comparator or a comparative framework is necessary in order to determine whether there is discrimination on the ground of sex’ (at 232 para 76, emphasis added). Case 177/88 [1990] ECR I-3941. 233 See also Case C-342/93 Gillespie [1996] ECR I-475, in which the CJEU held that a woman on maternity leave was entitled to receive a pay rise enjoyed by the rest of her colleagues even though her situation was ‘not comparable either with that of a man or with that of a woman actually at work’ (at 499). See also McGlynn, ‘Equality, Maternity and Questions of Pay’ (1996) 21 ELRev 327.

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extends to hypothetical comparisons, its decision in Lawrence v Regent Office Care Ltd would be of reduced importance and the utility of the Article would be hugely extended. If the Article forbids discrimination only as between comparable jobs, it fails to cater for the situation where unfair differentials are found between two admittedly different jobs. For example, where a woman is employed to perform a very much more highly skilled job than a male comparator, she could not complain under Article 157 if she were paid more than him, but only slightly more.234 If hypothetical comparisons are today permitted under Article 157, she could argue that, were she a man, she would be paid much more, even though she could not demonstrate this directly by pointing to an actual male comparator. From the point of view of improving the economic lot of women, such an argument possesses enormous potential force. It is reinforced today as a result of the amendment of the Equal Treatment Directive235 and its replacement by the Recast Directive. As seen in chapter 4, the Recast Directive now defines direct discrimination in respect of all the fields which it regulates, including pay, so as to embrace hypothetical comparison. If the directive is required to be interpreted in this fashion, it is strongly arguable that the Treaty Article itself must be construed likewise.236 In addition, the Race and Framework Directives expressly permit hypothetical comparisons over their whole fields of application including, it would seem, pay.237 If the intention is to produce a consistent approach both conceptually and in practice to all forms of discrimination, not least in order to assist claims of multiple discrimination, then the conclusion should be that the principle of equal pay for men and women protected by Article 157 also extends today to hypothetical comparisons.238

(ii) Work of equal value It was seen at the beginning of this chapter that the Amsterdam Treaty amended the original version of Article 157 so as expressly to mandate equal pay for work of equal value.239 However, even before this express insertion of the principle, it seems that the CJEU accepted that the term ‘equal work’ embraced the situation where two jobs were of equal value,240 as well as the situation where the two jobs 234

See Case 157/86 Murphy v Bord Telecom Eireann [1988] ECR 673, also discussed at pp 232-3. The Equal Treatment Directive was amended by Directive 2002/73, OJ [2002] L269/15. 236 The importance of extending hypothetical comparison to the Treaty Article as well as to the Recast Directive of course lies in the fact, discussed in ch 2, that unlike the directive the Treaty can take horizontal direct effect; it is therefore enforceable against employers who are not organs of the State. 237 238 239 Art 2(2)(a) of both directives. See further ch 6. See n 2 above. 240 This principle has not, however, received full recognition in all the Member States. In its Memorandum on Equal Pay for Work of Equal Value (COM (94) 6 final), the Commission noted that there had by 1994 been no litigation on the matter in France, Luxembourg, Greece, or Italy, that in other Member States there had been little litigation in which truly different jobs had been compared, and that the legislation in Luxembourg, Italy, Belgium, Spain, Greece, and Portugal did nothing to clarify the scope of the principle. See also the Report on equal pay for work of equal value produced by the European Parliament’s Committee on Women’s Rights and Equal Opportunities, 13 July 2001, A5-0275/2001, 235

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compared were identical.241 In the early days it did not take this view, and it stated in Defrenne v Sabena242 that Community secondary legislation: [implements] Article 119 from the point of view of extending the narrow criterion ‘of equal work’, in accordance in particular with the provisions of Convention 100 on equal pay concluded by the International Labour Organization in 1951, Article 2 of which establishes the principle of equal pay for work ‘of equal value’.243

However, in its later decision in Jenkins v Kingsgate (Clothing Productions) Ltd,244 it said of the Equal Pay Directive,245 which expressly required equal pay for work to which equal value is attributed: As may be seen from the first recital in the Preamble the primary objective of the abovementioned Directive is to implement the principle that men and women should receive equal pay which is ‘contained in Article 119 of the Treaty.’ For that purpose the fourth recital states that ‘it is desirable to reinforce the basic laws by standards aimed at facilitating the practical application of the principle of equality.’ The provisions of Article 1 of that Directive are confined, in the first paragraph, to restating the principle of equal pay set out in Article 119 of the Treaty and specify, in the second paragraph, the conditions for applying that principle where a job classification system is used for determining pay. It follows, therefore, that Article 1 of Council Directive 75/117 which is principally designed to facilitate the practical application of the principle of equal pay outlined in Article 119 of the Treaty in no way alters the content or scope of that principle as defined in the Treaty.246

Again, it said in Worringham v Lloyds Bank Ltd247 that ‘Article 1 of the Directive explains that the concept of “same work” contained in the first paragraph of Article 119 of the Treaty includes cases of “work to which equal value is attributed”.’248 A curious twist in this development occurred in Murphy v Bord Telecom Eireann.249 Ms Murphy was employed by the Bord as a factory worker maintaining telephones. She claimed the right to be paid at the same rate as a male colleague employed in the same factory as a stores labourer.The Irish Equality Officer, to whom the claim had been referred under the national Anti-Discrimination (Pay) Act 1974, found final; this took a pessimistic view of the wage situation of women in the EU and called on the Commission, the Member States, and the social partners to act more vigorously to outlaw unequal pay for work of equal value. For further discussion of the current gender wage gap, see the final section of the present chapter. 241 The same query exists in this area as in relation to identical jobs, namely, the extent to which Art 157 permits comparison with workers outside the claimant’s immediate workplace. 242 Case 43/75 [1976] ECR 455. 243 Case 43/75 [1976] ECR 455, at 472–3, emphasis added. 244 Case 96/90 [1981] ECR 911. 245 Directive 75/117, OJ [1975] L45/19, discussed further at p 255 et seq. 246 [1981] ECR 911, at 926–7. The cynic might be tempted to reflect that, by the date of the judgment in Jenkins, the CJEU was becoming aware that its reasoning in relation to the direct effect of directives was unlikely to enable it to grant them horizontal effect (see ch 2). The Treaty Article thus became a more versatile, and therefore more attractive, basis for its decision. 247 Case 69/80 [1981] ECR 767. 248 Case 69/80 [1981] ECR 767, at 790–1. See also Case 157/86 Murphy [1988] ECR 673, discussed 249 in the next paragraph. Case 157/86 [1988] ECR 673.

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that Ms Murphy’s work was actually of a higher value than that of her comparator, and so it did not constitute ‘like work’ within the meaning of the Act. The Equality Officer therefore considered that she could not lawfully recommend that Ms Murphy receive equal pay with the comparator. The Irish High Court, to which the issue came on appeal, asked the CJEU whether: the Community law principle of equal pay for equal work extend[s] to a claim for equal pay on the basis of work of equal value in circumstances where the work of the claimant has been assessed to be of higher value than that of the person with whom the claimant sought comparison.

As Lenz AG pointed out, this was not a claim for pay proportionate to the work performed (as fairness in the circumstances would certainly seem to have justified). It amounted in effect to a claim for ‘less than equal pay for equal work’. Nevertheless, the Court held that Article 157 caught the situation: It is true that Article 119 expressly requires the application of the principle of equal pay for men and women solely in the case of equal work or, according to a consistent line of decisions of the Court, in the case of work of equal value, and not in the case of work of unequal value. Nevertheless, if that principle forbids workers of one sex engaged in work of equal value to that of workers of the opposite sex to be paid a lower wage than the latter on grounds of sex, it a fortiori prohibits such a difference in pay where the lower-paid category of workers is engaged in work of higher value. To adopt a contrary interpretation would be tantamount to rendering the principle of equal pay ineffective and nugatory. As the Irish Government rightly emphasized, in that case an employer would easily be able to circumvent the principle by assigning additional or more onerous duties to workers of a particular sex, who could then be paid a lower wage . . .Article 119 must be interpreted as covering the case where a worker who relies on that provision to obtain equal pay within the meaning thereof is engaged in work of higher value than that of the person with whom a comparison is to be made.250

An important practical issue in this area, which the CJEU has not yet confronted, is how precise it is necessary to be in assessing equality. The problem is to know whether substantial equality is all that is required by Article 157, or whether there must be absolute mathematical equality. The latter seems unlikely, since the whole 250 Case 157/86 [1988] ECR 673, at 689. This case is sometimes taken as suggesting that the CJEU was not on this occasion prepared to require ‘proportionate’ pay, and it is contrasted with its later decision in Case C-127/92 Enderby v Frenchay Health Authority [1993] ECR I-5535 (discussed at pp 234 and 245), where it stated (at 5575): ‘If ...the national court has been able to determine precisely what proportion of the increase in pay is attributable to market forces, it must necessarily accept that the pay differential is objectively justified to the extent of that proportion. When national authorities have to apply Community law, they must apply the principle of proportionality.’ In the view of the present writers, this apparent inconsistency is to be explained by the fact that in Murphy the true rate of pay due to the plaintiff was not revealed by the evidence, and therefore any upward adjustment would have resulted in the court acting as a wage-fixer; it is otherwise where it is clear what the rate of pay would be were a disproportionate adjustment not being made for market forces. Such a distinction, though regrettable from the point of view of achieving substantive sex equality, is understandable both in terms of the drafting of the Treaty Article and of the constitutional role of the CJEU.

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business of assessing the value of work is essentially imprecise, but what degree of divergence will be allowed?251

Defences to an equal pay claim Article 157 contains no defences, apart perhaps from the kinds of positive action permitted by paragraph 4.252 As will be discussed in chapter 9, the Race and Framework Directives contain a number of express defences, but none seems apposite to the principle of equal pay. However, it was seen in chapter 4 that, where a claim is made that indirect discrimination has occurred in relation to pay,253 it is open to the respondent to demonstrate that the adverse impact caused is objectively justified by factors unrelated to discrimination. This is essentially an issue of causation, and was first clearly articulated in relation to sex discrimination over pay in Bilka-Kaufhaus GmbH v Weber Von Hartz.254 Later cases have filled in important details about the way in which justification can operate in the field of equal pay. For example, Enderby v Frenchay Health Authority255 demonstrated that the justification proved must be proportionate to the particular pay discrepancy in issue: The state of the employment market, which may lead an employer to increase the pay of a particular job in order to attract candidates, may constitute an objectively justified economic ground ...How it is to be applied in the circumstances of each case depends on the facts and so falls within the jurisdiction of the national court. If, as the question referred seems to suggest, the national court has been able to determine precisely what proportion of the increase in pay is attributable to market forces, it must necessarily accept that the pay differential is objectively justified to the extent of that proportion. When national authorities have to apply Community law, they must apply the principle of proportionality. If that is not the case, it is for the national court to assess whether the role of market forces in determining the rate of pay was sufficiently significant to provide objective justification for part or all of the difference.256

A further deduction to be made from this ruling is that the Court has accepted the existence in EU law of an economic defence, at least in the field of equal pay,257 251 British employment tribunals, faced with this issue, reached conflicting conclusions. See, eg, Wells and Others v Smales Ltd (1985) 2 EOR 24 and Brown and Royle v Cearns and Brown Ltd (1986) 6 EOR 252 27. Discussed in ch 9. 253 As the Court reiterated in Case C-17/05 Cadman v HSE [2006] ECR I-9583, the ‘scope of Article 141(1) [157(1)] covers not only direct but also indirect discrimination’ (at para 30). 254 255 Case 170/84 [1986] ECR 1607. Case C-127/92 [1993] ECR I-5535. 256 Case C-127/92 [1993] ECR I-5535, at 5575. 257 See also Case 96/80 Jenkins [1981] ECR 911. However, in Case C-50/96 Schröder [2000] ECR I-743, and Joined Cases C-270 & 271/97 Sievers and Shrage [2000] ECR I-920, it asserted that the economic aim of Art 157 is secondary to its social aim, which constitutes the expression of a fundamental

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and it has made little attempt to explain where it sees the balance lying as between the commercial profitability of an organization and the elimination of discrimination.258 The UK courts for a number of years resisted such a defence, on the sensible ground that, if pursued, it would rob the anti-discrimination legislation of all purpose. In the words of Lord Denning MR in Clay Cross Ltd v Fletcher:259 [A]n employer cannot avoid his obligations under the [Equal Pay Act] by saying: ‘I paid him more because he asked for more’, or ‘I paid her less because she was willing to come for less’. If such excuses were permitted, the Act would be a dead letter. Those are the very reasons why there was unequal pay before the statute. They are the very circumstances in which the statute was intended to operate. Nor can the employer avoid his obligations by giving the reasons why he submitted to the extrinsic forces. As for instance by saying: ‘He asked for that sum because it was what he was getting in his previous job’, or ‘He was the only applicant for the job so I had no option’. In such cases the employer may beat his breast, and say: ‘I did not pay him more because he was a man. I paid it because he was the only suitable person who applied for the job. Man or woman made no difference to me’.Those are reasons personal to the employer. If any such reasons were permitted as an excuse, the door would be wide open. Every employer who wished to avoid the statute would walk straight through it.260

The danger pointed out by Lord Denning is a real one, and it is therefore vital that the courts scrutinize cases very carefully to make sure that what looks like an objectively justified factor does not in reality have its roots in discrimination; for example, where it is alleged in an equal value case that one skill is rarer and more valuable than another, the court must insist on knowing the background to that statement and must ensure that this is not because, for instance, women or a particular ethnic group have been discriminated against as regards training for that rarer skill.261 In general, the CJEU in guiding the national courts must remain vigilant to ensure that when the ‘genuine need’ of an enterprise is assessed, it is not merely male or dominant majority-orientated notions of merit and qualifications which are used as the parameters.262

human right; see further discussion in ch 3. See also the comments of Besselink on these cases in (2001) 38 CMLRev 437. 258 Cf the position in relation to the justification of indirect discrimination in the field of social 259 security, discussed in ch 10. [1979] ICR 1. 260 [1979] ICR 1, at 5. The CJEU’s decisions forced the UK courts to retrench somewhat and to accept the possibility of an economic defence. See in particular Rainey v Greater Glasgow Health Board [1986] 3 WLR 1017. 261 In Case C-127/92 Enderby [1993] ECR I-5535, Lenz AG observed: ‘Since justification of the discriminatory result is called for, it cannot be sufficient to explain the causes leading to the discrimination ...The historical and social context of a “purely female profession” is most probably sex-related. If an explanatory approach were accepted as sufficient justification, that would lead to the perpetuation of sexual roles in working life. Instead of the equality of treatment which is sought, there would be afforded a legal argument for maintaining the status quo’ (at 5563). See also Fredman, ‘Equal Pay and Justification’ (1994) 23 ILJ 37. 262 See discussion in Connolly (ed), Townshend-Smith on Discrimination Law: Text, Cases and Materials, 2nd edn (Cavendish Publishing, London, 2004), especially ch 10.

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In Handels-OG Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening (acting for Danfoss),263 the CJEU was presented with some traditional arguments to justify what appeared to be sex discrimination in pay. An employer claimed that incremental payments were made to its employees as a reward for ‘mobility’, vocational training, and seniority. The Court looked at each separately. ‘Mobility’ had a rather specific meaning here, and did not merely embrace a willingness to work at different hours; it involved the employer making an overall assessment of the quality of the work carried out by the employees, and would take into account their ‘enthusiasm for work’, their sense of initiative, and the amount of work done. In scrutinizing such a factor as providing an objective justification for discrimination, the Court was sensitive to the risks it carries. It held: [A] distinction must be made according to whether the criterion of mobility is employed to reward the quality of the work done by the employee or is used to reward the employee’s adaptability to variable work hours and varying places of work. In the first case, the criterion of mobility is undoubtedly wholly neutral from the point of view of sex.Where it systematically works to the disadvantage of women that can only be because the employer has misapplied it. It is inconceivable that the quality of work done by women should generally be less good. The employer cannot therefore justify applying the criterion of mobility, so understood, where its application proves to work systematically to the disadvantage of women.264

In such a case, therefore, the employer would invariably lose the claim. However, the Court went on to say: The position is different in the second case. If it is understood as covering the employee’s adaptability to variable hours and varying places of work, the criterion of mobility may also work to the disadvantage of female employees who, because of household and family duties for which they are frequently responsible, are not as able as men to organize their working time flexibly . . . [The Bilka-Kaufhaus principles] apply in the case of a wages practice which specially remunerates the employee’s adaptability to variable hours and varying places of work. The employer may, therefore, justify the remuneration of such adaptability by showing that it is of importance for the performance of specific tasks entrusted to the employee.265

It took the same line in relation to vocational training, saying: [It cannot] be excluded that [the criterion of vocational training] may work to the disadvantage of women in so far as they have had less opportunity than men for training or have taken less advantage of such opportunity. Nevertheless, in view of the considerations laid down [in Bilka-Kaufhaus], the employer may justify remuneration of special training by showing that it is of importance for the performance of specific tasks entrusted to the employee.266 263 265 266

264 Case 109/88 [1989] ECR 3199. Case 109/88 [1989] ECR 3199, at 3227. Case 109/88 [1989] ECR 3199, at 3227–8, emphasis added. Case 109/88 [1989] ECR 3199, at 3228.

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As to seniority, the Court was considerably less perceptive, and was perhaps timorous in its approach because of the admitted practical significance of seniority in pay systems and collective bargaining. It held simply: [It cannot be ruled out that seniority] may involve less advantageous treatment of women than of men in so far as women have entered the labour market more recently than men or more frequently suffer an interruption of their career. Nevertheless, since length of service goes hand in hand with experience and since experience generally enables the employee to perform his duties better, the employer is free to reward it without having to establish the importance it has in the performance of specific tasks entrusted to the employee.267

This last seemed an illogical deduction, since for many jobs experience does not improve performance, a point subsequently recognized by the Court. In Nimz v Freie und Hansestadt Hamburg,268 a collective agreement provided for reclassification into a higher salary grade after a certain number of years for those employed for at least three-quarters of normal working time. For those, predominantly women, employed between one-half and three-quarters of normal working time, double the number of years was required before reclassification into the higher grade.269 The employers sought to justify this situation by arguing that full-timers acquired job-related skills more quickly than part-timers.The Court rejected this with some enthusiasm, saying: Such considerations, in so far as they are no more than generalizations about certain categories of workers, do not make it possible to identify criteria which are both objective and unrelated to any discrimination on grounds of sex ...Although experience goes hand in hand with length of service, and experience enables the worker in principle to improve performance of the tasks allotted to him, the objectivity of such a criterion depends on all the circumstances in a particular case, and in particular on the relationship between the nature of the work performed and the experience gained from the performance of that work upon completion of a certain number of working hours.270

Similarly, the CJEU in Hill and Stapleton v Revenue Commissioners271 took a forthright attitude towards indirect discrimination and justification. Under an Irish jobsharing scheme for civil servants, job-sharers were paid on a scale each point of 267

Case 109/88 [1989] ECR 3199, at 3228, emphasis added. Case C-184/89 [1991] ECR I-297, commented on by Adinolfi in (1992) 29 CMLRev 637 and by More in ‘Seniority Pay for Part-time Workers’ (1991) 16 ELRev 320. 269 It is noteworthy that this case, like Case C-262/88 Barber [1990] ECR I-1889 (discussed at pp 191–2), involved access to pay rather than the quantum of pay, but the Court nonetheless held the situation to fall within the scope of Art 157. On the other hand, in Case C-l/95 Gerster v Freistaat Bayern [1997] ECR I-5253, where a similar rule to that operating in Nimz disadvantaged part-timers as regards promotion, the CJEU held that the matter fell within the scope of the Equal Treatment Directive (discussed in ch 6) because length of service was merely one factor considered by the employer and therefore affected pay only indirectly. 270 [1991] ECR I-297, at 319. See also Case C-100/95 Kording v Senator für Finanzen [1997] ECR I-5289 and Case C-196/02 Nikoloudi v OTE [2005] ECR I-1789, in which the same principle was applied for the purposes of the Equal Treatment Directive. 271 Case C-243/95 [1998] ECR I-3739. 268

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which was 50 per cent of the corresponding point on the scale for full-time staff; in other words, they received the same hourly rate of pay as full-timers. Job-sharers were given a right to convert to full-time work. However, on doing so they discovered that each year spent job-sharing was counted only as six months’ full-time service, with the consequence that they regressed on the pay scale. The referring court wished to know whether this constituted indirect discrimination and, if so, whether it was justifiable for the employers to rely on the time actually worked in the job in fixing pay rates. The CJEU had little difficulty in deducing that this arrangement amounted to indirect discrimination: 99.2 per cent of people in the claimants’ jobs who job-shared were women, and they suffered a reduction in their hourly rate of pay on conversion from job-sharing to full-time work. Employees working full-time, but who had previously job-shared, were therefore treated less favourably than those who had always worked full-time. The question thus arose as to whether this apparent discrimination was justifiable. The Court rejected the employers’ arguments that there was an established practice in the civil service of ‘crediting’ only actual service and that this maintained staff motivation, commitment, and morale: The first justification is no more than a general assertion unsupported by objective criteria. With regard to the second, the system of remuneration for employees working on a full-time basis cannot be influenced by the job-sharing scheme.272

Furthermore, the employer could not justify discrimination arising from a jobsharing scheme solely on the ground that avoidance of such discrimination would involve increased costs.273 The Court went on to say: Community policy in this area is to encourage and, if possible, adapt working conditions to family responsibilities. Protection of women within family life and in the course of their professional activities is, in the same way as for men, a principle which is widely regarded in the legal systems of the Member States as being the natural corollary of the equality between men and women, and which is recognised by Community law. The onus is therefore on the Revenue Commissioners ...to establish before the Labour Court that the reference to the criterion of service, defined as the length of time actually worked, in the assessment of the incremental credit to be granted to workers who convert from job-sharing to full-time work is justified by objective factors unrelated to any discrimination on grounds of sex.274

The part played by seniority in relation to justifying indirect discrimination was thus left somewhat unclear by the CJEU. Did seniority perhaps provide a generally acceptable justification in the case of full-time work but not in relation to 272

Case C-243/95 [1998] ECR I-3739, at 3771. See also Case C-196/02 Nikoloudi v OTE [2005] ECR I-1789. 274 [1998] ECR I-3739, at 3772. For the view that this decision in fact entrenches the traditional role of women, see McGlynn and Farrelly, ‘Equal Pay and the “Protection of Women Within Family Life”’ (1999) 24 ELRev 202. See also discussion of the non-dynamic nature of the concept of indirect discrimination in ch 4; also Case C-1/95 Gerster v Freistaat Bayern [1997] ECR I-5253, and Case C-100/95 Kording v Senator Fur Finanze [1997] ECR I-5289. 273

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part-time-work? In Cadman v HSE,275 the CJEU ‘clarified’276 its earlier statements and drew no distinction between full and part-time employment.The case involved a woman full-time worker paid less than male comparators on the same pay grade but who had longer service. The Court explained that in Danfoss it had accepted that length of service gives the employee greater experience, which in turn enables the employee to perform his or her duties better, and therefore as a general rule justifies a higher wage.277 The employee is consequently free to reward length of service without having to establish the importance it has in the performance of specific tasks entrusted to the employee.278 However, even in Danfoss, it had not ruled out the possibility that there may be situations in which recourse to the criterion of length of service must be justified by the employer in detail. That is so, in particular, where the worker provides evidence giving rise to serious doubts as to whether length of service is, in the circumstances, appropriate to justify a pay differential. It is then up to the employer to prove ‘that which is true as a general rule, namely that length of service goes hand in hand with experience and that experience enables the worker to perform his duties better, is also true as regards the job in question’.279 The Court went on to relate its remarks specifically to the situation in which jobs have been evaluated under a job classification scheme: [W]here a job classification system based on an evaluation of the work to be carried out is used in determining pay, it is not necessary for the justification for recourse to a certain criterion to relate on an individual basis to the situation of the workers concerned. Therefore, if the objective pursued by recourse to the criterion of length of service is to recognize experience acquired, there is no need to show in the context of such a system that an individual worker has acquired experience during the relevant period which has enabled him to perform his duties better. By contrast, the nature of the work to be carried out must be considered objectively.280

In Rinner-Kühn v FWW Spezial-Gebaudereinigung GmbH,281 the CJEU held that the Bilka-Kaufhaus test for justifying indirect discrimination must be applied to German legislation restricting the payment of sick pay to employees working for longer than ten hours a week or 45 hours a month.The Court asked the German Government to provide information on the reasons which had motivated the legislation, and the Government answered that the workers affected by the legislation were not integrated in or connected with the undertaking in a comparable way to that

275

Case C-17/05 [2006] ECR I-9583. Case C-17/05 [2006] ECR I-9583, at para 43. See further the critical view of the decision expressed by Beck in ‘The state of EC anti-sex discrimination law and the judgment in Cadman, or how the legal can become the political’ (2007) 32 ELRev 549. 277 See also Case C-88/08 Hütter v Technische Universität Graz [2009] ECR I-5325, discussed further in ch 9. 278 As Costello and Davies point out, this formulation does not elucidate the relevance of experience acquired in working in a previous job: see ‘The Case Law of the Court of Justice in the Field of Sex 279 Equality Since 2000’ (2006) 43 CLMRev 1567. [2006] ECR I-9583, at para 38. 280 281 [2006] ECR I-9583, at para 39. Case 171/88 [1989] ECR 2743. 276

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of other workers and that therefore the conditions for recognition of a duty of care from the employer towards them, including an obligation to continue to pay wages, did not exist; in addition, the Government pointed out that the statutory exclusion followed earlier legislation.282 The CJEU firmly rejected this approach: It should however be stated that those considerations, in so far as they are only generalizations about certain categories of workers, do not enable criteria which are both objective and unrelated to any discrimination on grounds of sex to be identified. However, if the Member State can show that the means chosen meet a necessary aim of its social policy and that they are suitable and requisite for attaining that aim, the mere fact that the provision affects a much greater number of female workers than male workers cannot be regarded as constituting an infringement of Article 119.283

A novel aspect of this ruling was that it applied the Bilka-Kaufhaus test not merely to an employer’s practices but to the State’s legislation, backed up of course by the principle of the supremacy of EU law. The test therefore evolved from the needs of a business to the needs of a State’s social policy.284 It is for the State to justify the legislation, although [i]t is for the national court ...which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent a legislative provision, which, although applying independently of the sex of the worker, actually affects a greater number of women than men, is justified by reasons which are objective and unrelated to any discrimination on grounds of sex.285

It will be seen in chapter 10 that this principle has important application in the field of social security, where a Member State may well rely on the alleged aims of its social policy in order to try to justify the adverse impact of a piece of its legislation on one sex. It will also be seen that the CJEU has considerably relaxed its grip over justification in the area of social security, emphasizing the broad margin of discretion enjoyed by the Member States in their choice of measures of social policy and contenting itself with a test of what the national legislature reasonably considers 282 These arguments were strikingly similar to those of the British Government in Building Businesses ...Not Barriers (Cmnd 9794), where it was proposed to raise the hours of work qualification for UK statutory rights from 16 to 20. 283 [1989] ECR 2743, at 2761. Cf the submissions of Darmon AG in this case. In Case C-187/00 Kutz-Bauer v Freie und Hansestadt Hamburg [2003] ECR I-2741, the CJEU said in relation to indirect discrimination contrary to the Equal Treatment Directive (as to which see ch 6): ‘ ...mere generalisations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed provisions is unrelated to any discrimination based on sex or to provide evidence on the basis of which it could reasonably be considered that the means chosen are or could be suitable for achieving that aim’ (at 2790). See also Case C-77/02 Steinicke v Bundesanstalt für Arbeit [2003] ECR I-9027, where the CJEU emphasized that, although budgetary considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and cannot therefore justify discrimination against one of the sexes. 284 See also Szyszczak, ‘European Court Rulings on Discrimination and Part-Time Work and the Burden of Proof in Equal Pay Claims’ (1990) 19 ILJ 114. 285 [1989] ECR 2743, at 2761.

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necessary to achieve its legitimate aims;286 in other words, the dangerous transition has occurred from a test of objective justification to one much closer to subjective justification. The Court’s apparent resolve not to allow this degree of slippage to occur in relation to legislation in the field of equal pay was demonstrated in parts of its judgment in R v Secretary of State for Employment, ex parte Seymour-Smith.287 The UK Government had tried to defend legislation imposing service threshold requirements which had to be proved in order for an employee to claim unfair dismissal; in particular, it had argued that the risk of the exposure of employers to unfair dismissal proceedings brought by employees who had been engaged only fairly recently would deter recruitment. The CJEU agreed that the encouragement of recruitment was a legitimate aim of social policy, and went on to say: [T]he UK government maintains that a Member State should merely have to show that it was reasonably entitled to consider that the measure would advance a social policy aim. It relies to that end on Nolte ... It is true that in the judgment in Nolte ...the Court observed that, in choosing the measures capable of achieving the aims of their social and employment policy, the Member States have a broad margin of discretion. However, although social policy is essentially a matter for the Member States under Community law as it stands, the fact remains that the broad margin of discretion available to the Member States in that connection cannot have the effect of frustrating the implementation of a fundamental principle of Community law such as that of equal pay for men and women. Mere generalizations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed rule is unrelated to any discrimination based on sex nor to provide evidence on the basis of which it could reasonably be considered that the means chosen were suitable for achieving that aim.288

However, it then held: Accordingly,...if a considerably smaller percentage of women than men is capable of fulfilling the requirement of two years’ employment imposed by the disputed rule, it is for the Member State, as the author of the allegedly discriminatory rule, to show that the said rule reflects a legitimate aim of its social policy, that that aim is unrelated to any discrimination based on sex, and that it could reasonably consider that the means chosen were suitable for attaining that aim.289

This leaves the test to be applied for the justification of employment legislation extremely unclear. As Barnard and Hepple have commented, it appears that the Court could not arrive at a unanimous view and so it produced an unhappy compromise between a rigorous application of the concept of indirect discrimination and a more market-orientated approach.290 In addition, the result is a hierarchy of 286 See in particular Case C-317/93 Nolte v Landesversicherungsanstalt Hannover [1995] ECR I-4625 and Case C-444/93 Megner and Scheffel v Innungskrankenkasse Vorderplatz [1995] ECR I-4741. 287 288 Case C-167/97 [1999] ECR I-623. Case C-167/97 [1999] ECR I-623, at 686. 289 Case C-167/97 [1999] ECR I-623, at 686. 290 Barnard and Hepple, ‘Indirect Discrimination: Interpreting Seymour-Smith’ (1999) 58 CLJ 399.

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tests for the justification of indirect discrimination. The weakest rule applies to the justification of a statutory social security provision.291 Then follows the justification of a statutory employment provision. That the strictest rule still applies to the justification of an employer’s practices emerged from Krüger v Kreiskrankenhaus Ebersberg.292 This concerned persons classified by German legislation as being in ‘minor employment’, defined to mean working fewer than 15 hours per week.The CJEU had already held in Nolte and Megner and Scheffel293 that, since this group was predominantly female in composition, its exclusion from social security benefits constituted prima face indirect discrimination; however, such discrimination was justified because it was intended to meet the social and employment policy aims of satisfying the demand for part-time employment.294 Nevertheless, the Court held in Krüger that the same principle did not apply in relation to indirect discrimination over pay; this resulted from a collective agreement excluding persons in minor employment from eligibility to an annual Christmas bonus, an exclusion which the Court did not regard as justifiable.295 The requirement to justify allegedly indirectly discriminatory legislation, though wholly welcome in principle, raises considerable practical problems. For example, in the UK it means that an employer faced with a similar claim to that in Rinner-Kühn296 must ask the employment tribunal to join the relevant Secretary of State as a party to the case in order to justify the legislation.297 There is also the difficulty that, justification being an issue of fact rather than law as far as the British courts are concerned, different employment tribunals may well reach different conclusions when presented with the same evidence.298 This, however, is a general problem as far as the justification of indirect discrimination is concerned. It cannot be denied that the formula chosen by the CJEU entrusts a considerable discretion to the deciding judge. Indeed, Sebba has gone so far as to argue that the assessment of justification is essentially a non-justiciable task: ‘The judge can do no more than express his or her personal political opinion on the matter.The personal perspective of the unelected judge therefore shapes ...social policy.’299 291 Hervey has suggested that this development is a consequence of the limits of Community competence: ‘The further the application of the EC law principle of equal treatment impinges on elements of national social policy for which the Community has no competence to adopt other harmonisation legislation, the wider a margin of discretion the Court is prepared to give in the justification of indirect sex discrimination’; see ‘EC Law on Justifications for Sex Discrimination in Working Life’, in Blanpain (ed), Collective Bargaining, Discrimination, Social Security and European Integration (Kluwer, Deventer, 2003), 133. 292 Case C-281/97 [1999] ECR I-5127. 293 Case C-317/93 Nolte [1995] ECR I-4625, and Case C-444/93 Megner and Scheffel [1995] ECR 294 I-4741. See further ch 10. 295 Cf the view of Léger AG in this case. 296 Case 171/88 [1989] ECR 2743. 297 See also R v Secretary of State for Employment, ex parte EOC [1994] 2 WLR 409. 298 See the comments of the editors of the Equal Opportunities Review on the Rinner-Kühn decision in ‘Discriminatory Statutory Rights can be Challenged under EEC Law’ (1989) 28 EOR 39. 299 Sebba, ‘The Doctrine of “Direct Effect”: A Malignant Disease of Community Law’ [1995] LIEI 35.

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In addition to this potential for local inconsistencies in its application, the Court’s own jurisprudence on objective justification has wavered in its underlying principles, the bullish stance evident in cases such as Nimz and Rinner-Kühn giving way on occasion to a weaker form of supervision over the national courts. For example, in Kowalska v Freie und Hansestadt Hamburg,300 the defendants argued that discrimination against part-timers in relation to severance pay was justified because these kinds of workers do not provide for their needs or those of their families exclusively out of their earned income; one might have expected this argument to be dismissed as another mere generalization, but instead the Court simply replied that the assessment of justification was a matter for the national court. This sort of inconsistency of approach is also evident in a series of references from German courts in relation to the employment staff committee system which operates in that country. The first was Arbeiterwohlfahrt der Stadt Berlin eV v Bötel.301 Ms Bötel, a part-time worker, was chair of such a staff committee and exercised her statutory right to paid time off work in order to attend some training courses in connection with this activity which lasted for longer than her normal working hours. Her employers, in accordance with their usual practice, paid her only in respect of her normal working hours. Had she been a full-timer, she would have been reimbursed in respect of all the hours she spent on the courses, and this disparity of treatment she alleged to be indirect discrimination against her. After concluding that the sums paid were within Article 157,302 the Court held: [T]he argument that compensation for participation in training courses granted under national legislation is calculated solely on the basis of working hours not worked does not alter the fact that staff council members who work on a part-time basis receive less compensation than their full-time colleagues when in fact both categories of workers receive without distinction the same number of hours of training in order to be able effectively to look after the interests of employees for the sake of good working relations and for the general good of the undertaking ...[S]uch a situation is likely to deter employees in the part-time category, in which the proportion of women is undeniably preponderant, from serving on staff councils or from acquiring the knowledge needed in order to serve on them, thus making it more difficult for that category of worker to be represented by qualified staff council members. To that extent, the difference in treatment in question cannot be regarded as justified by objective factors unrelated to any discrimination on grounds of sex, unless the Member State concerned proves the contrary before the national court.303

Kuratorium fur Dialyse und Nierentransplantation eV v Lewark304 raised the same ‘delicate’ issue as Bötel305 and the Federal Labour Court specifically asked the CJEU to reconsider its position. Both the German court and the German Government 300

301 Case C-33/89 [1990] ECR I-2591. Case C-360/90 [1992] ECR I-3589. See discussion at p 182 et seq. as to the meaning of ‘pay’ in the context of Art 157. 303 304 [1992] ECR I-3589, at 3613–14. Case C-457/93 [1996] ECR I-243. 305 See Darmon AG in Case C-278/93 Freers v Deutsche Bundespost [1996] ECR I-1165, at 1167. The Advocate General also commented that the ‘heated debate provoked by the [Bötel] judgment in Germany’ had prompted the two further references discussed in the text. 302

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argued that it was important to the staff council system that those workers serving did so on an unpaid and independent basis; all that should therefore be required should be that they should be reimbursed in respect of the hours that they would have spent at work had they not been serving on a staff committee. The Court reiterated that, irrespective of how these payments were perceived within Germany, they nevertheless fell within the Article 157 notion of ‘pay’. Furthermore, it held that there was unequal treatment as between full and part-timers because they received unequal pay in respect of their hours devoted to staff committee service. Since this undoubtedly impacted more severely on women than men, there was therefore a prima facie case of indirect discrimination and the issue was whether that could be justified. On this last point, the Court compromised its former stance, saying: It is ...apparent from the order for reference in the present case that the Bundesarbeitsgericht considers that the German legislature’s wish to place the independence of staff councils above financial inducements for performing staff council functions ...is an aim of social policy. Such a social policy aim appears in itself to be unrelated to any discrimination on grounds of sex. It cannot be disputed that the work of staff councils does indeed play a part in German social policy, in that the councils have the task of promoting harmonious labour relations within undertakings and in their interest. The concern to ensure the independence of the members of those councils thus likewise reflects a legitimate aim of social policy. If a Member State is able to show that the measures chosen reflect a legitimate aim of its social policy, are appropriate to achieve that aim and are necessary in order to do so, the mere fact that the legislative provision affects far more women workers than men cannot be regarded as a breach of Article 119 ... However, it should be noted that, as the Court held in Bötel,...legislation such as that at issue is likely to deter workers in the part-time category ...from performing staff council functions ... In the light of all those considerations and taking into account the possibility of achieving the social policy aim in question by other means, the difference in treatment could be justified ...only if it appeared to be suitable and necessary for achieving that aim. It is for the national court to ascertain whether that is so in the present case.306

This reasoning is inherently illogical. If the sums in question are ‘pay’, as the CJEU maintains, then discrimination in relation to them ought not to be able to be justified by an argument which relies on the fact that they are not pay. To argue that inequality over pay is prohibited but not inequality over compensation for loss of pay, is purely semantic.307 Nevertheless, the Court followed its judgment in Lewark in Freers v Deutsche Bundespost.308 306

[1996] ECR I-243, at 269–70. This factor may have been in the mind of Jacobs AG, who submitted: ‘I conclude that, as the Court held in Bötel, the compensation paid to a staff council member for attendance at training courses ...is “pay” for the purposes of Article 119 ...However, it must be recognised that on the facts of this case that compensation can be regarded as pay only in the broadest sense of the term. Even if the continuance of salary for undertaking such activities during normal working hours can be regarded as pay, it is less clear that payment for undertaking such activities outside working hours can be so regarded’ (at 250). 308 Case C-278/93 [1996] ECR I-1165. Darmon AG, however, submitted that the indirect discrimination was not justified in this case and that Bötel should be followed. For comment on Lewark and Freers, 307

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Another important practical issue on which the CJEU has not been wholly consistent is whether the existence of two separate collective agreements, applying essentially to male and female workers respectively, is sufficient to satisfy the BilkaKaufhaus requirement of objective justification.309 Such a factor ought not in theory to constitute an ‘objectively justified factor unrelated to any discrimination based on sex’ since, even if the collective agreements in question did not have their roots in earlier sex discrimination, it is more or less inconceivable that their existence could constitute a ‘necessary’ response to a ‘genuine need’ of the employer.310 The UK Government, which intervened in the Danfoss case, argued that the existence of two separate collective agreements does not by itself justify a pay differential. The issue was put directly to the CJEU in Enderby v Frenchay Health Authority,311 where separate non-discriminatory collective agreements governed the groups of workers whose pay was the subject of comparison. The Court held robustly that this was not sufficient to establish justification: The fact that the rates of pay at issue are decided by collective bargaining processes conducted separately for each of the two professional groups concerned, without any discriminatory effect within each group, does not preclude a finding of prima facie discrimination where the results of those processes show that two groups with the same employer and the same trade union are treated differently. If the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separately as sufficient justification for the difference in pay, he could, as the German government pointed out, easily circumvent the principle of equal pay by using separate bargaining processes.312

However, in the Court’s later decision in Specialarbejderforbundet I Danmark v Dansk Industrie, acting for Royal Copenhagen A/S,313 it resiled from this clear-cut position, but without substantial reasoning: [T]he principle of equal pay for men and women ...applies where the elements of the pay are determined by collective bargaining or by negotiation at local level but ...the national court may take that fact into account in its assessment of whether differences between the average

see Shaw, ‘Works Councils in German Enterprises and Article 119 EC’ (1997) 22 ELRev 256. See also Manor Bakeries Ltd v Nazir [1996] IRLR 604, in which the British Employment Appeal Tribunal held that attendance at a trade union conference was not ‘work’ and did not therefore attract ‘pay’. This decision was subsequently disapproved by the same Tribunal in Davies v Neath Port Talbot Country Borough Council [1999] IRLR 769, where attendance at a union-organized health and safety training course was held to be ‘work’. 309 It was asked about this matter but declined to answer the question because it found it to be unnecessary in Case C-109/88 Handels-OG Kontorfunktionaeremes Forbund I Danmark v Dansk Arbejdsgiverforening (acting for Danfoss) [1989] ECR 3199. 310 However, this has not always been the view of UK courts. See, in particular, Reed Packaging Ltd v Boozer [1987] IRLR 26 and Enderby v Frenchay Health Authority and the Secretary of State for Health [1991] IRLR 44. Cf British Road Services v Loughran [1997] IRLR 92. 311 Case C-127/92 [1993] ECR I-5535. 312 Case C-127/92 [1993] ECR I-5535, at 5574. Lenz AG drew a distinction, apparently taken up by the Court, between collective agreements concluded for whole branches of industry and those where 313 there is a common employer. Case C-400/93 [1995] ECR I-1275.

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pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex.314

The direct effect of the equal pay principle and the remedies for its breach The concept of direct effect was discussed in general terms in chapter 2. It will be recalled that a provision of EU law is said to be ‘directly effective’315 where it is enforceable by a legal person in the courts of the Member States. The first hint in the CJEU that the equal pay principle might be directly effective came in the First Defrenne case,316 where Lamothe AG said: [Article 119] is thus not limited .... to setting out objectives of harmonization of laws and regulations or co-operation between Member States, but it creates an obligation for the Member States. The question could have been asked whether in addition or as a result of the obligation which it created for the states, it gives rise to individual rights in favour of the nationals of Member States and whether it has a ‘direct effect’. But this question no longer arises for two reasons: 1. Although the difficulties of application encountered by certain countries were great and although in particular a conference of Member States extended until 31 December 1964 the period initially laid down, it appears to me certain that at least as from this date Article 119 created subjective rights which the workers of the Member States can invoke and respect for which national courts must ensure. 2. It is even more certain in Belgium since, to avoid any difficulty of interpretation by the courts and give additional publicity to this provision of the treaty, the Belgian government by an initiative which was legally superfluous but the intentions of which were highly commendable, has insisted on inserting in Royal Decree No 40 of 27 October 1967 concerning the work of women an Article 14 worded thus: ‘In accordance with Article 119 of the Treaty establishing the European Economic Community, adopted by the law of 2 December 1957, any woman worker may institute proceedings in the competent court for the application of the principle of equal pay for men and women workers’. In these circumstances the reasons may be well understood why the Belgian Conseil d’ Etat does not even seem to have considered and in any event has not asked us to consider whether Article 119 had a direct effect or not. This appeared to it, as it does to me, to be obvious.317

However, to others the conclusion that the Article takes direct effect was probably less obvious. It was seen in chapter 2 that, in order to take direct effect, a provision 314 Case C-400/93 [1995] ECR I-1275, at 1314. See further Case C-236/98 Jämställdhetsombudsmannen [2000] ECR I-2189. 315 Other terms used to refer to the same concept include ‘directly applicable’ and ‘self-executing’. For reasons explained in ch 2, the term ‘direct effect’ will be used in this work in this context. 316 Case 80/70 Defrenne v Belgium [1991] ECR 445. 317 Case 80/70 Defrenne v Belgium [1991] ECR 445, at 456.

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must satisfy certain criteria of precision: specifically, the scope of the obligation it creates must be clear; and it must also be unconditional, non-discretionary, and final. Arguably, at least three of these conditions could not be said to be satisfied by the equal pay principle contained in Article 157.The scope of the obligation might be said to be somewhat vague, in particular since the concepts of ‘equal work’ and ‘equal pay’ require clarification. Such clarification might confer a discretion on the Member States, and might also mean that the Article could not be regarded as ‘final’. Nevertheless, the CJEU, in its dramatic ruling in the Second Defrenne case,318 agreed with Lamothe AG’s earlier conclusion. In reaching this result, it clearly showed its frustration with the non-compliance with Article 157 by the Member States and with the weak-willed attitude towards this non-compliance demonstrated by the Commission. It was a proactive ruling given by a Court intent on ascribing useful effect to an important Article of the Treaty. Having explained its belief that Article 157 forms ‘part of the foundations of the Community’,319 it went on to say that nothing in the wording of the Article undermined its direct effect: First of all it is impossible to put forward an argument against its direct effect based on the use in this Article of the word ‘principle’, since, in the language of the Treaty, this term is specifically used in order to indicate the fundamental nature of certain provisions, as is shown for example by the heading of the first part of the Treaty which is devoted to ‘Principles’ and by Article 113, according to which the commercial policy of the Community is to be based on ‘uniform principles’. If this concept were to be attenuated to the point of reducing it to the level of a vague declaration, the very foundations of the Community and the coherence of its external relations would be directly affected. It is also impossible to put forward arguments based on the fact that Article 119 only refers expressly to ‘Member States’. Indeed, as the Court has already found in other contexts, the fact that certain provisions of the Treaty are formally addressed to the Member States does not prevent rights from being conferred at the same time on any individual who has an interest in the performance of the duties thus laid down. The very wording of Article 119 shows that it imposes on states a duty to bring about a specific result to be mandatorily achieved within a fixed period. The effectiveness of this provision cannot be affected by the fact that the duty imposed by the Treaty has not been discharged by certain Member States and that the joint institutions have not reacted sufficiently energetically against this failure to act. To accept the contrary view would be to risk raising the violation of the right to the status of a principle of interpretation, a position the adoption of which would not be consistent with the task assigned to the Court by Article 164320 of the Treaty. Finally, in its reference to ‘Member States’, Article 119 is alluding to those states in the exercise of all those of their functions which may usefully contribute to the implementation of the principle of equal pay. Thus, contrary to the statements made in the course of the proceedings, this provision is far from merely referring the matter to the powers of the national legislative authorities. Therefore the reference to ‘Member States’ in Article 119 cannot be interpreted as excluding the intervention of the courts in direct application of the Treaty.321 318 319 321

Case 43/75 Defrenne v Sabena [1976] ECR 455. Case 43/75 Defrenne v Sabena [1976] ECR 455, at 472. [1976] ECR 455, at 474–5.

320

Today, TEU, Art 19.

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The CJEU has apparently, albeit without discussion, arrived at the same conclusion in relation to the direct effect of the principle of equal pay contained in the Framework Directive;322 it seems beyond doubt that the same would hold true for the Race Directive. Under the original terms of what is today Article 157, the equal pay obligation became unconditional as far as the founding Member States were concerned as from the end of the first stage, in other words from the beginning of January 1962. However, as this date approached, it became clear that some of the Member States had not introduced the necessary legislation in time and so had not put the equality principle into practice within their own jurisdictions. Consequently the Member States adopted the Resolution mentioned by Lamothe AG, by which they agreed to postpone the deadline to the end of 1964.323 The CJEU held that this Resolution was ineffective to modify the time-limit stipulated in the Article, since the Treaty can be amended only by means of the procedure laid down therein.324 However, the Court’s judgment contained an unfortunate sting in its tail in relation to the operative date of Article 157. Several of the original Member States did not observe even the later time-limit agreed in the Resolution. The Commission therefore held a conference, attended by representatives of the governments and the two sides of industry, and produced several reports on the matter. It also declared its intention to take enforcement proceedings against those States remaining in breach, although in fact it took no further action. The UK and Irish Governments also argued that the economic repercussions of holding Article 157 to be directly effective from its operative date under the Treaty would be disastrous; undertakings might face bankruptcy as a result of large numbers of backdated claims. This argument seems an exaggerated one in the light of the fact that, as seen in chapter 2, national rules of procedure relate to directly effective Community provisions and, in the UK at least, the relevant statute at the date in question provided that no equal pay claim could be backdated further than two years.325 The CJEU was, however, persuaded by the Member States’ arguments and held: [I]n the light of the conduct of several of the Member States and the views adopted by the Commission and repeatedly brought to the notice of the circles concerned, it is appropriate to take exceptionally into account the fact that, over a prolonged period, the parties concerned have been led to continue with practices which were contrary to Article 119, 322 See Case C-267/06 Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757 and Case C-147/08 Römer v Freie und Hansestadt Hamburg [2011] ECR I-000. But see ch 6 for discussion of the rather tentative language used in the opening articles of the Race and Framework Directives, which could possibly be argued to reduce the likelihood of the subsequent substantive provisions taking direct effect. 323 See Warner, ‘European Community Social Policy in Practice: Community Action on Behalf of Women and its Impact in the Member States’ (1984) 23 JCMS 141. 324 [1976] ECR 455, at 478–9. See today TEU, Art 48. Cf the apparently different view of Lamothe AG on this point. 325 Equal Pay Act 1970, s 2(5). See ch 2 for further discussion of the legal problems which were posed by this limitation period.

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although not yet prohibited under their national law. The fact that, in spite of the warnings given, the Commission did not initiate proceedings under Article 169326 against the Member States concerned on grounds of failure to fulfil an obligation was likely to consolidate the incorrect impression as to the effects of Article 119. In these circumstances, it is appropriate to hold that, as the general level at which pay would have been fixed cannot be known, important considerations of legal certainty affecting all the interests involved, both public and private, make it impossible in principle to reopen the question as regards the past.Therefore the direct effect of Article 119 cannot be relied on in order to support claims concerning pay periods prior to the date of this judgment, except as regards those workers who have already brought legal proceedings or made an equivalent claim.327

In terms of principle, this is an illogical conclusion. If the Article possesses the qualities required to produce direct effect, then this has been so ever since it ceased to be conditional at the beginning of 1962.To interpose another operative date was a clear example of judicial legislation and highlights the unsatisfactoriness of there being no appeal from decisions of the CJEU.328 Furthermore, in paying heed to the failure of the Commission to initiate proceedings, the Court was inconsistent in its reasoning, since earlier in its judgment it rejected the notion that the effectiveness of the Treaty Article could be undermined by the dilatoriness of the Commission.329 The creation of the concept of prospective effect for Article 157 also produced an unfortunate precedent in practice.330 The Court, however, regards prospective direct effect as exceptional,331 and it added in Amministrazione delle Finanze dello Stato v Denkavit Italiana Sri:332 [I]t is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provisions as thus interpreted with a view to calling into question those legal relationships. Such a restriction may, however, be allowed only in the actual judgment ruling upon the interpretation sought.The fundamental need for a general and uniform application of Community law implies that it is for the Court of Justice alone to decide upon the temporal restrictions to be placed on an interpretation which it lays down.333 326

327 Today, Art 258. [1976] ECR 455, at 480–1. Even today, despite the existence of the General Court, there would be no possibility of appeal in a case such as Defrenne. 329 See [1976] ECR 455, at 472–3. On this matter, the Court differed from the Advocate General. Burrows, in ‘The Promotion of Women’s Rights by the European Economic Community’ (1980) 17 CMLRev 191, comments that ‘the Court did in effect what it said the other institutions of the Community were not entitled to do ie amended the Treaty by a procedure other than that foreseen in [the Treaty itself]’. 330 See Wyatt, ‘Prospective Effect of a Holding of Direct Applicability’ (1975–76) 1 ELRev 399, and L Neville Brown, ‘Agromonetary Byzantinism and Prospective Overruling’ (1981) 18 CMLRev 509. 331 See, eg, its refusal to apply the principle in Case C-366/99 Griesmar [2001] ECR I-9383. 332 Case 61/79 [1980] ECR 1205. 333 Case 61/79 [1980] ECR 1205, at 1223–4, emphasis added. See also Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer fur das Saarland [1976] 2 ECR 1989, especially the remarks of Warner AG at 2005; Cases 66, 127, & 128/79 Amministrazione delle Finanze dello Stato 328

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In Grzelczyk v Centre Public d’ Aide Sociale,334 the CJEU added that it had granted prospective effect to a provision: only in quite specific circumstances, where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that both individuals and national authorities had been led into adopting practices which did not comply with Community law by reason of objective, significant uncertainty regarding the implications of Community provisions, to which the conduct of other Member States or the Commission may even have contributed ...335

The temporal limitation which the Court applies to the enforcement of Article 157 in relation to pensions has been discussed above. It is important to note, however, that the limitation expressed in the Barber case336 does not extend to matters outside the pensions field; as seen above, the Court also dealt with non-discrimination in relation to redundancy payments. It should also be noted that the Defrenne time limitation does not prevent Member States from enacting more extensive retroactive rights to equal pay within their own jurisdictions.337 The CJEU’s ruling in the Second Defrenne case338 also established, very importantly in practice, that the equal pay principle takes horizontal direct effect; in other words, it may be enforced against employers who are private persons or companies, as well as against organs of the State. The Court held: [S]ince Article 119 is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals.339

In contrast to the width of the class for whom Article 157 creates the obligation to provide equal pay, it seems that the scope of its direct effect may be limited; in other words, there may be some circumstances in which the Article obliges the Member States to provide equal pay for equal work but in which, without further implementing legislation, the Article itself cannot be directly enforced. It was seen in chapter 4 that the Court in the Second Defrenne case drew a distinction between what it then described as ‘direct and overt’ sex discrimination, as regards which Article 157 does take direct effect, and ‘indirect and disguised’ discrimination, as to which it does not. ‘Direct and overt’ discrimination can be identified solely with v Meridionale Industria Salumi Srl [1980] ECR 1237; Case 69/80 Worringham [1981] ECR 767; Case 24/86 Blaizot v University of Liège [1988] ECR 379; Case C-262/88 Barber [1990] ECR I-1889; Case C-163/90 Administration des Douanes v Legros [1992] ECR I-4625; Case C-110/91 Moroni [1993] ECR I-6591; and Case C-57/93 Vroege [1994] ECR I-4541. 334

335 Case C-184/99 [2001] ECR I-6193. Case C-184/99 [2001] ECR I-6193, at 6248. Case C-262/88 [1990] ECR I-1889. 337 See Case C-50/96 Schröder [2000] ECR I-743, and Joined Cases C-270 & 271/97 Sievers and 338 Shrage [2000] ECR I-929. Case 43/75 [1975] ECR 455. 339 Case 43/75 [1975] ECR 455, at 476. See also the remarks of VerLoren Van Themaat AG in Case 58/81 Commission v Luxemburg [1982] ECR 2175. 336

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the aid of the criteria based on equal work and equal pay referred to by Article 157, whilst ‘indirect and disguised’ discrimination can be identified only by reference to more explicit implementing provisions of a Community or national character. The CJEU went on to hold: Among the forms of direct discrimination which may be identified solely by reference to the criteria laid down by Article 119 must be included in particular those which have their origin in legislative provisions or in collective labour agreements and which may be detected on the basis of a purely legal analysis of the situation. This applies even more in cases where men and women receive unequal pay for equal work carried out in the same establishment or service, whether public or private. As is shown by the very findings of the judgment making the reference, in such a situation the court is in a position to establish all the facts which enable it to decide whether a woman worker is receiving lower pay than a male worker performing the same tasks.340

Although the Court in later cases abandoned the use of the phrases ‘direct and overt’ and ‘indirect and disguised’, it has stuck to its original reasoning in relation to the direct effect of Article 157. This is unsurprising given that the concept of direct effect calls for the enforcement of the provision in question by the judges of the national courts; its ambit must therefore be clearly defined if there are not to be great discrepancies in application. Warner AG explained the position in Jenkins v Kingsgate (Clothing Productions) Ltd,341 as follows: A difficulty ...is ...caused by certain dicta of the Court in Case 43/75 the Second Defrenne case and in Macarthys Ltd v Smith ...Those dicta could be interpreted as meaning that the test for determining whether there is ‘covert’ discrimination, in the sense meant in [the nationality cases] is the same as the test for identifying the kind of discrimination as regards which Article 119 has no direct effect. In my opinion the two tests are not the same and I doubt if the Court can ever have intended to say that they were... Article 119 is, in my opinion, more accurately described as not having direct effect where a court cannot apply its provisions by reference to the simple criteria that those provisions themselves lay down and where, consequently, implementing legislation, either Community or national, is necessary to lay down the relevant criteria.342

The Court has held that Article 157 is directly effective where male and female workers perform identical jobs simultaneously in the same establishments,343 where they perform such jobs at different times,344 where there is indirect discrimination over pay in relation to men and women performing identical jobs,345 and where there is gender-plus discrimination in relation to identical jobs.346 340

341 Case 43/75 [1975] ECR 455, at 473–4. Case 96/80 [1981] ECR 911. Case 96/80 [1981] ECR 911, at 937–8. 343 Case 43/75 Defrenne v Sabena [1976] ECR 455, and Case 69/80 Worringham [1981] ECR 767. 344 Case 129/79 Macarthys [10980] ECR 1275. 345 Case 96/80 Jenkins [1981] ECR 911, and Case 170/84 Bilka-Kaufhaus [1986] ECR 1607. Cf the remarks of Capotorti AG in Case 149/77 Defrenne v Sabena [1978] ECR 1365, at 1382. 346 Case 23/83 Hefting v Directie van het Academisch Ziekenhuis bij de Universiteit van Amsterdam [1984] ECR 3225. 342

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It remains to be determined in what other situations Article 157 takes direct effect. In particular, in the light of the fact that the Court has now acknowledged that the Article extends to comparisons with workers in other establishments or working for different employers,347 it is arguable that, so long as the pay discrimination can be ascertained by means of the concepts of pay and work contained in the Article itself, then there is nothing to inhibit direct effect in this situation. Importantly in practice, there is the question of whether the Article is directly effective where the two jobs compared are not identical but are alleged to be of equal value.348 It was seen at p 231 et seq. that the CJEU changed its mind in this context and came to consider, even before its amendment by the Amsterdam Treaty, that at least the theoretical scope of the equal pay Article embraced equal value situations. This may well have been because, once it had articulated its position on the horizontal direct effect of directives, it realized that the Equal Pay Directive would be of little help in the equal value situation, so that recourse would have to be made to the Treaty Article. Dicta from the early cases about the extent of the Article’s direct effect are of course misleading today,349 although the difficulty referred to in those cases appears a real one: namely, how can the Article apply directly when further explanatory legislation is needed before a court can know how equal value is to be assessed? However, notwithstanding this obstacle, by the time of Worringham v Lloyds Bank Ltd350 the Court seemed prepared to include the equal value situation in its definition of the extent of the direct effect of Article 157: [The Article applies directly] to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the Article in question, without national or Community measures being required to define them with greater precision in order to permit of their application. Among the forms of discrimination which may thus be judicially identified, the Court mentioned in particular cases where men and women receive unequal pay for equal work carried out in the same establishment or service, public or private. In such a situation the court is in a position to establish all the facts enabling it to decide whether a woman receives less pay than a man engaged in the same work or work of equal value.351

The issue seems to have been settled by Murphy v Bord Telecom Eireann,352 in which the CJEU held that Article 157 is directly effective where the claimant can demonstrate that she is engaged on work of higher value than that of her male comparator. It would seem to follow from the Court’s remarks in this case that the same would

347 See Case C-320/00 Lawrence [2002] ECR I-7325, and Case C–256/01 Allonby, [2004] ECR I-873, both discussed at pp 226–7. 348 See Arnull, ‘Article 119 and Equal Pay for Work of Equal Value’ (1986) 11 ELRev 200. 349 See, eg, the comments of Trabucchi AG in Case 43/75 Defrenne v Sabena [1976] ECR 455, at 485–6. 350 Case 69/80 [1981] ECR 767. Cf the Opinion of VerLoren Van Themaat AG in Case 61/81 Com351 mission v UK [1982] ECR 2601. [1981] ECR 767, at 792, emphasis added. 352 Case 157/86 [1988] ECR 673, also discussed at pp 232–3.

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have been true were the work established to be of equal value. In Pickstone v Freemans plc, the British Court of Appeal also came to the conclusion that Article 157 is directly effective in equal value cases.353 The House of Lords decided the case on the basis of British law, but the comments of Lord Oliver are significant: [T]he cases in the European Court to which your Lordships have been referred clearly establish that there is an area within which [Article 157] is not directly applicable.354 The bounds of that area are far from clear to me, however, but the cases appear to indicate that the Article may not be directly applicable in an ‘equal value’ claim, at any rate where there is no machinery in the domestic law by which the criterion of what is work of equal value can be readily ascertained.355

The last part of Lord Oliver’s statement probably explains the CJEU’s change of mind in relation to direct effect in equal value cases: where national implementing legislation has been passed explaining how equal value is to be assessed then Article 157 can in principle take direct effect in such cases within that Member State.356 However, Pickstone’s case involved a particular difficulty, as Lord Oliver went on to demonstrate. The assessment of equal value in the UK was the job of employment tribunals under the then s l(2)(c) of the Equal Pay Act 1970, but their jurisdiction was purely statutory and they possessed no inherent powers. The Court of Appeal had held that s l(2)(c) did not extend, because of its wording, to the precise situation in issue in that case and thus, in his Lordship’s opinion, there was no national machinery for the assessment of equal value on the Court of Appeal’s analysis. He could not envisage how Article 157 could be enforced either.This would have been disastrous for the enforcement of equal value claims in the UK, but there is now a body of case law which takes the view that directly effective EU law automatically amends UK law.357 Moreover, it does not detract from the general principle that Article 157 appears now to be directly effective in such cases, at least provided that there is national legislation governing the ascertainment of equal value. Where a litigant relies in a national court on the direct effect of Article 157, it was seen in chapter 2 that the same remedies must be available as would be available in a similar domestic claim, provided that these do not actually frustrate the EU claim.The CJEU has added that the effect of a successful Article 157 claim is to 353 [1987] 3 WLR 811. Cf the view of the Court of Appeal in O’Brien v Sim-Chem Ltd [1980] 1 WLR 734. 354 It is apparent from the context that Lord Oliver is using the expression ‘directly applicable’ in the same sense as the present writers are using ‘directly effective’. 355 [1988] 2 All ER 803, at 816, emphasis added. 356 There is a parallel to be drawn here with the reasoning adopted by the CJEU in Case C–271/91 Marshall v Southampton and South-West Hants Area Health Authority (No 2) [1993] ECR I-4367, discussed in ch 6. Essentially, the Court held in Marshall (No 2) that Art 6 of the Equal Treatment Directive was rendered directly effective so as to provide a remedy for the victim of a discriminatory dismissal where the national legislature had acted to restrict the available remedies in this situation to compensation; the victim was entitled to rely on the direct effect of the otherwise insufficiently specific Art 6 in order to override a national ceiling on damages, the effect of which was to prevent her from recovering in full for the loss which she had sustained. 357 See, eg, Biggs v Somerset County Council [1996] ICR 364.

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raise the lower pay to the level of that of the comparator, a principle which would appear to apply with equal force to pay discrimination contrary to the Race and Framework Directives:358 [S]ince Article 119 appears in the context of the harmonization of working conditions while the improvement is being maintained, the objection that the terms of this Article may be observed in other ways than by raising the lowest salaries may be set aside.359

The strength of this principle has been somewhat diluted in the field of occupational pension schemes, where it has been held lawful to re-write the scheme’s rules so as to equalize as between men and women, even where such equalization operates downwards.360 A rate of pay which violates Article 157 is automatically rendered void and replaced by the higher rate applicable to comparators;361 this remedy can also be supplemented by national measures imposing penal sanctions on those who disobey the equal pay principle.362 In Kowalska v Freie und Hansestadt Hamburg,363 this principle was applied to discrimination occurring under the terms of a collective agreement.364 The agreement in question restricted the payment of severance benefits to workers employed for at least 38 hours a week, thereby indirectly discriminating against women since the large majority of those employed for under 38 hours a week were female. The Court held: It is apparent from the judgment of 13 December 1989, Ruzius-Wilbrink (Case C-102/88 [1989] ECR 4311), that in a case of indirect discrimination the members of the class of persons placed at a disadvantage are entitled to have the same scheme applied to them as that applied to other workers, on a basis proportional to their working time. That ruling applies equally to discriminatory provisions in a collective agreement. It must therefore be stated in reply to the second question that where there is indirect discrimination in a clause in a collective wage agreement, the class of persons placed at a disadvantage by reason of that discrimination must be treated in the same way and made subject to the same scheme, proportionately 358 See in particular recital 9 of the Preamble to the Race Directive and recital 11 of the Preamble to the Framework Directive. 359 Case 43/75 Defrenne v Sabena [1976] ECR 455, at 472; Case C–200/91 Coloroll [1994] ECR I-4389, at 4413. See also Case C-147/95 Evrenopoulos [1997] ECR I-2057, where it was alleged that a term in a pension scheme discriminating against widowers was unconstitutional and therefore invalid; the CJEU held that this was not correct as a matter of EU law and that the position of widowers must be levelled-up to match that of widows. Cf the effect of establishing discrimination in a social security scheme contrary to the Social Security Directive, Directive 79/7, OJ [1979] L6/24, where the result may be a general levelling-down of the benefit in question, as discussed in ch 10. 360 See Case C-408/92 Smith [1994] ECR I-4435, discussed at pp 200–1; also Deakin, ‘Levelling Down Employee Benefits’ [1995] CLJ 35. 361 See Trabucchi AG in Case 43/75 Defrenne v Sabena [1976] ECR 455, at 489. 362 See Case 14/83 Von Colson and Kamann v Land of North Rhine-Westfalia [1984] ECR 1891, discussed further in ch 6. 363 Case 33/89 [1990] ECR I-2591, discussed by Reiland in ‘Sex Discrimination in Collective Agreements’ (1991) 20 ILJ 79, and by More in ‘Severance Pay for Part-time Workers’ (1991) 16 ELRev 58. 364 As also Case C-184/89 Nimz [1991] ECR I-297, and Joined Cases C-399, 409, & 425/92, C-34, 50, & 78/93 Helmig [1994] ECR I-5727, both discussed in the section begining on p 234.

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to the number of hours worked, such scheme remaining for want of correct transposition of Article 119 of the EEC Treaty into national law, the only valid point of reference.365

In Nimz v Freie und Hansestadt Hamburg,366 the CJEU added: It should also be pointed out that the Court has consistently held ...that a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary by refusing of its own motion to apply any conflicting provision of national legislation, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means. It is equally necessary to apply such considerations to the case where the provision at variance with Community law is derived from a collective labour agreement. It would be incompatible with the very nature of Community law if the court having jurisdiction to apply that law were to be precluded at the time of such application from being able to take all necessary steps to set aside the provisions of a collective agreement which might constitute an obstacle to the full effectiveness of Community rules. ...[W]here there is indirect discrimination in a provision of a collective agreement, the national court is required to set aside that provision, without requesting or awaiting its prior removal by collective bargaining or any other procedure, and to apply to members of the group disadvantaged by that discrimination the same arrangements as are applied to other employees, arrangements which, failing the correct application of Article 119 ...in national law, remain the only valid system of reference.367

The equal pay provisions of the Recast Directive (i) The background The Equal Pay Directive368 was passed in 1975, in an effort to harmonize the laws of the Member States in relation to the principle of equal pay.369 It was repealed by the Recast Directive but many of its provisions are re-enacted in that instrument. That the principle of pay equality had by 1975 emerged as of fundamental importance to the Community is exemplified by the first recital of the Directive’s Preamble, which described the implementation of what is today Article 157 as an ‘integral part of the establishment and functioning of the common market’. Recital 8 of the Preamble to the Recast Directive now states: The principle of equal pay for equal work or work of equal value as laid down by Article 141 of the Treaty and consistently upheld in the case-law of the Court of Justice constitutes 365

366 [1990] ECR I-2591, at 2613. Case C-184/89 [1991] ECR I-297. Case 96/80 [1981] ECR 911, at 321. See also Case C-l87/00 Kutz-Bauer [2003] ECR I-2741, and Case C-77/02 Steinicke [2003] ECR I-9027, in which the CJEU held that the same principle applies to provisions in legislation and collective agreements which produced indirect discrimination contrary to the Equal Treatment Directive (as to which see ch 6). 368 369 Directive 75/117, OJ [1975] L45/19. See the final recital of the Preamble. 367

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an important aspect of the principle of equal treatment between men and women and an essential and indispensable part of the acquis communautaire ...

The record in relation to equal pay in the various Member States during the early 1970s had been, to say the least, patchy.370 Strong feelings began to be expressed, particularly in the European Parliament, that the Treaty Article had been legally binding for a period of many years (at least in six of the Member States) and yet it had achieved little practical significance.371 This was attributed in part to a lack of effective monitoring of what was going on in the Member States, and in part to the lack at that time of wider legislative measures to deal with discrimination against women in employment generally. The Equal Pay Directive was therefore seen as providing a valuable additional means of control by the Commission over the Member States in relation to pay equality.372 The fifth recital of the directive’s Preamble referred to the differences which in 1975 continued ‘to exist in the various Member States despite the efforts made to apply the resolution of the conference of the Member States of 30 December 1961 on equal pay for men and women’, and implied that the directive sought to impose, at the very least, a uniform minimum standard. As events turned out, the need for the directive was greatly reduced very shortly after its enactment, when the CJEU ruled in Defrenne v Sabena373 that the Treaty Article itself was directly effective.374 This had the very important consequence in practice that the principle of pay equality, at least on some occasions, could be enforced directly in the courts of the Member States and, even more significantly, that national legislation which conflicted with the Treaty Article was automatically rendered inapplicable. A large part of the Commission’s job of chasing up offending Member States was thus performed at a stroke.

(ii) The relationship between the directive and Article 157 The CJEU experienced a change of heart with respect to the relationship between the Equal Pay Directive and Article 157. This may well have been provoked by its

370 See, eg, the Commission’s comments in its Sixth General Report on the Activities of the Communities, 1972, para 211. Also the Reports of the Commission to the Council on the Application of the Principle of Equal Pay for Men and Women of 18 July 1973 (SEC (73) 3000 final) and 17 July 1974 (SEC (74) 2721 final), and Sullerot, The Employment of Women and the Problems it Raises in the Member States of the European Community (Commission of the European Communities, 1975). 371 The editors of the Common Market Law Review commented in 1974 that a directive on equal pay was long overdue, ‘as the failure to give effective enforcement to Article 119 of the EEC Treaty has been the scandal of the stunted development of the social aspect of the Community’ ((1974) 11 CMLRev 1-2). 372 See Bull EC 4–1974, point 2420. Also Burrows, ‘The Promotion of Women’s Rights by the Euro373 pean Economic Community’ (1980) 17 CMLRev 191. Case 43/75 [1976] ECR 455. 374 See p 247 et seq. A similar sequence of events occurred in relation to the Occupational Social Security Directive (Directive 86/379, OJ [1986] L225/40), also discussed at p 187 et seq., when the CJEU ruled that Art 141 itself extended to various types of pension scheme.

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development of the doctrine of the direct effect of directives and its ultimate conclusion that they are per se incapable of horizontal effect:375 if the Member States were going to prove recalcitrant in implementing the directive, then the way to achieve maximum utility for EU law would be via the Treaty Article itself. Its original stance was articulated in Defrenne v Sabena,376 where it commented that Community secondary legislation ‘implement[s] Article 119 from the point of view of extending the narrow criterion of “equal work”’, thus suggesting that the directive went further in its provisions than the Treaty Article. However, by the early 1980s, it had decided that this was not so and that the directive did no more than flesh out the bare bones of Article 157; the same principle must apply to today’s provisions of the Recast Directive on equal pay. Thus, in Jenkins v Kingsgate (Clothing Productions) Ltd377 the CJEU held: ‘Article 1 of Council Directive 75/117 which is principally designed to facilitate the practical application of the principle of equal pay outlined in Article 119 of the Treaty in no way alters the content or scope of that principle as defined in the Treaty.’378 The fact that the directive does not extend the scope of Article 157 does not, of course, mean that it can diminish it either, because, as noted, a measure of secondary legislation cannot restrict the scope of primary legislation. The CJEU applied this general principle to the present context in Defrenne v Sabena,379 saying: [T]he principle contained in Article 119 has been fully effective in the new Member States since the entry into force of the Accession Treaty ...It was not possible for this legal situation to be modified by Directive 75/117, which was adopted on the basis of Article 100380 dealing with the approximation of laws and was intended to encourage the proper implementation of Article 119 by means of a series of measures to be taken on the national level, in order, in particular, to eliminate indirect forms of discrimination, but was unable to reduce the effectiveness of that Article or modify its temporal effect.381

If the equal pay provisions of the Recast Directive therefore merely spell out the detail of Article 157, without in any way undermining its scope, it follows that their chief practical effect today is to shed light on the more obscure aspects of the Treaty Article. Whether they will be held to perform the same service (albeit indirectly) for the equal pay provisions contained in the Race and Framework Directives remains to be seen, but it seems logical to suppose that they will. The major object of the discussion of the Recast Directive which follows is therefore to explore the ways in which it might be said to elucidate Article 157 and, by implication, also the pay provisions of the Race and Framework Directives.

375

376 Discussed in ch 2. Case 43/75 [1976] ECR 455, at 473. Case 96/80 [1981] ECR 911. 378 Case 96/80 [1981] ECR 911, at 927. See also Case 69/80 Worringham [1981] ECR 767; Case 192/85 Newstead [1987] ECR 4753; Case 262/88 Barber [1990] ECR I-1889; and Joined Cases C-399, 409, & 425/92 and C-34, 50, & 78/93, Helmig [1994] ECR I-5727. And see Arnull, ‘Article 119 and 379 Equal Pay for Work of Equal Value’ (1986) 11 ELRev 200. Case 43/75 [1976] ECR 455. 380 381 Today, Art 115. [1976] ECR 455, at 478–9, emphasis added. 377

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It should be remembered that the scope of Article 157 is important in two different ways. First, it places obligations on the Member States to ensure that its terms are complied with; and, secondly, it is capable of conferring directly enforceable rights on individuals. The directive may play a part in each of these processes, both explaining more clearly what duties are cast on the Member States (and therefore conditioning the interpretation and effect given by national courts to any national implementing legislation) and also facilitating the direct effect of the Article. Given this analysis, and bearing in mind that it may not in any event be enforced per se horizontally, the possible direct effect of the directive itself assumes only limited significance. The question whether the directive takes direct effect has in fact been referred to the CJEU on several occasions382 but has not been resolved, largely because the more potent effects of Article 157 have proved more useful to litigants.383

(iii) The content of the Directive’s provisions on equal pay Article 4(1) of the Recast Directive provides: For the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated.

This wording amends that of its predecessor384 and is very important because it makes it clear that the normal concepts of direct and indirect discrimination now apply to equal pay. Thus, as discussed above, the possibility of making hypothetical comparisons has been introduced for equal pay claims. The expression ‘same work’ is presumably designed primarily to cover the case where two people are employed to perform identical jobs. It follows from Jenkins v Kingsgate (Clothing Productions) Ltd385 that what is relevant for this purpose is the nature of the tasks performed, rather than the overall job description. Thus, a fulltimer and a part-timer engaged on the same process would seem to be performing the same work, even though their job descriptions would vary because of the different hours worked.386 The Article also refers to ‘work to which equal value is attributed’. It has been seen that, for the purposes of Article 157, the CJEU has focused on job content (rather than the market value of the work performed from the point of view of the

382 See in particular Case 129/79 Macarthys [1980] ECR 1275; Case 69/80 Worringham [1981] ECR 767; Case 96/80 Jenkins [1981] ECR 911; Case 12/81 Garland [1982] ECR 359; Case 192/85 Newstead [1987] ECR 4753; Case 19/81 Burton [1982] ECR 555; and Case 157/86 Murphy [1988] ECR 673. 383 In Preston v Wolverhampton Healthcare NHS Trust [1997] IRLR 233, Schiemann LJ commented that it is clear that the Equal Pay Directive is not directly effective (at 239). 384 385 Art 1(1) of the Equal Pay Directive. Case 96/80 [1981] ECR 911. 386 See Warner AG in Case 96/80 Jenkins [1981] ECR 911, at 933.

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employer) in assessing the value of work.387 Logic clearly demands that this is the meaning to be given to the directive, and this conclusion is reinforced by its Article 4 (2),388 which gives its blessing to the use of non-discriminatory job classification schemes for determining pay. The issues of who must attribute equal value, and when the attribution must take place, for the purposes of the old Equal Pay Directive were considered by the CJEU in Commission v UK.389 This was a prosecution of the UK by the Commission under what is today Article 258 of the Treaty for failure to implement the Equal Pay Directive fully. UK legislation at the time of the action provided for equal pay as between the sexes only where the man and woman concerned were engaged on ‘like work’ (meaning broadly similar work), or where their work had been ‘rated as equivalent’ in a job evaluation study. It made no provision for a claimant to demand equal pay with a colleague of the opposite sex where he or she merely alleged that their work was of equal value, but where no job evaluation study had been conducted. Since a job evaluation study could be conducted only with the consent of the employer, this left a considerable lacuna in the legislation: the lacuna was of enormous practical significance because large numbers of women were known to be working in sex-segregated occupations, so that they could not rely on the ‘like work’ provision, but neither could they insist on having a job evaluation study conducted in their organization generally if the employer did not agree. The UK Government defended its position by arguing that the requirements of the directive take effect only after the jobs concerned have been found to be of equal value; neither the directive nor Article 157, it said, gave an individual employee the right to take steps to determine the value of the jobs to be compared. It stressed the precise wording of the directive in this context, and pointed out that the words ‘is attributed’ were used; this wording suggests that it is not until equal value has been attributed that the claim to equal pay arises. According to the UK Government, if the drafters of the directive had intended otherwise, they would have simply used the words ‘work of equal value’. In addition, it was pointed out that Article 1(2) of the directive suggested that equal value had, as a matter of EU law, to be determined on the basis of a job classification system, and that that indeed was the only practicable way of comparing the value of two different jobs. Lastly, the UK argued that, at the time the directive was agreed by the Council, the situation under UK legislation was recorded in the minutes of the Council meeting; since neither the Council nor the Commission raised any objections then, it was said that they were subsequently estopped from doing so. Both the Court itself and the Advocate General rejected all the UK’s arguments. The Court held that perusal of the directive showed that job classification is merely one of several methods for determining whether work is of equal value; Article 1(2) began with the words ‘In particular, where a job classification system is used for determining 387 388 389

See in particular its remarks in Case 129/79 Macarthys [1980] ECR 1275. Discussed further at p 264 et seq. Case 61/81 [1982] ECR 2601. See Atkins, ‘Equal Pay for Work of Equal Value’ (1983) 8 ELRev 48.

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pay ...’.390 VerLoren Van Themaat AG observed that all sorts of different methods were in use for evaluating jobs in the Member States of the Community in practice, and job classification constituted merely one method. The Court went on to hold: British legislation does not permit the introduction of a job classification system without the employer’s consent.Workers in the UK are therefore unable to have their work rated as being of equal value with comparable work if their employer refuses to introduce a classification system. The UK attempts to justify that state of affairs by pointing out that Article 1 of the Directive says nothing about the right of an employee to insist on having pay determined by a job classification system. On that basis it concludes that the worker may not insist on a comparative evaluation of different work by the job classification method, the introduction of which is at the employer’s discretion. The UK’s interpretation amounts to a denial of the very existence of a right to equal pay for work of equal value where no classification has been made. Such a position is not consonant with the general scheme and provisions of the Equal Pay Directive 75/117. The recitals in the Preamble to that Directive indicate that this essential purpose is to implement the principle that men and women should receive equal pay contained in Article 119 of the Treaty and that it is primarily the responsibility of the Member States to ensure the application of this principle by means of appropriate laws, regulations and administrative provisions in such a way that all employees in the Community can be protected in these matters.391

To the UK’s arguments about the practicality of giving effect to equal value claims, the Court replied: [W]here there is disagreement as to the application of ...[the equal value] concept a worker must be entitled to claim before an appropriate authority that his work has the same value as other work and, if that is found to be the case, to have his rights under the Treaty and the Directive acknowledged by a binding decision. Any method which excludes that option prevents the aims of the Directive from being achieved ... The implementation of the Directive implies that the assessment of the ‘equal value’ to be ‘attributed’ to particular work may be effected notwithstanding the employer’s wishes if necessary in the context of adversary proceedings. The Member States must endow an authority with the requisite jurisdiction to decide whether work has the same value as other work, after obtaining such information as may be required.392

Thus, the Court made it clear that national legislation must not deny a claimant the right to allege that his or her work is of equal value to that of a comparator irrespective of the employer’s wishes; and this allegation must be investigated by an ‘authority’ endowed by the State concerned with the ‘requisite jurisdiction’. The right to claim equal pay for work of equal value is therefore certainly not restricted to the period of time subsequent to a finding of equal value through job classification. VerLoren Van Themaat AG also rejected the UK’s argument about its statement in the Council minutes, saying: 390 391

Emphasis added. The same wording is used in Art 4(2) of the Recast Directive. 392 [1982] ECR 2601, at 2615. [1982] ECR 2601, at 2616–17.

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As for the statement itself, I share the Commission’s view that it simply explains that in order to determine the equal value of different jobs in the UK a job classification system must be used. As I have already stated, no objection can be taken to that. However, the statement does not indicate in practical terms how far such a system is dependent on the consent of the employer. It is this, in particular, which in my opinion is of crucial importance in this case. The argument that the Commission forfeited its right to take action under Article [258] by not raising any objection against the UK’s statement cannot be accepted in my judgment. In my view such conduct on the part of the Commission cannot diminish its responsibility ...Nor is it possible in my view to accept the argument that the UK can rely on the statement when construing the provision in question. As the Court has held on several occasions (for instance in Case 39/72 Commission v Italy [1973] CMLR 439 at paragraph (22)) such a statement made by a Member State for recording in the minutes of the Council when a decision is adopted cannot modify the objective scope of Community rules enacted by the Community decision.393

The Court’s final ruling was that: By failing to introduce into its national legal system in implementation of the provisions of Council Directive 75/117/EEC of 10 February 1975 such measures as are necessary to enable all employees who consider themselves wronged by failure to apply the principle of equal pay for men and women for work to which equal value is attributed and for which no system of job classification exists to obtain recognition of such equivalence, the UK has failed to fulfill its obligations under the Treaty.394

Denmark was also prosecuted by the Commission for inadequate implementation of the Equal Pay Directive.395 The relevant Danish legislation provided: Every person who employs men and women to work at the same place of work must pay them the same salary for the same work under this Act if he is not already required to do so pursuant to a collective agreement.396

The Commission argued that this was defective, first, because it made no reference to work to which equal value was attributed and, secondly, because it did not provide for any means of redress enabling workers alleging unequal pay for work of equal value to pursue their claims. VerLoren Van Themaat AG took the somewhat eccentric view that, since Article 1 of the directive merely spelt out the detail of Article 157, and since Article 157 can itself be enforced in the national courts, it is unnecessary to implement the precise wording of the directive as a matter of national law. This approach is inconsistent with that hitherto taken by the CJEU, namely, that the fact that a directive takes direct effect does not remove the requirement that it be transformed into national law.397 The Court itself took a different view.The Danish Government had argued that its legislation constituted only a subsidiary guarantee of the principle of equal pay in cases where the principle was not 393 395 397

394 [1982] ECR 2601, at 2625. [1982] ECR 2601, at 2617–18. 396 Case 143/83 Commission v Denmark [1985] ECR 427. Emphasis added. See discussion in ch 2.

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already ensured under collective agreements. Collective agreements governed most contracts of employment in Denmark and they upheld the principle of equal pay for work of equal value. The Court, however, ruled that this was not sufficient and that the Danish legislation should refer specifically to the equal value situation: It is true that Member States may leave the implementation of the principle of equal pay in the first instance to representatives of management and labour. That possibility does not, however, discharge them from the obligation of ensuring, by appropriate legislation and administrative provisions, that all workers in the Community are afforded the full protection provided for in the Directive.The state guarantee must cover all cases where effective protection is not ensured by other means, for whatever reason, and in particular cases where the workers in question are not union members, where the sector in question is not covered by a collective agreement, or where such an agreement does not fully guarantee the principle of equal pay.398

The situation was not saved by Denmark’s argument (akin to that of the UK in the earlier case) that it had entered a declaration in the Council minutes when the Equal Pay Directive was passed, saying: ‘Denmark is of the view that the expression “same work” can continue to be used in the context of Danish labour law.’ The CJEU pointed out that it had: consistently held that such unilateral declarations cannot be relied upon for the interpretation of Community measures, since the objective scope of rules laid down by the common institutions cannot be modified by reservations or objections which Member States may have made at the time the rules were being formulated.399

Another relevant aspect of the nature of the work to be compared under Article 4(1) of the Recast Directive is the geographical or spatial scope of the comparison which the worker may demand. It was seen above that Article 157 sometimes extends to comparisons with workers in other establishments of the same employer, and even to comparisons with workers employed by different employers.VerLoren Van Themaat AG was prepared in Commission v Denmark400 to submit that the old Equal Pay Directive also mandated such comparisons. As already noted, the Danish legislation challenged in that case specifically restricted claims for equal pay to men and women working ‘at the same place of work’. The Danish Government argued that this phrase had been put in to permit geographical differences in pay within Denmark, but the Advocate General found this unconvincing because such differences in pay, if genuine and if applied equally to men and women, are not grounded on sex and are therefore not prohibited anyway. He went on to say: As appears from the second sentence of Article 1 of the Directive ...a comparison of duties within the same fixed establishment of an undertaking or even within a single undertaking 398 [1985] ECR 427, at 434–5. The Danish legislation was subsequently amended to reflect the CJEU’s decision: see Nielsen, Equality in Law between Men and Women in the European Community: Den399 mark (Martinus Nijhoff , The Hague/Boston/London, 1995). [1985] ECR 427, at 436. 400 Case 143/83 [1985] ECR 427.

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will not always be sufficient. In certain circumstances comparison with work of equal value in other undertakings covered by the collective agreement in question will be necessary. As is correctly observed in the annual report for 1980 of the Danish Council for Equal Treatment of Men and Women (‘Ligestillingsradet’), submitted by the Commission in evidence, in sectors with a traditionally female workforce comparison with other sectors may even be necessary. In certain circumstances the additional criterion of ‘the same place of work’ for work of equal value may therefore place a restriction on the principle of equal pay laid down in Article 119 of the EEC Treaty and amplified in the Directive in question.The mere fact that such a supplementary condition for equal pay which has no foundation in Article 119 or in the Directive has been added must in any event be regarded as an infringement of the Treaty.401

The Court itself did not deal with this issue, apparently because the Commission did not formally raise it in its pleadings.402 As seen above, its remarks on this subject in Commission v UK403 were equivocal. It said merely: [W]here there is disagreement as to the application of [the concept of non-discrimination] a worker must be entitled to claim before an appropriate authority that his work has the same value as other work and, if that is found to be the case, to have his rights under the Treaty and the Directive acknowledged by a binding decision. Any method which excludes that option prevents the aims of the Directive from being achieved.404

The Recast Directive thus does not cast any further light on the question of when Article 157 requires comparisons outside the worker’s immediate workplace. As seen above, Article 4(1) of the Recast Directive forbids sex discrimination ‘with regard to all aspects and conditions of remuneration’.405 Although Article 157 explains that ‘pay’ may be expected to embody a wide variety of forms and to arise in various circumstances, it does not explicitly focus on its ‘aspects’ and ‘conditions’.Two specific consequences might be said to follow from these words. First, the word ‘aspects’ provides reinforcement for the argument suggested in relation to Article 157 to the effect that any benefit extended to an employee by an employer via the contract of employment could be regarded as ‘pay’ and therefore could be argued to fall within Article 157. For example, a generous contractual holiday entitlement might be said to be an ‘aspect’ of ‘pay’, since it enters into the calculation of the size of the worker’s pay packet. The word ‘conditions’ suggests that the directive enables a worker to challenge the way in which, or the terms on which, pay is made available. In other words, this part of the wording of the directive reinforces the view taken in Barber v Guardian Royal Exchange Assurance Group406 401

402 Case 143/83 [1985] ECR 427, at 430. Case 143/83 [1985] ECR 427, at 436. 404 Case 61/81 [1982] ECR 2601. Case 61/81 [1982] ECR 2601, at 2616. 405 In Case 69/80 Worringham [1981] ECR 767, at 807, Warner AG commented: ‘Nothing turns on the change from the use of the word “pay” in Article 119 to the use of the word “remuneration” in the Directive.That is a feature of the English texts only. In all the other texts the same word is used in Article 119 and in the Directive: “remuneration” in French, “Entgelt” in German, and so forth.’ 406 Case C-262/88 [1990] ECR I-1889. 403

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and the later pensions equality cases that Article 157 forbids discriminatory access to pay, as well as discrimination in relation to the quantum of pay received. The same conclusion should arguably therefore be drawn in relation to the Race and Framework Directives. Article 4(2) of the Recast Directive provides: In particular, where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.

The opening phrase ‘In particular’ underlines a point made clear by the CJEU in Commission v UK,407 namely, that job classification systems merely constitute one of the permissible ways in which equal value can be established. The meaning and effect of this provision were tested in Rummler v Dato-Druck GmbH.408 Ms Rummler brought proceedings against her employer, a printing firm, with the object of having herself placed in a higher category in the pay scale relating to the printing industry. This pay scale, which was nationally agreed, provided for seven wage groups varying according to the work carried out and determined on the basis of degree of knowledge required, concentration, muscular demand or effort, and responsibility. The activities in Wage Group II were those which could be executed with slight previous knowledge and after brief instruction or training, required little accuracy, placed a slight to moderate demand on the muscles, and involved slight or occasionally moderate responsibility. Group III comprised activities which could be executed with moderate previous knowledge and instruction or training related to the particular job, required moderate accuracy, required moderate or occasionally great muscular effort, and involved slight or occasionally moderate responsibility. Group IV covered activities requiring previous knowledge on the basis of instruction or training related to the particular job, occasionally a fair degree of occupational experience requiring moderate accuracy, moderate and occasionally great effort of different kinds, particularly as a result of work dependent on machines, and involved moderate responsibility. It was specified that the evaluation criteria must not be regarded as cumulative in all cases. Ms Rummler was classified in Group III, but argued that she ought to be placed in Group IV, in particular since she was required to pack parcels weighing more than 20 kg, which for her represented heavy physical work. Her employer disagreed, contending that because her job in fact made only slight muscular demands she ought to be classified in Group II. The national court dealing with the case sought a preliminary ruling from the CJEU, asking whether the old Equal Pay Directive permitted a job classification system to include muscular effort as a criterion of evaluation and, if so, whether account must be taken of the amount of such effort required of women in particular. The 407

Case 61/81 [1982] ECR 2601. Case 237/85 [1986] ECR 2101. See Arnull, ‘Equal Treatment and Job Classification Schemes’ (1987) 12 ELRev 62. 408

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practical point at issue was, of course, that certain types of physical work require more effort from women on average than men; it might be said to follow from this that women should be more highly remunerated for such tasks than men, but this might in turn produce the unfortunate consequence that women would become more expensive to employ than men and so might in practice find themselves excluded from the type of work in question. The CJEU avoided this trap. The employers argued, in accordance with generally accepted theories of the role of job evaluation, that pay criteria must be established to reflect the duties actually performed and not by reference to the personal attributes of the worker who carries them out. They therefore took the view that the criteria of muscle demand and the heaviness of work were not discriminatory insofar as they corresponded to the characteristics of the work actually performed and were used in a system which also referred to the criteria of ability, mental effort, and responsibility. The UK Government, which submitted observations, added its view that the principle of non-discrimination does not preclude the use of a criterion in relation to which one sex has greater natural ability than the other, so long as that criterion is representative of the range of activities involved in the job in question. The Commission pointed out that what has to be judged is whether the classification system as a whole is or is not discriminatory; in other words whether, because of the factors it takes into account, it is in reality loaded in favour of one sex. The Court was in overall agreement with these submissions, saying: Where a job classification system is used in determining remuneration, that system must be based on criteria which do not differ according to whether the work is carried out by a man or by a woman and must not be organized, as a whole, in such a manner that it has the practical effect of discriminating generally against workers of one sex. Consequently, criteria corresponding to the duties performed meet the requirements of Article 1 of the Directive where those duties by their nature require particular physical effort or are physically heavy. In differentiating rates of pay, it is consistent with the principle of non-discrimination to use a criterion based on the objectively measurable expenditure of effort necessary in carrying out the work or the degree to which, reviewed objectively, the work is physically heavy. Even where a particular criterion, such as that of demand on the muscles, may in fact tend to favour male workers, since it may be assumed that in general they are physically stronger than women workers, it must, in order to determine whether or not it is discriminatory, be considered in the context of the whole job classification system, having regard to other criteria influencing rates of pay. A system is not necessarily discriminatory simply because one of its criteria makes reference to attributes more characteristic of men. In order for a job classification system as a whole to be nondiscriminatory and thus to comply with the principles of the Directive, it must, however, be established in such a manner that it includes, if the nature of the tasks in question so permits, jobs to which equal value is attributed and for which regard is had to other criteria in relation to which women workers may have a particular aptitude. It is for the national courts to determine on a case-by-case basis whether a job classification system as a whole allows proper account to be taken of the criteria necessary for adjusting pay rates

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according to the conditions required for the performance of the various duties throughout the undertaking.409

The only difficulty with this view is that the concept of the ‘objective’ measurement of the amount of physical effort demanded by a particular job is an obscure one. It postulates the existence of an inter-sex person whose characteristics and abilities are neither all-male nor all-female. This is a problem encountered in connection with all analytical systems of job evaluation and carries within it the inherent risk that the assessment will be biased in favour of traditional values, rather than being truly neutral and ‘objective’.410 The difficulty becomes even more marked in relation to the second part of the national court’s questioning, namely, how precisely physical demand is to be measured and what value is to be placed on it. In particular, the national court wanted to know whether values reflecting the average performance of workers of each sex ought to be used. The Court held that they should not: The answer to Questions 2 and 3 ...follows from what has already been said in answer to Question 1, that is to say that nothing in the Directive prevents the use in determining wage rates of a criterion based on the degree of muscular effort objectively required by a specific job or the objective degree of heaviness of the job. The Directive lays down the principle of equal pay for equal work. It follows that the work actually carried out must be remunerated in accordance with its nature. Any criterion based on values appropriate only to workers of one sex carries with it a risk of discrimination and may jeopardize the main objective of the Directive, equal treatment for the same work. That is true even of a criterion based on values corresponding to the average performance of workers of the sex considered to have less natural ability for the purpose of that criterion, for the result would be another form of pay discrimination: work objectively requiring greater strength would be paid at the same rate as work requiring less strength. The failure to take into consideration values corresponding to the average performance of female workers in establishing a progressive pay scale based on the degree of muscle demand and muscular effort may indeed have the effect of placing women workers, who cannot take jobs which are beyond their physical strength, at a disadvantage. That difference in treatment may, however, be objectively justified by the nature of the job when such a difference is necessary in order to ensure a level of pay appropriate to the effort required by the work and thus corresponds to a real need on the part of the undertaking (see the judgment in Case170/84 Bilka-Kaufhaus v Von Hartz).411 The answer to the second and third questions must therefore be that it follows from Directive 75/117 that: (a) criteria governing pay-rate classification must ensure that work which is objectively the same attracts the same rate of pay whether it is performed by a man or a woman; (b) the use of values reflecting the average performance of workers of one sex as a basis for determining the extent to which work makes demands or requires effort or whether it is heavy constitutes a form of discrimination on grounds of sex, contrary to the Directive; 409

[1986] ECR 2101, at 2115. See the remarks of VerLoren Van Themaat AG in Case 61/81 Commission v UK [1982] ECR 411 2601, at 2624–5. [1986] ECR 1607. 410

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(c) in order for a job classification system not to be discriminatory as a whole, it must, in so far as the nature of the tasks carried out in the undertaking permits, take into account criteria for which workers of each sex may show particular aptitude.412

The practical effect of this judgment is potentially useful. Although it is still far from clear exactly when a job classification system will be discriminatory taken as a whole, not least because there will always be room for argument about what demands a particular job actually makes on the workers carrying it out, there is acknowledged at least the possibility of alleging that a particular classification system falls short of the requirements of EU law. In such a situation, it would be helpful to be able to rely on the direct effect of the directive; whilst this would be impossible, at least as against an employer who was not an organ of the State, if the directive stood alone,413 the CJEU might be prepared to enforce Article 157 itself in this situation. It is arguable that if all the directive achieves legally is a practical elucidation of the general principle articulated in Article 157, then Article 157 itself extends to forbidding discrimination in job classification systems. A litigant facing an allegedly sex discriminatory job classification system could then rely simply on the direct effect of Article 157 to have it declared inapplicable.414 A second way in which Article 4(2) of the Recast Directive could prove of practical use is through the doctrine of supremacy of EU law; if a national law precludes challenge, or makes excessively difficult challenge to a job classification system on the ground of its being sex discriminatory, then that national law itself could be rendered inapplicable because of the conflict with the directive and Article 157. Title III of the Recast Directive contains ‘Horizontal Provisions’ which apply to all the areas governed by the instrument and include remedies and enforcement; these matters will be discussed in chapter 6. However, in summary, these provisions require a proper judicial hearing for an equal pay claim and an effective remedy if it proves successful. One issue of importance in the present context is their relationship with Article 157. It has already been seen that, insofar as Article 157 is directly effective, it may be relied on in the national courts to provide a remedy within the same procedural limitations as parallel national proceedings; and it has also been seen that the direct effect of Article 157 may be relied on to demand an equal pay rate with that of the comparator. Neither Article 157 nor the directive prescribes remedies or procedures which are more precise than this. Under both measures there exists the possibility, however, of alleging that the relevant national remedies and procedures are defective; here, the directive might be relied upon to lend weight to the direct effect of Article 157, since in Article 18 it provides expressly for ‘effective’ means of redress. So, for example, if national equal pay legislation allowed only a small claim for compensation in cases where unequal pay was established, rather 412

[1986] ECR 2101, at 2116–17. Because of the lack of possible horizontal direct effect for directives, discussed in ch 2. 414 Such a mechanism is not, however, available in relation to discrimination contrary to the Race and Framework Directives which is contained in a job classification scheme. 413

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than a full claim for the difference between what was received and what ought to have been received, the directive and Article 157 together might be relied upon to enforce the more effective remedy.415 In cases of sex discrimination over pay which fall outside the scope of the direct effect of Article 157, there is nothing in the directive which creates greater precision and which might therefore supply the missing ingredients for direct effect. A person seeking a remedy in such a claim would therefore be unable to enforce the EU equal pay legislation directly, but might be able to rely on the Francovich principle416 in order to claim damages from the State itself for its breach of EU obligations. Article 23(a) of the Recast Directive417 requires the repeal of all legislation which conflicts inter alia with the equal pay principle. To the extent to which Article 157 is directly effective, it can of course be relied upon to take precedence over any conflicting national law; this is the practical operation of the doctrine of supremacy of EU law.418 To the extent that it is not so effective, this provision merely casts a duty on the Member States. This duty is unqualified419 and so extends even to legislation which pre-dated the original Equal Pay Directive.There can therefore be no saving legislative provisions preserving pay inequalities, for example, for historical reasons. If the cause of the pay differential between men and women is their difference of sex, then any legislation approving such a situation, whether directly or indirectly, must be repealed. Article 23(b) provides: Member States shall take all necessary measures to ensure that ...provisions contrary to the principle of equal treatment in individual or collective contracts or agreements ...shall be, or may be declared, null and void or are amended.

This wording indicates that all types of pay discrimination on the ground of sex are barred from collective agreements; the bar is not restricted merely to direct discrimination, or to that which is overt.420 By analogy with a decision of the CJEU under a parallel provision of the Equal Treatment Directive,421 it would appear irrelevant that the collective agreement or wage scale itself produced no binding legal effects; pay discrimination on the ground of sex in its terms is still prohibited, since its existence misleads all who are affected by it.This part of the directive was given effective teeth by the decision of the CJEU in Kowalska v Freie and Hansestadt Hamburg.422 415 This is essentially the same argument as that used successfully in Case C-271/91 Marshall v Southampton and South-West Hants Area Health Authority [1993] ECR I-4367, discussed in ch 6, to challenge the UK’s statutory ceiling on damages for sex discriminatory treatment contrary to the Equal Treatment 416 Directive. Discussed in ch 2. 417 418 Discussed in ch 6. See ch 2. 419 Apart from in the exceptional circumstances in which Art 351 applies. 420 Unlike the position in the UK under the Equal Pay Act 1970, s 3, before the latter’s repeal by the Sex Discrimination Act 1986. See also R v CAC, ex parte Hy-Mac Ltd [1979] IRLR 461. 421 Case 165/82 Commission v UK [1983] ECR 3431, discussed in ch 6. 422 Case C-33/89 [1990] ECR I-2591. See also Case C-184/89 Nimz [1991] ECR I-297; Case C-127/92 Enderby [1993] ECR I-5535; and Joined Cases C-399, 409, & 425/92 and C-34, 50, & 78/93 Helmig [1994] ECR I-5727, all discussed in the section of the present chapter beginning at p 234. This case law was of particular significance in the UK before the enactment of the Trade Union Reform and

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The Member States were given the unusually short period of one year within which to put into force the legislation necessary to ensure compliance with the original Equal Pay Directive;423 this period was presumably chosen because Article 157 itself had by that time already supposedly been in operation for a number of years. However, there was an essential logical flaw in imposing a time-limit in this directive at all; if, as the Court has maintained, the directive did no more than spell out the details already required by Article 157, then any action to be taken by national legislatures was a response to the Article and not to the directive. This point was taken by VerLoren Van Themaat AG in Commission v Luxembourg,424 although not by the Court itself. The Commission had brought an Article 258 enforcement action in respect of legislation which remained in force in Luxembourg after the period for implementing the Equal Pay Directive had expired. The legislation in question granted to central government and local authority officials a ‘head of household allowance’, but did so on discriminatory terms, because it was only in exceptional cases (for example, where her husband was incapacitated) that a female official would qualify for the payment. The Luxembourg Government admitted that discrimination was occurring and tried unsuccessfully to defend itself by arguing that it was engaged in procuring the necessary legislative amendments. VerLoren Van Themaat AG considered that the Commission had made out a successful case of breach of Article 157, rather than of the Equal Pay Directive; he pointed out that, as the Court itself had held in the Second Defrenne425 case, Article 157 became binding as far as the original Member States were concerned as from 1 January 1962.426 He went on to say: [T]he terms ‘shall ensure ...and ...maintain’ used in Article 119 do not, in my opinion, stand in the way of the interpretation that the Member States were required to adopt within the said period all the measures needed to ensure the application of that principle, despite the fact that the Article does not expressly refer to ‘abolition’ or ‘the adoption of measures’. That idea is in my view also to be found in the same Defrenne judgment in which it is stated, in paragraph 56 of the decision, that as from 1 January 1962 the application of the principle ‘was to be fully secured and irreversible ...’.427

And he concluded: [T]he Court ruled in the Defrenne judgment and reaffirmed in its recent decisions, for example Case 96/80 Jenkins,428 that the purpose of the Directive was to ensure the proper implementation of Article 119, but was unable to reduce the effectiveness of that Article or modify Employment Rights Act 1993, s 32, which enabled an individual to bring employment tribunal proceedings to challenge an allegedly discriminatory term of a collective agreement; this amendment to the legislation was introduced in order to settle infringement proceedings which had been threatened by the EC Commission. See also discussion in ch 6. 423 424 425 426 427 428

Art 8(1) of the Equal Pay Directive. Case 58/81 [1982] ECR 2175. Case 43/75 [1976] ECR 455. See p 248 et seq. [1982] ECR 2175, at 2185. [1981] ECR 911.

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its temporal effect. According to paragraph 54 of the decision in the Defrenne case, the Directive clarifies certain aspects of the material scope of Article 119 and contains various provisions ‘whose essential purpose is to improve the legal protection of workers ...’ In my opinion, however, the present case is not concerned with such measures but with what is laid down by Article 3 of the Directive, namely that ‘Member States shall abolish all discrimination between men and women arising from laws, regulations or administrative provisions which is contrary to the principle of equal pay’. However, that provision no longer serves any purpose in relation to Article 119 in the light of the Court’s interpretation of the latter. Accordingly, I consider that it was incorrect to seek a declaration from the Court that the Grand Duchy of Luxembourg had failed to fulfil its obligations under Article 119 and the provisions of the Directive. In my view, the Court should confine itself to finding that the Grand Duchy of Luxembourg has infringed Article 119.429

The Court itself, in an unusually terse judgment, made no reference to this point at all and merely ruled that Luxembourg was in breach of the directive because of its failure to adopt the necessary legislation within the period prescribed. The directive also obliged the Member States to send to the Commission the texts of all the legislation adopted by them by way of implementation of the directive.430 Within three years of the directive’s notification they were to forward all necessary information to the Commission to enable it to draw up a report on the application of the Equal Pay Directive for submission to the Council.431 This report was produced by the Commission on 16 January 1979.432 It demonstrated clearly that all the Member States had failed in practice to give full implementation to the principle of equal pay, and Article 258 enforcement proceedings were begun in March 1979 against no fewer than seven Member States. Ultimately, the report resulted in the Commission’s prosecutions of the UK and Luxembourg before the CJEU, discussed above. A judicial action was also begun against Belgium,433 but was discontinued after the Belgian Government adopted the measures necessary to fulfil its obligations under the directive. Even in recent times, however, the principle of equal pay has remained unfulfilled in practice. In 1994, the Commission issued a Memorandum on Equal Pay for Work of Equal Value,434 which demonstrated that the pay gap between men and women remained wide and was, in some cases, still widening. Although it observed that there was an absence of adequate data on this matter, it was able to find some statistical evidence to support its claims: it found that in no Member State did women earn more than 84.5 per cent of men’s earnings; in the UK, women on average earned 68.2 per cent of the male rate in manual jobs and only 54.2 per cent in non-manual jobs; only two Member States scored worse: 69.1 per cent for manual rates in Ireland and 65.1 per cent for manual rates in Luxembourg.435 The 429

430 [1982] ECR 2175, at 2186. Art 8(2) of the Equal Pay Directive. 432 433 Art 9 of the Equal Pay Directive. COM (78) 711 final. Case 57/81. 434 COM (94) 6 final. 435 See also Clarke, ‘Earnings of men and women in the EU: the gap narrowing but only slowly’ (Eurostat, 2001). Clarke found that the difference in average earnings between men and women in the 431

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impoverished position of women in the pay leagues was attributed by the Commission to their vertical and horizontal segregation in the workforce, to a general lack of objectivity in pay evaluation systems, and to inequality in collective agreements. It submitted that a strategy to improve matters should focus on better systems for data collection to enable wage comparisons between men and women across broad sectors of activity, and on the improved dissemination of information about the law; it also promised to continue to have recourse to its power of prosecution of Member States under Article 258 ‘where this is considered appropriate’.436 In addition, it floated the idea of issuing a Code of Practice on the implementation of the equal pay principle, a step it ultimately took in 1996. Sadly, in 2004 it concluded that the picture had hardly changed, the gender pay gap still averaging 16 per cent throughout the EU. It commented that this pay gap was significantly higher in the private sector than the public sector, and attributed it in large part to differences in labour market participation, sex segregation, career and wage structures, and the relative under-valuing of female-dominated areas of employment. However, the 2004 Report conceded that the gender pay gap had taken on a higher profile in recent years within the Member States and that some countries had taken significant steps to implement policies to address the link between it and labour-market segregation. It nevertheless ended by inviting the European Council to urge the Member States to pay special attention to taking specific measures, in cooperation with the social partners, to reduce the gender pay gap.437 Recent empirical evidence nevertheless indicates that the problem remains a live one. Eurostat data in 2009 indicated a gender pay gap that had risen to 17.1 per cent on average in the 27 Member States.438 This figure masked significant differences between Member States, from 3.2 per cent in Slovenia to 25.9 per cent in the Czech Republic. Moreover, the same source indicates that, in a number of Member States, the pay gap is actually widening. An interesting study of this issue conducted for the European Network of Legal Experts in the Field of Gender Equality in 2010439 found that the smallest gender pay gap was usually associated with low rates of female employment (for example, in Poland) and that the gap was low in sectors employing very few women, such as construction work.

ten countries which acceded to the EU in 2004 was similar to that in the pre-existing Member States: in most, women’s earnings as a percentage of men’s averaged between 75% and 80%, although it was lower in Cyprus (70%) and higher in Slovenia (almost 90%). 436

COM (94) 6 final, at 40. ‘Report on equality between women and men, 2004’, Commission of the European Communities, COM (2004) 115 final. See also the Report on equal pay for work of equal value by the European Parliament’s Committee on Women’s Rights and Equal Opportunities, 13 July 2001, A5–0275/2001 final. 438 Eurostat, Statistics in Focus 3/2010. 439 The Gender Pay Gap in Europe from a Legal Perspective, conducted by Prof Petra Foubert of Hasselt University: . 437

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The Recast Directive further commits the Member States to addressing pay discrimination, pledging in recital 38 of its Preamble: The European Union and the Member States should continue to promote the raising of public awareness of wage discrimination and the changing of public attitudes, involving all parties concerned at public and private level to the greatest possible extent.440

The European Pact for Gender Equality (2011-10), adopted by the Council in March 2011, reaffirms the Council’s commitment to closing the gender pay gap.441

440

See also recital 11 of the Preamble to the Recast Directive.

441

[2011] OJ C155/10.

6 The scope and enforcement of the workplace anti-discrimination provisions

Scope of the legislation It has been seen in earlier chapters that EU law directly prohibits discrimination on the grounds of sex, part-time and temporary working, race or ethnic origin, religion or belief, disability, age, sexual orientation, and nationality. The law prohibiting discrimination on the ground of nationality is not specifically analysed in the present work. Sex discrimination is prohibited by the Treaty, and the aspects of Article 157 devoted to the principle of equal pay were discussed in chapter 5. Other types of workplace discrimination based on sex are also forbidden under EU law, primarily today as a consequence of the Recast Directive,1 whose forerunner was the Equal Treatment Directive of 1976;2 further supporting instruments of secondary EU law are also in existence and these are discussed below and, as regards pregnancy and maternity, in chapter 7. Discrimination on the ground of racial or ethnic origin in a number of different contexts is addressed by the Race Directive,3 and discrimination in the workplace4 on the grounds of religion or belief, disability, age, and sexual orientation by the Framework Directive.5 The Race and Framework 1

Directive 2006/54, OJ [2006] L204/23. Directive 76/207, OJ [1976] L39/40. 3 Directive 2000/43, OJ [2000] L180/22. The Race Directive was required to be implemented by 19 July 2003. For the success rate in achieving this deadline, see the Communication from the Commission to the Council and the European Parliament on the application of the Race Directive: COM (2006) 643 final. 4 The limitation of the scope of the Framework Directive to the workplace is especially significant for those complaining of discrimination on the ground of age; in practice, age discrimination is frequently alleged in relation to such matters as healthcare and education, and these matters are not covered by the directive. However, a new directive has been proposed by the Commission which would address discrimination in relation to the provision of goods and services on the grounds listed in the Framework Directive; this proposal is discussed in ch 8. 5 Directive 2000/78, OJ [2000] L303/16.The Framework Directive was required to be implemented by 2 December 2003, except in relation to age and disability; in these last two cases, Member States were permitted to delay implementation until 2 December 2006, provided that they informed the Commission and reported annually to it on the steps they were taking to tackle discrimination in these areas.This stay of execution in relation to age and disability was the result of last-minute political negotiation in the Council, discussed at pp 275–6. It was felt to be especially necessary in relation to age discrimination because of the extreme complexity of regulating this matter in detail. The UK, Sweden, Germany, The Netherlands, and Belgium notified the Commission that they would rely on the three-year extension 2

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Directives share a number of common features with the Recast Directive and are likely to be interpreted by the CJEU congruently, not least because of the need for consistency of approach in situations where discrimination on several grounds is alleged to have occurred simultaneously.6

Scope of the Recast Directive, Race Directive, and Framework Directive The earliest of the instruments to deal with workplace discrimination was the Equal Treatment Directive. It was prompted by the Council’s Resolution of 21 January 19747 concerning a social action programme, which included amongst its priorities ‘action for the purpose of achieving equality between men and women as regards access to employment and vocational training and promotion and as regards working conditions, including pay’.8 The Equal Pay Directive9 was regarded as carrying forward the programme in the field of pay; the Equal Treatment Directive aimed to regulate the other areas mentioned, with the exception of the ‘definition and progressive implementation of the principle of equal treatment in matters of social security’, which was to be dealt with by means of later instruments.10 In view of its far-reaching objectives, the ‘harmonization’ Article11 was thought to constitute an insufficient legal authority for the Equal Treatment Directive. It was therefore based instead on what is today Article 352, available where action by the Union proves ‘necessary . . . to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers’. As discussed in chapter 2, such a legal basis in no way inhibits the potential direct effect of a legal provision and indeed, as will be seen later in the present chapter, important parts of the Equal Treatment Directive were held by the CJEU to confer rights directly on individuals; to the extent that the Recast Directive merely re-enacts the provisions of the Equal Treatment Directive, these decisions provide reliable authority for the effect of the current legislation. It is unfortunate, however, that a directive was chosen as the type of instrument to be used, rather than a regulation; of the deadline for implementation in relation to age; Denmark notified that it would use one extra year for age. As regards disability, France and Sweden notified the Commission that they would use the extra three years, and the UK and Denmark that they would use one extra year. See further Baker, ‘Age Discrimination: Implementing the Directive in Europe’ (2004) 125 EOR 14. 6 See recital 14 of the Preamble to the Race Directive and recital 3 of the Preamble to the Framework Directive. The Equal Treatment Directive was amended in 2002, by Directive 2002/73, OJ [2002] L269/15, primarily in order to achieve consistency between itself and the Race and Framework instruments (insofar as they cover common ground); see in particular recital 6 of the Preamble to Directive 7 2002/73. OJ [1974] C13/1. 8 See recital 1 of the Preamble to the Equal Treatment Directive. 9 Directive 75/117, OJ [1975] L45/19, discussed in ch 5. 10 See recital 4 of the Preamble to the Equal Treatment Directive, and also chs 5 and 10 on the legisla11 tion subsequently enacted. Today Art 115.

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the latter could theoretically have been passed, since Article 352 authorizes the taking of ‘appropriate measures’, and it would have obviated the problem of lack of horizontal direct effect12 which continues to present a serious practical obstacle to the utility of social policy directives. When it came to the passage of the Recast Directive, the Treaty had created new authority in the shape of the third paragraph of what is now Article 157 and this provides its legal basis; there can be little doubt that this basis is sufficient to sustain the direct effect of those of its provisions directed to the protection of individuals. The background to the enactment of the Race and Framework Directives was discussed in chapter 1, where it was noted that there was, at the time of adoption of these instruments, a general and growing concern about racism within the EU, and a desire on the part of the Commission to exploit the political momentum to ensure that the ensuing legislation covered all the grounds set out in the mandating Article 19. It was also regarded as being of prime importance that the new antidiscrimination provisions should form part of the acquis communautaire before the EU admitted any new Member States. All these considerations led to a somewhat unseemly rush to get the new legislation onto the statute book; whilst there was little real controversy surrounding the content of the Race Directive,13 the same was not true in relation to the Framework Directive. A formal English text of the final draft of the Framework Directive, which was substantially different from earlier drafts, reached the British Government only one day before the Council meeting at which the instrument was adopted. This meant that the Select Committees on the EU within the UK Parliament were unable to scrutinize it before adoption.14 In addition, since it too did not see the final draft, the European Parliament’s right to be consulted was effectively sidestepped;15 this procedural defect unfortunately raises the spectre of the CJEU ultimately one day declaring the whole instrument ultra vires.16 12

See discussion in ch 2. The Portuguese Presidency of the Council decided to make adoption of the Race Directive its urgent priority in view of the crisis in the relations between the EU and Austria at the time. The UK Government overrode the House of Lords’ scrutiny reserve on the instrument in its haste to give its assent by the end of June 2000. (The scrutiny reserve applies to all legislative proposals which have been reported on and are awaiting debate; once that debate has taken place the proposal is cleared from scrutiny.) The House of Commons European Scrutiny Committee was able to clear the directive from scrutiny before the Government assented to it; however, it is noteworthy that the whipping system applies to the Commons Committee, making it much easier for the Government in office to impose its view on it. 14 Contrary to the Protocol on the role of national parliaments, originally annexed to the TEC by the Treaty of Amsterdam and now Protocol 1 annexed to the TFEU, which pledges the Member States ‘to encourage greater involvement of national Parliaments in the activities of the European Union and to enhance their ability to express their views on ...matters which may be of particular interest to them’. 15 The European Parliament had formally asked to be consulted again if the Council were minded to depart from the text which the Parliament had approved; this re-consultation never took place. 16 Although the time-limit for bringing a direct challenge to the directive has long since passed, an allegation that the instrument was ultra vires might be made in an action invoking domestic legislation based on the directive: a national court faced with such an allegation might well refer to the CJEU for a preliminary ruling on the matter. The less than edifying role played by the Commission in the proce13

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A number of significant exceptions were introduced into the Framework Directive at the eleventh hour, and these will be discussed in chapter 9. However, the general point should be made here that this kind of hasty legislation, not to mention the evasion of the process of democratic scrutiny, is extremely undesirable. In the words of the House of Lords Select Committee on the EU: Nine months of detailed examination . . . failed to produce a text to which all fifteen Member States were prepared to agree. There were then six hours of intense negotiation by the Council, in which several highly significant amendments were made. This extraordinary acceleration was dictated by a Presidency determined to secure political agreement on a given day—prepared, it seems, to make almost any concession in order to secure that agreement. Hurried last-minute bargaining is not the way to prepare good legislation . . .We endorse the comments made in a letter . . . to the Foreign Secretary by Jimmy Hood MP, Chairman of our sister Committee in the House of Commons, that where Ministers negotiate at such a pace, ‘the net result may well be poorly drafted and inadequate legislation that leads to severe problems in interpretation and implementation’.17

Article 1 of the Recast Directive enacts the purpose of that instrument: The purpose of this Directive is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

The corresponding Article 1 of the Race Directive states: The purpose of this Directive is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment.

And Article 1 of the Framework Directive provides: The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.

It is to be observed that the Recast Directive does not in this provision refer to discrimination but rather to the wider principles of equality of opportunity and equal treatment. The other two instruments refer both to non-discrimination and to the principle of equal treatment. On the other hand, they express their aims in more tentative terms, speaking of putting a mere ‘framework’ or ‘general framework’ into place ‘with a view to’ the achievement of equality. It dure surrounding the adoption of the Framework Directive is recounted in the House of Lords Select Committee Report, ‘The EU Framework Directive on Discrimination’, Session 2000–01, 4th Report, HL Paper 13. 17 House of Lords Select Committee Report, ‘The EU Framework Directive on Discrimination’, Session 2000–01, 4th Report, HL Paper 13, para 17.

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is to be hoped that this less determined phraseology will not be interpreted by the Court as undermining the capacity of any these instruments to take direct effect.18 The old Equal Treatment Directive specifically excluded social security schemes from its ambit.19 However, this exclusion was not complete and the same conclusion is to be presumed to follow for the Recast Directive. The CJEU held in Marshall v Southampton and South West Hants Area Health Authority20 that since the Equal Treatment Directive expressed a principle of fundamental importance, the derogation from it for social security schemes must be strictly construed.21 This is important in view of the limitations on the scope of the Social Security Directive,22 discussed in chapter 10. In Meyers v Adjudication Officer,23 the Court held that a social security scheme fell within the Equal Treatment Directive, ‘if its subject-matter is access to employment, including vocational training and promotion, or working conditions’.24 Thus, the payment of family credit in the UK was governed by the Equal Treatment Directive because, albeit within the formal scheme of social security, family credit was linked to the employment relationship; it was payable only where, at the time of making the claim, the claimant, or his or her spouse or partner, was employed,25 and the purpose of the benefit was to encourage low-paid workers to remain in employment.26 Its status was not undermined, according to the Court, by the fact that the benefit was always payable to the female partner, even where it was the male partner who was employed, nor by the fact that entitlement to the benefit lasted for 26 weeks irrespective of the earnings of the family during that period. Conversely, the Court held in Jackson and Cresswell v Chief Adjudication Officer27 that income support in the UK was not 18 There is an obvious parallel with the robust attitude which the CJEU took to the direct effect of the equal pay principle in Case 43/75 Defrenne v Sabena [1976] ECR 455, as to which see ch 5. In Case C-144/04 Mangold v Helm [2005] ECR I-9981, the CJEU held that the Framework Directive does not itself lay down the principle of equal treatment in the workplace; instead, the source of the principle is to be found in international instruments and in the constitutional traditions common to the Member States (at para 74). See also Case C-555/07 Kücükdeveci v Swedex GmbH [2010] ECR I-365. However, as noted in ch 5, the CJEU apparently accorded direct effect to the principle of non-discrimination on the ground of sexual orientation in Case C-267/06 Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757 and Case C-147/08 Römer v Freie und Hansestadt Hamburg [2011] ECR I-000 (both discussed further at p 285 et seq.).The same would also appear from Case C-303/06 Coleman v Attridge Law [2008] ECR I-5603 to be true in relation to discrimination on the ground of disability, although again the Court does not there expressly deal with the matter. Indeed, the enforceability of all the respective provisions of the Framework Directive dealt with so far by the CJEU seems to have been assumed. 19 Art 1(2) of the Equal Treatment Directive. 20 Case 152/84 [1986] ECR 723, discussed further at pp 290–1. 21 22 Case 152/84 [1986] ECR 723, at 746. Directive 79/7, OJ [1979] L6/24. 23 Case C-116/94 [1995] ECR I-2131. 24 Case C-116/94 [1995] ECR I-2131, at 2149. But cf the comments of Jacobs AG in Joined Cases C-245 & 312/94 Hoever v Land Nordrhein-Westfalen [1996] ECR I-4895. 25 In addition, the claimant’s income could not exceed a stated level and there had to be a child or other dependent person in the household. 26 See also Case C-78/91 Hughes v Chief Adjudication Officer [1992] ECR I-4839. 27 Joined Cases C-63 & 64/91 [1992] ECR I-4737.

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within the scope of the Equal Treatment Directive because the ‘subject matter’ of the scheme was not access to employment; rather, its purpose was exclusively the support of people in receipt of low incomes.28 As regards the Race Directive, the borderline between social security and access to employment does not pose a problem since, as will be seen below, the directive applies expressly to social protection, including social security, as well as to access to employment. However, the Framework Directive in Article 3(3) states that it is not to apply to ‘payments of any kind made by state schemes or similar, including state social security or social protection schemes’. Recital 13 of the Preamble to the directive also provides that the instrument does not apply ‘to any kind of payment made by the state aimed at providing access to employment or maintaining employment’. Situations of the type presented in Meyers would therefore appear not to fall within its field of application. It should be noted that the Recast Directive and the Framework Directive are confined in their application to the workplace, whilst the Race Directive is not so confined. In addition, as discussed in chapter 9, the Framework Directive contains some very wide-ranging exceptions, especially in relation to age. This has led to the frequent comment that there is now a hierarchy of provisions in the sphere of non-discrimination law, with racial discrimination at the top and age discrimination at the bottom.29 It would seem to be the intention of all three of these Articles that equal treatment should be the rule throughout the territory covered by the Union. However, they do not make plain the precise geographical scope of the obligations they place on the Member States. At the heart of the difficulty is the fact that they do not define such crucial terms as ‘treatment’ and ‘employment’. This leads to potential, but as yet unresolved, difficulties in cases with a multi-national element. For example, do the directives govern the case where a job offer is made in a Member State but the job is to be performed outside that Member State? If so, does it make any difference whether the job is to be performed inside or outside the territory of the EU? Does it make any difference where a job offer is actually made if the prospective employer is based in a Member State? In the light of the fundamental importance which the CJEU attaches to the principle of equality, it is arguable that the directives should be engaged whenever there is a factual link between the employment and a Member State; thus, where a job offer (or other potentially discriminatory act) takes place on the territory of a Member State, or where the employer is based in that Member State, or where

28 See also discussion of these cases by Stix-Hackl AG in Case C-186/01 Dory v Germany [2003] ECR I-2479. 29 See, eg, Schiek, ‘A New Framework on Equal Treatment of Persons in EC Law?’ (2002) 8 ELJ 290.

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the job is to be performed in that Member State, then the requirements of the directives should have to be complied with by the State concerned.30 It appears that even those engaged on very short-time and variable contracts are protected by the legislation; in Wippel v Peek & Cloppenburg GmbH,31 the CJEU held that the old Equal Treatment Directive protected a worker under whose contract of employment her hours of work and the organization of her working time were dependent on the amount of work available and were determined only on a caseby-case basis by agreement between herself and her employer. It is evident from the subject-matter of all three directives that they are intended to protect human beings, and the instruments frequently use expressions such as ‘men’, ‘women’, ‘individual’, and ‘persons’. However, the Race Directive is also apparently intended to protect legal entities such as companies or other associations; this appears from recital 16 of its Preamble (of which there is no counterpart in the Recast Directive or the Framework Directive), which states: It is important to protect all natural persons against discrimination on grounds of racial or ethnic origin. Member States should also provide, where appropriate, and in accordance with their national traditions and practice, protection for legal persons where they suffer discrimination on grounds of the racial or ethnic origin of their members.

A subtle distinction between the wording of the Race and Framework Directives is encountered in their respective Articles 2(1). The Framework Directive states: For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever ...

However, the Race Directive omits the word ‘whatsoever’: For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination ...

It is to be hoped that this discrepancy will be taken to be of no theoretical or practical importance by the CJEU.32 Article 2(1) of the Race and Framework Directives would appear, taken alone, to be incapable of taking direct effect, since the provision does not elaborate on the circumstances in which it is to operate.When combined with the later provisions of 30 As regards nationality, the CJEU has held that the principle of non-discrimination applies in judging all legal relationships insofar as those relationships, by reason either of the place where they are entered into or of the place where they take effect, can be located within the territory of the Community: Case 36/74 Walrave and Koch v Union Cycliste Internationale [1974] ECR 1405, and Case C-237/83 Prodest v Caisse Primaire d’Assurance Maladie de Paris [1984] ECR 3153. 31 Case C-313/02 [2004] ECR I-9483. 32 However, in Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143, the CJEU quoted the wording of Art 2(1) of the old Equal Treatment Directive (‘the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex’) to support its conclusion that that instrument was the expression, within its field, of the principle of equality which it held to be one of the fundamental principles of Community law; see discussion in chs 1 and 3.

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the directives, however, outlawing discrimination in relation to specifically defined matters, there seems little doubt that this paragraph can be relied upon by individual litigants to ensure that both direct and indirect discrimination are forbidden.33

The substantive provisions of the Recast Directive, Race Directive, and Framework Directive Article 1 of the Recast Directive explains that the instrument governs a wide variety of situations: [I]t contains provisions to implement the principle of equal treatment in relation to: (a) access to employment, including promotion, and to vocational training; (b) working conditions, including pay; (c) occupational social security schemes.34 It also contains provisions to ensure that such implementation is made more effective by the establishment of appropriate procedures.

Each of the directives sets out more precisely the circumstances in which discrimination within the workplace is prohibited. Thus, for example, Article 14(1) of the Recast Directive provides: 1. There shall be no direct or indirect discrimination on grounds of sex in the public or private sectors, including public bodies, in relation to: (a) conditions for access to employment, to self-employment or35 to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; (b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; (c) employment and working conditions, including dismissals, as well as pay as provided for in Article 141 of the Treaty; (d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations.36

33 See the Court’s comments to this effect in relation to sex discrimination in Case 152/84 Marshall [1986] ECR I-723 and in Case 222/84 Johnston v Chief Constable of the RUC [1986] ECR 1651. It is highly likely that the same principle will apply in relation to the Race Directive and the Framework Directive. 34 The provisions of the Recast Directive in relation to pay and to occupational social security schemes are discussed in ch 5. 35 For reasons unknown to the present authors, the word ‘and’ takes the place of ‘or’ here in the Race Directive. 36 Art 14 ‘undoubtedly’ takes direct effect (as to which see ch 2): see Case C-486/08 Zentralbetriebsrat v Land Tirol [2010] ECR I-3527, at para 22.

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The equivalent provisions, contained in Article 3 of the Race and Framework Directives are in substantially identical terms.37 In Runevi-Vardyn v Vilniaus,38 the CJEU made an important statement of principle in relation to the Race Directive which would appear to apply by analogy also to the Recast and Framework Directives: [I]n the light of the objective of Directive 2000/43 and the nature of the rights which it seeks to safeguard, and in view of the fact that that directive is merely an expression, within the area under consideration, of the principle of equality, which is one of the general principles of European Union law, as recognized in Article 21 of the Charter of Fundamental Rights of the European Union, the scope of that directive cannot be defined restrictively.39

The Charter played a similar role in the context of age discrimination in the Court’s reasoning in Fuchs and Köhler v Land Hessen.40 It used the Charter to underline the importance of the principle of non-discrimination on the ground of age, which it said must be read in the light of the right to engage in work recognized by Article 15(1) of the Charter. This led it to comment that particular attention must be paid to the participation of older workers in the labour force and thus in economic, cultural, and social life. Keeping older workers in the labour force, the Court went on, promotes diversity in the workforce and contributes to the realization of their potential and their quality of life.41 A number of claims pursuant to all three directives have now reached the CJEU. They have been especially numerous in the area of age discrimination. For example, in Hütter v Technische Universität Graz,42 the Court held that a rule preventing service below 18 years of age from being taken into account for grading an employee fell within the scope of Article 3 of the Framework Directive; specifically, it constituted age discrimination in relation to access to employment, recruitment, and pay. In Wolf v Stadt Frankfurt am Main,43 a maximum age of 30 for entry into the fire service was held to introduce a difference of treatment on the ground of age as regards recruitment conditions, within the scope of Article 3. In Petersen v Berufungsausschuss,44 the measure challenged set a maximum age for practising as a panel dentist for the purposes of the statutory health insurance scheme, which covered 90 per cent of 37 Note, however, that the opening words are different. Art 3(1) of the Race Directive begins: ‘Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies’. Art 3(1) of the Framework Directive provides: ‘Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies’. This formulation was, no doubt, adopted in order to make it clear that discrimination could not be proscribed using Art 19 as a base outside the limits of competence of the Union itself.The relevance of this is more obvious in relation to the Race Directive than the Framework Directive, since the former, but not the latter, steps outside the area of work which it is clearly within the Community’s sphere of competence 38 to regulate. Case C-391/09 [2011] ECR I-000. 39 40 Case C-391/09 [2011] ECR I-000, at para 43. Case C-159/10 [2011] ECR I-000. 41 Case C-159/10 [2011] ECR I-000, especially at paras 62 and 63. 42 43 Case C-88/08 [2009] ECR I-5325. Case C-229/08 [2010] ECR I-1. 44 Case C-341/08 [2010] ECR I-47.

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patients.The CJEU held that this fell within paragraphs (a) and (c) of Article 3. And in Georgiev v Tehnicheski universitet45 it held that national legislation providing for the compulsory retirement of university professors at 68 and restricting their employment after 65 to fixed-term contracts fell within the scope of the Framework Directive as regards employment and working conditions.46 Decisions of the CJEU in sex discrimination claims have also established important principles about the substance and effect of these provisions. It is to be anticipated that much of this case law is applicable to the Race Directive and the Framework Directive. In particular, what is today Article 14(a) and (b) of the Recast Directive was held by the CJEU in Johnston v Chief Constable of the RUC47 to take direct effect. What is today contained in paragraph (c) relating to working conditions was also held to be directly effective in Marshall v Southampton and South-West Hants Area Health Authority.48 It was seen in chapter 4 that the CJEU held in Coleman v Attridge Law49 that discrimination by association (in other words, discrimination against someone on the ground of another person’s membership of a protected class) is forbidden by the Framework Directive, at least in the field of disability. Certain specific aspects of the substantive rights governed by the three directives raise particular problems; the first of these concerns pay.

(i) Pay It is important to note that pay has been brought within the purview of the Recast Directive. If this means that pay has been subjected to exactly the same rules as any other aspect of employment, this would make it possible to engage in hypothetical comparisons between the pay of the two sexes; in other words, there would be the potential to challenge sexually discriminatory differentials as between male and female work which is not alleged to be identical or of equal value.50 As seen in chapter 5, it remains unresolved today as to whether or not the CJEU will permit such a comparison pursuant to Article 157. There are strong arguments both ways. The most obvious argument in favour of hypothetical comparison is that this is what the new directive actually says; this is the natural meaning of the language used. To this the reply may be made that the Article 14(1)(c) goes on to add: ‘pay 45

Joined Cases C-250 & 268/09 [2010] ECR I-11869. See also Case C-411/05 Palacios de la Villa v Cortfiel Servicios SA [2007] ECR I-8531; Case C-388/07 R v Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulation Reform [2009] ECR I-1569; and Joined Cases C-159 & 160/10 Fuchs and Köhler v Land Hessen [2011] ECR I-000. As to the possible justification of such discrimination, see ch 9. 47 Case 222/84 [1986] ECR 165. See also Morris, ‘Sex Discrimination, Public Order and the European Court’ (1987) PL 334, and Arnull, ‘The Beat Goes On’ (1987) 12 ELRev 56. 48 49 Case 152/84 [1986] ECR 723. Case C-303/06 [2008] ECR I-5603. 50 For support for this theory, see Burrows and Robison, ‘An Assessment of the Recast Community Equality Laws’ (2007) 13 European Law Journal 186. 46

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as provided for in Article 141 of the Treaty’.51 One way in which this phrase might be interpreted is as meaning that the principles relating to equal pay are to be applied in the same fashion as they have hitherto been applied pursuant to the Treaty; in other words, the way in which the equality principle is to be applied in the field of pay is not intended to change. A second argument in favour of the proposition that hypothetical comparisons are available in equal pay claims flows from the explicit intention underlying the amending instruments, namely, the alignment of the law on sex discrimination with that pursuant to the Race and Framework Directives. The whole idea was to achieve consistency across the board, in the interests of fairness and ease of understanding. If equal pay is not subject to hypothetical comparisons this purpose will not be achieved. There will remain one body of law on pay and another on the other aspects of sex equality. Indeed, there will be two bodies of law applicable to Article 157 of the Treaty, since its expansion by the Amsterdam Treaty to cover equal treatment in addition to equal pay. Worse, since there is nothing to suggest that the old law on equal pay will apply to discrimination in relation to pay contrary to either the Race Directive or the Framework Directive, there may possibly develop different bodies of law on pay equality depending on whether the ground of discrimination is sex on the one hand, or one of the other prohibited categories on the other hand. Nevertheless, there are powerful arguments to support the notion that the amending instrument did not intend to re-write the CJEU’s case law on equal pay. The wording was inserted into the text of the amending instrument after the intervention of the European Parliament, and it appears that it was inserted specifically in order to indicate that there was no intention to upset the acquis communautaire. Pay, it might be said, has always been treated differently from other aspects of sex discrimination, and there would be a general expectation that this tradition would continue. This proposition is lent support by recital 16 of the Preamble to the instrument amending the Equal Treatment Directive, which described the principle of equal pay as established by the CJEU as an ‘essential and indispensable part of the acquis’. In addition, a change of this magnitude might be expected to be presaged by some of the earlier travaux and working documents which preceded the amending directive, but there is no evidence to this effect. Again, this argument is open to criticism; the definition of indirect discrimination which was contained in the Burden of Proof Directive was re-cast by the amending directive, without so much as a mention of its former authority. If such a change can be made without further explanation, then it is hard to see why the same should not be said of the inclusion of pay within the amended Equal Treatment Directive. If the old law on pay equality continues to apply, as least as far as sex discrimination is concerned, this raises the further problem of the relationship between Article

51

Emphasis supplied.

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157 and the Recast Directive.52 Can the directive be taken to influence the concept of discrimination in any way at all for the purposes of the Treaty Article? If not (and of course secondary legislation is not normally permitted to re-write primary legislation), what are the lines of demarcation between the two instruments? It can perhaps be postulated that the meaning of ‘pay’ for the purposes of Article 15753 will be thrown into sharp focus. On the one hand, the ability of Article 157 to take horizontal direct effect and to trump exceptions linked to pensionable age54 encourages litigants to argue for a broad interpretation of ‘pay’ as therein defined; on the other hand, the ability of the Recast Directive to accommodate claims for hypothetical comparison may drive litigants to argue that aspects of a contract of employment, though they could in a broad sense be regarded as consideration provided for the employee by the employer, are not ‘pay’ within the meaning of Article 157, or can anyway be regarded as also falling within the scope of the directive. The vexed relationship between Article 157 and the directive is discussed in greater detail at p 288 et seq. in relation to discrimination over dismissal and working conditions. A particular difficulty in relation to the scope of the Framework Directive has arisen in the context of sexual orientation discrimination. It was seen in chapter 5 that ‘pay’ has generally been given a broad interpretation for the purposes of equal pay for men and women, and that it includes employment benefits in the form of survivors’ pensions in occupational pension schemes.55 It would therefore appear that a surviving partner to a same-sex partnership would be entitled to rely on the directive to forbid discrimination in relation to such a pension. However, recital 22 of the Preamble to the Framework Directive provides that the instrument is ‘without prejudice to national laws on marital status and the benefits dependent thereon’. A curious feature of the drafting of the directive is that this provision is not replicated in the body of the instrument. The issue therefore is whether it can actively constrain the meaning to be placed on Article 3, given the usual principle that a provision in a preamble is no more than an aid to interpretation. This was put to Richards J in R (on the application of Amicus—MSF section) v Secretary of State for Trade and Industry.56 When the claim was brought, it was not possible under UK law for gay couples to marry or to contract any form of civil partnership akin to marriage, and the allegation therefore was that implementing legislation which restricted access to benefits to married people was discriminatory on the ground 52 The Court has, at least in the past, taken the view that Art 157 and the Equal Treatment Directive were mutually exclusive; see Case C-342/93 Gillespie v Northern Health and Social Services Board [1996] ECR I-475, at 501. This was said to be clear from the second recital to the directive’s Preamble, which provided: ‘Whereas, with regard to pay, the Council adopted [the Equal Pay Directive] ...’. See also Case C-411/96 Boyle v EOC [1998] ECR I-6401, and Case C–166/99 Defreyn v Sabena SA [2000] ECR I-6155. Cf the view expressed by Van Gerven AG in C-262/88 Barber v Guardian Royal Exchange Assur53 ance Group Case [1990] ECR I-1889, at 1925. Discussed in ch 5. 54 See ch 5. 55 See, in particular, Cases 75 & 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509; Joined Cases C-109, 110, 152, & 200/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Gazenwassers- en Schoonmaakbedrijf [1993] ECR I-4879; and the Recast Directive, Art 7(1)(b). 56 [2004] IRLR 430.

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of sexual orientation.57 Richards J proceeded on the assumption that issues of discrimination by reference to marital status fall within the Community’s competence. He concluded that, despite the difficulty of giving legal force to a mere provision of a preamble, recital 22 does limit the substantive scope of the Framework Directive since ‘[t]o hold otherwise would be to frustrate the legislative intention’.58 He distinguished the decision in KB v National Health Service Pensions Agency,59 in which the CJEU had held that UK legislation making it impossible for transsexuals to marry breached Article 157 by excluding a transsexual partner from the right to a survivor’s pension; he held that the same principle could not be extended to homosexuals since the CJEU’s reasoning had been specifically restricted to transsexuals and had relied heavily on a decision of the European Court on Human Rights that the relevant UK legislation breached the ECHR.60 Even if it were wrong to conclude that recital 22 limits the scope of the Framework Directive, Richards J nevertheless concluded that a restriction on occupational benefits by reference to marital status was neither directly nor indirectly discriminatory against homosexuals. It was not directly discriminatory because it was based on marriage, not sexual orientation. The judge rejected the argument that a requirement of being married was a requirement with which (at the time of the litigation) only opposite-sex partners could comply and that it was therefore necessarily discriminatory; he did so on the basis that the consistent approach of the CJEU in this area has been to hold that marriage cannot be compared with other relationships. Similarly, the situation was not indirectly discriminatory, since married and unmarried couples are not in a materially similar situation. Finally, he ruled that, even if the UK implementing legislation could be held to be indirectly discriminatory, it was justifiable because its aims fell within the broad margin of discretion permitted to the Member States over social policy. However, in Maruko,61 a Grand Chamber of the CJEU was confronted directly with the legality of a pension scheme which provided survivors’ benefits only for spouses; the case itself concerned a surviving gay partner who had been in a registered life partnership which was recognized by the applicable German law. The Court held that the survivor’s benefit constituted pay for the purposes of the Framework Directive62 and went on to hold that recital 22 did not alter the matter: Admittedly, civil status and the benefits flowing therefrom are matters which fall within the competence of the Member States and Community law does not detract from that competence. However, it must be recalled that in the exercise of that competence the Member States must comply with Community law and, in particular, with the provisions relating to the principle of non-discrimination ... 57 The UK Government’s view that such legislation was permitted by the Framework Directive was 58 made clear in Equality and Diversity: the Way Ahead (DTI, 2002). [2004] IRLR 430, at 451. 59 Case C-l 17/01 [2004] 1 CMLR 28, discussed in ch 1. 60 Goodwin v UK (2002) 35 EHRR 447. 61 Case C-267/06 Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757. 62 See also ch 5.

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Since survivor’s benefit such as that at issue in the main proceedings has been identified as ‘pay’ within the meaning of Article 141 EC and falls within the scope of Directive 2000/78 ...recital 22 of the Preamble to Directive 2000/78 cannot affect the application of the Directive. [Therefore] ...a survivor’s benefit granted under an occupational pension scheme such as that [involved in the claim] falls within the scope of Directive 2000/78.63

The Court’s ultimate conclusion was that there was potential direct discrimination on the facts: If the referring court decides that surviving spouses and surviving life partners are in a comparable situation so far as concerns that survivor’s benefit, legislation such as that at issue in the main proceedings must, as a consequence, be considered to constitute direct discrimination on the grounds of sexual orientation, within the meaning of Articles 1 and 2(2)(a) of Directive 2000/78. . . . [These combined provisions] preclude legislation such as that at issue in the main proceedings under which, after the death of his life partner, the surviving partner does not receive a survivor’s benefit equivalent to that granted to a surviving spouse, even though, under national law, life partnership places persons of the same sex in a situation comparable to that of spouses so far as concerns that survivor’s benefit. It is for the referring court to determine whether a surviving life partner is in a situation comparable to that of a spouse who is entitled to the survivor’s benefit provided for [under the relevant pension scheme].64

It is to be observed that, whilst this ruling is to be welcomed in its generally purposive tone, it appears to deny the possibility of a remedy in those Member States—perhaps those most likely to favour discrimination on the ground of sexual orientation—in which there is no legal recognition of same-sex partnerships.65 Had the Court opted for an indirect discrimination analysis, as was argued by Mr Maruko, the Commission, and Colomer AG, it would arguably have enabled the directive to reach considerably further; if marriage is made a requirement for the receivability of a particular advantage, then this rule in itself creates an adverse impact for gay couples in jurisdictions which do not admit gay marriages, and this will be prohibited if it cannot be justified.66 A Grand 63 Case C-267/06 Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757, at paras 59–61. See likewise Case C-147/08 Römer v Freie und Hansestadt Hamburg [2011] ECR I-000. 64 Case C-267/06 [2008] ECR I-1757, at paras 72–4. Colomer AG analysed the situation as one of indirect discrimination: ‘refusal to grant a pension on the grounds that a couple has not married, where two persons of the same sex are unable to marry and have entered into a union which produces similar effects, constitutes indirect discrimination based on sexual orientation . . . ’ (at para 102 of the Opinion). 65 Neither does it address the position of same-sex couples in countries, such as France, in which a form of civil partnership is also available to heterosexual couples. 66 On the other hand, in opting for a direct discrimination analysis, the Court avoided the possible justification of the relevant discrimination altogether. For further discussion of the implications of the distinction between direct and indirect discrimination in the context of same-sex relationships, see the comment of Tobler and Waaldjik on Maruko in (2009) 46 CLRev 723.

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Chamber of the Court nevertheless followed the direct discrimination analysis in Römer v Frei und Hansestadt Hamburg.67 The latter case involved a reduction in the quantum of a supplementary retirement pension where the recipient was not married but was in a registered same-sex partnership. The Court held that it is not necessary for the situations concerned to be identical, but merely for them to be comparable. In addition, in assessing comparability the approach should not be global and abstract but should concentrate on specifics. It concluded that the Framework Directive precluded such a pension differential if, in the Member State concerned, marriage is reserved to persons of different sex and exists alongside registered partnerships which are reserved to same-sex couples, and if a life partner is in a legal and factual situation comparable to that of a married person as regards the pension.

(ii) Access to employment ‘Access’ to employment has been given a wide meaning by the CJEU in sex discrimination cases.68 In Meyers v Chief Adjudication Officer,69 the Court held that it is ‘not only the conditions obtaining before an employment relationship comes into being’ which are covered by the concept of ‘access’ to employment; it also extends to factors which influence a person’s decision as to whether or not to accept a job offer. Thus, ‘the prospect of receiving family credit if he accepts lowpaid work encourages an unemployed worker to accept such work, with the result that the benefit is related to considerations governing access to employment’.70 On the other hand, in Jackson and Cresswell v Chief Adjudication Officer,71 the Court held that where a social security benefit scheme is merely intended to provide income support for those with insufficient means: [T]he assertion that the method of calculating claimants’ actual earnings, which are used as the basis for determining the amount of the benefits, might affect sole mothers’ ability to take up access to vocational training or part-time employment, is not sufficient to bring such schemes within the scope of Directive 76/207.72

67 Case C-147/08 [2011] ECR I-000. See Howard, ‘An opportunity missed? Comment on Romer’ (2011) 36 ELRev 589. 68 For example, in Case C-79/99 Schnorbus v Land Hessen [2000] ECR I-10997, the CJEU held that national provisions governing the date of admission to practical legal training (which was a prerequisite for the relevant judicial or higher civil service) fell within the scope of the Equal Treatment Directive. 69 Case C-116/94 [1995] ECR I-2131. 70 Case C-116/94 [1995] ECR I-2131, at 2151. But note the non-applicability of the Framework Directive to social security schemes, discussed at p 278. 71 Joined Cases C-64 & 64/91 [1992] ECR I-4737. 72 Joined Cases C-64 & 64/91 [1992] ECR I-4737, at 4782. See also Case C-77/95 Züchner v Handelskrankenkasse Bremen [1996] ECR I-5689.

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(iii) Working conditions ‘Working conditions’ are not confined to those set out in the contract of employment or applied by the employer in respect of a worker’s employment. Having established this principle, the Court was able to go to hold in Meyers v Chief Adjudication Officer73 that family credit in the UK, although a social security benefit, also constituted part of a person’s ‘working conditions’. The CJEU has held that what is today paragraph (c) is breached where a Member State maintains in force a law prohibiting night work in industry by women (but not men).74 The direct effect of the paragraph can be relied upon in such circumstances.75 In accordance with the Court’s usual reasoning in this regard, the direct effect of the Article does not excuse a Member State from legislating to give effect to the directive.76

(iv) Dismissal Discrimination in relation to dismissal has proved an important area in practice; this is unsurprising, since recent decades have witnessed several periods of economic recession. In addition, an employee who has been dismissed may well be less reluctant to sue a former employer than one who is still hoping to be employed or promoted.The CJEU has generally shown considerable sympathy for the dismissed employee. For example, it had no hesitation in holding in Kücükdeveci v Swedex GmbH77 that German legislation which ignored service before the age of 25 in calculating the length of a notice period for dismissal constituted unlawful age discrimination. However, there are limits to its compassion, as demonstrated by Kachelmann v Bankhaus Herman Lampe KG.78 German legislation provided that employers seeking to make their employees redundant must choose those for whom redundancy would be the least damaging; it had been established that full- and part-timers could not be compared for this purpose. The CJEU held that this constituted prima facie indirect sex discrimination, since part-timers would find it more difficult to find new jobs than full-timers because of the significantly larger number of fulltime jobs on the market. However, the Court went on to hold that the purpose of 73

Case C-116/94 [1995] ECR I-2131. Case C-197/96 Commission v France [1997] ECR I-1489. 75 Case C-345/89 Stoeckel [1991] ECR I-4047. Cf Case C-158/91 Levy [1993] ECR I-4287, and Case C-13/93 Office National de l’Emploi v Minne [1994] ECR I-371, where, as discussed in ch 2. France was permitted to rely on Art 351 to preserve national legislation which conflicted with the directive but which was necessary in order to comply with a pre-existing international obligation pursuant to ILO Convention No 89 which France had not at the relevant date yet renounced. See also Wuiame, ‘Night Work for Women—Stoeckel Revisited’ (1994) 23 ILJ 95, and Kilpatrick, ‘Production and Circulation of EC Night Work Jurisprudence’ (1996) 25 ILJ 169. 76 Case C-197/96 Commission v France [1997] ECR I-1489. 77 78 Case C-555/07 [2010] ECR I-365. Case C-322/98 [2000] ECR I-7505. 74

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the national legislation was to protect workers facing redundancy whilst at the same time taking into account the employer’s needs. It was clear that: [J]ob comparability [was] determined according to the actual content of the respective employment contracts, by assessing whether the worker whose job is being abolished ...would be capable, having regard to his professional qualifications and the activities he has hitherto been carrying out ..., of carrying out the different but equivalent work done by other workers. Application of those criteria may well create an indirect disadvantage for part-time workers because their jobs cannot be compared with those of full-time workers. However ...if job comparability between full-time and part-time workers were to be introduced ...that would have the effect of placing part-time workers at an advantage, while putting full-time workers at a disadvantage. In the event of their jobs being abolished, part-time workers would have to be offered a full-time job, even if their employment contract did not entitle them to one. The question whether part-time workers should enjoy such an advantage is a matter for the national legislature, which alone must find a fair balance in employment law between the various interests concerned.79

Difficult problems have emerged as regards the relationship between what is today paragraph (c) (formerly Article 5 of the Equal Treatment Directive) and certain other provisions of EU law. First of all, how is the principle of equality as regards ‘dismissal’ to be reconciled with continuing permissible differential state pensionable ages for men and women and their knock-on effects as regards other benefits? The CJEU’s case law in this area is really comprehensible only on the basis that it has shifted its ground to a more radical approach over recent years. The issue was first raised before the CJEU in Burton v British Railways Board.80 British Rail had decided to pay voluntary redundancy benefits to certain of its employees, provided that they were aged 55 or over in the case of women and 60 or over in the case of men. Mr Burton was 58 years of age. He wished to take advantage of the scheme and argued that he was being discriminated against unlawfully. Since this issue was at the time of the action excluded from the ambit of the British Sex Discrimination Act 1975 by s 6(4) of that Act, the effect of the Equal Treatment Directive became crucial. The case was sent to the CJEU for a preliminary ruling, and it held that ‘dismissal’ must be ‘widely construed so as to include termination of the employment relationship between a worker and his employer, even as part of a voluntary redundancy scheme’.81 Access to such a scheme was therefore held to be potentially within the scope of what is now paragraph (c) of the directive; however, on the facts, this situation did not fall foul of the directive, it was held, because the qualifying ages for access to the scheme were linked to the differential State retirement pension ages for men and women; both men and women became eligible for entrance to the scheme five years before each reached the State retirement pension 79 Case C-322/98 [2000] ECR I-7505, at 7530–1. It would not presumably be open to the national legislature to introduce a rule which positively favoured part-timers over full-timers, since this could 80 constitute prima facie indirect discrimination against men. Case 19/81 [1982] ECR 555. 81 Case 19/81 [1982] ECR 555, at 575.

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age. Since the Social Security Directive82 permits differential State retirement pension ages to continue for the present, the Court said that it followed that EU law had not been breached. It seems unlikely that the CJEU would today decide this case in the same way in the light of its decision in Barber v Guardian Royal Exchange Assurance Group.83 Marshall v Southampton and South- West Hants Area Health Authority84 then made it clear that compulsory retirement also falls within the ambit of the directive.85 Ms Marshall, who had been employed as a dietician by the Health Authority, was dismissed by the Authority when she was 62 years of age. The Authority had a policy, which had become an implied term of Ms Marshall’s contract of employment, that employees were to retire at the age at which they became entitled to draw the State retirement pension (that is to say, on the facts of the case, at 65 for men and 60 for women). Ms Marshall did not want to retire at 60, and the Authority waived its normal policy in her case for two years. She complained that her dismissal caused her financial loss because of the difference between her earnings as a dietician and her pension, and she also complained of the premature loss of job satisfaction. Her allegation that the situation contravened the national anti-discrimination legislation was met with the answer that it was saved by the then very broadly drafted s 6(4) of the Sex Discrimination Act 1975.The issue became, as in Burton, whether or not the case fell foul of EU law, particularly the ‘dismissal’ provision of the Equal Treatment Directive. The Health Authority argued that, as in Burton, account must be taken of the link between the retirement ages it stipulated contractually and the State retirement pension ages.The laying down of different ages for the compulsory termination of a contract of employment, it argued (with considerable logic on its side), merely reflected the minimum ages fixed by the state scheme: a male employee was allowed to continue in employment until the age of 65 precisely because he was not protected by the provision of a state pension until that age, whereas a female employee could draw a state pension at the age of 60. The CJEU, however, rejected this argument, in doing so drawing a somewhat artificial distinction between retirement age and pensionable age.86 With the benefit of hindsight, this case can be identified as the beginning of a trend in which the CJEU began to erode the Social Security Directive’s exception for state pensionable age and its knock-on effects. It held: Article 5(1) of Council Directive 76/207/EEC provides that application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women are to be guaranteed the same conditions without 82 As to which see ch 10. Note that recital 14 of the Preamble to the Framework Directive also states that that instrument is ‘without prejudice to national provisions laying down retirement ages’. 83 Case-262/88 [1990] ECR I-1889. See the comments to this effect of the British Court of Appeal in Thomas v Adjudication Officer and Secretary of State for Social Security [1990] IRLR 436. 84 Case C-152/84 [1986] ECR 723. 85 See also Case C-356/09 Pensionsversicherungsanstalt v Kleist [2010] ECR I-11939. 86 In Duke v Reliance Systems Ltd [1988] 2 WLR 359, at 373, Lord Templeman protested that the respondent in that case ‘could not reasonably be expected to appreciate the logic of Community legislators in permitting differential retirement pension ages but prohibiting differential retirement ages’.

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discrimination on grounds of sex. In its judgment in the Burton case ...the Court had already stated that the term ‘dismissal’ contained in that provision must be given a wide meaning. Consequently, an age limit for the compulsory dismissal of workers pursuant to an employer’s general policy concerning retirement falls within the term ‘dismissal’ construed in that manner, even if the dismissal involves the grant of a retirement pension. As the Court emphasised in its judgment in the Burton case, Article 7 of Council Directive 79/7/EEC [the Social Security Directive] expressly provides that the Directive does not prejudice the right of Member States to exclude from its scope the determination of pensionable age for the purposes of granting old age and retirement pensions and the possible consequences thereof for other benefits falling within the statutory social security schemes. The Court thus acknowledged that benefits tied to a national scheme which lays down a different minimum pensionable age for men and women may lie outside the ambit of the aforementioned obligation. However, in view of the fundamental importance of the principle of equality of treatment, which the Court has reaffirmed on numerous occasions, Article 1(2) of Council Directive 76/207/EEC, which excludes social security matters from the scope of that Directive, must be interpreted strictly. Consequently, the exception to the prohibition of discrimination on grounds of sex provided for in Article 7(1) (a) of Council Directive 79/7/EEC applies only to the determination of pensionable age for the purposes of granting old age and retirement pensions and the possible consequences thereof for other benefits. In that respect it must be emphasised that, whereas the exception contained in Article 7 of Council Directive 79/7/EEC concerns the consequences which pensionable age has for social security benefits, this case is concerned with dismissal within the meaning of Article 5 of Council Directive 76/207/EEC. Consequently, the answer to the first question referred to the Court by the Court of Appeal must be that Article 5(1) of Council Directive 76/207/EEC must be interpreted as meaning that a general policy concerning dismissal involving the dismissal of a woman solely because she has attained the qualifying age for a state pension, which age is different under national legislation for men and for women, constitutes discrimination on grounds of sex, contrary to that Directive.87

The Court went on to conclude that what is now Article 14(1)(c) of the Recast Directive was also directly effective, so as to confer on Ms Marshall rights which she could enforce ‘vertically’ against an organ of the State.88 It therefore appeared after Marshall that the CJEU regarded as vital the question of whether the age prescribed governed access to retirement benefits (apparently excluded from the scope of the directive), or merely dismissal (covered by the directive). This distinction, however, became blurred, in part as a result of the Court’s decision in Roberts v Tate & Lyle Ltd.89 This case clearly demonstrates the impossibility of simultaneously respecting the notion of equality in the context of retirement and preserving differential State retirement pension ages. Ms Roberts was made redundant by Tate & Lyle when she was aged 53, as part of a mass redundancy 87

[1986] ECR 723, at 745–6. See ch 2 for discussion of direct effect in relation to directives. 89 Case 151/84 [1986] ECR 703, noted by Arnull in ‘Some More Equal than Others?’ (1986) 11 ELRev 229. 88

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which followed the closure of the depot at which she worked. She was a member of the Tate & Lyle occupational pension scheme, which was contracted out of the state scheme and thus in a sense constituted a substitute for a State social security benefit.90 It provided for compulsory retirement with a pension at the age of 65 for men and 60 for women. On the closure of the depot, the employers had agreed severance terms with Ms Roberts’s trade union, by virtue of which all employees made redundant were to be offered either a cash payment, or an early pension up to five years before the date of their entitlement under the scheme; thus, the pension would have been payable to women over 55 and to men over 60. The male employees, however, protested that this constituted discrimination against them, so eventually the employers agreed to pay an immediate pension to both men and women over 55. Ms Roberts in turn protested against this solution, arguing that the situation contravened EU law because a male employee was now entitled to receive a pension ten years before his normal retirement age, whereas a female employee received the pension only five years before her normal retirement age. The Court, however, chose to treat this as essentially a dismissal case, saying: [T]he question of interpretation which has been referred ...does not concern the conditions for the grant of the normal old-age or retirement pension but the termination of employment in connection with a mass redundancy caused by the closure of part of an undertaking’s plant. The question therefore concerns the conditions governing dismissal and falls to be considered under Council Directive 76/207. Article 5(1) of Council Directive 76/207 provides that application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women are to be guaranteed the same conditions without discrimination on grounds of sex. In its judgment in the Burton case the Court has already stated that the term ‘dismissal’ contained in that provision must be given a wide meaning. Consequently, an age limit for the compulsory redundancy of workers as part of a mass redundancy falls within the term ‘dismissal’ construed in that manner, even if the redundancy involves the grant of an early retirement pension.91

The Court went on to hold: Even though the retirement scheme at issue does not prima facie discriminate between men and women with regard to the conditions for dismissal, it is still necessary to consider whether the fixing of the same age for the grant of an early pension nevertheless constitutes discrimination on grounds of sex in view of the fact that under the UK statutory social security scheme the pensionable age for men and women is different ...As the Court emphasised in its judgment in the Burton case, Article 7 of Council Directive 79/7 expressly provides that the Directive does not prejudice the right of Member States to exclude from its scope the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits falling within the statutory social security schemes.The Court thus acknowledged that benefits linked to a national

90

See ch 5.

91

[1986] ECR 703, at 720, emphasis added.

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scheme which lays down a different minimum pensionable age for men and women may lie outside the ambit of the aforementioned obligation. However, in view of the fundamental importance of the principle of equality of treatment, which the Court has reaffirmed on numerous occasions, Article 1(2) of Council Directive 76/207, which excludes social security matters from the scope of that Directive, must be interpreted strictly. Consequently, the exception to the prohibition of discrimination on grounds of sex provided for in Article 7(1) (a) of Council Directive 79/7 applies only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and to the consequences thereof for other social security benefits. In that respect it must be emphasised that, whereas the exception contained in Article 7 of Council Directive 79/7 concerns the consequences which pensionable age has for social security benefits, this case is concerned with dismissal within the meaning of Article 5 of Council Directive 76/207. In those circumstances the grant of a pension to persons of the same age who are made redundant amounts merely to a collective measure adopted irrespective of the sex of those persons in order to guarantee them all the same rights.92

Again with the benefit of hindsight, it is probably implicit in this judgment that the CJEU was not concerned about the early retirement pensions granted here, since they were granted to both sexes at the same age. This development was explicitly articulated in Barber v Guardian Royal Exchange Assurance Group,93 in which the CJEU ruled that it is contrary to Article 157 for an occupational pension scheme to adopt different retirement ages for men and women, and for redundancy payments to be related to different ages for the two sexes. The effect of this ruling was clearly to take much of the force and significance out of the CJEU’s former distinction between retirement age and pensionable age. However, a similar problem has manifested itself more recently in relation to age discrimination and pensionable age. Thus, for example, in Palacios de la Villa v Cortefiel Servicios SA,94 the CJEU was asked whether the automatic dismissal of those who had reached state retirement age (except in the case of persons who did not yet qualify for a pension) constituted discrimination on the ground of age which was prohibited by Articles 2 and 3 of the Framework Directive. The Court pointed out that recital 14 of the Preamble to the directive preserves national provisions laying down retirement ages. However, it continued: [T]hat recital merely states that the Directive does not affect the competence of the Member States to determine retirement age and does not in any way preclude the application of that Directive to national measures governing the conditions for termination of employment contracts where the retirement age, thus established, has been reached. The legislation at issue in the main proceedings, which permits the automatic termination of an employment relationship concluded between an employer and a worker once the latter has reached the age of 65, affects the duration of the employment relationship between the parties and, more

92 93 94

[1986] ECR 703, at 720–1. Case C-262/88 [1990] ECR I-1889, also discussed in ch 5. Case C-411/05 [2007] ECR I-8531.

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generally, the engagement of the worker concerned in an occupation, by preventing his future participation in the labour force.95

The national rule was therefore within the scope of the directive’s prohibition on age discrimination,96 although it was subsequently justified pursuant to Article 6(1) of the instrument.97 Similarly, in Age Concern,98 the CJEU was faced with national legislation which, whilst generally outlawing age discrimination in the workplace, permitted employers to dismiss workers aged 65 and over on the ground of retirement. All the interested parties agreed that, following Palacios de la Villa, the situation fell within the scope of the Framework Directive and the Court confirmed that the situation, if not justified pursuant to Article 6(1), would constitute direct discrimination.99 In Andersen,100 the CJEU held that Danish legislation was age discriminatory where it deprived an employee of his right to a severance allowance on the ground that he had reached the age of 60 and was entitled to draw an old-age pension from his employer under a scheme which he had joined before reaching the age of 50. A second line of demarcation which has proved difficult to draw in this area is that between paragraph (c) of the Recast Directive in its reference to ‘working conditions’ (formerly Article 5 of the Equal Treatment Directive) and Article 157 of the Treaty. Some of the steam may have gone out of this area with the inclusion of ‘pay’ within the scope of the Recast Directive, although the directive’s lack of horizontal effect will as usual render the Treaty a more attractive alternative where the respondent is not an organ of the State.101 One group of cases before the CJEU seemed to support a distinction between the quantum of the benefit involved (an Article 157 issue) and the conditions under which access to the benefit was granted (a directive issue). For example, in the Burton, Marshall, and Roberts decisions, the Court ruled that, where an age-limit was applied in relation to selection for compulsory retirement, that fell within the scope of the directive, even though there were financial implications for the litigants involved. However, in Bilka-Kaufhaus GmbH v Weber Von Hartz,102 the Court held that the conditions of access to a supplementary pension scheme were challengeable via Article 157103

95

Case C-411/05 [2007] ECR I-8531, at paras 44 and 45. Cf the opinion of Mazak AG; the AG’s narrow interpretation of the age discrimination prohibition generally is to be noted. See also Joined Cases C-159 & 160/10 Fuchs and Köhler v Land Hessen [2011] 97 ECR I-000. See ch 9. 98 Case C-388/07 R v Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulation Reform [2009] ECR I-1569. 99 See also Case C-45/09 Rosenbladt v Oellerking [2010] ECR I-9391. 100 101 Case C-499/08 [2010] ECR I-9343. See ch 2. 102 Case 170/84 [1986] ECR 1607. 103 In Case C-57/93 Vroege v NCIV Instituut voor Volkshuisvesting BV [1994] ECR I-4541 and Case C-128/93 Fisscher v Voorhuis Hengelo BV [1994] ECR I-4583, the CJEU repeated that it followed from Bilka ‘that Article 119 covers not only entitlement to benefits paid by an occupational pension scheme but also the right to be a member of such a scheme’ (at 4573 and 4593 respectively). 96

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and in Rinner-Kühn v FWW Spezial-Gebaudereinigung GmbH,104 it ruled that an hours-based exclusion from the right to sick pay fell within Article 157.105 Barber v Guardian Royal Exchange Assurance Group106 also takes this approach. Mr Barber was a member of a pension fund established by Guardian which operated a noncontributory, contracted-out107 occupational pension scheme. Normal pensionable age under the scheme was 62 for men and 57 for women, but employees’ contracts of service also provided that, in the event of redundancy, members of the pension fund were entitled to an immediate pension provided only that they had reached the age of 55 in the case of men and 50 in the case of women. Staff who did not fulfil these conditions received cash benefits calculated on the basis of the number of years of their service and a deferred pension payable at normal pensionable age. Mr Barber was made redundant when he was 52. Guardian paid him the cash benefits just referred to, a statutory redundancy payment, and an ex gratia payment. He complained of unlawful sex discrimination on the basis that a woman of his age and in his position would have received an immediate retirement pension, as well as the statutory redundancy payment, and that the total value of these benefits would have been greater than the amount Mr Barber in fact received. One of the questions referred by the Court of Appeal to the CJEU asked whether this was contrary to Article 157, in particular in the light of the fact that the age conditions imposed by Guardian reflected the differential contained in the state pension scheme. The CJEU did not explain how it distinguished this situation from its earlier decisions in Burton, Marshall, and Roberts, which of course suggested that this was a directive issue rather than an Article 157 issue; it simply held: Article 119 prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality. Accordingly, it is contrary to Article 119 to impose an age condition which differs according to sex in respect of pensions paid under a contracted-out scheme, even if the difference between the pensionable age for men and that for women is based on the one provided for by the national statutory scheme.108

Van Gerven AG was considerably more analytical in his treatment of this matter, although it is not clear whether the Court accepted his analysis since it made no reference to it. He submitted: The judgments in Defrenne III, Burton, Marshall, Beets-Proper, and apparently in Roberts as well, are all connected with an (age) condition or (age) limit regarding the termination of an employment relationship. That condition or limit was intended to select employees with whom the employment relationship was to be terminated on certain financial conditions. Viewed in those terms, the age condition or age-limit is clearly revealed as a working condition, more particularly as a condition governing dismissal or, in a wider context, termination, 104

Case 171/88 [1989] ECR 2743. See also Case C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR I-297, and Case 106 C-l/95 Gerster v Freistaat Bayern [1997] ECR I-5253. Case C- 262/88 [1990] ECR I-1889. 107 See ch 5 for further discussion of ‘contracted-out’ pension schemes. 108 [1990] ECR I-1889, at 1953. 105

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that is to say a condition for the selection of employees whose employment relationship is to be terminated ...If, on the other hand, the age condition or limit does not play such a role but relates, as in this case, to the grant of a terminal payment or a pension to employees the termination of whose employment relationship has already been decided upon on the basis of other (supposedly non-discriminatory) factors, then it constitutes a condition governing pay which comes within Article 119. The Bilka-Kaufhaus case, in which no age condition was involved, was also concerned with the grant of entitlement to a pension (as was the recent judgment in Rinner-Kühn where a condition for the payment of remuneration in the event of illness was brought within Article 119). Essentially, the distinction does amount to bringing within Article 119 working conditions (including conditions governing dismissal or other forms of redundancy) which directly govern access to, that is to say the grant of, remuneration (including a payment or pension benefit in connection with redundancy) but not the conditions precedent thereto which govern the inception, continuation or termination of the employment relationship, even though those conditions are attended by financial consequences or accompanied by financial provisions (such as terminal payments or pension benefits).109

The CJEU’s decision in R v Secretary of State for Employment, ex parte Seymour-Smith110 supports the Advocate General’s distinction between a condition governing the grant of a payment and a condition governing the continuation of the employment relationship, although without referring explicitly to his reasoning. The Court held there that conditions determining an employee’s entitlement to compensation on unfair dismissal fall within Article 157 since they concern access to a form of pay; on the other hand, conditions determining the right to re-engagement or reinstatement fall within the directive since they involve working conditions.111 The fact that the fixing of certain working conditions may have financial consequences is not sufficient to bring such conditions within the scope of Article 157; thus, in Lommers v Minister van Landbouw,112 the CJEU held that the making available to employees of nursery places was a working condition, even though the cost of the nursery places was partly borne by the employer. Similarly, in Kutz-Bauer v Freie und Hansestadt Hamburg113 and Steinicke v Bundesanstalt für Arbeit,114 the Court ruled that schemes offering the possibility of part-time working to older employees affected the exercise of the occupation of the workers concerned and therefore fell within the Equal Treatment Directive, notwithstanding that they had financial consequences.

(v) Harassment and sexual harassment The practical application of the principle of equality for men and women has brought to the fore two situations which merit special attention; these are, first, 109 111 112 114

110 [1990] ECR I-1889, at 1926–7. Case C-167/97 [1999] ECR I-623. See also Case C-236/98 Jämställdhetsombudsmannen v Örebro läns landsting [2000] ECR I-2189. 113 Case C-476/99 [2002] ECR I-2891. Case C-187/00 [2003] ECR I-2741. Case C-77/02 [2003] ECR I-9027.

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where the discrimination encountered is based on pregnancy and this is discussed in chapter 7, and, second, where the discrimination takes the form of harassment. The existence of workplace harassment has been recognized for many years but, because of the lack until relatively recently of a legal definition of harassment, it has been difficult to assess the extent of the problem posed in practice.The first empirical evidence as to the incidence of sexual harassment came from the USA, where the problem was originally articulated and given a name; the US Merit Systems Protection Board questioned 23,000 Federal civil servants (both male and female) and found that 42 per cent of the female employees reported having experienced sexual harassment during the two-year period from May 1978 to May 1980; 15 per cent of male employees also reported having been sexually harassed during the same period.115 This picture is roughly reflected by the findings of more recent European surveys. The most extensive study of the situation within the EU was conducted by Rubenstein for the EC Commission,116 who concluded: Whatever its precise incidence, all the available data now indicates that sexual harassment at work is not an isolated phenomenon perpetuated by the odd socially-deviant man. On the contrary, it is clear that for millions of women in the EEC today, sexual harassment is an unpleasant and unavoidable part of their working lives.117

Empirical studies suggest a clear link between status and the likelihood of being sexually harassed. The US Merit Systems Protection Board Study found that the most sexual harassment was experienced by young women, and especially those who were well-educated and trying to break out of traditional occupational confines. In most instances, the harasser was the woman’s supervisor, which obviously compounds the difficulty she faces in making a complaint within the organization concerned. Similarly, the European evidence collected by Rubenstein suggests that ‘sexual harassment is disproportionately perpetrated by male supervisors or managers upon female subordinates’.118 The cost of sexual harassment to society in general, and to businesses in particular, is likely to be colossal. Again, the empirical studies show that it frequently damages the victim’s health, causing anxiety and depression which leads to her taking time off work, and sometimes to her leaving her employment altogether. These sorts of consequences of sexual harassment led the

115

‘Sexual Harassment in the Federal Workplace’, US Merit Systems Protection Board Study, 1981. Rubenstein, The Dignity of Women at Work (Commission of the European Communities, 1988). See this study for details of empirical data on the incidence of sexual harassment within the Member States of the EC. The galvanizing effect of the report on the governments of the Member States is 117 recounted by Rubenstein in (1992) 42 EOR 27. The Dignity of Women at Work, at 16. 118 The Dignity of Women at Work, at 15. The Commission’s Code of Practice on sexual harassment, discussed below, comments: ‘Some specific groups are particularly vulnerable to sexual harassment. Research in several Member States, which documents the link between sexual harassment and the recipient’s perceived vulnerability, suggests that divorced and separated women, young women and new entrants to the labour market and those with irregular or precarious employment contracts, women in non-traditional jobs, women with disabilities, lesbians and women from racial minorities are disproportionately at risk. Gay men and young men are also vulnerable to harassment.’ 116

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US Merit Systems Protection Board to conclude that sexual harassment had cost the US Federal Government $189 million over the two years surveyed. There has never seemed to be much doubt that most forms of sexual harassment in the workplace were forbidden by what is now Article 14(1)(c) of the Recast Directive and indeed today that harassment on any of the other protected grounds would (without further definition or articulation) constitute a breach of the equivalent provisions of the Race and Framework Directives: to subject an employee to harassment is not to grant equal working conditions to those enjoyed by colleagues.119 Rubenstein found, however, that at the date of his study, even though the majority of Member States had passed national legislation ostensibly carrying out their obligations under the Equal Treatment Directive, the principle that sexual harassment constitutes unlawful discrimination had yet to receive recognition by the courts.120 In addition, as will be seen at p 301 et seq., the remedies mandated for breach of the Recast Directive are not specific, and thus do not guarantee an appropriate remedy in cases of sexual harassment. Rubenstein therefore concluded that there was a need for a separate directive dealing with sexual harassment, which would declare that sexual harassment at work is contrary to the directive, but would contain certain further provisions as well. As will be seen at p 300–1, some (but not all) of his conclusions have now found fulfilment in the Recast Directive. Rubenstein’s proposed directive focused on preventing sexual harassment from occurring in the first place, or from recurring. It would have defined sexual harassment as ‘verbal or physical conduct of a sexual nature which the perpetrator knew or should have known was offensive to the victim’. Under the proposal, it would be the duty of every employer to take reasonably practicable steps to maintain a workplace free of the risk to employees of sexual harassment, and employers would be liable for any unlawful sexual harassment committed by their employees at the workplace unless they could show that reasonably practicable steps had been taken to prevent harassment. In addition, the Commission would be deputed to publish a Code of Practice giving guidance on reasonably practicable steps to prevent and deal with sexual harassment at work. As to sanctions for unlawful sexual harassment, the proposed directive would have required Member States to ensure that the relevant courts or tribunals were empowered to provide ‘assistance’ where appropriate to those found liable for unlawful sexual harassment by requiring them to present to the court or tribunal for its approval a suitable plan outlining the corrective and preventive action to be taken to ensure that similar acts did not occur in the future. In the view of the present writers, an effective measure should also require that courts and tribunals dealing with harassment claims be given specifically enforceable powers to enjoin harassment, breach of any such an order being a serious offence (such as contempt of 119 But see Dine and Watt, ‘Sexual Harassment: Moving Away From Discrimination’ (1995) 58 MLR 343, for the argument that discrimination law provides an inadequate theoretical basis for the remedying of sexual harassment. 120 He found, in fact, that it was only in the UK and Ireland that there was relatively unequivocal judicial acceptance that sexual harassment constitutes unlawful sex discrimination.

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court); whilst a preventive and educative role for a directive on harassment is clearly a laudable aim, there is also an overriding need to protect victims who actually suffer such harassment. A formal response to the Rubenstein Report came on 29 May 1990, when the Council of Ministers passed not a directive, but a resolution on the dignity of women and men at work.121 It was of course both legally and politically significant that a binding legal instrument was not used here, but the importance of ‘soft law’ as an aid to the construction of domestic legislation should be borne in mind.122 The resolution endorsed many of Rubenstein’s proposals. The Commission was also charged with the production of a Code of Conduct on the matter by 1 July 1991, the specific aim of the Code being to ‘provide guidance based on examples and best practice in the Member States on initiating and pursuing positive measures designed to create a climate at work in which women and men respect one another’s human integrity’. It adopted a recommendation on the protection of the dignity of women and men at work on 27 November 1991, and annexed a ‘Code of Practice’123 to this.124 The Member States were required by the recommendation to inform the Commission within three years of the measures taken by them in pursuance of it, to enable the Commission to draw up a report on the overall position within the Community.125 That subsequent report showed ‘a clear lack of progress’ on the matter.126 Few Member States were found to have taken coherent action and, in particular, only Belgium, France, and The Netherlands had enacted specific legislation requiring employers to be proactive in combating sexual harassment. In other Member States the existing legislation was found to be inadequate, and the Commission also questioned whether national collective agreements had been implemented at local level. In view of these disappointing findings, the Commission suggested a new ‘global approach’, involving comparison of different national policies to try to identify a strategy for improving the efficacy of existing measures; significantly, it also reverted to the original view of Rubenstein that a binding instrument might be required. The Commission began a new round of negotiations with the two sides of industry in 1997 in an attempt to draw up a collective

121

122 123 OJ [1990] C157/3. See discussion in ch 2. Sic. Commission Recommendation 92/131, OJ [1992] L49/1. Michael Rubenstein and the Dutch social affairs journalist, Ineke de Vries, acted as consultants to the Commission in the drafting of the Code. Rubenstein has pointed out in ‘Sexual Harassment: European Commission Recommendation and Code of Practice’ (1992) 21 ILJ 70, that the Code was annexed to a recommendation in order to enhance its status. The Code was referred to by the Employment Appeal Tribunal in Wadman v Carpenter Farrer Partnership [1993] IRLR 374 as a means of elucidating the law on sexual harassment to be applied by an industrial tribunal. See also Lester, ‘Some Reflections on the EC’s Code of Conduct on Sexual Harassment’ [1994] JSWFL 354, and Dine and Watt, ‘Sexual Harassment: Hardening the Soft 125 Law’ (1994) 19 ELRev 104. Art 4 of the recommendation. 126 ‘Consultation of management and labour on the prevention of sexual harassment at work’, COM (96) 373 final. 124

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EU-wide agreement to combat sexual harassment in the workplace, but in the end this proved unsuccessful. However, as seen in chapter 4, all three directives now contain provisions prohibiting harassment and deeming it to be unlawful discrimination. Only time will tell whether the CJEU and the national courts find these new provisions a useful tool in the fight against harassment. Although deemed to be types of discrimination, the new torts of harassment and sexual harassment do not reflect the accepted concept of discrimination, not least in containing no element of actual or hypothetical comparison. Indeed, in some respects it is arguable that their requirements are actually more stringent than simply demonstrating unlawful discrimination in the usual way. It was seen in chapter 4 that there are essentially two elements of a successful claim of unlawful discrimination: harm and causation (basis on a prohibited ground). However, in order to satisfy the definition of harassment contained in Article 2(1)(c) of the Recast Directive and Article 2(3) of the Race and Framework Directives, it is necessary to prove additional elements, specifically: the conduct of which complaint is made must be ‘unwanted’ (presumably a subjective criterion); it must have the purpose or effect of ‘violating the dignity’ of the complainant (a phrase which will no doubt eventually have to be explained by the CJEU and may come to contain an objective element); and it must have the purpose or effect of creating an ‘intimidating, hostile, degrading, humiliating or offensive environment’ (again perhaps at least partially an objective matter). This third element is in fact a narrower criterion than simply proving harm or adverse impact more generally. The conduct need not, according to the directives, be directed specifically against the victim, although of course it is also prohibited where it is so directed; it is enough, for example, if a generally homophobic atmosphere, or an atmosphere antipathetic to a particular religion, prevails in a workplace. The concept of harassment is permitted by the directives to be ‘defined in accordance with the national laws and practice of the Member States’.127 Although at first sight this might appear to give the Member States carte blanche over the definition of harassment, it would be illogical to interpret the directives in this way; the opening sentence of the harassment provision contains a definition for the purposes of EU law and, in accordance with the usual principle, this must be understood as setting a minimum threshold for domestic law. If the Member States wish to go further, then it is within their discretion to do so. Confusion is also created by the addition of a separate category of sexual harassment,128 whose definition appears to reduce the proof of an intimidating, etc 127 Race Directive, Art 2(3); Framework Directive, Art 2(3).There is no equivalent phrase in the Equal Treatment Directive. 128 Inserted into the amended Equal Treatment Directive at the instigation of the European Parliament. It is noteworthy that the amended Equal Treatment Directive was adopted under the authority of what is now Art 157(3), which gives a power of co-decision to the European Parliament, whilst the Race and Framework Directives were adopted pursuant to the old Art 13 of the TEC, which required only consultation of the European Parliament; the potential for drafting infelicity contained in these different legislative bases may be said to have been realized in the cases of the harassment provisions. For

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environment to an aspect of the violation of personal dignity. In addition, the definition of sexual harassment restricts the unwanted conduct of which complaint can be made to that which is either ‘verbal, non-verbal or physical’. Whilst it is difficult to envisage relevant conduct which does not fit within one of these descriptions, it is not obvious why this further refinement was felt necessary. It is also unclear why the concept of quid pro quo harassment and sexual harassment is expressly mentioned in the Recast Directive but not in the Race or Framework Directives. Article 2(2)(a) of the Recast Directive now provides that discrimination includes less favourable treatment based on a person’s rejection of, or submission to, harassment or sexual harassment. There is, however, no equivalent provision in the other instruments. It is to be hoped that this is merely a drafting error and that it is not intended to mean that such quid pro quo harassment is not contrary to the Race and Framework Directives. The new approach to harassment does little or nothing to meet the arguments put forward so cogently by Rubenstein, namely, that the law should deter harassment from occurring in the first place, and also that it should contain effective sanctions to compensate the victim and to prevent recurrence when harassment has actually been proved. Article 26 of the Recast Directive merely provides: Member States shall encourage, in accordance with national law, collective agreements or practice, employers and those responsible for access to vocational training to take effective measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment in the workplace, in access to employment, vocational training and promotion.129

This is notably weak wording and there are no equivalent provisions in the Race or Framework Directives.

Remedies and enforcement The rules on the enforcement of the non-discrimination principle have, as will be discussed at p 302 et seq., been developed by the CJEU in the context of sex discrimination claims. They are largely consolidated today in the three directives, whose further interpretation will of course be a matter for the Court. In the case of the Recast Directive, remedies and enforcement are regulated by Title III, the ‘Horizontal Provisions’ which govern all claims pursuant to the instrument, thus including equal pay claims as well as those for equal treatment in the wider sense. It has already been noted that the non-discrimination principle has been held to be directly effective in sex discrimination cases in many of the circumstances which criticism of this legislative scheme, see Holtmaat, ‘Sexual Harassment and Harassment on the Ground of Sex in EU Law: a Conceptual Clarification’ (2011) 2 European Gender Equality Law Review 4. 129

See also recitals 6 and 7 of the Preamble to the Recast Directive.

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are today also set out in the Race and Framework Directives.The concept of direct effect provides what the Court calls a ‘safety net’130 for claimants where Member States do not comply with their EU obligations; an aggrieved individual may therefore enforce the relevant EU law directly in his or her national courts, even in the face of conflicting national law, subject only to the principle that a directive may not of itself take horizontal effect. It was also seen in chapter 2 that, despite their non-horizontal direct effect, directives appear able to limit the power of the Member States to enact contradictory legislation; national legislation which contradicts a provision of one of the anti-discrimination directives may therefore prove inapplicable. Furthermore, as also discussed in chapter 2, the Francovich principle enables an individual injured in certain circumstances by a Member State’s breach of EU law to claim damages; in the present context this means that, were a Member State not to implement a provision of one of the directives and to cause resulting loss to an individual, that individual might well have a claim to damages. However, the directives also provide a number of specific remedies. For example, Article 23 of the Recast Directive provides: Member States shall take all necessary measures to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished; (b) provisions contrary to the principle of equal treatment in individual or collective contracts or agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers’ and employers’ organisations or any other arrangements shall be, or may be, declared null and void or are amended.131

The Race and Framework Directives contain substantially identical provisions.132 Paragraph (b) of what is today Article 23 of the Recast Directive provided the basis for a successful infringement action brought by the Commission against the UK under Article 258.133 The Commission alleged that, at the date of the action (1982), no legislative instrument in force in the UK provided that discriminatory provisions contained in collective agreements, rules of undertakings, or rules governing independent occupations and professions were, or could be declared, void, or could be amended. The UK Government replied that s 18 of the Trade Union and Labour Relations Act 1974 provided that collective agreements were presumed not to have been intended by the parties to be legally enforceable unless they were in writing and contained a provision in which the parties expressed their intention that the agreements were to be legally enforceable. Collective agreements, it said, were not usually legally binding in the UK in practice for this reason. Accordingly, 130

See Case 102/79 Commission v Belgium [1980] ECR 1473, discussed in ch 2. A para (c) dealing with protective provisions was repealed by Directive 2002/73, OJ [2002] L269/15. 132 Art 14 of the Race Directive; Art 16 of the Framework Directive. For examples of discrimination contained within collective agreements, see Case C-45/09 Rosenbladt [2010] ECR I-9391 and Case C-447/09 Prigge et al v Deutsche Lufthansa AG [2011] ECR I-9391. 133 Case 165/82 Commission v UK [1983] ECR 3431. 131

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to require them to be annulled would be like ‘beating the air’. In any event, it pointed out that, even if collective agreements containing sex discriminatory terms did exist, those terms would be rendered void by s 77(1) of the Sex Discrimination Act 1975, which provided: A term of a contract is void where: (a) its inclusion renders the making of the contract unlawful by virtue of this Act, or (b) it is included in furtherance of an act rendered unlawful by this Act, or (c) it provides for the doing of an act which would be rendered unlawful by this Act.

Similarly, said the UK Government, any discriminatory provisions contained in the internal rules of an undertaking, or of an occupational body, would be void if they were incorporated into an individual’s contract of employment; and if any discrimination in employment were to result from the existence of such a discriminatory provision in the internal rules of an undertaking, or of an occupational or professional body, that discrimination would be caught by s 6 of the Sex Discrimination Act 1975, which outlawed discrimination by employers against their employees as regards all aspects of the employment relationship. The Government also pointed to s 13(1) of the Sex Discrimination Act, which made it unlawful for a body which could confer an authorization or qualification to discriminate on the ground of sex. However, both the Advocate General and the Court rejected these contentions. Rozès AG submitted: [W]orkers have easier access to collective agreements, the internal rules of undertakings and the rules governing the independent occupations and professions than to Directive 76/207 or to the UK laws depriving those documents, in general, of legal binding force. Thus, workers may believe that because their contracts of employment reproduce possibly discriminatory provisions from the types of document referred to they are legal and may not be challenged at law and the workers may therefore be deprived of the advantages of a Directive which was in fact adopted for their benefit. In order to avoid such risks of confusion, the best course is to make it possible for such discriminatory provisions to be removed from those documents, as required by the Directive.134

The Court held: The Directive ...covers all collective agreements without distinction as to the nature of the legal effects which they do or do not produce. The reason for that generality lies in the fact that, even if they are not legally binding as between the parties who sign them or with regard to the employment relationships which they govern, collective agreements nevertheless have important de facto consequences for the employment relationships to which they refer, particularly in so far as they determine the rights of the workers and, in the interests of industrial harmony, give undertakings some indication of the conditions which employment relationships must satisfy or need not satisfy. The need to ensure that the Directive is completely effective therefore requires that any clauses in such agreements which are incompatible with

134

Case 165/82 Commission v UK [1983] ECR 3431, at 3454.

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the obligations imposed by the Directive upon the Member States may be rendered inoperative, eliminated or amended by appropriate means.135

The UK responded to this ruling by enacting s 6 of the Sex Discrimination Act 1986, providing for the automatic invalidity of discriminatory provisions contained in collective agreements, employers’ rules, and the rules of trades unions, employers’ associations, professional organizations, and qualifying bodies. In its original form, this was merely a declaratory provision, and it was not until its amendment by s 32 of the Trade Union Reform and Employment Rights Act 1993 (following the threat of further infringement proceedings against the UK by the Commission) that a statutory remedy was prescribed by means of which an affected individual could ascertain the nullity of a discriminatory collective provision.136 The nullity provision contained in the directives does not, however, of itself require a discriminatory term to be replaced by a non-discriminatory one; the CJEU’s decision in Kowalska v Freie and Hansestadt Hamburg137 is consequently of particular importance. The Court held, in apparently general terms, that: where there is indirect discrimination in a clause in a collective wage agreement, the class of persons placed at a disadvantage by reason of that discrimination must be treated in the same way and made subject to the same scheme, proportionately to the number of hours worked, as other workers ...138

Although the Court ultimately based its ruling in this case on Article 157, it appears that precisely the same principle applies to terms of the agreement other than pay, at least where the respondent to the claim is an organ of the State so that the directive is being enforced vertically. In Kutz-Bauer v Freie und Hansestadt Hamburg,139 a collective agreement appeared to be indirectly discriminatory against women as regards working conditions.The Court observed that what is today Article 14(1)(c) of the Recast Directive takes direct effect,140 and that it would therefore be enforceable by Ms Kutz-Bauer as against a public authority such as the City of Hamburg. It went on to hold: It would be incompatible with the very nature of Community law if the court having jurisdiction to apply that law were to be precluded at the time of such application from being able to take all necessary steps to set aside the provisions of a collective agreement which might constitute an obstacle to the full effectiveness of Community rules ... ...[I]n the case of a breach of Directive 76/207 by legislative provisions or by provisions of collective agreements introducing discrimination contrary to that directive, the national courts are required to set aside that discrimination, using all the means at their disposal, and in particular by applying those provisions for the benefit of the class placed at a disadvantage, 135

Case 165/82 Commission v UK [1983] ECR 3431, at 3447. See now Equality Act 2010, ss 145 and 146. Case 33/89 [1990] ECR I-2591. See also Case C-184/89 Helga Nimz v Freie und Hansestadt Hamburg [1991] ECR I-297, and Joined Cases C-399, 409, & 425/92 and C-34, 50, & 78/93 Stadt Lengerich 138 v Helmig [1994] ECR I-5727. [1990] ECR I-2591, at 2613. 139 140 Case C-187/00 [2003] ECR I-2741. See discussion at pp 301–2. 136 137

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and are not required to request or await the setting aside of the provisions by the legislature, by collective negotiation or otherwise.141

In relation to individual claims, Article 17(1) of the Recast Directive provides: Member States shall ensure that, after possible recourse to other competent authorities including where they deem it appropriate conciliation procedures, judicial procedures for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.142

The Race and Framework Directives make similar provision.143 This formulation consolidates the CJEU’s ruling in Coote v Granada Hospitality Ltd,144 in which it held that the Equal Treatment Directive required the Member States to ensure judicial protection for workers whose employers, after the employment relationship has ended, refuse to provide references as a reaction to legal proceedings brought complaining of earlier sex discrimination.145 Even the more weakly worded predecessor to this provision in the unamended Equal Treatment Directive (Article 6) proved to have significant teeth.146 Its importance was first revealed in Von Colson and Kamann v Land Nordrhein-Westfalen.147 Women social workers had applied for vacant posts in a German prison for male offenders. Although they were placed at the top of the list of candidates by the social workers’ committee, they were moved down by the recruiting authority, which eventually selected two male candidates. The local labour court found that it was quite clear from the attitude of the authority that the female candidates had been discriminated against on the ground of their sex. Their 141 [2003] ECR I-2741, at 2795. See also Case C-77/02 Steinicke [2003] ECR I-9027, where the CJEU repeated its formulation in Kutz-Bauer, apparently in circumstances involving the vertical enforcement of the Equal Treatment Directive. 142 See also recitals 29 and 32 of the Preamble to the Recast Directive. And see Art 8(1) of the Goods and Services Directive. 143 Art 7(1) of the Race Directive and Art 9(1) of the Framework Directive; note, however, that these instruments refer to ‘judicial and/or administrative procedures’. It is doubtful whether a mere administrative procedure would satisfy the standard set out in Art 6 of the ECHR. In Case C-185/97 Coote v Granada Hospitality Ltd [1998] ECR I-5199, the CJEU held that the principle of judicial protection of fundamental rights underlies the constitutional traditions common to the Member States and enshrined in Art 6 of the ECHR; it went on to say that the old Equal Treatment Directive, interpreted in the light of this general principle of judicial protection, meant that ‘all persons have the right to obtain an effective remedy in a competent court against measures which they consider to interfere with the equal treatment of men and women laid down in the Directive’ (at 5220). 144 Case C-185/97 [1998] ECR I-5199. 145 Mischo AG (with whose submissions the Court did not concur) pointed out that, with regard to equal pay, the prohibition of discrimination by an employer on the ground of sex does not cease to have effect on termination of the contract of employment. See discussion in ch 5. 146 The old provision stated: ‘Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment ...to pursue their claims by judicial process after possible recourse to other competent authorities.’ 147 Case 14/83 [1984] ECR 1891, noted by Arnull in ‘Sanctioning Discrimination’ (1984) 9 ELRev 267. See also Curtin, ‘Effective Sanctions and the Equal Treatment Directive: The Von Colson and Hartz Cases’ (1985) 22 CMLRev 505.

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problems were compounded by the fact that, under German law, they were not entitled to demand that the jobs be offered to them and, indeed, even their right to compensation appeared to be severely limited: they were entitled only to be reimbursed their expenses incurred in making the unsuccessful job applications (for example, postage and travel expenses, and the cost of compiling a curriculum vitae). The German court sought a preliminary ruling from the CJEU, asking essentially what remedies were mandated by the Equal Treatment Directive in such a situation. The CJEU pointed out that, although Article 288 leaves Member States freedom to choose the ways and means of ensuring that a directive is implemented, they nevertheless remain under an obligation to ensure that the substance of the directive is complied with; they must see that ‘the directive is fully effective, in accordance with the objective which it pursues’.148 It went on to hold that the Equal Treatment Directive did not prescribe any specific remedies for sex discrimination, so that it did not, for example, entitle a victim of discrimination to demand a contract of employment where the non-selection was on grounds of sex. However, since the directive required there to be proper judicial remedies, what remedies there were must be sufficient to fulfil the objectives of the legislation. Thus: Although ...full implementation of the directive does not require any specific form of sanction for unlawful discrimination, it does entail that that sanction be such as to guarantee real and effective judicial protection. Moreover it must also have a real deterrent effect on the employer. It follows that where a Member State chooses to penalize the breach of the prohibition of discrimination by the award of compensation, that compensation must in any event be adequate in relation to the damage sustained. In consequence it appears that national provisions limiting the right to compensation of persons who have been discriminated against as regards access to employment to a purely nominal amount, such as, for example, the reimbursement of expenses incurred by them in submitting their application, would not satisfy the requirements of an effective transposition of the directive.149

It followed from this that the directive could be used by litigants in national courts to challenge undue restrictions placed on national remedies, the only proviso to this being the usual one in the case of directives, namely, that the directive itself can be enforced directly only against organs of the State.150 Thus, in Dekker v Stichting Vormingscentrum Voor Jonge Volwassen Plus,151 the CJEU held that when the sanction chosen by a Member State is contained within the rules governing an employer’s civil liability, any breach of the prohibition of discrimination must, in itself, be

148

[1984] ECR 1891, at 1905–6. [1984] ECR 1891, at 1908. When the case returned to the local court, compensation amounting to six months’ pay was awarded. 150 But note the technique relied on in Von Colson itself, whereby a national court interprets what national legislation there is so as to accord with the terms of a directive; this may be done whether or not the defendant is an organ of the State. See discussion in ch 2. 151 Case 177/88 [1990] ECR I-3941. 149

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sufficient to make the employer liable, without there being any possibility of invoking the grounds of exemption provided by national law.152

The presence or absence of fault, which was normally relevant in Netherlands law, was therefore irrelevant here.153 Similarly, the CJEU held in Draehmpaehl v Urania Immobilienservice ohG154 that ‘the Directive precludes provisions of domestic law which ...make reparation of damage suffered as a result of discrimination on grounds of sex in the making of an appointment subject to the requirement of fault’.155 It went on to add: [t]hat conclusion cannot be affected by the German government’s argument that proof of such fault is easy to adduce since, in German law, fault entails liability for deliberate or negligent acts. It must be pointed out in this regard that ...the Directive does not provide for any ground of exemption from liability on which the person guilty of discrimination could rely and does not make reparation of such damage conditional on the existence of fault, no matter how easy it would be to adduce proof of fault.156

In Marshall v Southampton and South-West Hants Area Health Authority (No 2),157 an industrial tribunal assessing the compensation due to Ms Marshall following her enforced discriminatory retirement found that the then UK statutory maximum for such compensation,158 which was £6,250 at the time of Ms Marshall’s dismissal and £8,500 at the date of the hearing, was ‘inadequate’ within the meaning intended by the CJEU in Von Colson. The case was appealed up to the House of Lords, which sought a preliminary ruling from the CJEU on the matter. The CJEU held: [The Directive] does not prescribe a specific measure to be taken in the event of a breach of the prohibition of discrimination, but leaves Member States free to choose between the different solutions suitable for achieving the objective of the Directive, depending on the different situations which may arise. However, the objective is to arrive at real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed ...[T]hose measures must be such as to guarantee real and effective judicial protection and have a real deterrent effect on the employer. Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. In the event of discriminatory dismissal ..., a situation of equality could not be restored without either reinstating the

152

Case 177/88 [1990] ECR I-3941, at 3976. In the UK, s 66(3) of the Sex Discrimination Act 1975 originally provided that no damages were available in respect of unintentional indirect discrimination; in view of the argument that this breached the principles of adequate compensation and full liability, this limitation was removed by the Sex Discrimination and Equal Pay (Miscellaneous Amendments) Regulations 1996, SI 1996 No 438. 154 155 Case 177/88 [1990] ECR I-3941. Case 177/88 [1990] ECR I-3941, at 2220. 156 157 Case 177/88 [1990] ECR I-3941, at 2220. [1988] IRLR 325. 158 Under s 65(2) of the Sex Discrimination Act 1975. The statutory maximum was removed after the decision in the Marshall (No 2) by the Sex Discrimination and Equal Pay (Remedies) Regulations 1993, SI 1993 No 2798. The statutory maximum for race claims was removed by the Race Relations (Remedies) Act 1994. 153

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victim of discrimination or, in the alternative, granting financial compensation for the loss and damage sustained. Where financial compensation is the measure adopted in order to achieve the objective indicated above, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules.159

Later, it added: [T]he fixing of an upper limit of the kind at issue in the main proceedings cannot, by definition, constitute proper implementation of ...the Directive, since it limits the amount of compensation a priori to a level which is not necessarily consistent with the requirement of ensuring real equality of opportunity through adequate reparation for the loss and damage sustained as a result of discriminatory dismissal. ...[F]ull compensation for the loss and damage sustained ...cannot leave out of account factors, such as the effluxion of time, which may in fact reduce its value. The award of interest, in accordance with the applicable national rules, must therefore be regarded as an essential component for the purposes of restoring real equality of treatment.160

However, in its later decision in Draehmpaehl v Urania Immobilienservice ohG,161 the Court resiled somewhat from its tough stance that an upper limit on damages contravened the directive. The German legislation involved limited to three months’ salary the compensation payable for discrimination over appointment to a job; it also limited to six months’ salary the total compensation payable in such a situation where claims were made by several people. The Court held that these limitations were in most cases precluded by the directive, in particular since there were no similar limitations to be found in analogous provisions of German law. Nevertheless, despite repeating its earlier comments that compensation must guarantee real and effective judicial protection, have a real deterrent effect on the employer, and be adequate in relation to the damage sustained, it conceded that the ceiling on compensation was permissible where the applicant would not have got the job even had there been no discrimination: [R]eparation may take account of the fact that, even if there had been no discrimination in the selection process, some applicants would not have obtained the position to be filled since the applicant appointed had superior qualifications. It is indisputable that such applicants, not having suffered any damage through exclusion from the recruitment process, cannot claim 159 Case C-271/91 [1993] ECR I-4367, at 4407–8. Cf the view of Van Gerven AG that ‘compensation must be adequate in relation to the damage sustained but does not have to be equal thereto’ (at 4390). The CJEU’s judgment is analysed by Curtin in (1994) 31 CMLRev 63, by Grief in ‘Compensation for Sex Discrimination’ (1993) 22 ILJ 314, and by Fitzpatrick and Szyszczak in ‘Remedies and Effective Judicial Protection in Community Law’ (1994) 57 MLR 434. 160 [1993] ECR I-4367, at 4409. As More points out in ‘Compensation for Discrimination?’ (1993) 18 ELRev 533, the judgment does not provide an answer to the question of whether national courts can restrict the period over which interest is payable, by excluding the time between the unlawful conduct and the date when the claim is brought, if this delay can be attributed to the conduct of the applicant. See also the Editorial Comment on this decision in (1993) 18 ELRev 365. 161 Case C-180/95 [1997] ECR I-2195.

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that the extent of the damage they have suffered is the same as that sustained by applicants who would have obtained the position if there had been no discrimination in the selection process. Consequently, the only damage suffered by [such] an applicant ...is that resulting from the failure, as a result of discrimination on grounds of sex, to take his application into consideration ... ...[I]t does not seem unreasonable for a Member State to lay down a statutory presumption that the damage suffered by [such] an applicant ...may not exceed a ceiling of three months’ salary. In this regard, it must be made clear it is for the employer, who has in his possession all the applications submitted, to adduce proof that the applicant would not have obtained the vacant position even if there had been no discrimination.162

This unprincipled and unimaginative conclusion did not respect the Court’s own rule that compensation must be an adequate reflection of the loss sustained in the particular circumstances; where, for example, an employer discriminates in such a way as to cause extreme distress and injury to feelings, there is no logical reason to suppose that the amount of damages which would properly compensate for that head of loss would necessarily be limited in such an arbitrary fashion. In Marshall (No 2),163 the Court held the enforcement Article to be directly effective so as to enable a victim of discrimination to rely on it as against an authority of the State. To the argument that this frustrated the discretion entrusted to the Member States by the directive in relation to remedies, the Court replied: The fact that Member States may choose among different solutions in order to achieve the objective pursued by the Directive depending on the situations which may arise, cannot result in an individual’s being prevented from relying on Article 6 in a situation such as that in the main proceedings where the national authorities have no degree of discretion in applying the chosen solution. It should be pointed out in that connection that, as appears from the judgment in Joined Cases C-6 & 9/90 Francovich v Italy [1991] ECR I-5357, at paragraph 17, the right of a state to choose among several possible means of achieving the objectives of a directive does not exclude the possibility for individuals of enforcing before national courts rights whose content can be determined sufficiently precisely on the basis of the provisions of the directive alone.164

Putting this in a slightly different way, the Member State had constrained its own discretion in this situation by choosing the remedy of damages; having done so, the then Article 6 was directly effective so as to ensure the efficacy of this remedy.165 162

163 Case C-180/95 [1997] ECR I-2195, at 2223–4. Case C-271/91 [1993] ECR I-4367. Case C-271/91 [1993] ECR I-4367, at 4410. 165 It is therefore strongly arguable that, where a Member State chooses to make some sort of specific enforcement available in discrimination cases, as the UK does in providing for a recommendation that the employer take certain action under the Equality Act 2010, s 124, that specific enforcement must be effective. A recommendation is, however, not effective, because there are very limited sanctions for its non-observance under the Equality Act. It follows that more effective specific remedies, such as reinstatement, engagement, and injunctions to restrain continuing acts of discrimination, must be granted by 164

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The emphasis placed by the CJEU in Von Colson, Marshall (No 2), and Draehmpaehl on the element of deterrence is interesting; deterrence is not normally regarded as one of the objectives of the civil law, which traditionally concentrates its attention on restitution and compensation rather than on seeking to change future behaviour patterns. The express mention of deterrence in the context of remedies for sex discrimination seems to underline what a serious view the CJEU takes of the issue of sex equality. It is to be hoped that it will take a similar view when it encounters discrimination on the grounds of race, religion, disability, age, and sexual orientation. It remains to be seen from the future case law of the Court whether it also indicates that exemplary, as well as purely compensatory, damages should be available in appropriate cases of unlawful discrimination.166 Johnston v Chief Constable of the RUC167 also casts important light on the meaning of Article 6 of the old Equal Treatment Directive. Ms Johnston, who was a member of the Royal Ulster Constabulary’s full-time Reserve, complained that the Chief Constable’s refusal to renew her contract of employment was unlawfully discriminatory. Her action before the Belfast industrial tribunal was obstructed by the Secretary of State issuing a certificate under Article 53 of the Sex Discrimination (Northern Ireland) Order 1976, stating that Ms Johnston’s contract was not renewed in order to safeguard national security and to protect public safety and public order. The effect of such a certificate under Northern Ireland law was to withdraw the matter from the consideration of courts and tribunals. Ms Johnston argued that this contravened Article 6 of the directive. The CJEU agreed with her, saying: The requirement of judicial control stipulated by [Article 6 of the Equal Treatment Directive] reflects a general principle of law which underlies the constitutional traditions common to the Member States. That principle is also laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (1953) (Cmd 8969.) As the European Parliament, Council and Commission recognized in their joint declaration of 5 April 1977 (OJ 1977 No C 103, p 1) and as the Court has recognized in its decisions, the principles on which that Convention is based must be taken into consideration in Community law.

UK courts and tribunals as a result of Art 17(1) of the Recast Directive. Injunctions are today available in the UK in the limited sphere of application of the Protection From Harassment Act 1997. 166 It had been held, on the basis of AB v South West Water Services [1993] 1 All ER 609, that exemplary damages could not be obtained in the UK in either sex discrimination or race discrimination claims: see Deane v London Borough of Ealing [1993] IRLR 209; Ministry of Defence v Cannock [1994] IRLR 509; and Ministry of Defence v Meredith [1995] IRLR 539, as to which see further Arnull, ‘EC Law and the Dismissal of Pregnant Servicewomen’ (1995) 24 ILJ 215. However, the House of Lords in Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122 disapproved AB v South West Water Services and the Employment Appeal Tribunal today considers exemplary damages to be available in discrimination claims: see Ministry of Defence v Fletcher [2010] IRLR 25, and London Borough of Hackney v Sivanandan 167 [2011] IRLR 740. Case 222/84 [1986] ECR 1651.

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By virtue of Article 6 of Council Directive 76/207/EEC, interpreted in the light of the general principle stated above, all persons have the right to obtain an effective remedy in a competent court against measures which they consider to be contrary to the principle of equal treatment for men and women laid down in the Directive. It is for the Member States to ensure effective judicial control as regards compliance with the applicable provisions of Community law and of national legislation intended to give effect to the rights for which the Directive provides. A provision which, like Article 53(2) of the Sex Discrimination (Northern Ireland) Order 1976, requires a certificate such as the one in question in the present case to be treated as conclusive evidence that the conditions for derogating from the principle of equal treatment are fulfilled allows the competent authority to deprive an individual of the possibility of asserting by judicial process the rights conferred by the Directive. Such a provision is therefore contrary to the principle of effective judicial control laid down in Article 6 of the Directive.168

Exactly as in Von Colson and Marshall (No 2), although the complainant here could not enforce her rights under the directive within the sphere of freedom of action allowed to the Member States, she could enforce the instrument directly (against an organ of the State) when the State overstepped the limits of the discretion conferred on it. It was, in other words, directly effective where the State attempted to withdraw from her all possible routes to judicial redress. This body of CJEU case law in relation to the old Equal Treatment Directive is today consolidated in Article 18 of the Recast Directive:169 Member States shall introduce into their national legal systems such measures as are necessary to ensure real and effective compensation or reparation as the Member States so determine for the loss and damage sustained by a person injured as a result of discrimination on grounds of sex, in a way which is dissuasive and proportionate to the damage suffered. Such compensation or reparation may not be restricted by the fixing of a prior upper limit, except in cases where the employer can prove that the only damage suffered by an applicant as a result of discrimination within the meaning of this Directive is the refusal to take his/her job application into consideration.170

There is no provision equivalent to this in the Race or Framework Directive. This is highly regrettable, and it is to be hoped that it is merely a consequence of a slip of the drafter’s pen, rather than an intimation that the sanctions for these latter instruments are not intended to be as powerful as those applying to the Recast Directive. All three instruments nevertheless contain a provision in the following terms: Member States shall lay down the rules on penalties171 applicable to infringements of the national provisions adopted pursuant to this Directive, and shall take all measures necessary

168 169 170 171

Case 222/84 [1986] ECR 1651, at 1682–3. See also Art 8(2) of the Goods and Services Directive. See also recital 33 of the Preamble to the Recast Directive. The Race and Framework Directives have ‘sanctions’ in place of ‘penalties’.

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to ensure that they are applied.The penalties, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive.172

In Feryn,173 the CJEU reiterated that judicial protection from racial discrimination must be ‘real and effective’174 and it added: [W]here there is no direct victim of discrimination but a body empowered to do so by law seeks a finding of discrimination and the imposition of a penalty, the sanctions which Article 15 of Directive 2000/43 requires to be laid down in national law must also be effective, proportionate and dissuasive. If it appears appropriate to the situation at issue in the main proceedings, those sanctions may, where necessary, include a finding of discrimination by the court or the competent administrative authority in conjunction with an adequate level of publicity, the cost of which is to be borne by the defendant. They may also take the form of a prohibitory injunction, in accordance with the rules of national law, ordering the employer to cease the discriminatory practice, and, where appropriate, a fine.They may, moreover, take the form of the award of damages to the body bringing the proceedings.175

Whatever provisions the Member States adopt for enforcement of the directives must not be regressive—in other words, must not reduce the level of protection afforded against discrimination in the State concerned;176 Member States nevertheless remain free to introduce legislation which is more favourable to protection of the principle of equal treatment than the directives demand.177 The usual rule on limitation applies, namely, that national time limits govern such actions.178 It is clear from Bulicke v Deutsche Büro Service GmbH179 that the principles that remedies and procedures must be the same as those applied to similar domestic actions (‘equivalence’), and that they must not frustrate the enforcement of the EU right (‘effectiveness’), discussed in chapter 2, apply as usual in this context. On the facts of the case, the Court held that a time-limit of two months for complaining of age discrimination in recruitment was not in principle so short as to frustrate the vindication of the right, provided that time did not begin to run until the worker had knowledge of the alleged discrimination.180 172 Art 25 of the Recast Directive (query its necessity in the light of Art 18 discussed at p 311) and recital 35 of the Preamble to the Recast Directive; Art 15 of the Race Directive; Art 17 of the Frame173 work Directive. Case C-54/07 Centrum v Firma Feryn NV [2008] ECR I-5187. 174 Case C-54/07 Centrum v Firma Feryn NV [2008] ECR I-5187, at para 37. 175 Case C-54/07 Centrum v Firma Feryn NV [2008] ECR I-5187, at paras 38 and 39. Maduro AG went somewhat further than the Court and said that ‘purely token sanctions are not sufficiently dissuasive to enforce the prohibition of discrimination.Therefore, it would seem that a court order prohibiting such behaviour would constitute a more appropriate remedy’ (at para 28 of his Opinion). 176 In Case C-246/09 Bulicke v Deutsche Büro Service GmbH [2010] ECR I-7003, the CJEU aligned the interpretation to be given to this provision with that given in relation to the non-regression clause contained in the Framework Agreement on Fixed-Term Work, discussed at pp 322–3; in any event, the provision did not apply on the facts of the case because any reduction in protection which had taken place applied to sex discrimination, not to discrimination prohibited by the Framework Directive. 177 Art 27 of the Recast Directive; Art 6 of the Race Directive; Art 8 of the Framework Directive. 178 Art 17(3) of the Recast Directive; Art 7(3) of the Race Directive; Art 9(3) of the Framework 179 Directive; Art 8(4) of the Goods and Services Directive. Case C-246/09 [2010] ECR I-7003. 180 See also Case C-177/10 Santana v Consejería de Justicia [2011] ECR I-000.

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The Equal Treatment Directive and the Race Directive (but not the Framework Directive) require the Member States to set up a body to promote the equal treatment principle in their respective fields.181 Article 20 of the Recast Directive provides: 1. Member States shall designate and make the necessary arrangements for a body or bodies for the promotion, analysis, monitoring and support of equal treatment for all persons without discrimination on the grounds of sex. These bodies may form part of agencies with responsibility at national level for the defence of human rights or the safeguard of individuals’ rights. 2. Member States shall ensure that the competences of these bodies include: (a) without prejudice to the rights of victims and of associations, organisations or other legal entitles referred to in Article 17(2),182 providing independent assistance to victims of discrimination in pursuing their complaints about discrimination; (b) conducting independent surveys concerning discrimination; (c) publishing independent reports and making recommendations on any issue relating to such discrimination; (d) at the appropriate level exchanging available information with corresponding European bodies such as any future European Institute for Gender Equality.183

The powers of this body in the race field are slightly narrower and do not include monitoring, a practice which is regarded by some Member States as improper when applied to such matters as racial origin.184 In addition, all three directives provide for enforcement by organizations acting on behalf of individuals. This is of considerable importance to the practical efficacy of the principle of equality; in a system which relies heavily on individuals’ complaints, it is necessary to support such complaints both financially and morally, since individual litigants will inevitably lack the money and the psychological strength to pursue all their lawful rights. In addition, a claim on behalf of a number of claimants is more likely to produce results since it operates as a greater threat to the 181 Presumably the Framework Directive does not include such a provision because a body supporting all the aims of that instrument would have a very wide-ranging portfolio. However, the absence of such a body makes the formulation of a multiple discrimination claim much harder. 182 Discussed at p 314. 183 An Equinet investigation found that the majority of equality bodies questioned had some power to participate in legal proceedings but that many did not make use of these powers in practice, largely because of lack of resources. The Report also concluded that the European institutions should consider whether equality bodies should be permitted under the Statute of the Court of Justice to make submissions to the CJEU in all cases concerning the interpretation of the anti-discrimination directives. See Influencing the law through legal proceedings:The powers and practices of equality bodies (Equinet, Brussels, 2010). 184 Art 13 of the Race Directive provides: ‘1. Member States shall designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin.These bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals’ rights. 2. Member States shall ensure that the competences of these bodies include:—without prejudice to the rights of victims and of associations, organisations or other legal entities referred to in Article 7(2), providing independent assistance to victims in pursuing their complaints about discrimination,—conducting independent surveys concerning discrimination,— publishing independent reports and making recommendations on any issue relating to such discrimination.’

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respondent. A body with representative enforcement powers is also able to take a more strategic view of the overall direction and development of the law than an individual can do. All three instruments provide: Member States shall ensure that associations, organisations or other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf of or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.185

The victimization of those complaining of discrimination, either internally within their organization or as a matter of law, is prohibited. The Race Directive sets out a particularly broad rule in this respect: Member States shall introduce into their national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment.186

It is noteworthy that this formulation shields complainants from any possible adverse consequences of making a complaint, and it does not appear on its face to be restricted to actions taken by or on behalf of the respondent. The Recast Directive is more guarded: Member States shall introduce into their national legal systems such measures as are necessary to protect employees, including those who are employees’ representatives provided for by national laws and/or practices, against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.187

This provision is, however, broader than its predecessor under the unamended Equal Treatment Directive, which expressly protected only against dismissal.188 The 185 Art 17(2) of the Recast Directive; Art 7(2) of the Race Directive; Art 9(2) of the Framework Directive; Art 8(3) of the Goods and Services Directive. The UK Government takes the view that this provision gives the Member States a discretion to decide whether such organizations can undertake representative actions in their own name: see the evidence submitted by the DfEE to the House of Lords Select Committee on the EU, reported in ‘The EU Framework Directive on Discrimination’, Session 186 2000–01, 4th Report, HL Paper 13, at 14. Art 9 of the Race Directive. 187 Art 24 of the Recast Directive. Art 11 of the Framework Directive is framed identically but excludes the words italicized in the text. 188 Nevertheless, the CJEU was not prepared to interpret this provision restrictively. In Case C-185/97 Coote [1998] ECR I-5199, it declined to follow the advice of Mischo AG and held: ‘[H]aving regard to the objective of the Directive, which is to arrive at real equality of opportunity for men and women ...and to the fundamental nature of the right to effective judicial protection, it is not, in the absence of a clear indication to the contrary, to be inferred .... that the legislature’s intention was to limit the protection of workers against retaliatory measures decided on by the employer solely to cases of dismissal, which, although an exceptionally serious measure, is not the only measure which may effectively deter a worker from making use of the right to judicial protection’ (at 5222). As to the victimization of third parties, see Connolly, ‘Victimising third parties: the Equality Directives, the European Convention on Human Rights, and EU general principles’ (2010) 35 ELRev 822.

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victimization provisions contained today in all three directives would appear to be sufficiently specific to take direct effect and thus be enforceable against an employer who is an organ of the State. The parts of the directives directed towards specific enforcement of the principle of equality are supported by softer provisions promoting information and dialogue. Thus, the Member States are required to ensure that their national laws giving effect to the directives are brought to the attention of those likely to be affected, for example at their place of work.189 They are also required to promote social dialogue between the social partners with a view to fostering equal treatment and to concluding collective agreements,190 and to encourage dialogue with nongovernmental organizations which have a legitimate interest in the promotion of equality.191 In the case of the Recast Directive, employers too are brought into this process; thus, Article 21 states: ... 3. Member States shall, in accordance with national law, collective agreements or practice, encourage employers to promote equal treatment for men and women in a planned and systematic way in the workplace, in access to employment, vocational training and promotion. 4. To this end, employers should be encouraged to provide at appropriate regular intervals employees and/or their representatives with appropriate information on equal treatment for men and women in the undertaking. Such information may include an overview of the proportions of men and women at different levels of the organization; their pay and pay differentials; and possible measures to improve the situation in cooperation with employees’ representatives.

The directives supplementing the principle of non-discrimination on the ground of sex (i) The Directive on Part-time Work192 This instrument implements the Framework Agreement on Part-time Work concluded pursuant to the Protocol and Agreement on Social Policy. The purposes of the Framework Agreement are expressed to be: (a) to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work;

189 190 191 192

Art 30 of the Recast Directive; Art 10 of the Race Directive; Art 12 of the Framework Directive. Art 21 of the Recast Directive; Art 13 of the Race Directive; Art 13 of the Framework Directive. Art 22 of the Recast Directive; Art 12 of the Race Directive; Art 14 of the Framework Directive. Directive 97/81, OJ [1998] L14/9.

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(b) to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner which takes into account the needs of employers and workers.193

Clause 2(1) of the Agreement explains that it applies to ‘part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State’. This means, according to Kokott AG in O’Brien v Ministry of Justice,194 that the term ‘worker’ is not an EU concept for the purposes of the Agreement but has to be defined by the relevant Member State; however, she added that, although the Member States possess a wide discretion in this area, their duty of cooperation limits the scope of this discretion so that they may not obstruct the practical operation of the Agreement.195 She went on to conclude that the exclusion of a category of persons from the protection of the legislation (in this case, fee-paid, part-time judges in the UK) is unacceptable unless the nature of their employment is substantially different from those treated as workers; furthermore, she submitted that purely formal grounds (such as a national classification of judges as ‘holders of office’) cannot excuse such an exclusion. In addition, she examined the argument that judges are not subject to directions and are thus outside the UK national concept of worker; she pointed out that the chief distinction used in the Agreement is between a worker and a self-employed person. Judges in the UK are only independent as regards the essence of their work; unlike the self-employed, they are subject to the organization of their work by the judicial authorities. In addition, they are entitled to employment benefits, such as sick pay. She concluded that independence in terms of the essence of an activity is not an appropriate criterion for excluding a professional category from the scope of the Agreement. The CJEU agreed with its Advocate General, saying that it is for the Member States to define the concept of ‘workers who have an employment contract or an employment relationship’ within the meaning of Clause 2(1) of the Agreement and,‘in particular, to determine whether judges fall within that concept, subject to the condition that that does not lead to the arbitrary exclusion of that category of persons from the protection offered by Directive 97/81 and that framework agreement. An exclusion from that protection may be permitted only if the relationship between judges and the Ministry of Justice is, by its nature, substantially different from that between employers and their employees falling, according to national law, within the category of workers’.196 Clause 3(1) of the Agreement defines part-time workers as employees whose normal hours of work are ‘less than the normal hours of work of a comparable full-time worker’; interestingly, where there is no comparable full-time worker in the same establishment,197 the comparison is to be made by reference to the applicable collective agreement, or, in the absence of such an agreement, in accordance with national 193 195 196 197

194 Clause 1 of the Agreement. Case C-393/10 [2012] ECR I-000. See also Case C-313/02 Wippel v Peek & Cloppenburg GmbH [2004] ECR I-9483, at para 40. Case C-393/10 [2012] ECR I-000, at para 51. See discussion in ch 5 of the scope of comparison permitted by Art 157.

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law, collective agreements, or practice.198 Part-timers working on a casual basis may be excluded from the coverage of the instrument ‘for objective reasons’.199 The core of the Agreement appears to add little to the existing case law of the Court on indirect sex discrimination, with the important exception that it protects male as well as female part-time workers.200 Indeed, as can be seen from the wording of Clause 4 set out below, it actually detracts from the existing sex discrimination law in that it permits the justification of direct discrimination;201 thus, women part-time workers will probably continue to prefer to rely on Article 157 of the Treaty and the Recast Directive. Clause 4 states: (1) In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work parttime unless different treatment is justified on objective grounds.202 (2) Where appropriate, the principle of pro rata temporis shall apply ...203

Clause 4 is sufficiently precise and unconditional to take direct effect.204 In Zentralbetriebsrat v Land Tirol,205 the CJEU held that rigorous personnel management is a budgetary consideration and cannot justify discrimination within the meaning of Clause 4. The instrument is at pains to stress the importance of providing opportunities for part-time work at all levels within enterprises, providing in particular in clause 5(1) that: (a) Member States, following consultation with the social partners in accordance with national law or practice, should identify and review obstacles of a legal or administrative nature which may limit the opportunities for part-time work and, where appropriate, eliminate them;

198 Clause 3 of the Agreement. These provisions were applied in Case C-313/02 Wippel v Peek & Cloppenburg GmbH [2004] ECR I-9483 where a woman was employed on terms which did not stipulate hours of work or the organization of working time but which left the employee with the choice of accepting or refusing work.The CJEU found that there was no comparator in the same establishment or covered by the applicable collective agreement, so no discrimination could therefore be proved. 199 Clause 2 of the Agreement. 200 See also Barnard and Hepple, ‘Substantive Equality’ (2000) 59 CLJ 562. 201 See ch 4 for discussion of the undesirability of the concept of justification being applied to direct discrimination. 202 In Case C-393/10 O’Brien v Ministry of Justice [2012] ECR I-000, Kokott AG maintained (at paras 70–2) that the directive also forbids unjustified discrimination between groups of part-time workers. See also the submissions of Sharpston AG in Joined Cases C-395 & 396/08 INPS v Bruno [2010] ECR I-5119, at paras 120–2. 203 Clause 4 articulates a principle of EU social policy law which cannot be interpreted restrictively; it therefore covers financial conditions, such as those relating to remuneration and pensions within the scope of Article 157 of the TFEU (as to which see ch 5): Joined Cases C-395 & 6/08 INPS v Bruno [2010] ECR I-000. The Court added that, according to its settled case law, new rules apply, unless otherwise specifically provided, to the future effects of a situation which arose under an old rule; thus, the calculation of the period of service required to qualify for a retirement pension such as the one at issue in this case was governed by the Part-time Work Directive, including periods of employment before the directive entered into force. 204 C-486/08 Zentralbetriebsrat v Land Tirol [2010] ECR I-3527. See ch 2 for discussion of the con205 cept of direct effect. C-486/08 Zentralbetriebsrat v Land Tirol [2010] ECR I-3527.

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(b) the social partners, acting within their sphere of competence and through the procedures set out in collective agreements, should identify and review obstacles which may limit opportunities for part-time work and, where appropriate, eliminate them.

In Michaeler,206 Italian legislation required that a copy of all part-time employment contracts be sent within 30 days of their signature to the local Labour Inspectorate, on pain of a per diem fine of 15 Euros with no upper limit.This arrangement, the Court held, constituted an obstacle likely to limit opportunities for part-time work contrary to Clause 5(1)(a). There was no evidence that full-time contracts were subject to a comparable obligation and the Italian Government’s argument that the system was justified by the need to combat undeclared work and to keep the authorities informed of employers’ practices was ‘unconvincing’. For such an argument to prevail, the system would have to be proportionate; however, there were other less restrictive measures which could have served the objectives sought. In addition, the system of penalties combined with the notice requirement discouraged employers, particularly small and medium-sized undertakings, from making use of part-time work contrary to the spirit of the Agreement. Clause 5(2) adds that a worker’s refusal to transfer from full-time to part-time work, or vice versa, should not in itself constitute a valid reason for dismissal. Clause 6(1) provides that the Member States and/or social partners may maintain or introduce more favourable provisions than those contained in the Agreement and Clause 6(2) prohibits regression: Implementation of the provisions of this Agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field of this Agreement.

The Directive was required to be implemented by 20 January 2000.207

(ii) The Directive on Fixed-term Employees208 This is another directive which implements a Framework Agreement concluded pursuant to the Protocol and Agreement on Social Policy. The Framework Agreement explicitly recognizes that more than half of the fixed-term workers in the EU are women, and that it therefore contributes to improving equality of opportunity between the two sexes.209 It expresses its purposes as to: (a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;210 206

Cases C-55 & 56/07 Michaeler v Amt für sozialen Arbeitsschutz [2008] ECR I-3135. Art 2 of the directive. For criticism of many aspects of the directive, see Jeffery, ‘Not Really Going To Work? Of the Directive on Part-time Work, “Atypical Work” and Attempts to Regulate it’ (1998) 208 27 ILJ 193. Directive 1999/70, OJ [1999] L175/43. 209 See para 9 of the General Considerations of the Agreement. 210 Murray has pointed out that temporary workers require not so much the protection of the principle of non-discrimination as a guarantee of the portability of their work-related entitlements; the 207

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(b) establish a framework to prevent abuse arising from the use of successive211 fixed-term employment contracts or relationships.212

A fixed-term worker213 is defined as: A person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.214

A ‘comparable permanent worker’ is someone with an employment contract or relationship of indefinite duration, ‘in the same establishment, engaged in the same or similar work/occupation, due regard being given to qualifications or skills’.215 Clause 4 of the Agreement articulates the non-discrimination principle: 1. In respect of employment conditions,216 fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.217 problems faced by temporary workers are quite distinct from those faced by part-time workers: see ‘Normalising Temporary Work’ (1999) 28 ILJ 269. 211 Although Clause 5(2) of the Agreement grants the Member States considerable leeway in their definition of ‘successive’, the CJEU held in Case C-212/04 Adeneler v ELOG [2006] ECR I-6057 that it precludes a national rule under which only fixed-term contracts that are not separated from one another by longer than 20 working days are to be regarded as successive; such a rule thwarts the objective of the Agreement. On the other hand, in Case C-378/07Angelidaki [2009] ECR I-3071, the CJEU permitted national legislation which recognized as successive only fixed-term contracts separated by less than three months; such a rule was apparently not in principle too inflexible or restrictive, although the Court stressed that each case must be examined in the light of its own circumstances. 212 Clause 1 of the Agreement. 213 As in the case of the Directive on Part-Time Work, Clause 2(1) of the Framework Agreement provides that it applies to those having ‘an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’. 214 Clause 3(1) of the Agreement. Certain workers, including apprentices, are permitted to be excluded by Clause 2. However, the Agreement applies to public sector, as well as private sector, employees: Case C-53/04 Marrosu v Azienda Ospedaliera [2006] ECR I-7213; Case C-180/04 Vassallo v Azienda Ospedaliera [2006] ECR I-7251; Case C-212/04 Adeneler v ELOG [2006] ECR I-6057; and Case C-444/09 Gavieiro v Conselleria de Educaci
n [2010] ECR I-14031. In Case C-307/05 Alonso v Osakidetza [2007] ECR I-7109, the CJEU reiterated the importance of the principle of equality and held that Directive 1999/79 and the Agreement ‘are applicable to all workers providing remunerated services in the context of a fixed-term employment relationship linking them to their employer’ (at para 28). In Gavieiro it added: ‘The mere fact that a post may be classified as “regulated” under national law or has certain characteristics typical of the civil service in the Member State in question is irrelevant ...’ (at para 43). 215 Clause 3(2) of the Agreement, which goes on to make the same provision as the Directive on Part-time Work in the event of there being no such comparator; comparison is then to be made ‘by reference to the applicable collective agreement, or where there is no applicable collective agreement, in accordance with national law, collective agreements or practice’. 216 A length-of-service increment is an employment condition within the meaning of Clause 4(1): Case C-444/09 Gavieiro v Conselleria de Educaci
n [2010] ECR I-14031. 217 As with the Directive on Part-time Work, this has the unfortunate consequence that direct as well as indirect discrimination can be justified for the purposes of the Directive on Fixed-term Employees.

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2. Where appropriate the principle of pro rata temporis shall apply ...

Clause 4(1) was held to be unconditional and sufficiently precise to take direct effect218 in Impact v Minister for Agriculture and Food.219 In Alonso v Osakidetza,220 the CJEU also held that the non-discrimination principle must not be interpreted restrictively. The expression ‘employment conditions’ covers pay,221 specifically here a length of service allowance which was reserved under national law solely to permanent staff .222 Furthermore, the requirement for ‘objective grounds’ to justify the differential treatment of fixed-term employees meant that the denial to them of the allowance could not be defended on the basis of a general, abstract national norm, such as a law or collective agreement; on the contrary, such justification required the unequal treatment to be explained by the existence of precise and concrete factors, characterizing the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.223

The CJEU thereafter held in Santana v Consejería de Justicia224 that Article 4 forbids even retrospective discrimination. Thus, where time spent in a fixed-term post was not allowed to count for the purposes of promotion in the Spanish civil service, there was a potential breach of the directive. Clause 5 contains measures intended to prevent abuse through the use of successive fixed-term contracts: 1. To prevent abuse arising from the use of successive fixed-term employment contracts225 or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall,

See discussion in ch 4. However, in Case C-109/00 Tele Danmark [2001] ECR I-6993, Ruiz-Jarabo Colomer AG submitted (at 7004–5) that there ‘can be no doubt that the circumstances in which a dismissal takes place form part of the working conditions and that pregnancy is not an objective ground capable of justifying a difference in treatment between permanent and fixed-term workers’. In Case C-444/09 Gavieiro v Conselleria de Educaci
n [2010] ECR I-14031, the CJEU held that the mere fact that the work is of a temporary nature cannot count as objective justification for this purpose since this would undermine completely the intentions of the Framework Agreement. 218

See ch 2 for discussion of the concept of direct effect. Case C-268/06 [2008] ECR I-2483. See also Case C-444/09 Gavieiro v Conselleria de Educaci
n 220 [2010] ECR I-14031. Case C-307/05 [2007] ECR I-7109. 221 Cf the Opinion of Maduro AG. 222 This was confirmed in Case C-268/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483, where the principle was also held to apply to those forms of pension which constitute pay. 223 [2007] ECR I-7109, at para 58. In Case C-486/08 Zentralbetriebsrat v Land Tirol [2010] ECR I-3527, the CJEU held that the same principles apply as those in relation to Clause 4 of the Framework 224 Agreement on Part-time Work, discussed at p 317. Case C-177/10 [2011] ECR I-000. 225 Thus, the provision does not apply to the conclusion of the first contract between an employer and employee: Case C-144/04 Mangold v Helm [2005] ECR I-9981, and Case C-378/07 Angelidaki [2009] ECR I-3071. 219

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where there are no equivalent legal measures226 to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures: (a) objective reasons justifying the renewal of such contracts or relationships; (b) the maximum total duration of successive fixed-term employment contracts or relationships; (c) the number of renewals of such contracts or relationships.227

In Adeneler v ELOG,228 the CJEU was asked a similar question in relation to Clause 5 as the Court had answered in Alonso in relation to Clause 4, namely whether the mere fact that the conclusion of a fixed-term contract was required by a statute or secondary legislation in a Member State constituted an ‘objective reason’. It replied in the negative, saying that the term must be understood as referring to ‘precise and concrete circumstances characterising a given activity’; they may result ‘from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State’.229 It added that recourse to fixed-term contracts solely on the basis of a provision of national law, unlinked to what the activity concerned specifically comprises, would ‘not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose’.230 The Court also held that, although the Agreement does not lay down specific sanctions for the abuse of fixed-term employment contracts, it is nevertheless incumbent on the Member States to adopt appropriate measures which must be proportionate, sufficiently effective, and a sufficient deterrent to ensure the effectiveness of the legislation. The CJEU also took a firm line on Clause 5(1) in Deutsche Lufthansa AG v Kumpan.231 Ms Kumpan had worked for many years as a flight attendant for Lufthansa. Her contract of employment included the terms of a collective agreement which provided for the contract to end when she reached the age of 55. She was nevertheless re-employed by Lufthansa as a member of their cabin staff for four years on one-year fixed-term contracts. Lufthansa refused to continue this arrangement, in accordance with the collective agreement, after she reached the age of 60. The relevant German law provided that the conclusion of a fixed-term contract did

226 ‘Equivalent legal measure’ is a Community law concept which must be given a uniform interpretation in each Member State; it is intended to cover any national legal measure whose purpose is to prevent effectively the misuse of successive fixed-term relationships: Case C-378/07 Angelidaki [2009] ECR I-3071. 227 This clause allows a discretion to the Member States and does not therefore take direct effect: Case C-286/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483. 228 Case C-212/04 [2006] ECR I-6057. 229 Case C-212/04 [2006] ECR I-6057, at paras 69 and 70. 230 231 Case C-212/04 [2006] ECR I-6057, at para 74. Case C-109/09 [2011] ECR I-000.

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not require objective justification if the worker had reached the age of 58 but that a fixed term was not permitted where there was a close objective connection with a previous employment contract of indefinite duration with the same employer; such a connection was to be presumed where the interval between the two employment contracts was less than six months. The CJEU held that the Member State enjoyed a discretion in its implementation of Clause 5(1) but that this must, on the usual principles, be exercised in compliance with EU law. Although designed to encourage the employment of older workers, the German provision had the effect of lowering the protection for them by depriving them of all the protective measures set out in Clause 5(1).The provision must be interpreted in accordance with the intentions of the Framework Agreement and in such a way as to reflect the principle that contracts of indefinite duration are the norm. The Court therefore concluded: Clause 5(1) of the Framework Agreement must be interpreted as meaning that the concept of ‘a close objective connection with a previous employment contract of indefinite duration concluded with the same employer’ provided for [in the German legislation] ...must be applied to situations in which a fixed-term contract has not been immediately preceded by a contract of indefinite duration concluded with the same employer and an interval of several years separates those contracts, where, for that entire period, the initial employment relationship continued for the same activity, with the same employer, by means of an uninterrupted succession of fixed-term contracts. It is for the national court, to the fullest extent possible, to interpret the relevant provisions of national law in such a way as to comply with Clause 5(1) of the Framework Agreement.232

Employers are required to inform fixed-term workers when vacancies for permanent jobs occur within their undertakings and must facilitate their access to training.233 Clause 8(3) contains a non-regression provision in the same language as that used in the Framework Agreement on Part-time Work.234 This provision is not to be interpreted restrictively and applies to the whole of a Member State’s domestic law relating to the protection of workers in the context of fixed-term employment contracts.235 Notwithstanding this, the CJEU held in Sorge v Poste Italiane SpA236 that the reduction in protection for fixed-term workers prohibited by Clause 8(3) refers to their ‘general level of protection’ and that this implies that only a reduction on a scale likely to have an effect overall on national legislation relating to fixed-term contracts is covered; in the case referred, the reduction only applied to fixed-term workers appointed to replace another worker and the Court concluded that, insofar as such workers do not represent a significant proportion of fixed-term workers in the relevant Member State, which it was for the referring court to ascertain, ‘the reduction in the protection afforded to that limited cat232 Case C-109/09 [2011] ECR I-000, at para 57. It is noteworthy that the Court in this case resorted to a much closer examination of national law than is its custom in preliminary rulings. 233 Clause 6 of the Agreement. 234 Clause 8(3) does not take direct effect: Case C-378/07 Angelidaki [2009] ECR I-3071. 235 236 Case C-378/07 Angelidaki [2009] ECR I-3071. Case C-98/09 [2010] ECR I-5837.

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egory of workers is not, in itself, likely to have an effect overall on the level of protection’ for fixed-term workers.237 In addition, the Court held that a reduction in protection in one respect can be offset by a corresponding increase in protection in another, with the consequence that Article 8(3) is not breached. In the words of Jääskinen AG, ‘the prohibition on reducing the general level of protection afforded to workers does not therefore mean that a worker or a category of workers will not be in a less favourable situation after transposition of the Framework Agreement’.238 In Mangold v Helm,239 the question arose as to the compatibility with Clause 8(3) of national legislation lowering the age above which fixed-term contracts of employment could be concluded without restriction.The CJEU held that the term ‘implementation’ used in Clause 8(3) does not refer only to the original transposition of Directive 1999/70 but must also cover all domestic measures intended to ensure that the objective pursued by the directive may be attained, ‘including those which, after transposition in the strict sense, add to or amend domestic rules previously adopted’.240 However, it went on to say that the reduction of the protection which workers are guaranteed as regards fixed-term contracts is not prohibited as such by the Framework Agreement provided that it is in no way connected to the implementation of that Agreement. On the facts it was held to be clear that the age reduction was justified by the need to encourage the employment of older workers in Germany and it was not connected to implementation of the Agreement.241 The Directive on Fixed-term Employees had to be complied with by 10 July 1999.242

(iii) The Directive on Temporary Agency Work243 Although enacted before the Charter of Fundamental Rights was made formally binding by the Treaty of Lisbon,244 the Directive on Temporary Agency Work is expressed in the first recital of its Preamble to ensure ‘full compliance with Article 31 of the Charter, which provides that every worker has the right to working conditions which respect his or her health, safety and dignity, and to limitation of 237

Case C-98/09 [2010] ECR I-5837, at para 44. Case C-98/09 [2010] ECR I-5837, at para 55 of the Opinion. See also Case C-162/08 Lagoudakis v Kéntro [2009] ECR I-95* and Case C-519/08 Koukou v Elliniko Dimosio [2009] ECR I-65*. 239 240 Case C-144/04 [2005] ECR I-9981. Case C-144/04 [2005] ECR I-9981, at para 51. 241 In ‘Non-regression clauses: the Fig Leaf has fallen’ (2010) 39 ILJ 436, Peers concludes that the CJEU’s case law on non-regression in EU social legislation renders such clauses virtually ineffective. See also Kilpatrick, ‘The European Court of Justice and Labour Law in 2009’ (2010) 39 ILJ 287. 242 Art 2 of the directive, which also granted the Member States one further year for compliance in the event of special difficulties. For a perspective on the general approach of the CJEU to the Atypical Work Directives, see Bell,‘Between flexicurity and fundamental social rights: the EU directives on atypi243 cal work’ (2012) 37 ELRev 31. Directive 2008/104, OJ [2008] L327/9. 244 See ch 1. 238

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maximum working hours, to daily and weekly rest periods and to an annual period of paid leave’. The directive applies: [t]o workers with a contract of employment or employment relationship with a temporarywork agency who are assigned to user undertakings to work temporarily under their supervision and direction.245

The aim of the instrument is stated in Article 2: The purpose of this Directive is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring that the principle of equal treatment, as set out in Article 5, is applied to temporary agency workers, and by recognizing temporary-work agencies as employers, while taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working.

Article 5(1) provides that ‘the basic working and employment conditions’ of temporary workers are to be at least those which would apply to such workers if they were recruited by the user undertaking to occupy the same job. It goes on to specify that: The rules in force in the user undertaking on: (a) protection of pregnant women and nursing mothers and protection of children and young people; and (b) equal treatment for men and women and any action to combat any discrimination based on sex, race or ethnic origin, religion, beliefs, disabilities, age or sexual orientation; must be complied with as established by legislation, regulations, administrative provisions, collective agreements and/or any other general provisions.

‘Basic working and employment conditions’ are defined by Article 3(1)(f ) to extend only to the duration of working time, overtime, breaks, rest periods, night work, holidays, and public holidays, and to pay. Unlike the other equality provisions, the directive is without prejudice to national law as regards the definition of pay.246 In addition, as regards pay, the Member States are permitted to provide for an exemption from the general principle set out in Article 5(1) where temporary agency workers who have a permanent contract of employment with a temporary work agency continue to be paid in the time between assignments.247 Article 6(4) adds that temporary agency workers must be given access to the amenities or collective facilities in the user undertaking, ‘in particular, any canteen, child-care facilities and transport services’, under the same conditions as workers employed directly by the undertaking, unless the difference in treatment is justified by objective reasons. Article 5(5) requires the Member States to take 245 Directive 2008/104, Art 1(1). According to Art 1(2), the directive applies to public and private undertakings which are temporary-work agencies or user undertakings engaged in economic activities, whether or not they are operating for gain. Art 3 contains a list of relevant definitions. 246 Directive 2008/104, Art 3(2). See ch 5 for discussion of the body of EU law on equal pay. 247 Directive 2008/104, Art 5(2).

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appropriate measures to prevent successive assignments designed to circumvent the provisions of the directive. Article 4 provides that prohibitions or restrictions on the use of temporary agency work can be justified only on grounds of general interest relating in particular to ‘the protection of temporary agency workers, the requirements of health and safety at work or the need to ensure that the labour market functions properly and abuses are prevented’. Adequate administrative or judicial procedures must be available to enable the obligations deriving from the directive to be enforced and the penalties adopted in national law must be ‘effective, proportionate and dissuasive’.248 The directive contains the usual provisions permitting more favourable treatment249 and prohibiting regression.250 It had to be implemented by 5 December 2011.251

(iv) The Directive on Equal Treatment of the Self-employed Until recently, EU law contained a ‘Directive on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, on the protection of self-employed women during pregnancy and motherhood’.252 The mischief at which this instrument was specifically directed was the problem that self-employed women, especially those engaged in agriculture, of whom many were farmers’ wives playing an active role in the running of their farms, complained that they did not enjoy a clearly defined occupational status. They did not receive an identifiable sum by way of pay, and this had the consequence that their social security entitlements, including pensions, were often unclear. They were also rarely to be found on the bodies representing the agriculture industry and other self-employed sectors. Perhaps even more importantly, despite the title of the directive, they faced grave difficulties in the event of pregnancy, being normally ineligible for maternity allowances related to employment. However, the solutions adopted by the directive were extremely weak. It was replaced in 2010 by a new directive ‘on the application of the principle of equal treatment between men and women engaged in an activity in a selfemployed capacity’,253 which describes its predecessor as not ‘very effective’.254 The new directive is intended only to apply to those areas not regulated by the existing equality instruments.255 It is required to be implemented by 5 August 2012.256 In 248

249 Directive 2008/104, Art 9. Directive 2008/104, Art 9(1). 251 Directive 2008/104, Art 9(2). Directive 2008/104, Art 11. 252 Directive 86/613, OJ [1986] L359/56. 253 Directive 2010/41, OJ [2010] L180/1. The instrument was enacted under the authority of Art 254 157(3). Directive 2010/41, recital 1 of the Preamble. 255 Directive 2010/41, recitals 7 and 10 of the Preamble and Art 1. 256 Directive 2010/41, Art 16(1). However, where justified by particular difficulties, the implementation period is deferred until 5 August 2014 in order to comply with Arts 7 and 8, discussed at pp 326–7. 250

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accordance with the usual principles, the Member States are permitted to introduce legislation which is more favourable than that demanded by the directive but they may not reduce their existing levels of protection.257 Article 1 describes the instrument’s objective as being to lay down ‘a framework for putting into effect in the Member States the principle of equal treatment between men and women engaged in an activity in a self-employed capacity, or contributing to the pursuit of such an activity’. It covers: (a) self-employed workers, namely all persons pursuing a gainful activity for their own account, under the conditions laid down by national law; (b) the spouses of self-employed workers or, when and insofar as recognized by national law, the life partners of self-employed workers, not being employees or business partners, where they habitually, under the conditions laid down by national law, participate in the activities of the self-employed worker and perform the same tasks or ancillary tasks.258

However, recital 12 of the Preamble states that the directive is without prejudice to the rights and obligations deriving from marital or family status as defined in national law and the instrument does not apply, according to recital 13, to relationships between the self-employed worker and his or her spouse or life partner. Article 3 defines direct and indirect discrimination, and harassment and sexual harassment, in the same terms as the Recast Directive.259 Harassment and sexual harassment, as well as the giving of instructions to discriminate, are ‘deemed’ to constitute discrimination.260 Article 4(1) provides that the principle of equal treatment in this context means: that there shall be no discrimination whatsoever on grounds of sex in the public or private sectors, either directly or indirectly, for instance in relation to the establishment, equipment or extension of a business or the launching or extension of any other form of self-employed activity.

In addition, Article 6 provides: Without prejudice to the specific conditions for access to certain activities which apply equally to both sexes, the Member States shall take the measures necessary to ensure that the conditions for the establishment of a company between spouses, or between life partners when and in so far as recognized by national law, are not more restrictive than the conditions for the establishment of a company between other persons.

Articles 7 and 8 are important and deal with social protection and maternity benefits.Where a system for social protection for the self-employed exists in a Member State, spouses and life partners must be enabled to benefit from it. Self-employed persons, spouses, and life partners must also be entitled to a sufficient maternity allowance for at least 14 weeks.261 Article 8(4) goes on to mandate that such persons must have access to ‘any existing services supplying temporary replacements or to 257 260

258 259 Directive 2010/41, Art 14. Directive 2010/41, Art 2. See ch 4. 261 Art 4(2) and (3) of the new directive. See further discussion in ch 7.

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any existing national social services’.The Member States are allowed to provide that access to these services is an alternative to, or a part of, the maternity allowance. The new directive makes similar provision to the Recast Directive in relation to the defence of legal rights and reparation.262 The equality bodies established pursuant to Article 20 of the Recast Directive are empowered to operate in this field263 and the Member States are placed under the usual duty to bring their implementing measures to the attention of the persons concerned.264 The directive makes special provision for positive action.265 In recital 15 of its Preamble, it notes that: ‘In principle, measures such as positive action aimed at achieving gender equality in practice should not be seen as being in breach of the legal principle of equal treatment between men and women’. Article 5 provides: Member States may maintain or adopt measures within the meaning of Article 157(4) of the Treaty on the Functioning of the European Union with a view to ensuring full equality in practice between men and women in working life, for instance aimed at promoting entrepreneurship initiatives among women.

Article 12 specifically mandates mainstreaming in this area: The Member States shall actively take into account the objective of equality between men and women when formulating and implementing laws, regulations, administrative provisions, policies and activities in the areas referred to in this Directive.

The Member States must communicate all available information concerning the application of the new directive by 5 August 2015 and the Commission is required to draw up a summary report for the European Parliament and the Council by 5 August 2016; this report must take into account any legal change concerning the duration of maternity leave for employees and, where appropriate, must be accompanied by proposals for the amendment of the directive.266

262 264 266

263 Arts 9 and 10 of the new directive. Art 11 of the new directive. 265 Art 13 of the new directive. Discussed further in ch 9. Art 15 of the new directive.

7 Discrimination on the grounds of pregnancy and maternity

The body of rights given to pregnant women, women who have recently given birth, and parents can currently be found in a number of instruments: Article 157 of the TFEU; the Recast Directive;1 the Pregnancy Directive;2 the Parental Leave Directive;3 and the Goods and Services Directive.4 In some cases, rights—for example the right of a pregnant woman not to be dismissed—can be claimed under two instruments which may have different criteria for access. Thus, if a claim under one directive is not successful, it may succeed under the provisions of another directive. For this reason, this chapter considers the rights of pregnant women, women who have just given birth, and parents horizontally, in other words across the various instruments from which those rights derive. These instruments divide broadly into two categories: the Pregnancy Directive and the Parental Leave Directive confer certain rights on those who come expressly within their scope of application; the Recast Directive and the Goods and Services Directive, by contrast, are premised upon the principle of equal treatment, with the result that it may be necessary to introduce a comparator in order to determine the extent of the claimant’s rights. Pivotal to any discussion of rights during pregnancy are the concepts of ‘pregnancy’ and ‘pregnant workers’ since these are determinative of the scope of many of the provisions set out in the above-mentioned directives. These key concepts will therefore be analysed first.The issue of the comparator will be examined next: should there be a requirement for a comparator in pregnancy and maternity cases and with whom should any such comparison be made? Thereafter the discussion will focus on: the health and safety of the pregnant woman and the woman who has just given birth; the protection of employment rights during pregnancy and maternity leave; and protection against dismissal.The Parental Leave Directive and the proposed amendments to the Pregnancy Directive will be dealt with in the final sections.

Pregnancy The Pregnancy Directive applies to pregnant workers.A ‘pregnant worker’ is defined in Article 2(1) as one who informs her employer of her condition in accordance 1 3

Directive 2006/54, OJ [2006] L204/23. Directive 2010/18, OJ [2010] L68/13.

2 4

Directive 92/85, OJ [1992] L348/1. Directive 2004/113, OJ [2004] L373/37.

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with national law and/or national practice. Both this directive and other provisions prohibit discrimination on the ground of pregnancy. However, the actual concept of pregnancy is not defined in legislation. Three cases have raised the issues of who is a pregnant worker, what constitutes pregnancy, and when pregnancy begins. Kiiski v Tampereen kaupunki5 concerned a woman who was employed as a teacher at a high school in Tampere. At the time she sought to rely on the Pregnancy Directive to claim maternity leave, she was on leave for the purposes of caring for another child. The issue therefore was whether she fell within the scope of the Pregnancy Directive since was not actually working at the relevant time. The CJEU began by stating that the concept of ‘pregnant worker’ is a matter of Union law even if an element of the definition, namely that relating to the method of communicating the fact of pregnancy to the employer, refers back to national law and practice. The concept may not be interpreted differently according to each national legal system but must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the person concerned: The essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the directions of another person, in return for which he receives remuneration.6

Ms Kiiski was, the CJEU held, before her period of childcare leave, in an employment relationship characterized by this essential feature. The Court then went on to consider whether the Pregnancy Directive excludes from its scope workers who are on childcare leave and therefore not actually working on the employer’s premises at the time they seek to rely on the rights granted by the directive. The Court found that such persons fall within the scope of the directive. Although the directive is intended to protect pregnant workers from the risks they could face in their employment, it does not make the right to leave subject to the condition that the pregnant woman must actually be in a position where she is exposed to such risks—in other words that she should be in employment: It is true that Directive 92/85 aims ...to improve the working environment in order to protect the health and safety of workers, especially pregnant women at work. Nevertheless, according to the 14th recital of the preamble of that Directive, the Community legislature took the view that the vulnerability of pregnant workers, workers who have recently given birth or who are breastfeeding made a right to maternity leave necessary. Whilst the Community legislature thereby intended in particular to protect pregnant workers, in a general manner, from the risks which they could face during their employment by giving them the right to maternity leave which enables them temporarily to leave their jobs, it is common ground that it did not subject this right to the condition that the pregnant woman who claims enjoyment of that leave must be in a situation where she is exposed to such a risk.7 5 7

6 Case C-116/06 [2007] ECR I-7643. Case C-116/06 [2007] ECR I-7643, at 7678. Case C-116/06 [2007] ECR I-7643, at 7679.

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The Court went on to say that it could not be assumed that the legislature intended to exclude a worker from the enjoyment of maternity leave if, at the time she wishes to avail herself of that leave, she has already left her employment for a temporary period because she is enjoying another form of leave.8 Whilst in Kiiski it was not disputed that Ms Kiiski had originally been in an employment relationship, in the subsequent case of Danosa v LKB Lizings SIA9 it was alleged that Ms Danosa was not in an employment relationship and was not therefore within the scope of the Pregnancy Directive. Ms Danosa was a member of the Board of Directors of LKB. The Supervisory Board of LBK was responsible for settling the remuneration of members of the Board of Directors, together with their other terms and conditions of service. Ms Danosa was dismissed from her post when she was 11 weeks’ pregnant. She claimed that her dismissal was in breach of the Latvian Labour Code which prohibits the dismissal of pregnant workers. However under the Latvian Commercial Code there was no restriction on the dismissal of members of Boards of Directors. Ms Danosa argued that she was a ‘pregnant worker’ within the meaning of the Pregnancy Directive and that her dismissal was contrary to Article 10 of that directive. The CJEU followed its previous rulings, notably Kiiski. It held that, whilst the relationship of subordination was a question in each case of an assessment of all the factors and circumstances characterizing the relationship between the parties: it cannot be ruled out that members of the directorial body of a company, such as the Board of Directors are not covered by the concept of ‘workers’...[T]he fact remains that the Board Members who, in return for remuneration, provide services to the company which has appointed them and of which they are an integral part, who carry out their activities under the direction or control of another body of that company and who can, at any time, be removed from their duties without such removal being subject to any restriction, satisfy prima facie the criteria of being treated as workers ...10

A further and important issue in Danosa was the significance of the obligation of the employee to inform her employer of her pregnancy. Did the failure to notify pregnancy in accordance with national law and practice have the effect of removing the pregnant woman from the scope of the directive? There may be cases where an employee does not wish to inform her employer of her pregnancy. That said, how can an employer fulfil his or her obligations under the directive—particularly health and safety obligations—towards the pregnant employee if he or she does not know of the pregnancy? In Danosa the Court focused on the state of knowledge of the employer; if the employer knows of the pregnancy, the pregnant worker is to be considered a ‘pregnant worker’ within the scope of the directive: Secondly, even though Article 2(a) of Directive 92/85 refers to national legislation and/or national practice so far as concerns the details of the procedure by which the worker is to 8 The Court thus followed its previous case law in which it had ruled that a period of leave guaranteed by Union law cannot affect the right to take another period of leave guaranteed by that law: Case C-124/05 Federatie Nederlandse Vakbeweging [2006] ECR I-3423. 9 10 Case C-232/09 [2010] ECR I-11405. Case C-232/09 [2010] ECR I-11405, at para 51.

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inform the employer of her condition, the fact remains that those procedural requirements cannot divest of its substance the special protection for women provided for in Article 10 of that directive, which prohibits the dismissal of pregnant workers and workers who have recently given birth or are breastfeeding save in exceptional cases for reasons unrelated to the conditions of the worker in question. If without having been formally informed by the worker in person, the employer learns of her pregnancy it would be contrary to the spirit and purpose of Directive 92/85 to interpret the provision of Article 2 (a) of that Directive restrictively and to deny the worker concerned the protection against dismissal provided for under Article 10.11

Danosa was concerned with the dismissal of a pregnant worker. If an employer learns, by whatever means, that a worker is pregnant he cannot dismiss her. This does not put the employer in a position of having to engage the employee in any dialogue or to take any positive measures. The employer simply has to refrain from dismissing or taking any steps to dismiss her. The position may be more delicate when an employer knows a worker is pregnant, and needs to take steps actively to protect her health and safety (and that of her unborn child) even against her wishes. If the employer does not take steps to comply with his or her obligations under the directive the pregnant worker and her unborn child would be without the protection which is the objective and substance of the directive. Thus the employer may have to ignore the employee’s desire for privacy on what may be a delicate matter and oblige her to change her working pattern in order that he may satisfy his obligations. But may a pregnant woman waive her rights under the directive, for example by not informing her employer of her pregnancy? The directive is concerned with the health and safety of the worker. Its provisions are drafted in terms which are indicative of obligations being imposed upon employers. Consequently it would appear highly doubtful that a worker could waive rights or an employer avoid obligations if doing so would affect the pregnant worker’s physical well-being. This would arise, for example if she continued to work during pregnancy in an environment which posed a threat to her health or that of her foetus. Mayr v Bäckerai und Konditorei12 raised the more fundamental issue of what constitutes pregnancy and when does it begin? Ms Mayr was employed as a waitress in a bakery. In the course of in vitro fertilization and after hormone treatment lasting for about one and a half months, a follicular puncture was carried out on her on 8 March 2005. She obtained a sickness certificate from her general practitioner covering the period 8–13 March. On 10 March 2005 her employer informed her that she was dismissed with effect from 26 March 2005. By a letter also dated 10 March, Ms Mayr told her employer that, in the course of her in vitro fertilization treatment, the transfer of her fertilized ova into her uterus was planned for 13 March 2005. It was agreed between the parties that the in vitro fertilized ova existed on 10 March 2005, the date of her dismissal. Ms Mayr claimed that her dismissal was unlawful 11

Case C-232/09 [2010] ECR I-11405, at para 55.

12

Case C-506/06 [2008] ECR I-1017.

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because she was pregnant at the relevant time. The CJEU was asked whether a worker was a ‘pregnant worker’ within the meaning of Article 2a of the Pregnancy Directive if at the time of her dismissal the woman’s ova had been fertilized with the sperm cells of her partner and embryos thus existed but they had not yet been implanted within her. Ruiz-Jarabo Colomer AG analysed the matter from four angles: (i) specialist scientific literature; (ii) the actual meaning of the word ‘pregnant’; (iii) the principal aim of the Pregnancy Directive, which is the protection of the pregnant worker’s health and safety, and (iv) the fact that such protection cannot last indefinitely: The Committee for the Study of Ethical Aspects of Human Reproduction of the International Federation of Gynecology and Obstetrics (FIGO), for example, in its Cairo declaration of March 1998, described pregnancy as that part of the process of human reproduction ‘that commences with the implantation of the conceptus in a woman and ends with either the birth of an infant or an abortion’... Therefore if the FIGO definition referred to above considers the pregnancy to commence only after the implantation of the ‘conceptus’ in a woman, Ms Mayr was not pregnant when her employer gave her notice of dismissal .... The conclusion that Ms Mayr was not pregnant is consistent with the ratio legis of Directive 92/85, as the directive is quite clear that the purpose of the protection which it offers is to encourage improvements in the health and safety at work of pregnant workers, meaning their physiological condition ...The 15th recital in the preamble to the directive explains that the prohibition on dismissing workers aims to avoid the harmful effects that this may have on their physical and mental state ... This is also the interpretation given by Community case-law in Brown ... and Tele Danmark ... where the Court states that Article 10 seeks to avoid the situation where a threat of dismissal prompts the woman voluntarily to terminate her pregnancy ... There is a further argument which makes me tend towards withholding the benefits of the measures contained in Directive 92/85 from a worker who, like Ms Mayr, at the time she was dismissed, had undergone an ova extraction procedure but has not yet had the embryos resulting from the in vitro fertilization transferred to her uterus, meaning that the successful outcome of the procedure and implantation had not yet been confirmed. Several days usually elapse between the two events; furthermore the ova fertilized in the laboratory are not always transferred immediately to the reproductive organs of the woman as they can be frozen for possible future use ... Against this background, the Article 10 prohibition on dismissal would go on for an indeterminate and excessive length of time, which would be contrary to the objective of the provision, which is to protect the woman who is already pregnant because of the vulnerability of her situation rather than to protect the woman who wishes to become pregnant, by whatever means, in the future.13

The Advocate General therefore concluded that a person in Ms Mayr’s situation could not be considered a ‘pregnant worker’ for the purposes of the Pregnancy 13

[2008] ECR I-1017, at 1027–1030.

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Directive. The Court, confining its reasoning to the objective and wording of the directive, reached the same conclusion: [I]t cannot be accepted, for reasons connected with the principle of legal certainty, that the protection established by Article 10 of Directive 92/85 may be extended to a worker, when, on the date she was given notice of her dismissal, the in vitro fertilized ova had not yet been transferred into her uterus.14

Although the Advocate General and the Court were in agreement that the Pregnancy Directive was not applicable to a person in Ms Mayr’s situation, they both considered the matter from the point of view of the Equal Treatment Directive, finding that if the bakery had dismissed Ms Mayr because of her in vitro treatment (this was not clear from the order of reference) this would constitute direct discrimination. The treatment in question directly affected women only; it followed therefore that the dismissal of a female worker essentially because she was undergoing an important stage of in vitro fertilization treatment constituted direct discrimination on the ground of sex. Thus whilst a woman undergoing in vitro fertilization treatment cannot rely on the Pregnancy Directive, she is at all stages of her treatment protected from discrimination by virtue of the Recast Directive.15

The role of the comparator In chapter 1 it was seen that the principle of sex discrimination has been interpreted by the CJEU as providing automatic protection against discrimination based on pregnancy. The Court stated clearly in Dekker,16 and in its subsequent decision in Webb v EMO (Air Cargo) Ltd,17 that there is no need to resort to comparison with the treatment afforded, or which would be afforded, to a member of the opposite sex where the detrimental treatment complained of can be shown to be referable to pregnancy; thus, it is incorrect to draw comparisons between the treatment received by a pregnant woman and that which would be received by a male comparator suffering from some temporary medical ailment.18 In Gillespie v Northern Health and Social Services Board,19 it also held that women on maternity leave are in a special

14

[2008] ECR I-1017, at para 41. Case C-167/12 C.D. v S.T, a reference for a preliminary ruling from the Employment Tribunal Newcastle Upon Tyne, raises the interesting issue of the right to maternity leave of a woman who has never been pregnant but has a baby by virtue of a surrogacy arrangement. The questions referred concern both the Pregnancy Directive and the Equal Treatment Directive. 16 17 Case 177/88 [1990] ECR I-3941. Case C-32/93 [1994] ECR I-3567. 18 That this principle can also work to the detriment of a woman was revealed by Case C-411/96 Boyle v EOC [1998] ECR I-6401, where the CJEU held that it meant that a woman on maternity leave could, unlike a fellow worker on sick leave, be required to repay additional maternity pay above the level of the statutory sick pay minimum in the event of her not returning to work after giving birth. 19 Case C-342/93 [1996] ECR I-3905. 15

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position which requires them to be given special protection but which is not comparable to that of either a man or of a woman who is actually at work.20 However, the spectre of the comparator has nevertheless crept back in certain circumstances. For example, once the protected period of maternity leave has expired, the treatment received by a woman may be compared with that receivable by a colleague of the opposite sex, even where pregnancy continues to play a causative role in the matter. Thus, in Aldi,21 a woman dismissed for prolonged absence from work some time after her maternity leave had expired but because of an illness which had its roots in her earlier pregnancy did not experience unlawful discrimination, since a man who was away from work for comparable periods on account of illness would also have been dismissed. In Larsson,22 this principle was extended to cover a case where the woman’s illness began during her pregnancy and was a consequence of that pregnancy but continued after her statutory period of maternity leave had expired. The Court repeated its remarks in Aldi, saying: [I]n the case of an illness manifesting itself after the maternity leave, there is no reason to distinguish an illness attributable to pregnancy or confinement from any other illness, and ...such a pathological condition is therefore covered by the general rules applicable in the event of illness.23

It went on to add that it did not mean by that to draw a distinction on the basis of the moment of onset or first appearance of the illness. It merely held that, in the factual situation submitted to it on that occasion, there was no reason to distinguish, from the point of view of the principle of equal treatment enshrined in the Directive, between an illness attributable to pregnancy or confinement and any other illness ... ...[M]ale and female workers are equally exposed to illness. Although certain disorders are, it is true, specific to one or other sex, the only question is whether a woman is dismissed on account of absence due to illness in the same circumstances as a man; if that is the case, then there is no direct discrimination on grounds of sex ... The Directive therefore does not preclude dismissal on the ground of periods of absence due to an illness attributable to pregnancy or confinement, even where such illness first appeared during pregnancy and continued during and after the period of maternity leave.24

Ms Larsson argued that it was discriminatory to take into account her absence from work due to sickness in the interval between the beginning of her pregnancy and the beginning of her maternity leave. If those absences were discounted, together with her annual leave which she had tacked onto the end of her maternity leave, she would have been absent on account of her illness for less than four weeks prior 20 See also Case C-411/96 Boyle v EOC [1998] ECR I-6401; Case C-218/98 Abdoulaye v Renault SA [1999] ECR I-5723; and Case C-147/02 Alabaster v Woolwich plc and Secretary of State for Social Security [2004] ECR I-3101, but note the compelling criticism of the CJEU’s logic in the submissions of Léger 21 AG. Case 179/88 [1990] ECR I-3979. 22 Case C-400/95 Handels-OG Kontorfunktionaerernes Forbund i Danmark, acting on behalf of Larsson v Dansk Handel & Service, acting on behalf of Fotex Supermarked A/S [1997] ECR I-2757. 23 Case C-400/95 [1997] ECR I-2757, at 2780. 24 Case C-400/95 [1997] ECR I-2757, at 2780–1.

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to her dismissal. The Court accepted that during whatever period was permitted to her as maternity leave under national law, she was protected from dismissal on account of absence from work. However: Outside the periods of maternity leave laid down by the Member States to allow female workers to be absent during the period in which the problems inherent in pregnancy and confinement occur,...and in the absence of national or, as the case may be, Community provisions affording women specific protection, a woman is not protected under the Directive against dismissal on grounds of periods of absence due to an illness originating in pregnancy ... [A]s male and female workers are equally exposed to illness, the Directive does not concern illnesses attributable to pregnancy or confinement. The principle of equal treatment enshrined in the Directive does not, therefore, preclude account being taken of a woman’s absence from work between the beginning of her pregnancy and the beginning of her maternity leave when calculating the period providing grounds for her dismissal under national law.25

The only mitigation offered by the Court was that today the situation would be dealt with by the Pregnancy Directive: [T]he Community legislature subsequently provided ...for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave, save in exceptional cases unconnected with their condition ...It is clear from the objective of that provision that absence during the protected period, other than for reasons unconnected with the employee’s condition, can no longer be taken into account as grounds for subsequent dismissal. However, Directive 92/85 had not yet been adopted when Ms Larsson was dismissed.26

However, shortly after this decision, the full CJEU changed its mind.27 Brown v Rentokil Ltd28 concerned a woman dismissed from her job during pregnancy as a result of absence due to pregnancy-related illness. Her employers argued that a man who had been absent from work for a similar time would also have been dismissed, pursuant to a term contained in the contracts of all Rentokil employees providing that absence for 26 weeks would result in dismissal. Ruiz-Jarabo Colomer AG observed that the Court’s existing case law in this area was so opaque that it had enabled all the parties, and those who had submitted written observations to the Court, to rely on the same paragraphs of the relevant judgments in support of their disparate views. The Advocate General also pointed out that the decision in Brown, though dealing with a time before the entry into operation of the Pregnancy Directive, would continue to have relevance; this was because it would answer the question of whether absence due to pregnancy-related illness during pregnancy could be taken into account to excuse dismissal after the mother’s return to work. 25

Case C-400/95 [1997] ECR I-2757, at 2781-2. Case C-400/95 [1997] ECR I-2757, at 2782. It remains significant nevertheless, for the purposes of UK law, whether the claim is for sex discrimination or for unfair dismissal on account of pregnancy: in the latter, but not in the former, case there is a cap on the level of compensation receivable. 27 Larsson was decided by the Sixth Chamber of the Court. 28 Case C-394/96 [1998] ECR I-4185. 26

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He submitted that a pregnant woman finds herself in a unique position and cannot be compared with a man; it therefore followed that no absence from work during pregnancy which was attributable to pregnancy-related illness could be taken into account to excuse dismissal. The CJEU agreed, saying: Articles 2(1) and 5(1) of Directive 76/207 preclude dismissal of a female worker at any time during her pregnancy for absences due to incapacity for work caused by an illness resulting from that pregnancy. However, where pathological conditions caused by pregnancy or childbirth arise after the end of maternity leave, they are covered by the general rules applicable in the event of illness ...In such circumstances, the sole question is whether a female worker’s absences, following maternity leave, caused by her incapacity for work brought on by such disorders, are treated in the same way as a male worker’s absences, of the same duration, caused by incapacity for work; if they are, there is no discrimination on grounds of sex. It is also clear ...that, contrary to the Court’s ruling in Case C-400/95 Larsson ..., where a woman is absent owing to illness resulting from pregnancy or childbirth, and that illness arose during pregnancy and persisted during and after maternity leave, her absence not only during maternity leave but also during the period extending from the start of her pregnancy to the start of her maternity leave cannot be taken into account for computation of the period justifying her dismissal under national law. As to her absence after maternity leave, this may be taken into account under the same conditions as a man’s absence, of the same duration, through incapacity for work.29

It is submitted that this was a well-intentioned decision, from a Court intent on protecting the interests of pregnant women. It does not, however, stand up to logical scrutiny for two reasons.30 First, it distorts the existing principle that discrimination on the ground of pregnancy is direct discrimination on the ground of sex; this is because it extends it into the postulate that discrimination on the ground of an illness which may occur in pregnancy is discrimination on the ground of that pregnancy. This is to fall into the error of equating pregnancy with illness, contrary to the Court’s own earlier assertions. Secondly, the Court’s abandonment of its usual yardstick for measuring the kind of treatment which constitutes discrimination is unfortunate; its usual path is to compare the treatment received, or receivable, by the two sexes. Its departure from this path has the consequence that a relatively tangible test is replaced by a subjective judgment. In the absence of the tangible test, problems are to be anticipated where pregnant women allege forms of discrimination other than dismissal (which is automatically caught by the Pregnancy Directive). What, for example, of the pregnant woman, sick or healthy, who is not promoted during her pregnancy? Is such treatment to be presumed to be discriminatory and, if not, how is it to be assessed? Perhaps for reasons such as that mentioned in the preceding paragraph, the Court has continued to waiver over its test for what amounts to detrimental treatment in the case of pregnant women. It has on several occasions strayed close to comparing 29

Case C-394/96 [1998] ECR I-4185, at 4233–4.

30

See Ellis in (1999) 36 CMLRev 625.

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the situation of a pregnant woman with that of a male colleague. For example, in CNAVTS v Thibault,31 it was confronted by a woman who had been excluded from an assessment of performance with a view to ‘career advancement’ to which a collective agreement entitled her colleagues. She was denied this opportunity because the collective agreement extended the right only to those who had been at work for six months of the year; Ms Thibault had been away from work through sickness and as a result of taking maternity leave for longer than six months. The CJEU nevertheless held, in an extremely short judgment, that she must be offered an assessment of performance: The principle of non-discrimination requires that a woman who continues to be bound to her employer by her contract of employment during maternity leave should not be deprived of the benefit of working conditions which apply to both men and women and are the result of that employment relationship. In circumstances such as those of this case, to deny a female employee the right to have her performance assessed annually would discriminate against her merely in her capacity as a worker because, if she had not been pregnant and had not taken the maternity leave to which she was entitled, she would have been assessed for the year in question and could therefore have qualified for promotion.32

This analysis appears strikingly similar to a comparison between the woman on maternity leave and her colleagues who remain at work.The Court made no mention of this, but neither did it make its usual statement that a pregnant woman, or a woman on maternity leave, is not to be compared with a male colleague. Similarly, in Boyle v EOC,33 the Court held that the Equal Treatment Directive did not preclude an employment contract from stipulating that entitlement to annual leave did not accrue during contractual maternity leave; this was because the accrual of annual leave was stopped for all EOC employees taking unpaid leave, male as well as female. At the core of many of the difficulties faced by the Court in these cases are two main issues. The first is how to reconcile, on the one hand, the need to recognize that women suffer material disadvantages in the workplace on account of childbirth with, on the other hand, the imperative of not reinforcing traditional, stereotypical role-playing within family life; to grant apparent substantive equality to women now, in recognition that they do indeed do far more childcaring than men, does not encourage the development of childcaring by men, nor stimulate the dismantling of structural disadvantages faced by employees with domestic responsibilities.34 The second issue is the tension between the essentially even-handed or symmetrical concept of discrimination, formal equality, and the wholly one-sided situation of pregnancy.The Court’s decisions show that to use the concept of formal equality as the law’s chief method of reconciling pregnancy with employment risks corrupting 31 33 34

654.

32 Case C-136/95 [1998] ECR I-2011. Case C-136/95 [1998] ECR I-2011, at 2035–6. Case C-411/96 [1998] ECR I-6401. See McGlynn, ‘Pregnancy, Parenthood and the Court of Justice in Abdoulaye’ (2000) 25 ELRev

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the underlying principles of discrimination law. Yet, in most employment situations, it is vital to protect the fundamental right to equality which is enshrined in the formal principle. It is therefore very much preferable for the welfare of pregnant women, for the promotion of real substantive equality and for the coherence of discrimination law, that a separate régime be maintained conferring positive rights in relation to child-bearing, as the Pregnancy Directive does,35 and in relation to child-rearing as the Parental Leave Directive begins to do. This avoids the necessity of entering into any discussion about the necessity of establishing a comparator and engaging in any sort of comparative exercise. Rights are vested in the pregnant woman by the mere fact of her pregnancy and in parents by virtue of their status as such.

Health and safety The Pregnancy Directive provides for the health and safety of women during pregnancy, in the period following childbirth, and during breastfeeding. The directive has as its legal basis Article 118a of the old TEC. At the relevant time (pre-Amsterdam), the Council was permitted to adopt directives setting minimum requirement for the harmonization of conditions relating to the health and safety of workers. This work began with the adoption of a Framework Directive, Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work.36 The Pregnancy Directive is the tenth directive adopted under the Framework Directive.37 Article 1 of the Pregnancy Directive explains that its purpose is to introduce measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.38 Insofar as this instrument attempts to create a special legal régime to deal with the rights of pregnant workers, it is to be welcomed;39 since pregnancy and childbirth are situations which are unique to women, it is inappropriate to use the anti-discrimination legislation as the chief legal vehicle to cater for them. It is certainly vital to the concept of substantive equality for special rules to exist to cater for maternity rights 35 See further Fredman, ‘A Difference With Distinction: Pregnancy and Parenthood Reassessed’ (1994) 110 LQR 106;Wintemute, ‘When is Pregnancy Discrimination Indirect Discrimination?’ (1998) 27 ILJ 23; Honeyball, ‘Pregnancy and Sex Discrimination’ (2000) 29 ILJ 43; and Di Torella and Masselot, ‘Pregnancy, Maternity and the Organisation of Family Life: an Attempt to Classify the Case Law of the 36 Court of Justice’ (2001) 26 ELRev 239. OJ [1989] L183/1. 37 The legitimacy of using Art 118a as the basis for measures protecting pregnant workers appeared to be assured by Case C-84/94 UK v Council [1996] ECR I-5755, where the CJEU held that the Article was to be interpreted broadly, so as to authorize measures of social policy the principal aim of which was the protection of the health and safety of workers. 38 In reality, the purposes underlying the directive would seem to include the protection of the health and safety of the foetus too, but this would have been outwith the scope of the former Art 118a. 39 However, the robustness of the measure was considerably weakened during the political negotiations surrounding its adoption; see Ellis, ‘The Pregnancy Directive’ (1993) 22 ILJ 63.

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for workers, but such rules need to be additional to the normal non-discrimination principle. However, as will be seen below, the directive in large measure equates the position of pregnant women and those who have recently given birth with sick workers, which is not only inaccurate and patronizing but also risks making women workers appear generally weaker than men, thereby seeming to legitimize exclusionary policies.40 The Preamble to the instrument explains at length that the Community legislature considers pregnant workers to constitute a specially vulnerable group. In Webb v EMO (Air Cargo) Ltd,41 the CJEU described the legislative intention underlying the part of the directive prohibiting the dismissal of pregnant workers42 thus: In view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, the Community legislature subsequently provided, pursuant to Article 10 of [the Pregnancy Directive] ...for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave.43

The directive forbids any reduction in the standards of protection already existing in the Member States.44 The Commission was required to draw up guidelines on the assessment of the chemical, physical, and biological agents and industrial processes considered hazardous to pregnant workers,45 and employers are required to take action to avoid such hazards either by adjusting the woman’s working conditions or hours, or by moving her to another job, or by granting her leave.46 The Commission’s Guidelines were published in 2000.47 In addition, Member States must ensure that women are not obliged to perform night work during pregnancy, nor for a period following childbirth to be determined by the appropriate national authority.48 It is of interest to note that night work is not prohibited during pregnancy. A worker who wishes to continue to work at night during pregnancy and whilst breastfeeding is therefore free to so do.49 Pregnant workers must also be entitled to time off without loss of pay in order to attend ante-natal examinations, where such examinations have to take place during working hours.50 40 See Beveridge and Nott, ‘Women,Wealth and the Single Market’ in Making Ourselves Heard (Feminist Legal Research Unit, Faculty of Law, University of Liverpool, 1995), (WP No 3). 41 42 Case C-32/93 [1994] ECR I-3567. Art 10 of the directive, discussed at p 349 et seq. 43 44 [1994] ECR I-3567, at 3586. Art 1(3) of the directive. 45 Art 3(1) of the directive. 46 Art 5 of the directive. See Case C-66/96 Handels-OG Kontorfunktionaerernes Forbund I Danmark v Faeloesforeningenfor Danmarks Brugsforeninger [1998] ECR I-7327. See also Art 6. 47 48 COM (2000) 466 final. Art 7 of the directive. 49 Note the restrictions on night work laid down in the Working Time Directive (Directive 2003/88 50 [2003] OJ L299/9). Art 9 of the directive.

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A continuous period of maternity leave of at least 14 weeks, of which at least two weeks must be compulsory, is required to be allocated before and/or after confinement in accordance with national rules.51 It is for the Member States to choose when maternity leave begins. Thus, an employment contract may require an employee who has expressed her intention to start maternity leave during the six weeks preceding the expected birth, and who is on sick leave with a pregnancyrelated illness immediately before that date and gives birth during the sick leave, to bring forward the date on which her paid maternity leave begins either to the beginning of the sixth week before the expected week of birth, or to the beginning of the period of sick leave, whichever is the later; this is so notwithstanding that the sick pay scheme is more favourable to the employee than the maternity pay scheme.52

Employment rights during pregnancy and maternity leave In Dekker,53 the CJEU held that the Equal Treatment Directive forbade an employer to refuse to employ a pregnant woman, who was otherwise suitable for the job.The fact of her pregnancy was the most important reason for her non-employment and, since this is a condition which can only apply to members of the female sex, this meant that the employer’s action necessarily constituted direct discrimination on the ground of sex.54 The same principle was applied in Mahlburg v Land MecklenburgVorpommern55 to preclude the non-appointment of a woman to a permanent job in circumstances where it was unlawful under national legislation to employ a pregnant woman;56 this was notwithstanding the fact that the unequal treatment was ‘not based directly on the woman’s pregnancy but on a statutory prohibition

51

52 Art 8 of the directive. Case C-411/96 Boyle v EOC [1998] ECR I-6401. Case 177/88 Dekker v Stichting Vormingscentrum Voor Jonge Volwassen Plus [1990] ECR I-3941, noted by Asscher-Vonk in (1991) 20 ILJ 152. 54 For discussion of the meaning of direct discrimination, see ch 4. In Case C-79/99 Schnorbus v Land Hessen [2000] ECR I-10997, it was argued that a provision which favoured those who had completed compulsory military service was directly discriminatory against women, since under the relevant national legislation only men could be conscripted. However, Jacobs AG rejected this argument, saying: ‘[T]here is a distinction to be drawn between a criterion based on an obligation imposed by law on one sex alone and a criterion based on a physical characteristic inherent in one sex alone. No amount of legislation can render men capable of bearing children, whereas legislation might readily remove any discrimination between men and women in relation to compulsory national service’ (at 11009). But see also Wintemute, ‘When is Pregnancy Discrimination Indirect Discrimination?’ (1998) 27 ILJ 23, and Honeyball, ‘Pregnancy and Sex Discrimination’ (2000) 29 ILJ 43; the latter has argued that Dekker does not represent an example of a strict ‘but for’ test. 55 Case C-207/98 [2000] ECR I-549. 56 Query whether the Court would have been prepared to stretch this principle to the non-appointment of a pregnant woman to a fixed-term contract. 53

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on employment attaching to that condition’.57 In both cases, the Court was unimpressed by arguments about the economic plight in which this placed the employer. Neither is the size of the employing undertaking of any relevance.58 In Aldi,59 the Court added that the Dekker principle holds good throughout the relevant period of maternity leave. The Recast Directive, in Article 2(2)(c), defines discrimination to include ‘any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85’.This provision is dependent upon a woman being pregnant within the meaning of the Pregnancy Directive. However a much broader type of protection is available under Article 14 of the Recast Directive which prohibits discrimination on the grounds of sex in relation to conditions for access to employment. Since pregnancy is a condition particular to women, a refusal to employ a pregnant woman constitutes sex discrimination.60 However a refusal to employ a pregnant woman or indeed the reservation of certain types of employment to pregnant women might be excused if pregnancy or the lack of it constitutes ‘a genuine and determining occupational requirement’ within the meaning of Article 14, provided that such a requirement pursues a legitimate objective and is a proportionate means of achieving that objective.61 Whilst such situations are difficult to envisage, and are certainly not numerous, it is possible that discrimination on the grounds of pregnancy might be defensible in those types of employment which pose inherent risks to the pregnant woman62 or where a woman might not be able to access appropriate pre-natal care or indeed medical assistance at birth. The Equal Pay Directive made no reference to a right to equal pay of pregnant women but such a right can be claimed on the basis of Article 157 of the TFEU itself. In Handels-OG Kontorfunktionaerernes Forbund I Danmark v Faellesforeningen for Danmarks Brugsforeninger,63 the Court held that it was contrary to Article 157 of the TFEU for national law to provide that sick workers were entitled to full pay from their employers but to exclude from this principle pregnant employees whose sickness was pregnancy-related. The Court was brief in its analysis of the situation, saying merely that this was treatment based essentially on pregnancy and was thus 57 [2000] ECR I-549, at 572–3. Non-renewal of a fixed-term contract, if grounded on pregnancy, also breaches the Equal Treatment Directive: see Case C-438/99 Melgar v Ayuntamiento de Los Barrios [2001] ECR I-6915. 58 Case C-109/00 Tele Danmark A/S v Handels-OG Kontorfunktionaerernes Forbund I Danmark (HK) [2001] ECR I-6993. 59 Case 179/88 Handels-OG Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiveforening (acting for Aldi Marked K/S) [1990] ECR I-3979; both Dekker and Aldi are noted by Nielsen in (1992) 29 CMLRev 160. See also More, ‘Reflections on Pregnancy Discrimination under EC Law’ [1992] JSWFL 48. 60 Case 177/88 Dekker v Stichting Vormingscentrum Voor Jonge Volwassen Plus [1990] ECR I-3941. 61 Recast Directive, Art 14(2). 62 Such as, eg, those exposure hazards which would justify a woman being moved to another types of employment or put on leave during pregnancy—in other words the types of working environment from which the Pregnancy Directive is designed to shield the pregnant woman. 63 Case C-66/96 [1998] ECR I-7327.

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discriminatory. However, Ruiz-Jarabo Colomer AG submitted that the issue was ‘whether a pregnant woman whose unfitness for work is caused by pregnancy is entitled to the same treatment, as regards pay, as a man who is unfit for work by reason of illness’.64 He concluded that their situations were indeed comparable and that this was therefore unlawful discrimination. The original Equal Treatment Directive provided in Article 2(3) that it was to be ‘without prejudice to provisions concerning the protection of women, particularly as regards pregnancy or maternity’. The CJEU, in a series of preliminary rulings referred to it by the courts and tribunals of the Member States, set out the rights of pregnant women under this directive. Subsequent legislative amendments reflected and built upon the principles set out in this case law. Article 15 of the Recast Directive (formerly Article 2(7) of the 2002 Amendment to the Equal Treatment Directive) provides that a woman on maternity leave shall be entitled, after her period of maternity leave has expired, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence.This in effect puts the woman on maternity leave in exactly the same position as she would have been if she had not taken such leave. Article 16 of the same directive acknowledges the right of Member States to recognize rights to paternity and/or adoption leave.Where a Member State does recognize such rights, it must take measures to ensure that those who choose to exercise them are protected in the same way as women who take maternity leave. Member States must protect working men and women against dismissal if they choose to exercise those rights and to ensure that, at the end of the period of such leave, they are entitled to return to their jobs or equivalent posts on terms and conditions which are not less favourable to them, and to benefit from any improvement in working conditions to which they would have been entitled in their absence. Article 9(g) of the Recast Directive provides that any suspension of the retention or acquisition of rights during periods of maternity leave or leave for family reasons granted by law or agreement and paid by the employer is contrary to the principle of equal treatment. Women on the 14-week maternity leave granted under the Pregnancy Directive are guaranteed their contractual employment rights, apart from those relating to pay.65 In Boyle v EOC,66 the CJEU held that the accrual of annual leave is a contractual employment right for this purpose. However, the directive requires the preservation of contractual rights only during the 14-week compulsory maternity leave period, and therefore does not preclude a contractual clause according to which annual leave ceases to accrue during any period of supplementary maternity leave. In the same case, the Court also held that the accrual of pension rights under an occupational scheme wholly financed by the employer is a contractual right; an 64

Case C-66/96 [1998] ECR I-7327, at 7348. Art 11(2)(a) of the Pregnancy Directive. And note that in Case C-147/02 Alabaster [2004] ECR I-3101 Léger AG submitted that a pay rise granted during maternity leave constituted such a contractual 66 right. Case C-411/06 [1998] ECR I-6401. 65

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employment contract cannot therefore limit the accrual of such pension rights to a period during which the woman is receiving income either from that contract or from the statutory maternity pay scheme. Merino Gómez v Continental Industrias del Caucho SA67 confirmed that the right to annual leave is a protected contractual right. Ms Merino Gomez was on maternity leave during the entire period of the annual shutdown prescribed by collective agreement for her place of work. The issue was whether she could claim her annual leave, contrary to the collective agreement, at a different time of the year. The Working Time Directive68 requires a minimum of four weeks’ paid leave, but the employers in this case in fact provided 30 days’ annual leave. The CJEU held that the purposes of annual leave and maternity leave are different, the first being to protect health and safety by permitting the worker to rest, and the second being to protect the woman’s biological condition and the special relationship with her child. The principle of equality enshrined in the Equal Treatment Directive, when combined with the statutory rights to annual leave and maternity leave, therefore meant that the worker must be able to claim her annual leave at a different time from her maternity leave. Furthermore, since the annual leave was a contractual entitlement, she was entitled to 30 days and not merely the minimum period prescribed by the Working Time Directive. Whilst on the 14-week leave, women are also entitled to a payment or allowance which is at least equivalent to statutory sick pay in the Member State concerned, but this can be made conditional on the worker concerned fulfilling the national conditions for sick pay eligibility, which must not provide for a qualifying period of employment of longer than 12 months immediately prior to the birth.69 In Boyle v EOC,70 it was argued that these provisions required the payment to a worker on maternity leave of an amount at least equivalent to that which a woman would receive under her employment contract if she were on sick leave; where, as in Boyle itself, the employer has undertaken to pay workers on sick leave their full salary; women on maternity leave should therefore receive an equivalent income. The CJEU rejected this view, saying that the concept of ‘allowance’ adopted by the Pregnancy Directive is different from ‘pay’ for the purposes of Article 157 and includes all income received by the worker during her maternity leave which is not paid to her by her employer pursuant to the employment relationship. The directive merely requires it to be equivalent to the sickness allowance provided for by national social security legislation, payable either in the form of an allowance, pay, or a combination of the two; it does not require the employer to guarantee to the woman any higher income to which she would be contractually entitled if she were on sick leave. It was therefore not a breach of the directive for the employer to require women employees to repay any payments received which exceeded the statutory sick pay minimum in the event of their not returning to work after giving birth. In Lewen v Denda71 67 69 71

68 Case C-342/01 [2004] ECR I-2605. Directive 93/104, OJ [1993] L307/18. 70 Pregnancy Directive, Art 11(2)(b), (3), and (4). Case C-411/96 [1998] ECR I-6401. Case C-333/97 [1999] ECR I-7243.

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the Court repeated its remarks in Boyle and added that a Christmas bonus, not being intended to ensure a level of income at least equal to statutory sick pay, was not a ‘payment’ for the purposes of the Pregnancy Directive. The original draft of the directive would have provided for full pay to be maintained during the 14 weeks’ leave. The UK, however, resisted such a provision on the ground of expense.The resulting compromise in practice undermines the utility of the directive; in the UK, for example, many part-time workers do not earn more than the national insurance threshold and therefore do not satisfy the conditions for eligibility for UK statutory sick pay; they are consequently not entitled to any payment or allowance during maternity leave, and this may well pressurize them into a return to work well before their theoretical entitlement to 14 weeks’ leave has elapsed. It is relevant to note in this context that the CJEU held in Gillespie v Northern Health and Social Services Board72 that, although Article 157 and the Equal Pay Directive did not lay down criteria for determining the quantum of maternity pay, they guarantee a minimum level: The amount payable could not ...be so low as to undermine the purpose of maternity leave, namely the protection of women before and after giving birth. In order to assess the adequacy of the amount payable from that point of view, the national court must take account, not only of the length of maternity leave, but also of the other forms of social protection afforded by national law in the case of justified absence from work.73

Two judgments of 1 July 2010 dealt with the issue of what elements of pay a pregnant worker is entitled to, where pay is guaranteed under national law during periods of leave from work due to pregnancy, where there are changes in the nature of employment for health and safety reasons during pregnancy and maternity leave. In Parviainen,74 the claimant was employed as an air hostess with Finnair. She had the status of purser which meant that she had a supervisory role. She was temporarily transferred to ground work during her pregnancy and remained in that work until the start of her period of maternity leave. The reason for her transfer, in accordance with Article 5(1) and (2) of the Pregnancy Directive and implementing Finnish law, was that her normal employment exposed her to physical agents, such as ionizing and non-ionizing radiation which might cause foetal lesions. As a member of the flying staff , a substantial part of Ms Parvianen’s pay was made up of allowances, for example, for night work, work on Sundays and holidays, long-haul flights and flights entailing a time difference. Flying personnel with the status of purser received higher allowances than air stewards. In the case of Ms Parviainen, the allowances constituted 40 per cent of her salary. Following her transfer her total 72

Case C-342/93 [1996] ECR I-3905. Case C-342/93 [1996] ECR I-3905, at 500. In Gillespie v Northern Health and Social Services Board (No 2) [1997] IRLR 410, the Northern Ireland Court of Appeal held that, since the directive expressly deems statutory maternity pay to be adequate if it guarantees income at least equivalent to statutory sickness benefit, it cannot be said that contractual maternity pay is inadequate if it is higher than such 74 sickness benefit. Case C-471/08 Parviainen v Finnair Oyj [2010] ECR I- 6533. 73

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monthly pay was cut. She contested this decision, arguing that Finnair was not entitled to reduce her pay following her temporary transfer to ground duties, in particular by failing to take into consideration the fact that she was a purser. The Court began its judgment by drawing a distinction between the pay and allowances due to workers under the circumstances set out in Article 5 of the directive, that is to say, where they are temporarily transferred to another post or put on leave, and workers who are on maternity leave as provided for by Article 8 of the directive: [T]he situation of pregnant workers referred to in Article 5 of the directive and that of workers on maternity leave which is dealt with by Article 8 thereof cannot be treated alike for all purposes. In the first place pregnant workers referred to in Article 5(1) and (2) of Directive 92/85 whose working conditions have been temporarily adjusted, continue to work and to perform the duties requested by their employer ...However, women taking maternity leave provided for by Article 8 of the directive are in a special position which requires them to be afforded special protection but which is not comparable either with a man or a woman actually at work (see Case C-342/93 Gillespie and Others [1996] ECR I-475, paragraph 17 and Case C-147/02 Alabaster [2004] ECR I-3101, paragraph 46).75

Workers on maternity leave, the Court continued, are entitled to an adequate allowance as defined by Article 11(3) and as interpreted by itself. To transpose that case law to workers in situations such as those referred to in Article 5(1) and (2) could give rise to unfair situations where the worker transferred temporarily to a post other than that which she usually occupies could have her pay cut during that period to an amount equivalent to the allowance provided under national social security law, where for health reasons that worker stops working. Turning then to the level of pay to which a transferred worker should be entitled, the Court reasoned that the Member States have a discretion, under Article 11(1)—which refers specifically to national law and practice—when they define the conditions for the exercise and implementation of the entitlement to pay of pregnant workers covered by Article 5(2). The exercise of that discretion cannot undermine the objective of protecting the health and safety of pregnant workers, nor ignore the fact that the worker actually continues to work and to perform tasks entrusted to her by her employer. Moreover: The pay which must be maintained with respect to a pregnant worker ...following her temporary transfer to a position other than that which she occupied before her pregnancy, cannot, in any event, be less than that paid to workers occupying the job to which she is temporarily assigned.76

Pursuant to these two principles, the employer is required to pay, in addition to the salary the pregnant worker is actually receiving for the work being performed, supplements to which she was entitled in respect of her employment prior to the 75 76

Case C-471/08 Parviainen v Finnair Oyj [2010] ECR I-6533, at paras 38–40. Case C-471/08 Parviainen v Finnair Oyj [2010] ECR I-6533, at para 58.

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transfer, which relate to ‘professional status such as, in particular, her seniority, her length of service and her professional qualifications’77 since these are not affected in any way by the transfer. However, allowances which are dependent on the performance of specific functions in particular circumstances and which are intended to compensate for the disadvantages relating to that performance are not required to be paid by virtue of Article 11(1); however, they may of course be paid if the Member States so provide since Article 11(1) provides only for minimum protection with respect to the pay of pregnant workers covered by Article 5(1). Gassmayr78 concerned a junior hospital doctor. She received an on-call allowance for extra hours she worked in addition to the normal hours of work set out on the duty roster. She was prohibited, under Austrian law, from working for certain periods before and after the birth of her child. She claimed entitlement to an allowance corresponding to the average for on-call duties performed during the period when she was prohibited from working and thus from performing her on-call duties. The Court found that Article 11(1) applied to pregnant workers granted leave from employment in the same way as those who were transferred to another employment (the case of Ms Parviainen). Article 11(1) did not require Member States to maintain supplements or components of pay which related to the performance of specific tasks by the worker in the course of her employment. However, any supplements linked to the worker’s occupational status—which was not affected by the leave granted—must be granted in addition to the basic salary during the period of leave from work for reasons connected with the pregnancy. As to pay during the period of maternity leave, the Court pointed out that Article 11(1) refers to the payment or an allowance, as opposed to ‘pay’, during maternity leave and thus the Austrian law which provided for an allowance calculated by reference to a period prior to the taking of leave during pregnancy and maternity leave following birth was not incompatible with that provision.

Protection against dismissal As discussed below, dismissal of a pregnant woman is today expressly rendered unlawful by the Pregnancy Directive. However the CJEU has also held dismissal of a pregnant woman to be unlawful and contrary to the original Equal Treatment Directive and now to the Recast Directive. For example, it held in HabermannBeltermann v Arbeiterwohlfahrt79 that the termination of an employment contract on account of the employee’s pregnancy, whether by annulment or avoidance, concerns women alone and therefore constitutes direct discrimination on the ground of sex. Some of the earlier case law of the Court on this subject contained hints that 77 78 79

Case C-471/08 Parviainen v Finnair Oyj [2010] ECR I-6533, at para 60. Case C-194/08 Gassmayr v Bundesminister fuer Wissenschaft und Forschung [2010] ECR I-6281. Case C-421/92 [1994] ECR I-1657.

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direct discrimination on the ground of pregnancy might sometimes be justifiable,80 although the Court never actually applied this idea in any of the cases referred to it. Thus, in Habermann-Beltermann, it held that where a woman’s contract of employment was for an indefinite period, termination on account of her pregnancy was not ‘justified’ by a statutory provision prohibiting pregnant women from engaging in night work.81 Rather more worryingly, in Webb v EMO (Air Cargo) Ltd,82 where a woman employee was dismissed on account of pregnancy because she would be absent from work during the leave of another employee whom she had been engaged to replace, it held: Dismissal of a pregnant woman recruited for an indefinite period cannot be justified on grounds relating to her inability to fulfil a fundamental condition of her employment contract. The availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provisions of the Directive. In circumstances such as those of Ms Webb, termination of a contract for an indefinite period on grounds of the woman’s pregnancy cannot be justified by the fact that she is prevented, on a purely temporary basis, from performing the work for which she has been engaged ...83

The corollary of this holding seemed of course to be that, had Ms Webb been engaged on a temporary contract, her dismissal might have been ‘justified’ and thus lawful.84 That this was not, however, the Court’s intention was revealed by its later decision in Tele Danmark A/S v Handels-OG Kontorfunktionaerernes Forbund I Danmark (HK).85 Here it held: Since the dismissal of a worker on account of pregnancy constitutes direct discrimination on grounds of sex, whatever the nature and extent of the economic loss incurred by the employer as a result of her absence because of pregnancy, whether the contract of employment was concluded for a fixed or an indefinite period has no bearing on the discriminatory 80 Cf the submissions of Ruiz-Jarabo Colomer AG in CNAVTS v Thibault [1998] ECR I-2011, at 2023. See also ch 4. 81 It is, however, clear from the context that the Court was referring here to the possibility of defending the employer’s actions through reliance on the defence contained in the directive for the protection of pregnant women (discussed at p 349 et seq.); the word ‘justified’ is sometimes used loosely to connote ‘excused’, and it seems likely that this was the sense in which the Court intended it here. In other words, it was contemplating a cognate defence, rather than some broad general notion of justification. 82 Case C-32/93 [1994] ECR I-3567, commented on by More in ‘Sex, Pregnancy and Dismissal’ (1994) 19 ELRev 653, by Boch in (1996) 33 CMLRev 547, and by Fredman in ‘Parenthood and the 83 Right to Work’ (1995) 111 LQR 220. Case C-32/93 [1994] ECR I-3567, at 3587–8. 84 See also discussion below in relation to Art 10 of the Pregnancy Directive, prohibiting dismissal of a worker on the ground of her pregnancy. On the relationship between the Equal Treatment Directive and the Pregnancy Directive, see Jacqmain, ‘Pregnancy As Grounds for Dismissal’ (1994) 23 ILJ 355. Article 1(7) of Directive 2002/73 (OJ [2002] L269/15), amending the Equal Treatment Directive, stated that the directive was ‘without prejudice to’ the Pregnancy Directive. 85 Case C-109/00 [2001] ECR I-6993.

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character of the dismissal. In either case the employee’s inability to perform her contract of employment is due to pregnancy. Moreover, the duration of an employment relationship is a particularly uncertain element of the relationship in that, even if the worker is recruited under a fixed-term contract, such a relationship may be for a longer or shorter period, and is moreover liable to be renewed or extended. Finally, Directives 76/207 and 92/85 [the Equal Treatment Directive and the Pregnancy Directive] do not make any distinction, as regards the scope of the principle of equal treatment for men and women, according to the duration of the employment relationship in question.86

This case demonstrated the particularly strict view which the CJEU takes of discrimination on account of pregnancy; it ruled that the directive precluded the dismissal of a woman on the ground of her pregnancy, notwithstanding that she had been recruited for a fixed term87 during a substantial part of which she would have been unable to work and despite the fact that she had failed to inform her employer that she was pregnant, even though she was aware of this when the contract of employment was concluded. The width of the right granted to pregnant employees by the Recast Directive, and the corresponding difficulties faced by the employer,88 are well illustrated in Busch v Klinikum Neustadt GmbH.89 A nurse took parental leave after the birth of her first child; although this leave could have lasted for three years, she requested permission to terminate it early and to return to full-time work. At the time of making this request, which her employer granted, she was pregnant again. She did not inform her employer of this second pregnancy, and it had the effect of disbarring her, under the provisions of national legislation, from certain parts of her job as a nurse. Her return to work in these circumstances was motivated by her desire to obtain maternity allowance, which was higher than the allowance paid during parental leave, and also certain supplements to maternity allowance. Her employer considered this conduct to be a breach of the good faith which is implicit in a contract of employment. It therefore rescinded its consent to her return to work. The CJEU on being asked about the compatibility of this series of events with the Equal Treatment Directive reiterated that the directive prohibits all sex discrimination over working conditions. Such conditions include those applicable to employees who return to work following parental leave. When an employer takes an employee’s pregnancy into consideration in refusing to allow her to return to work after parental leave, it is therefore guilty of direct sex discrimination. Furthermore, since the employer may not take the employee’s pregnancy into consideration, she is under no obligation to inform the employer that she is pregnant. In addition, the Court pointed out that it was already established that the situation was not excused by a legislative provision which temporarily prevented the employee from carrying out all her employment duties. Neither 86 87 88 89

Case C-109/00 [2001] ECR I-6993, at 7025. The CJEU confirmed this statement in Case C-438/99 Melgar [2001] ECR I-6915. As to which see Stott, ‘What Price Certainty?’ (2002) 27 ELRev 351. Case C-320/01 [2003] ECR I-2041.

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was Ms Busch’s financial motivation of any relevance. Lastly, the Court held that, since the employer could not take the pregnancy into consideration, it could not plead that its consent to the employee’s reinstatement was vitiated because it was unaware of her pregnancy; any national law which might serve as a basis for such a claim had therefore to be set aside. Article 10 of the Pregnancy Directive requires that: 1. Member States shall take the necessary measures to prohibit the dismissal of workers during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8(1) save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent; 2. If a worker is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing; 3. Member States shall take the necessary measures to protect workers ...from consequences of dismissal which is unlawful by virtue of point 1.

This constitutes a blanket ban on pregnancy-related dismissal90 and it contains no exceptions.91 Thus, the Court held in Tele Danmark A/S v Handels-OG Kontorfunktionaerernes Forbund I Danmark (HK),92 that Article 10 renders dismissal illegal even where the pregnant woman is employed on a temporary contract, where she had failed to inform her employer that she was pregnant despite her being aware of this when the contract of employment was concluded, and notwithstanding that she was unable to work during a substantial part of the term of that contract. Dismissal of a pregnant woman is possible under the terms of the directive only in exceptional cases which have nothing to do with the pregnancy; Ruiz-Jarabo Colomer AG explained that examples of such exceptional situations might be ‘a force majeure situation which permanently prevented a person from working, or a collective dismissal for financial, technical, organizational or production reasons’.93 In Melgar v Ayuntamiento de Los Barrios,94 the CJEU explained that Article 10 does not impose on the Member States any obligation to draw up a specific list of such exceptional reasons for dismissal; on the other hand, neither does it prevent the Member States from providing for higher protection for pregnant workers by laying down specific grounds on which dismissal can take place. In relation to the final phrase contained

90 But it should be noted that, in Case T-45/00 Speybrouck v Parliament [1992] ECR II-33, the General Court denied that there was any fundamental principle of EU law prohibiting absolutely the dismissal of pregnant women. 91 However, it applies only to dismissal and not, eg, to failure to renew a fixed-term contract: Case C-438/99 Melgar v Ayuntamiento de Los Barrios [2001] ECR I-6915. Such failure may, however, on the usual principles constitute a breach of the Recast Directive: see discussion at p 340 et seq. 92 Case C-109/00 [2001] ECR I-6993. It is particularly difficult in this situation to balance the right of a woman to substantive equality with that of an employer trying to run a commercial enterprise; see further McGlynn, ‘Pregnancy Dismissals and the Webb Litigation’ (1996) Vol IV, No 2, Feminist Legal 93 Studies 229. Case C-109/00 [2001] ECR I-6993, at 7009. 94 Case C-438/99 [2001] ECR I-6915.

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in Article 10(1), which refers to the consent of a competent authority, the Court held that all this does is to take account of the existence in some Member States of prior consent procedures; if such a procedure does not exist in a particular Member State, Article 10(1) does not require it to introduce one. The Court also held in Melgar that Article 10 is sufficiently precise to take direct effect:95 It must be ...concluded that the provisions of Article 10 of Directive 92/85 impose on Member States, in particular in their capacity as employers, precise obligations which offer them no margin of discretion in their performance.96

Paquay v Societe d’Architectes Hoet97 raised the question of whether Article 10 of the directive must be interpreted as being confined to the prohibition of a notification of dismissal to the employee during the period running from the onset of pregnancy to the end of maternity leave or whether it should be read as prohibiting, in addition, any attempt to find a permanent replacement for the pregnant employee before the end of that period. The CJEU found that the protection granted to workers by Article 10 of the directive excludes both the taking of a decision to dismiss and steps taken to prepare for that dismissal, such as searching for and finding a permanent replacement for the employee in question: [A]n employer ...who decides to replace a pregnant worker or a worker who has recently given birth or is breast feeding, on the grounds of her condition and who, from the moment when he first had knowledge of the pregnancy takes concrete steps with a view to finding a replacement is pursuing an objective which is specifically prohibited by Directive 92/85, that is, to dismiss a worker on the grounds of her pregnancy and/or the birth of a child.98

Parental leave The EC Commission drew up a proposal for a directive on parental leave rights in 198399 which was never adopted. The Community Charter on the Fundamental Social Rights of Workers100 specified in Point 16 that measures should be developed to enable men and women to reconcile their work and family life. Flexibility in working arrangements was seen as necessary in the light of changing demographic conditions. The ageing population and declining birth rates required the participation of women in the labour market and at the same time the care needs of the dependant young and old required that employees’ working hours should be capable of adaptation. Following the entry into force of the Maastricht Treaty, the Social Partners began work on a Framework Agreement based on Article 4 of the Agreement 95 97 99 100

96 For discussion of the concept of direct effect, see ch 2. [2001] ECR I-6915, at para 33. 98 Case C-460/06 [2007] ECR I-8511. Case C-460/06 [2007] ECR I-8511, at 8523–4. [1983] OJ C333/6, as amended [1984] C316/7. Office of Official Publications, Luxembourg, 1990, discussed in ch 3.

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on Social Policy. Agreement was duly reached within the required deadline of six months and it was implemented by Directive 96/34.101 Since the Agreement on Social Policy did not extend to the UK at that time, this Framework Agreement originally had no application in the UK but it was extended to the UK at the end of 1997. Today, Directive 2010/18102 repeals and replaces Directive 96/34. It enacts a revised Framework Agreement on Parental Leave concluded between BUSINESSEUROPA, UEAPME, CEEP and ETUC, (henceforth the ‘Framework Agreement’). The Framework Agreement was required to be implemented by the Member States by 8 March 2012. If a Member State had special difficulties, or if it wished to transpose the Framework Agreement into national law by means of a collective agreement, the implementation period could be extended by a further year but any Member State wishing to avail itself of this later implementation date was required to inform the Commission by 8 March 2012 and to give reasons for why it needed a longer implementation period. The Framework Agreement lays down minimum requirements on parental leave both for the general purpose of bringing up children and also to provide for time off from work where urgent family reasons in cases of sickness or accident make the immediate presence of the worker indispensable. It applies to all those working under an employment contract or within an employment relationship as defined by national law or practice or collective agreement either in the public or private sector.103 Employees are given the right to a period of time, to be defined by the Member States but which the Framework Agreement requires to be at least four months, to look after a child until a given age (again to be decided by each Member State) of up to eight years. That right should be granted, in principle, on a non-transferable basis.104 Where leave is granted on a transferable basis, at least one of the four months should be non-transferable so as to encourage the take up of leave by both parents. Ruiz-Jarabo Colomer AG pointed out in Busch v Klinikum Neustaat GmbH105 that the right is not confined to workers employed on permanent contracts of employment. The conditions for access to parental leave are a matter for national law and regulation but Clause 3(1) of the Framework Agreement requires the Member States to assess the need to adjust the conditions for access to such leave to the needs of parents of a child with a disability or long-term illness. Parental leave is expressed to be distinct from maternity leave;106 the two periods of leave are mutually exclusive. A parent or family is entitled to both. 101 Directive 96/34 on the Framework Agreement on Parental Leave [1996] OJ L145/4, also dis102 cussed briefly in ch 1. [2010] OJ L68/13. 103 Case C-149/10 Chatzi v Ipourgos Ikonomikon [2010] ECR I-8489. 104 Part II, Clause 2(1) and (2) of the Agreement. 105 Case C-320/01 [2003] ECR I-2041, at 2055. 106 Case C-116/06 Kiiski [2007] ECR I-7643.

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Member States are accorded a large measure of discretion in implementing the Framework Agreement. Clauses 3 and 4 offer some guidance on the issues which a Member State may address when implementing its provisions: (a) Whether parental leave is to be granted on a full-time or part-time basis, in a piecemeal way, or in the form of a time credit system; (b) Making entitlement to parental leave subject to a minimum period of employment or service not exceeding one year; (c) Adjusting the rules of parental leave to the special circumstances of an adoption and to parents of children with a disability or long term illness; (d) The notice to be given to an employer by an employee exercising the right to parental leave, which may be required to be furnished within a given time period and to specify the start and end dates of the period of leave sought; (e) The circumstances in which parental leave may be postponed by an employer for justifiable reasons related to the organization of the workplace; (f) Special arrangements to meet the operational and organizational needs of small undertakings. Member States are required to protect workers against dismissal and less favourable treatment on the ground of seeking or taking parental leave.107 When parental leave ends, the worker has the right to return to the same job, or, if that is not possible, to ‘an equivalent or similar job consistent with their employment contract’;108 and rights acquired, or being acquired, at the start of the leave must be maintained until the end of the leave.109 This last provision was in issue in Lewen v Denda,110 in which a woman on parental leave challenged her employer’s refusal to pay her a Christmas bonus. It was unclear from the facts as referred to the CJEU whether the bonus was intended to represent a reward for work actually done in the preceding year, or an incentive for future work. The Court approached the matter on both bases and held that, on either, the bonus represented ‘pay’ within the meaning of Article157.111 The question then arose as to whether that Article was breached in the situation under review. There was clearly no direct discrimination, since the bonus was not paid to either mothers or fathers on parental leave. However, the Court held that it might constitute indirect discrimination, since it accepted that women take parental leave far more often than men and that was also the case in the employer’s undertaking.112 It repeated its familiar formula that discrimination involves the application of different rules to comparable situations, or the application of the same rule to different situations. If the bonus 107

Framework Agreement, Clause 5(4). Framework Agreement, Clause 5(1). This right is a ‘working condition’ within the meaning of the Recast Directive and must therefore be provided on non-discriminatory terms: see Case C-320/01 109 Busch [2003] ECR I-2041. Framework Agreement, Clause 5(2). 110 111 Case C-333/97 [1999] ECR I-7243. See ch 5. 112 For the view that this decision reinforces the existing division of labour within families, see Di Torella, ‘Childcare, Employment and Equality in the European Community: First (False) Steps of the Court’ (2000) 25 ELRev 310. 108

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in this case were paid by way of incentive, the Court concluded that there would be no discrimination, because a worker on parental leave is in a special situation which cannot be compared with that of a man or woman at work since the contract of employment is suspended.113 On the other hand, if the bonus constituted retroactive pay: [A]n employer’s refusal to award a bonus, even one reduced proportionally, to workers on parenting leave who worked during the year in which the bonus was granted, on the sole ground that their contract of employment is in suspense when the bonus is granted, places them at a disadvantage as compared with those whose contract is not in suspense at the time of the award and who in fact receive the bonus by way of pay for work performed in the course of that year. Such a refusal therefore constitutes discrimination ...114

The logic relied upon in this case by the CJEU is somewhat obscure, in particular because it is unclear why workers on parental leave are permitted to compare their situations with those still at work in one scenario but not in the other. However, the outcome appears sensible, since where the bonus constitutes retroactive pay it has actually been earned by Christmas and cannot therefore lawfully be confiscated by the employer. The right to parental leave is conferred on parents; no individual right to parental leave is conferred by the Framework Agreement on the child.115 In Chatzi,116 the national court drew attention to Article 24 of the Charter of Fundamental Rights,117 which states that children have the right to such protection and care as is necessary for their well-being. It asked the CJEU whether the right to parental leave had therefore developed into the individual right of the child, with the result that the refusal of a second period of leave in the event of the birth of twins infringed the rights which the twins derived from the EU legal order. The Court held: The right to protection and care does not mean that children have to be acknowledged as having an individual right to see their parents obtain parental leave. It is sufficient for such a right to be conferred on the parents themselves. It is they who have both the right and the duty to bring up their children and who, for that purpose, can decide on how best to perform their parental responsibilities, in choosing whether or not to have recourse to parental leave.118

It went on to hold that the Framework Agreement gives entitlement to only one period of parental leave following birth, even in the case of a multiple births. It had

113 See also the submissions of Kokott AG in Case C-220/02 Österreichischer Gewerkschaftsbund v Wirtschaftskammer Österreich [2004] ECR I-5907. 114 [1999] ECR I-7243, at 7282. The Court also added that, for this purpose, any period during which the mother was prohibited by protective legislation from working must be assimilated to the 115 period actually worked. [1999] ECR I-7243, at para 40. 116 117 Case C-149/10 Chatzi v Ipourgos Ikonomikon [2010] ECR I-8489. See ch 3. 118 Case C-149/10 [2010] ECR I-8489, at para 39.

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been argued that the birth of twins entailed the right to two separate periods of parental leave, but the Court did not accept this argument: [C]lause 2.1 [now 2.2] of the Framework Agreement does not require that entitlement to a number of periods of parental leave equal to the number of children born be automatically recognised in the event of the birth of twins.119

However the Court was not oblivious to the implications of the principle of equal treatment for the parents of twins whom it found to be in a ‘special situation’ which the Member States should take into account when adopting measures transposing the Directive into national law. Clause 2.2 of the Framework Agreement read in the light of the principle of equal treatment obliges the national legislature: to establish a parental leave regime, which according to the situation obtaining in the Member State concerned, ensures that the parents of twins receive treatment that takes due account of their particular needs. It is incumbent upon national courts to determine whether the national rules meet that requirement and, if necessary, to interpret those national rules, so far as possible, in conformity with European Union law.120

The Framework Agreement lays down only minimum requirements. Member States have discretion to lay down longer periods of parental leave over and above the four-month minimum and they therefore they have a discretion to grant a longer period of leave to assist parents in dealing with the increased burdens associated with the bringing up of twins.121 But that may not be the only method of helping such parents. Other measures could be equally appropriate, such as the right of access to childcare centres or financial aid to enable parents to choose how to care for their children. Kiiski122 raised the issue of whether and in what circumstances the dates of a period of parental leave could be changed once they had been agreed between the employee and the employer. Ms Kiiski gave birth to a child in 2003 and applied for leave to care for that child from 11 August 2004 until 4 June 2005. On becoming pregnant again, she then applied to alter the end-date of her period of leave to 22 December 2004. Her request was refused on the ground that under Finnish law a new pregnancy could not justify altering the duration of a period of childcare leave already applied for. This refusal, in effect, deprived Ms Kiiski of her right to maternity leave as provided for by the Pregnancy Directive.The CJEU held, following its previous case law,123 that a period of leave granted under EU law cannot affect the right to another period of leave guaranteed under EU law: Community law therefore precludes a decision by an employer such as that taken in this case, the consequence of which is that a pregnant worker is not permitted to obtain, at her request, an alteration of the period of her child care leave at the time when she requests her 119

120 [2010] ECR I-8489, at para 61. [2010] ECR I-8489, at para 75. 122 [2010] ECR I-8489, at paras 69–71. Case C-116/04 [2007] ECR I-7643. 123 Case C-519/03 Commission v Luxembourg [2005] ECR I-3067; Case C-124/05 FNV [2006] ECR I-3423. 121

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maternity leave and which thus deprives her of the right inherent in that maternity leave which results from Article 1 and 8 of Directive 92/85.124

Although a worker may thus obtain a change in parental leave arrangements applied for and granted by the employer, the CJEU acknowledged that ‘strict conditions’ could attach to such a right. The grant of leave affects the organization of the employer’s business and must therefore be subject to regulation. Although a worker cannot be deprived of maternity leave, which was the case with Ms Kiiski, in other circumstances any alteration to the grant of parental leave may be subject to conditions. Such conditions would have to be in accordance with the general principles of equality and proportionality. Employment rights are preserved during the period of parental leave. Clause 5(2) of the Framework Agreement provides that rights acquired or in the process of being acquired at the start of a period of parental leave must be maintained, subject to any changes in national law or collective agreements. The concept of ‘rights acquired or in the process of being acquired’ is not defined but the CJEU has held that it is apparent from its context and wording that the provision is intended to avoid the loss of or reduction in rights derived from the employment relationship acquired or being acquired, to which the worker is entitled when he or she starts parental leave, and to ensure that at the end of that leave he or she will find themselves with regard to those rights in the same situation as that in which he or she was at the start of the leave.125 At the end of the period of leave, workers have the right to return to their jobs or, if that is not possible, to an equivalent or similar job. Member States are required to define the status of the employment contract or employment relationship for the period of parental leave.126 National implementing measures must ensure that workers are not dismissed or treated less favourably because they choose to exercise their right to parental leave.127 Meerts v Proost NV128 raised the issue of the amount of compensation to be paid for failure to observe the statutory period of notice, where a worker who is on part-time parental leave is dismissed before the end of that period of parental leave. Ms Meerts had been employed on a full-time basis under an employment contract of indefinite duration since 1992. From 18 November 2002 she took parental leave and worked part-time. Her period of parental leave was due to end on 17 May 2003. On 8 May 2003 Ms Meerts was dismissed with immediate effect. She was paid by way of compensation for her summary dismissal a sum equivalent to ten months of the part-time salary she had been receiving prior to her dismissal. Ms Meerts challenged this amount of compensation, arguing that it should have been calculated on the basis of her full-time salary which she would have been receiving if she had not reduced her working hours during parental leave. The CJEU 124 125 126 128

[2007] ECR I-7643, at para 57. Case C-537/07 Sanchez-Camacho v INSS [2009] ECR I-6525. 127 Framework Agreement, Clause 2(3). Framework Agreement, Clause 2(6). Case C-116/08 [2009] ECR I-10063.

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found that the body of rights and benefits constituting the ‘rights acquired or in the process of being acquired’ within the meaning of Clause 5(2) of the Framework Agreement: would be compromised if, where the statutory period of notice was not observed in the event of dismissal during the part-time leave, a worker employed on a full-time basis lost the right to have compensation for dismissal due to him determined on the basis of the salary relating to his employment contract.129

The Court rejected the argument of the Belgian Government to the effect that it would be discriminatory to pay two workers employed on a full-time basis, one on part-time parental leave and the other working full-time, equivalent compensation in the event of dismissal since two different situations would be being treated in the same way.The Court pointed out that the full-time worker, whilst on part-time parental leave, continues to acquire years of service in the company, which are taken into account in calculating the statutory period of notice in the event of dismissal as if he or she had not reduced working hours and, furthermore, the period during which the full-time worker is on part-time parental leave is of limited duration and during that period the full-time worker receives, in addition to the salary corresponding to the hours worked, a fixed allowance paid by the national employment office which is deemed to compensate for the reduction in salary from full-time to part-time. The two workers are thus not in a different position in relation to the initial employment contract with their employer. The Member States and the Social Partners are required to take the necessary measures to ensure that workers, when returning from parental leave, can request that their working hours be adapted to meet their family responsibilities. There is no obligation on the employer to accede to such a request; the employer is merely required to ‘consider and respond to such requests taking into account both the employers’ and the workers’ needs’.130 Alvarez v Sesa Start Espana ETT SA131 raised the issue of discrimination between fathers where their entitlement to parental leave, in the broad sense of that term, was dependent upon their spouse’s status on the labour market with the result that one group of fathers could be entitled to leave whilst another would not be. The case concerned the right of a father of an unweaned child to leave for the purposes of bottle-feeding that child. Spanish law, dating back to 1900, entitled the mothers and fathers of unweaned babies to take a period of leave during the working day for the purpose of feeding babies up to the age of nine months. The right to leave was granted to all employed mothers but only to employed fathers where the mother was also employed. Ms Alvarez was self-employed and so her husband’s request for leave to feed their child during the working day was refused. The refusal was in accordance with the Spanish law. In a reference for a preliminary ruling, the Spanish 129 131

Case C-116/08 [2009] ECR I-10063, at para 46. Case C-104/09 [2010] ECR I-8661.

130

Framework Agreement, Clause 6(1).

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court asked whether the national provision offended against the principle of equal pay ‘enshrined in Article 13 of the TEC, in Directive 76/207 ...and in Directive 2002/73’. The Court found that the date for transposition of Directive 2002/73 fell after the relevant facts had occurred and was thus inapplicable.The Commission argued that the national provision was incompatible with the Parental Leave Directive but both the Court and the Advocate General refuse to consider that directive in the absence of any reference to it or to the national rules implementing it in the order for reference. The case was thus considered on the basis of the original Equal Treatment Directive. It appeared in the course of proceedings before the Court that, although the national provision originally had as its objective the facilitation of breastfeeding, the leave in issue had become detached over the years ‘from the biological fact of breastfeeding’ and came to be considered, and accepted, as ‘time purely devoted to the child and as a measure which reconciled family life and work following maternity’.132 The leave in question could not therefore be considered as ensuring the protection of a woman’s biological condition following pregnancy but as leave granted to workers as parents of the child.The Court thus concluded that the measure in issue established a difference on the grounds of sex within the meaning of Article 2(1) of the Equal Treatment Directive, as between mothers whose status is that of an employed person and fathers with the same status. The Court did not feel that such a measure could be justified under Article 2(3) and (4) of the directive since the accepted object of the leave was not to protect the mother’s biological condition, nor to eliminate or reduce inequalities between men and women. On the contrary the Court found that: to hold, as the Spanish government submits, that only a mother whose status is that of an employed person is the holder of the right to qualify for the leave in issue in the main proceedings, whereas a father with the same status can only enjoy that right but not be the holder of it, is liable to perpetuate a traditional distribution of the roles of men and women in relation to the exercise of their parental duties ...133

Moreover the Court found that to refuse the leave to fathers whose status is that of an employed person on the sole ground that the child’s mother does not have that status could have a detrimental effect on her in that she would have to bear the responsibility of looking after the child without the support from her husband that an employed mother would have. This is an interesting point in that it raises the issue of discrimination between two different groups of women resulting from a denial of equal rights to the fathers of their children. Matters relating to social security during parental leave are left to the discretion of each Member State. However, the Framework Agreement makes reference to ‘the importance of the continuity of the entitlements to social security cover under 132 133

Case C-104/09 [2010] ECR I-8661, at para 28. Case C-104/09 [2010] ECR I-8661, at para 36.

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the different schemes, in particular health care’.134 In Part 1 of the Agreement, entitled ‘General Considerations’, the signatory parties emphasize the importance of the preservation of social security rights: 18. Whereas Member States should provide for the maintenance of entitlement to benefits in kind under sickness insurance during the minimum period of parental leave; 19. Whereas Member States should also, where appropriate under national conditions and taking into account the budgetary situation, consider the maintenance of entitlements to relevant social security benefits as they stand during the minimum period of parental leave as well as the role of income among other factors in the take up of parental leave when implementing this agreement.

Although these statements urge the maintenance of social security benefits, in particular medical care, the reality is that they impose no obligations on the Member States. Failure on their part to maintain such benefits could clearly act as a disincentive to the taking up of parental leave, particularly on the part of single parents who may have no other possibility of financial support during leave other than the state welfare system. Fathers who are the main breadwinners in a family may also be reluctant to take parental leave. The lack of any obligation on the part of the Member States with respect to social security benefits during parental leave was confirmed by the CJEU in Sanchez Camacho v INSS, GSS and Alcampo SA.135 Ms Sanchez Camacho reduced her working hours in order to care for her six-year-old child. Her salary was paid in proportion to the hours she worked, as were both her and her employer’s social security contributions. Ms Sanchez Camacho subsequently became ill and became entitled to an invalidity pension the amount of which was calculated on the basis of the contributions which both she and her employer had actually paid. She argued, relying both on what was then Clause 2(8) of the original Framework Directive (now Clause 5(5)) and the Social Security Directive,136 that her pension should have been calculated on the basis of the contributions that would have been paid had she been in full-time work during the period when she was on parental leave.The CJEU held that Clause 2(8) could not be relied upon by individuals before a national court against public authorities and that it did not require them to ensure that during parental leave employees continued to receive social security benefits. In addition, neither Clause 2(6) nor Clause 2(8) precluded the Member States from calculating benefits on the basis of reduced contributions received whilst working part-time during parental leave.

Proposed amendments to the Pregnancy Directive In the ‘Roadmap for Equality between Men and Women 2006–2010’ adopted by the Commission in March 2006, the Commission committed itself to reviewing 134 136

135 Framework Agreement, Clause 5(5). Case C-537/07 [2009] ECR I-6525. Directive 79/7 [1979] L6/24, as to which see ch 10.

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existing EU gender equality legislation which was not included in the 2005 recasting exercise, such as the Pregnancy Directive. Following pressure from both the European Parliament and the European Council in the course of 2007–08, the Commission published a proposal to amend three key provisions of the Pregnancy Directive: Article 8 on maternity leave, Article 10 on the prohibition of dismissal, and Article 11 on employment rights.137 Some of the proposals reflect the case law of the CJEU. The proposal would extend the period of maternity leave to 18 weeks, six of which would have to be taken after childbirth. This corresponds to the length of leave provided for in the ILO Maternity Protection Recommendation of 2000.138 The extended period of compulsory leave after childbirth is intended to enable the mother to breastfeed for a longer period than may be the case under the current régime. Where the birth occurs after the due date, the prenatal portion of leave would be extended to the actual date of birth, without any reduction in the postnatal portion of the leave, so that women have sufficient time to recover from the birth and to breastfeed. Member States would be left to decide on what further period of leave should be given to the mother in the event of premature childbirth, children born with disabilities, and multiple births. Any period of sick leave up to four weeks before confinement, in the event of illness caused by complications arising out of pregnancy, would not to lead to a shortening of the period of maternity leave. Preparations for a possible dismissal during maternity leave, not related to exceptional circumstances, would be prohibited. Under the directive as presently worded an employer must give reasons when a woman is dismissed while on maternity leave. If amended, the directive would require an employer, if requested, to give reasons for dismissal within six months of the end of maternity leave. The proposal would also introduce important changes on payment during maternity leave. It would provide that in principle a woman should be paid her normal full monthly salary, subject to a ceiling to be determined by the Member States, provided that that ceiling is not set below the rate for normal sick pay. Article 11 would be further amended to give a worker the right to ask her employer to adapt her working patterns and hours to the new family situation. An employer would be obliged to consider such a request but not to grant it. To bring the Pregnancy Directive into line with the 2002 amendment to the Equal Treatment Directive and the Recast Directive, Article 11 would be amended to make clear that, following maternity leave, a woman has the right to return to the same job or to an equivalent post on terms and conditions that are no less favourable, and the right to benefit from any improvement in working conditions to which she would have been entitled during her absence. 137 Proposal for a Directive of the European Parliament and of the Council amending Council Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding: COM (2008) 138 600/4. R191—Maternity Protection Recommendation, 2000 (No 191).

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The Proposal would make a number of changes relating to enforcement. A provision on burden of proof would be inserted into the directive to bring it into line with existing equality directives. Victimization would be prohibited. Member States would be obliged to introduce penalties for breaches of national law implementing the directive. Such penalties should be ‘effective, proportionate and dissuasive’ and not subject to an upper limit. The remit of existing equality bodies established pursuant to the 2002 Amendment to the Equal Treatment Directive and the Recast Directive would be required to be extended to matters covered by the Pregnancy Directive to the extent that these relate to equal treatment as opposed to health and safety issues. At the time of writing this Proposal is still pending before the Council and there is no indication of when it is likely to be adopted. In times of financial stringency such as the present, the prospects for this Proposal in the immediate future are not good.

8 Non-workplace discrimination

Equality legislation is focused primarily on practices within the workplace.These have been considered chapter 6. Protection against non-workplace discrimination on an EU level is sparser but there is a growing demand for increased EU involvement in combating such discrimination given the differences in the laws and policies within the Member States.1 The Race Directive2 provides for limited protection against discrimination outside the workplace; the Goods and Services Directive3 prohibits discrimination between men and women in the provision and supply of goods and services but again with a number of exceptions, some of which mirror those of the Race Directive. The scope of the Framework Directive4 is confined to the workplace; it contains no provision extending the principle of equal treatment into life within the community generally. The result of this disparity in the application of the principle of equal treatment is a hierarchy of norms within the corpus of equality legislation with discrimination on racial or ethnic grounds receiving the highest level of protection, followed by gender discrimination and finally discrimination on the ground of religion or belief, disability, age or sexual orientation being prohibited only within the workplace. That position has been emphasized by the accession of the EU to the UN Convention on the Rights of Persons with Disabilities in December 2010 which provides for the equal treatment of disabled persons on a broader level than is currently the case with present EU legislative provisions.5 This situation has been the subject of much criticism6 and has prompted calls from many directions for a review of existing legislation. As its Preamble makes clear, the Race Directive is based on the premise that the achievement of real equality irrespective of racial or ethnic origin depends on action in a number of areas of which the world of work is only one.7 Laudable 1

2 COM (2008) 420 final, section 2. Directive 2000/43 OJ [2000] L80/22. 4 Directive 2004/113 OJ [2004] L373/37. Directive 2000/78 OJ [2000] L303/16. 5 See further discussion in ch 1; Waddington, ‘The European Union and the United Nations Convention on the Rights of Persons with Disabilities: A story of exclusive and shared competence’ (2011) 18 Maastricht Journal of Comparative and European Law 431. 6 Bell and Waddington, ‘Reflecting on inequalities in European equality law’ (2003) 28 ELRev 349; Howard, ‘The Case for a Considered Hierarchy of Discrimination Grounds in EU Law’ (2006) 13 Maastricht Journal of Comparative and European Law 445; Fredman,‘Equality: A New Generation?’ (2001) 30 ILJ 145;Waddington and Bell,‘More Equal than Others: Distinguishing European Union Equality Directives’ (2001) 38 CMLRev 587; Skidmore, ‘EC Framework Employment Directive on Equal Treatment in Employment: Towards a comprehensive Community Anti-Discrimination Policy?’ (2001) 30 ILJ 126; Schiek, ‘A New Framework on Equal Treatment of Persons in EC Law’ (2002) 27 ELRev 290. 7 See, in particular, recital 12 of the Preamble to the Race Directive. See also the Commission’s Explanatory Memorandum on the draft Directive, COM (1999) 566 final, especially at 5. 3

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though this acknowledgement undoubtedly is, the EU and its institutions made no attempt at the time of the enactment of the Race Directive and the Framework Directive to explain why the realization of the aim of equality in the field of race requires provision outside the workplace, whilst its realization in the other areas of sex, religion, disability, age, and sexual orientation does not. Nor has it been made clear why the scope of protection in the subsequent Goods and Services Directive is more limited than that in the Race Directive. There are a number of reasons why equality legislation may have developed in such a disparate fashion. At the time of the adoption of the Race Directive there was strong political will amongst the Member States to take action against racism on a Union level and a certain urgency to adopt legislation, especially given the increased and perceptible levels of overt racial discrimination within their territories and in particular the entry into government in Austria of the far right Freedom Party.8 Furthermore the Union had been active in combating racial discrimination through soft law instruments for many years prior to the adoption of the directive.9 There was therefore a familiarity with the issues surrounding racial discrimination and a commitment to its eradication. Finally there had been strong lobbying for action on a Union level since the early 1990s, in particular by the Starting Line Group which represented some 200 non-governmental organizations (NGOs).The Starting Line Group drafted a proposal for a directive in 1992 which was somewhat premature since there was no specific legal basis at that time whereby it could be adopted but the initiative was well-supported and ultimately influenced the preparation of the Race Directive10 adopted in 2000. This chapter will begin by considering the provisions of the Race Directive and the Goods and Services Directive relating to non-workplace discrimination, before moving on to discuss current legislative and policy initiatives to extend the principle of equality beyond the workplace.

The Race Directive Article 3(1) of the Race Directive provides: Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:... 8

De Búrca, ‘The Drafting of the European Charter of Fundamental Rights (2001) 26 ELRev 126. Joint Declaration of the Institutions against Racism and Xenophobia [1986] OJ C158/1; The Commission’s Communication on Racism, Xenophobia and Anti-Semitism adopted in December 1995 (COM (95) 653 final) proposed the insertion, where appropriate, of anti-discrimination provisions in new instruments. 1997 was designated the European Year against Racism and saw the establishment of the European Monitoring Centre on Racism and Xenophobia (Regulation 1035/97 [1997] OJ L151). 10 Tyson, ‘The negotiation of the European Community Directive on Racial Discrimination or Ethnic Origin’ (2001) 3 European Journal of Migration and Law 199. 9

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social protection, including social security and healthcare;11 social advantages; education; access to and supply of goods and services which are available to the public, including housing.

The sparse wording of this provision is noteworthy; the Article contains no definitions and no examples. Each of the four categories listed raises obvious and immediate difficulties. Discrimination is only prohibited to the extent that the Union is competent to act in each of the four fields mentioned. That competence is actually quite limited and, given the proclivity of the Member States to maintain their competence in the social and health areas, and the Court’s traditional reluctance to erode the Member States’ discretion in the management of its social and employment policies,12 Article 3 of the Race Directive is unlikely to be given a generous interpretation by the CJEU. The Lisbon Treaty in principle reinforced the divide between the respective competences of the Union and the Member States. Following the Lisbon Treaty, Article 5(1) and (2) of the TEU provide: (1) The limits of Union competence are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. (2) Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union shall remain with the Member States.

Article 153 of the TFEU empowers the Union to support and complement the activities of the Member States in a number of fields including the ‘social security and the social protection of workers’. The Council, acting unanimously, can adopt measures to achieve this objective but its role is clearly subsidiary to that of the Member States. ‘Social protection’ is a very broad expression, which is clearly intended to extend beyond the field of social security systems—but how far?13 Looking at the Commission’s work in the area of social protection the term appears to be understood as stretching beyond social security in the classic sense of that term into healthcare generally, long-term care, and social policy initiatives to combat poverty and exclusion. It seems therefore to cover all welfare benefits and facilities (eg, drop in centres, day care centres, the provision of meals and shelter to the needy, and general support services). So, for example, a day care centre providing care for either the young or the old cannot discriminate on racial or ethnic grounds in the provision of its facilities. Likewise care homes for elderly or other vulnerable groups cannot operate a discriminatory admissions policy. 11 The provision of healthcare would appear to be an excellent example of the kind of situation in which age discrimination might be highly relevant, yet, as noted, the Framework Directive does not 12 extend to this sphere. See discussion in chs 9 and 10. 13 Art 137(1)(c) gives the Community competence in relation to the social protection of workers, and Art 136(1)(k) refers in general to the modernization of social protection systems.

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How far does the Union’s competence extend into the field of healthcare, especially given the proviso contained in Article 168(5) of the TFEU that ‘Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care’? Support for Union competence in relation to healthcare might, however, be derived from the case law establishing that the freedom to provide services, guaranteed by Articles 56–62 of the TFEU, extends to freedom to receive healthcare14 and the Patients’ Directive15 which codifies and clarifies that case law and which has as its legal basis Articles 114 and 168 of the TFEU. The expression ‘social advantages’ has been transplanted from the law on the free movement of persons,16 and the Union’s competence in this area is therefore undisputed. The Commission, in its Explanatory Memorandum on the draft Directive,17 explained that the meaning of ‘social advantages’ was intended to follow that arrived at in relation to free movement. In other words, it was to cover benefits of an economic or a cultural nature granted either by public authorities or by private organizations, including such things as concessionary travel on public transport, reduced prices for cultural or other events, and subsidized school meals. However, it may well be that, given the fundamental importance attached by the CJEU to the principle of equality and the basis of the Race Directive in human rights protection, the Court will give a more generous interpretation to ‘social advantages’ in the field of race than it has for free movement.18 Article 3(1)(g) on education is potentially problematic. The Community’s competence in this area derives from Articles 165 and 166 of the TFEU. Paragraph 1 of each Article contains similar wording: Article 165 1. The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of educational systems and their cultural and linguistic diversity. Article 166 1. The Union shall implement a vocational training policy which shall support and supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training. 14 See Case C-158/96 Kohll v Union des Caisses de Maladie [1998] ECR I-1931; Case C-157/99 Peerbooms v Stichting CZ Groep Zorgverzekeringen [2001] ECR I-5473; and Case C-385/99 Müller Fauré v Onderlinge Waarborgmaatschappij [2003] ECR I-4509. 15 Directive 2011/24 on the application of Patients’ Rights in Cross-border Healthcare [2011] OJ L 88/45; Pennings, ‘The Cross-border Health Care Directive: More free movement for citizens and more coherent EU Law’ (2011) 13 European Journal of Social Security 424. 16 Specifically, Art 7(2) of Regulation 1612/68, OJ Sp Ed [1968] L257/2. 17 COM (1999) 566 final, at 7. 18 See further Ellis, ‘Social Advantages: A New Lease of Life?’ (2003) 40 CMLRev 639.

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The Union’s competence in the areas of education and vocational training is limited to developing the European dimension in those areas, for example by promoting language teaching and facilitating exchanges of information and practices between educational and training establishments within the Union, and to supporting national educational policies. The European Parliament and the Council are empowered to adopt measures to achieve the objectives set out in Articles 165 and 166 ‘excluding any harmonisation of the laws and regulations of the Member States’. The difficulty lies in the apparent exclusion of the Union from competence over matters of educational curriculum and organization. Yet these are very important areas in which racial discrimination may occur, for example through the inclusion in the curriculum of material with a racial bias (say, biological theory about differential racial ability), or through the non-admission of children of a particular origin (say the Roma) to a school. It is therefore greatly to be hoped that the CJEU, when called upon to decide the reach of the directive in the field of education, will adopt a robust approach. Cause for optimism on this score might be derived from its decisions in the analogous cases dealing with freedom of movement; in particular, at a time when the relevant Treaty Article dealing with vocational training provided only that the Council was ‘to lay down general principles for implementing a common vocational training policy’, the Court held that what is today Article 18 of the TFEU prohibited discrimination on the ground of nationality in relation to access to vocational training.19 The Court has held that the concept of services ‘provided for remuneration’, covered by Articles 56–62, extended to education in private fee-paying schools, but not apparently to educational establishments where no fees were paid.20 The Court’s commitment to the protection of human rights might also justify a broad approach in this area. It must, however, be noted that the freedom to provide and receive services in the sphere of education and, as has been noted, healthcare, does not in any way affect the essential nature of those services themselves over which the Member States retain control—although it must be admitted that the Court’s case law on free movement has undoubtedly eroded Member States’ sovereignty in the areas of healthcare, education, and welfare policy, particularly as regards their personal and territorial scope, and has required changes in the organization of the delivery of such services. As regards access to and the supply of goods and services, the Union enjoys competence in this area as a result of its powers in relation to freedom to provide services and consumer protection. However, the phrase ‘which are available to the 19 Case 152/82 Forcheri v Belgium [1983] ECR 2323; Case 293/83 Gravier v City of Liège [1985] ECR 593; Case 24/86 Blaizot v University of Liège [1988] ECR 379; and Case C-357/89 Raulin [1992] ECR I-1027. See discussion in Arnull, The European Union and its Court of Justice (Oxford University Press, Oxford, 1999), 376–81. 20 Case C-78/05 Schwarz and Gootjes v Finanzamt Bergisch Gladback [2007] ECR I-6849 See the (critical) comments of Spaventa in ‘Public Services and European Law: Looking for Boundaries’ (2002– 03) 5 CYELS 271. Cf Case 263/86 Belgium v Humbel [1988] ECR 5365, and Case C-102/92 Wirth v Landeshaupstadt Hannover [1993] ECR I-6447.

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public’ limits the scope of Article 3(1)(h). Brown has pointed out, that it is important that the goods and services provision be interpreted by the CJEU as encompassing bodies such as the police if ‘institutional racism’ of the type discussed in chapter 1 is to be proscribed by EU law.21 Housing falls within the scope of the Article as an aspect of the supply of goods and services, and the directive would therefore appear to forbid racial discrimination in relation to the allocation of, for example, council housing, or even in relation to a sale of real property by a private seller. As we will see at p 372, the scope of the Commission’s proposed directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation published in 2008 (the ‘2008 proposal’) specifies that it only applies to goods and services including housing which are provided on a professional or commercial basis. The scope of the Race Directive would appear to be broader than that of the 2008 proposal. However recital 4 of the Preamble to the Race Directive refers to the importance of respecting ‘the protection of private and family life and transactions carried out in this context’ and this may result in services such as the provision of housing in the private sector being confined to activities carried out on a professional or commercial basis. It is of interest to note that recital 11 of the Preamble to the 2008 proposal states: This Directive should be without prejudice to the competences of the Member States in the areas of education, social security and health care. It should also be without prejudice to the essential role and wide discretion of the Member States in providing, commissioning and organising services of general economic interest.

Had the Constitution for Europe been adopted, the problems of competence in relation to the non-workplace provisions of the Race Directive would have been largely resolved. Article 1-11 of the Constitution stated that the Union was to enjoy only those competences conferred on it by the Member States in that instrument. Article 1-14 provided that the Union was to share competence with the Member States in a number of areas, including aspects of social policy and public health matters. In addition, Article 1-17 would have given the Union competence to carry out supporting, coordinating, or complementary action in areas which include the protection and improvement of human health and education.

The Goods and Services Directive The legal basis for the Goods and Services Directive22 is the same as that of the Race and Framework Directives, namely Article 19 of the TFEU. The Preamble 21 Brown, ‘The Race Directive: Towards Equality for All the Peoples of Europe?’ (2002) 21 YEL 195. The concept of ‘institutional racism’ was highlighted by Sir William MacPherson’s Stephen Lawrence Inquiry, Cm 4262-I (HMSO, London, 1999). 22 Directive 2004/113 OJ [2004] L373/37.

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to the directive indicates that it draws inspiration from some five international conventions,23 including the ECHR. Recital 4 specifically mentions Articles 21 and 23 of the Charter of Fundamental Rights which prohibits any discrimination on the grounds of sex and which requires equality between men and women to be ensured in all areas. Although the Charter was not legally binding at the time the directive was adopted, reference to it in the Preamble means that its provisions must be interpreted in the light of the Charter.24 The directive entered into force on 21 December 2004 with a three-year implementation period.25 The purpose of the directive, as set out in Article 1, is to lay down a ‘framework for combating discrimination based on sex in access to and supply of goods and services’. It is subject to the same limitation as the Race Directive, that is, it applies only ‘within the limits of powers conferred upon the Community’.26 The discussion of this limitation in the context of the Race Directive at p 363 et seq. is equally applicable to this directive. The directive lays down minimum requirements: Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment but the implementation of the directive must not lead to a reduction in the level of protection afforded by the Member States at the time of its entry into force.27 Member States may engage in positive action, by maintaining in force or adopting specific measures to prevent or compensate for disadvantages linked to sex.28 The directive applies to all persons, both in the public and private sectors of the economy (including public bodies), who provide goods and services available to the public, outside the area of private and family life. Thus, for example, the directive covers persons who operate hotels or blocks of service flats but not those who rent out rooms in their family homes. The freedom of suppliers of goods and service providers to choose their contractual partners is preserved subject to the condition that such choice is not based upon the customer’s sex. Goods and services do not have to be provided to both sexes on a shared basis but they must not be provided on more favourable terms to members of one sex. Thus, for example, a local authority can operate two swimming pools open to the public, one for men and one for women, but the entry fees and facilities for both must be comparable. The principle of equal treatment is defined in Article 4 as requiring that there be no discrimination based on sex, including less favourable treatment for women for reasons of pregnancy and maternity. Both direct and indirect discrimination 23

Most of which seem largely irrelevant to the limited subject-matter of the directive. Case C-236/09 Association Belge des Consommateurs Test-Achats v Conseil des Ministres [2011] ECR I-000. 25 See Lorenzetti, ‘Gender Policies beyond the Marketplace: the Goods and Services Directive and National Implementation’, in Niccolai and Ruggiu (eds), Dignity and Change: Exploring the Constitutional Potential of EU Gender and Anti-Discrimination law (European Press Academic Publishing, Florence 26 2010). Art 3(1). 27 28 Art 7. Art 6, see further discussion in ch 9. 24

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are prohibited.29 Harassment, sexual harassment, and instructions to discriminate are deemed to be discrimination.30 These concepts are common to all the equality legislation and are discussed in chapter 4. Additionally Member States are required to protect persons from victimization following a complaint of discrimination or the commencement of legal proceedings to enforce compliance with the principle of equal treatment.31 There are a number of sectors and activities to which the directive does not apply: media and advertising content, education (both public and private), and matters of employment and occupation.32 Matters of self-employment are also excluded to the extent that these are covered by other Union legislative acts.33 Suppliers of goods and services can therefore target their advertising to either men or women but must supply the goods or services advertised to both sexes on the same terms. Education is completely outwith the scope of the directive which is regrettable as it is a key element in achieving gender equality.34 Single sex schools and other educational facilities can prevail and gender mixed establishments and facilities can provide goods and services on different terms and conditions to both sexes. Pensions and insurances provided as part of the employment contract are not subject to the directive (although discriminatory practices will largely be covered by other EU legislative instruments)35 but the directive will apply in full to insurance and pension schemes which are private, voluntary, and separate from the employment relationship. Additionally the directive does not preclude differences in treatment, if the provision of goods or services exclusively or primarily to one sex is justified by a legitimate aim, provided the discriminatory practices are appropriate and necessary to achieve that aim.36 For example, it is possible for insurers to offer gender-specific insurance products (or options within contracts) to cover conditions which exclusively or primarily concern men or women, for example, healthcare insurance to cover prostate cancer or ovarian or uterine cancer.37 However even though pregnancy and maternity are conditions particular to women, Article 5(3) specifically provides that costs relating thereto are not to result in differences in individuals’ premiums and benefits. Other legitimate aims may include the protection of victims of sex-related violence through, for example, the provision of single sex shelters; respect for privacy and decency, for example, in the case of the provision of accommodation by a person in a part of that person’s home; the promotion of gender equality or of the interest of men and women through, for example, single sex private clubs or the organization of sporting events for one sex or the other.38 29

30 31 32 Art 2(a) and (b). Art 2(c) and (d). Art 2(3). Art 2(4). See, eg, Directive 2010/41 on the application of the principle of equal treatment between men and women engaged in self-employed capacity [2010] OJ L180/1. 34 Caracciolo di Torella, ‘The Principle of Gender Equality, the Goods and Services Directive and Insurance: A Conceptual Analysis’ (2006) 13 Maastricht Journal of European and Comparative law 13. 35 TFEU, Art 157 and the Recast Directive (Directive 2006/54 OJ [2006] L204/23) discussed in ch 5. 36 37 38 Art 4(5). COM (2011) 9497 final, at 5. Preamble, recital 16. 33

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Given the hitherto widespread use of actuarial factors by the insurance industry and other related financial services, the directive provides in Article 5 for the gradual implementation of the principle of equal treatment, in order to avoid a sudden re-adjustment of market conditions within the industry. Article 5(1) provides: Member States shall ensure that in all new contracts concluded after 21 December 2007, at the latest, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services shall not result in differences in individuals’ premiums and benefits.

The directive does not define the concept of ‘new contract’ nor does it require that concept to be interpreted in accordance with national norms. A ‘new contract’ is thus to be regarded as an autonomous concept of EU law to be interpreted and applied uniformly throughout the Union.39 Article 5(1) envisages a clear distinction between existing and new contractual arrangements, the objective being to avoid a sudden readjustment of the market so as to avoid undue interference with existing contractual arrangements and the legitimate expectations of the parties to those arrangements. In the light of these objectives the Commission has given some guidance on what the term ‘new contract’ might mean. It considers that it encompasses both contracts concluded for the first time as well as agreements to extend contracts which would otherwise expire. However contracts which are automatically extended in the absence of a cancellation notice, adjustments to individual elements of an existing contract where the consent of the policy-holder is not required, or the mere transfer of an insurance portfolio from one insurer to another without any adjustment in the status of contracts concluded in the portfolio, are not to be considered ‘new contracts’. Article 5(3) provides that costs related to pregnancy and maternity must not result in differences in individuals’ premiums and benefits. Member States were given a further two years (that is, until 21 December 2009) to implement this rule but were required to inform the Commission if they intended to avail themselves of this extended deadline. Although Article 5(1) appears to impose a total prohibition on the use of sex as a factor in the calculation of premiums and benefits if the result is a difference in individuals’ benefits and premiums in contracts concluded after 21 December 2007, Article 5(2) permitted Member States to derogate from the requirement of unisex premiums and benefits: Notwithstanding paragraph 1, Member States may decide before 21 December 2007 to permit proportionate differences in individuals’ premiums and benefits where the use of sex as a determining factor in the assessment of risk is based on relevant and accurate actuarial and statistical data. 39 Case C-34/10 Oliver Bruestle v Greenpeace eV Judgment of 18 October 2011, para 25; Case C-467/08 Padawan v SGAE [2010] ECR I-10055, para 32.

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Member States who wished to avail themselves of this derogation were required to inform the Commission and to ensure that accurate data relevant to the use of sex as a determining actuarial factor were compiled, published, and updated regularly. They were required to review their decision five years after the date by which the directive was to be implemented (that is, 21 December 2012). Article 5(2) was found to be invalid by the CJEU in Assocation Belge des Consommateurs Test-Achats v Conseil des Ministres.40 This judgment was discussed in chapter 5. Following this finding of invalidity the Commission issued Guidance on the implications of the judgment.41 This Guidance is not legally binding; its objective is to facilitate compliance at a national level with the Court’s judgment. At the time of the publication of the Guidance, in December 2011, the Commission noted that all Member States allowed gender differentiation for at least one type of insurance and in all Member States insurers were allowed to use sex as a risk-rating factor in life insurance. The judgment therefore has implications in all Member States. The Commission points out that the use of gender as a risk-rating factor in general terms is not prohibited by the directive; what is prohibited is the use of gender in the calculation of individuals’ benefits and premiums. Thus it maintained that gender can be used to assess benefits and premiums in the aggregate as long as it does not lead to differentiation at individual level. Gender can also be taken into account in assessing risk factors in life and health insurance such as health status or family medical history. For example a family history of breast cancer is significant in assessing the risk of such cancer developing in a woman whereas it is not in the case of a man. Obesity is a risk factor; the measurement is the waist to hip ratio which is not the same for a man and a woman. Differential premium rates are thus justified where there are objective physical reasons why a risk is more likely to materialize in one gender than another or where the general health of one gender requires more preventative medical screening. The Commission also considers it possible, subject to Article 4(5) of the directive, for insurers to offer gender specific products (or options within insurance contracts) exclusively or primarily to men or women according to their needs, for example, healthcare insurance in respect of prostate cancer or ovarian cancer. Turning back to the judgment in Test-Achats we may query whether the Commission’s Guidelines reflect an accurate understanding of the judgment and its implications. The Court seemed to be of the view that equality of treatment inevitably required the use of unisex premiums, whereas the Commission appears to be advising that this is not necessarily so. It seems to be of the view that gender can be an actuarial factor, in that some insurable risks are more likely to occur in one 40 Case C-236/09 [2011] ECR I-000. Noted by Tobler in (2011) 48 CMLRev 2041. See also Watson, ‘Equality, Fundamental Rights and the Limits of Legislative Discretion: Comment on Test Achats’ (2011) 36 ELRev 896. 41 Guidelines on the application of Council Directive 2004/113EC to insurance, in the light of the judgment of the Court of Justice of the European Union in Case C-236/09 (Test Achats) Com (2011) 9497 final.

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gender or another, and if this is so then men and women can be treated differently in insurance matters. Both the Advocate General and the Court focused on Article 5(2) of the directive. Not much attention was paid to Article 5(1), but the two provisions are linked and need to be read together in the interest of coherence. Article 5(1) requires that the use of sex as a factor in the calculation of premiums and benefits should not result in differences in individuals’ benefits and premiums in all insurance contracts concluded after 21 December 2007. This appears to be a total prohibition on the use of sex as a factor in actuarial calculations. At the same time, paragraph 2 of Article 5, in allowing a derogation from this prohibition on the basis of ‘relevant and accurate actuarial and statistical data’, appears to acknowledge that there may be circumstances in which differential premiums and benefits may be justified. This interpretation is borne out by recital 19 of the Preamble, which states: Certain categories of risks may vary between the sexes. In some cases, sex is one but not necessarily the only determining factor in the assessment of risks insured. For contracts insuring those types of risks, Member States may decide to permit exemptions from the rule of unisex premiums and benefits, so long as they ensure that underlying actuarial and statistical data on which the calculations are based, are reliable, regularly updated and available to the public.

The Council itself expressed doubts, in the course of the proceedings before the Court, as to whether the context of certain branches of private insurance meant that male and female policy-holders could be regarded as being in a comparable position.42 The insurance industry categorizes risks on the basis of statistics and these may show that the level of the insured risk may be different for men and women. Accordingly, Article 5(2) allowed for the possibility of not treating different situations in the same way. This argument was not accepted by the Court, which held that the directive was based upon the premise that the respective situations of men and women with regard to insurance premiums and benefits are comparable. That being so, there could not be an indefinite derogation from the principle of equal treatment as provided for in Article 5(2). However it must be queried whether the Council could, even if it wished, categorically require the use of unisex premiums and benefits. Article 19 of the TFEU states that the Council ‘may’ take appropriate action to combat discrimination.That is the limit of its competence. If, for example, it can be demonstrated (as Article 5(2) appears to permit) that members of one sex are less likely to incur an insurable risk than the other, then to charge unisex premiums would be discriminatory. Kokott AG, in paragraph 37 of her Opinion, points to the limitation of the legislature’s competence: The Union legislature is by no means at liberty to allow arbitrary exceptions to the principle of equal treatment and thereby to undermine the prohibition against discrimination. 42

Case C-236/09 Test Achats [2011] ECR I-000, at para 27.

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Again at paragraph 48, the Advocate General points to the limits of the Council’s competence: [T]he discretion on the part of the Council is not boundless. In particular the exercise of that discretion cannot have the effect of frustrating the implementation of a fundamental principle of European Union Law.

But is that not precisely what the Council is doing in Article 5(1) and moreover that is what the Court seems to understand its intentions to have been? The Council appears to permit use of unisex premiums and benefits in spite of its acknowledged acceptance of doubts about the correctness of doing so as expressed in recital 19 and Article 5 (2). The directive prohibits discrimination—both direct and indirect. Both concepts are defined in Article 2. If it can be proved that one person is being treated less or more favourably on the ground of his or her sex in the calculation of premiums and benefits then there is discrimination within the meaning of the directive. If this is not the case, there is no discrimination and the directive has no application. Sight seems to have been lost of this fundamental point in Test-Achats due to the fact that Article 5(1), read with recital 18, is perceived as being premised upon the nondiscriminatory nature of unisex premiums. This may be a fundamentally flawed conclusion, as both Article 5(2) and recital 19 appear to acknowledge. Therefore it is arguable that the Council in fact never intended that Article 5(1) should be applied without exception, but rather than it should be read alongside Article 5(2). It would appear that in the course of the proceedings before the Court, this is the position that the Council maintained was its true intent. Looked at from this perspective, the Council is not exceeding its competence under Article 19(1) of the TFEU. Moreover, this reading of the two provisions together accords with the structure and content of the directive taken as a whole. If at any time in the future it can be proved that unisex premiums are discriminatory, then their use must be abandoned for the reasons set out at p 371. What the Commission’s Guidance appears to be saying is that the stereotyping of groups of insured person in the setting of rates and premiums is not acceptable as it may be based on assumptions which would not stand up to statistical or actuarial scrutiny but when the focal point in fixing insurance terms and condition is on the rating of actual risks of the individuals or groups in question, then that can justify differential premiums or benefits. The insurance industry’s error in the past seem to have been the generally accepted view, unsupported by hard data, that women represented less of a risk for some types of insurance rather than others.

The 2008 proposal In 2007, in response to pressure from the Council and the European Parliament and following extensive public consultation, the Commission announced that it

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would propose new initiatives to complete the legal framework on discrimination to give full effect to what is now Article 19 of the TFEU and to bring an end to any perception of a hierarchy of protection.43 Apart from exercising its powers to combat discrimination under Article 19, the Commission pointed to the fact that the lack of coherence in equality legislation could prejudice the exercise by citizens and business of their Union law rights: Lack of uniform protection can affect peoples’ choices on whether to work or study in another Member State or whether to travel there and access services. The consultation of the European Business Panel shows that many businesses believe that it matters if there are different levels of protection between the EU Member States against discrimination in access to goods, services and housing on grounds of age, disability, religion and sexual orientation and ...a difference in the level of protection would affect their ability to do business in another Member State.44

At the same time the Commission acknowledged and accepted that, in areas such as healthcare, social protection, and education national traditions are diverse and this diversity should be respected. National traditions and approaches in areas such as healthcare, social protection and education tend to be more diverse than in employment-related areas.These areas are characterized by legitimate societal choices in areas which fall within national competence. The diversity of European societies is one of Europe’s strengths, and is to be respected in line with the principle of subsidarity. Issues such as the organization and content of education, recognition of marital or family status, adoption, reproductive rights and other similar questions are best decided at national level. The draft Directive does not therefore require any Member State to amend its present laws and practices in relation to these issues. Nor does it affect national rules governing churches and other religious organizations and their relationship with the state. So, for example, it will remain for Member States alone to take decisions on questions such as whether to allow selective admission to schools, whether to recognize same-sex marriages, and the nature of any relationship between organized religion and the state.45

The Commission thus signalled that it would not put non-work discrimination on all fours with work-related discrimination: life beyond the workplace was more complex and more susceptible to national traditions and therefore discrimination in many areas was best tackled on a national level. The Commission also indicated that it would not approach the different grounds of discrimination in the same manner: The various grounds of discrimination differ substantively and each demands a tailored response. This is not a question of creating a hierarchy between the various grounds, but of delivering the most appropriate form of protection for each of them.46 43 44 45 46

Commission Legislative and Work Programme 2008 COM (2007) 640, at 25. Commission Legislative and Work Programme 2008 COM (2007) 640, at 25–6. ‘Non-discrimination and equal opportunities: A renewed commitment’, COM (2008) 420 final, at 5. COM (2008) 420 final, at 5.

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On 2 July 2008 the Commission published its proposal to implement the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation outside the labour market.47 The proposal builds upon and adopts, more or less, the same model as the Race Directive, the Framework Directive, and the Goods and Services Directive but differences remain between the instruments and the proposed directive carries over many of the flaws of the existing legislation.48 At the same time it carves out many exceptions to the application of the principle of equal treatment which potentially reduce its impact, leaving many aspects of civilian life to be governed by national anti-discrimination provisions, the scope of which is variable. None of the grounds of discrimination is defined. This is regrettable given the narrow view the Court adopted in Chacón Navas v Eurest Colectividades SA49 of the concept of ‘disability’ in the Framework Directive which has been criticized as being outmoded50 and in any event does not reflect the concept of disability as set out in the UN Convention on the Rights of Persons with Disabilities.51 The European Parliament has proposed amending the draft directive to include in the Preamble a requirement to interpret the grounds of discrimination in the directive in accordance with international and European human rights instruments and ‘the recommendations and case-law of their supervisory organs, such as the European Court of Human Rights’.52 It also proposes amending Article 4(1) to include a requirement that ‘disability’ should be interpreted in the light of the UN Convention. The European Parliament has also proposed to include within the definition of discrimination, discrimination by association of the kind in issue in the Coleman case,53 assumptive discrimination, and multiple discrimination.54 The proposed directive is stated to be without prejudice to measures of national law which are necessary for public security, public order, the prevention of criminal offences, the protection of health, and the protection of the rights and freedoms of others. No comparable provision exists in the Race Directive or the Goods and Services Directive and no indication is given what these terms mean although concepts such as ‘public order’ and ‘public security’ figure in a number of areas of Union law from which guidance as to their meaning may be obtained. The reference to the ‘protection of the rights and freedoms of others’, indicates that fundamental rights such as the right to religious freedom, respect for private and family 47

COM (2008) 426 final. Waddington, ‘Future Prospects for EU Equality law: Lessons to to be learnt from the Proposed Equal Treatment Directive’ (2011) 36 ELRev 163; Howard, ‘EU Equality Law: Three Recent Developments’ (2011) 17 ELJ 785; Bell, ‘The Principle of Equal Treatment; Widening and Deepening’, in Craig and de Búrca (eds), The Evolution of EU Law, 2nd edn (Oxford University Press, Oxford, 2011), 611. 49 Case C-13/05 [2006] ECR I-6467, at para 43. 50 Bell, ‘Advancing EU Discrimination Law: The European Commission’s 2008 Proposal for a New 51 Directive’ (2009) 3 Equal Rights Review, 7. See ch 1. 52 P6_TA (2009) 0211 Amendment 36. 53 Case C-303/06 [2008] ECR I-5603 noted by Waddington, in (2007) 42 CMLRev 487. 54 P6_TA (2009) 0211 Amendments 37 and 38. See further discussion of these concepts in ch 4. 48

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life, and freedom of expression may influence the interpretation and application of the directive as indeed will the freedom to choose one’s contractual partners. The directive does not extend to differences in treatment based on nationality and conditions of entry into and the taking up of residence in a Member State by third country nationals and stateless persons in the territory of Member States, nor to any treatment which arises from the legal status of the third country nationals and stateless persons concerned.55 This exception is probably designed to avert any challenges to the Member States’ immigration or social welfare policies as being indirectly discriminatory. The definition of equal treatment is similar to that in the three above-mentioned directives. Article 1(5) provides that denial of reasonable accommodation in a particular case of a person with disability is to be considered to be a form of discrimination.This is a stronger expression of the right to reasonable accommodation than that expressed in the Framework Directive which obliges an employer to provide reasonable accommodation but does not actually state that a failure to do so is in itself discriminatory. As we have seen in chapter 5, the obligation on an employer to provide reasonable accommodation is subject to the principle of proportionality.56 Article 4(1)(b) of the proposal likewise states that reasonable accommodation ‘shall be provided unless this would cause a disproportionate burden’. This provision is considered in more detail at p 378, in the context of the specific section on disability discrimination in the proposal. Suffice it to say here that if discrimination on the grounds of failure to provide reasonable accommodation is alleged, pursuant to Article 1(5) that provision must be read in the light of Article 4. The stronger expression of the right to reasonable accommodation in the proposal may thus be illusory but seems to have been inspired by the UN Convention on the rights of persons with disabilities which defines the denial of reasonable accommodation as discrimination. Discrimination on the grounds of age may be justified by a legitimate aim, within the context of national law, provided that the means of achieving that aim are appropriate and necessary.This provision is similar to Article 6(1) of the Framework Directive which has generated a sizeable body of case law from which we can see that the Court takes a broad view of the level of discretion enjoyed by Member 55 Art 3(5). This provision is similar to Art 3(2) of the Race Directive. The European Parliament has proposed adding a paragraph to Art 3(5) to deal with cases where discrimination is allegedly based on nationality but is in reality discrimination on the grounds of religion or belief, disability, age or sexual orientation. In such cases conduct complained of should be treated as discrimination within the meaning of Art 1 of the directive. This would simply mean that it might be necessary to look at the particular circumstances of the case to discern the real reason for the alleged discrimination. See, in the context of the Race Directive, Brennan, ‘The Race Directive, Institutional Racism and Third Country Nationals’, inTridimas and Nebbia (eds), European Union Law for the Twentieth First Century, Vol 2 (Hart Publishing, Oxford), 371–87, at 380. 56 On reasonable accommodation generally see Waddington, ‘Reasonable Accomodation’, in Schiek, Waddington and Bell (eds), Cases, Materials and Text on National, Supranational and International Nondiscrimination Law (Hart Publishing, Oxford, 2007), 740.

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States in determining their social and employment policies.57 In particular, Member States may be permitted to prescribe age limits for access to social benefits, education, and certain (unspecified) goods and services. Such age limits are justifiable in the general public interest. Examples may include minimum age requirements for access to education or to certain goods (alcohol) and services, preferential tariffs on public transport, or for sporting and cultural facilities. Article 2(5) allows for discriminatory treatment in the provision of financial services: ...Member States may permit proportionate differences in treatment where, for the product in question, the use of age or disability is a key factor in the assessment of risk based on relevant and accurate actuarial or statistical data.

The Explanatory Memorandum to the proposal states: The use of age or disability by insurers or banks to assess the risk profile of customers does not necessarily represent discrimination: it depends on the product.58

The Preamble to the proposed directive echoes this view: Actuarial and risk factors related to disability and to age are used in the provision of insurance, banking and other financial services. These should not be regarded as constituting discrimination where the factors are shown to be key factors for the assessment of risk.

In the light of the Mangold case law,59 discussed in chapter 3, in which the CJEU found equality of treatment on the ground of age was a general principle of Union law, combined with a reading of the judgment in Test-Achats, it is difficult to see how discriminatory practices based on age can be sustained. Arguably, the position is the same with respect to disability, in particular since all the Member States and the Union have acceded to the UN Convention on the Rights of Persons with Disabilities. If age discrimination and disability discrimination are general principles of Union law, arguably there can be no exceptions to the principle of equal treatment nor legislation enacted in breach of the principle of equal treatment. The material scope of the proposal set out in Article 3 seems at first sight to be co-termininous with that of the Race Directive but upon further examination seems to be capable of a much more restrictive interpretation. Article 3(1) prohibits discrimination, both in the private and the public sector, including public bodies in relation to: 1. social protection, including social security and healthcare; 2. social advantages; 3. education; 57

See ch 9. Case 144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981; Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co KG [2010] ECR I-365. 59 Case 144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981. 58

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4. access to and the supply of goods and services which are available to the public in the course of a professional or commercial activity.This provision is narrower than the corresponding provision in the Race Directive, Article 3(1)(h), which does not restrict the scope of the provision or persons acting in a commercial or professional capacity. In the case of the proposal, transactions between private individuals acting in a private capacity will not be covered because according to the Commission ‘letting a room in a private house does not need to be treated in the same way as letting a room in a hotel’.60 Subsequent paragraphs in Article 3 narrow down the scope of application of the directive considerably. The directive is stated to be without prejudice to: (i) National laws on marital or family status and reproductive rights. This may mean that Member States remain free to decide whether or not to institute and recognize legally registered partnerships. However once national law recognizes such relationships as comparable to that of spouses, the principle of equal treatment applies.61 (ii) National laws relating to the secular nature of the State and its institutions, or the educational system or to the status of religious organizations. This would seem to imply that Member States may either allow or prohibit the wearing or display of religious symbols in schools.62 The Preamble to the directive in recital 11 provides: The Directive should be without prejudice to the competences of the Member States in the area of education, social security and health care. It should also be without prejudice to the essential role and wide discretion of the Member States in providing, commissioning and organising services of general economic interest.

Article 3(3) concedes the right of Member States to determine the teaching, activities and organization of national educational systems, including the provision of special needs education. Member States will also continue to be able to provide for differences in access to educational institutions based on religion or belief. Article 3(4) provides: This Directive is without prejudice to national legislation ensuring the secular nature of the State, State institutions or bodies to the responsibilities of Member States for the content of teaching, activities and the organisation of their educational systems, including the provision of special needs education. Member States may provide for differences in treatment in access to educational institutions based on religion or belief.63 60

Explanatory Memorandum to the Proposal COM (2008) 426 final, at 8. Explanatory Memorandum to the Proposal COM (2008) 426 final, at 8; Case C-267/06 Tadeo Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1788. 62 Explanatory Memorandum to the Proposal COM (2008) 426 final, at 9. 63 This reflects Declaration No 11 on the status of churches and non-confessional organizations annexed to the Final Act of the Amsterdam Treaty.TFEU, Art 17(1) provides that the ‘Union respects and 61

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Educational organization and content is thus left to the exclusive competence of the Member States. Access to education appears to be subject to the principle of equal treatment, except on the ground of religion or belief and the promotion of equality between men and women is permitted. Presumably this means that a certain number of places in educational establishments or in certain courses could be reserved for one gender or the other and to members of a particular religion or persuasion. Article 4 of the proposal is devoted to the equal treatment of persons with disabilities and recognizes the need for special measures to achieve that objective. Measures to enable persons with disabilities to have non-discriminatory access to social protection, social advantages, healthcare, education, and access to and supply of goods and services available to the public, including housing and transport are required to be provided by anticipation ‘through appropriate modifications or adjustments’. Such measures should not impose a disproportionate burden, nor require the fundamental alteration of the social protection, social advantages, health care, education, or goods and services in question or require the provision of alternatives thereto.

The logic of requiring equality of access by anticipation in the case of the disabled is obvious. If anticipatory action is not required, discrimination will occur and be impossible to rectify until the necessary modification or alterations are made to accommodate the needs of the disabled person. In the case of persons suffering from disability, it is not enough simply to prohibit discrimination. That in itself will not bring about equal treatment. More in terms of change in the physical environment may be necessary.64 Although the directive would impose a requirement of nondiscriminatory access and an obligation to provide reasonable accommodation, the importance of proportionality in imposing such a requirement is acknowledged: For the purposes of assessing whether measures necessary to comply with paragraph 1 would impose a disproportionate burden, account shall be taken, in particular, of the size and resources of the organisation, its nature, its estimated cost, the life cycle of the goods and services, and the possible benefits of the increased access for persons with disabilities.65

This provision seems to require a balancing of the interests of the person or organization providing the facilities, goods or services with the potential benefit to the does not prejudice the status under national law of churches and religious associations or communities in the Member States’. Art 17(2) provides that the ‘Union equally respects the status under national law of philosophical and non-confessional organisations’. See generally Doe, Law and Religion in Europe: A Comparative Introduction (Oxford University Press, Oxford, 2011), especially ch 11, and Sandberg, Law and Religion (Cambridge Uuniversity Press, 2011), especially ch 6. 64 The Union has been concerned with accessibility issues for some years. See Council Resolution of 6 February 2003 on eAccessibility—improving access of people with disabilities to the knowledge based society [2003] OJ C 39/03; Council Resolution on promoting employment and social integration of people with disabilities [2003] OJ C175/1 and the ten-year Disability Action Plan, ‘Equal opportunities 65 for people with disabilities’ COM (2003) 650 final. Art 4(2).

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disabled person. A short-term or transitory benefit should not therefore require onerous modifications or adjustments to be made to the normal methods of access and delivery. Moreover it would appear reasonable to take into account alternative sources of supply or access. A disabled person should arguably be obliged to forgo using a facility (eg a swimming pool) which can only be accessed with difficulty in favour of another comparable one with appropriate access. The burden of facilitating access or delivery is not deemed to be disproportionate ‘when it is sufficiently remedied by measures existing within the framework of the equal treatment of the Member States concerned’.66 This appears to be a reference to the availability of grants or subsidies for changes in infrastructure to accommodate the needs of the disabled. The European Parliament has proposed extensive amendments to Article 4 which set out in some detail the nature of the obligation to provide reasonable accommodation and non-discriminatory access.The amendments state that reasonable accommodation should not necessarily require significant structural changes to buildings whose structure is protected specifically under national law on account of their historical, cultural or architectural value. Bell67 points out that the directive is unclear as to how the anticipatory duty should be enforced: For example, there is no provision for legal standing for a national equality body to bring proceedings where it finds evidence of service-providers failing to take anticipatory steps to ensure non-discriminatory access. If the anticipatory duty only bites in reaction to an individual complaint, then it adds little to a duty to provide reasonable accommodation.68

In the absence of any mechanism to eliminate barriers to the equal enjoyment of publicly available goods and services by way of anticipation, the disabled will continue to be subject to discrimination. The Commission’s proposal is now four years old and whilst it has provoked considerable debate both within the Council and the Parliament that debate is still ongoing. It remains unclear when, and in what form, the proposal is likely to be adopted.

66

Art 4(2). Bell, ‘Advancing EU Anti-Discrimination Law: the European Commission’s 2008 Proposal for a New Directive’ (2009) 3 Equal Rights Review 7. 68 Bell, Advancing EU Anti-Discrimination Law: the European Commission’s 2008 Proposal for a New Directive (2009) 3 Equal Rights Review, 10. 67

9 Exceptions to the non-discrimination principle

Introduction The Recast Directive, the Race and Framework Directives, and the Goods and Services Directive all contain exceptions to the principle that discrimination contrary to their terms is unlawful. As will be seen, the Framework Directive contains a number of exceptions additional to those contained in the other instruments, several of which were included as a consequence of last-minute political settlement. Each exception will be examined separately,1 but two general points need to be made before doing so. The first is that the list of permissible exceptions is likely to be limited to those expressly mentioned in the directives. This can be deduced from the CJEU’s decision in Johnston v Chief Constable of the RUC,2 where it revealed itself unwilling to imply extra defences into the old Equal Treatment Directive.3 The UK Government in that case had argued that public safety exonerated the Chief Constable’s discriminatory treatment of Ms Johnston. The CJEU, however, held: [T]he only Articles in which the EEC Treaty provides for derogations applicable in situations which may involve public safety are Articles 36, 48, 56, 223 and 224,4 which deal with exceptional and clearly defined cases. Because of their limited character those Articles do not lend themselves to a wide interpretation and it is not possible to infer from them that there is inherent in the EEC Treaty a general proviso covering all measures taken for reasons of public safety.5 If every provision of Community law were held to be subject to a general proviso, regardless of the specific requirements laid down by the provisions of the EEC Treaty, this might impair the binding nature of Community law and its uniform application.

1 Positive action is the subject of a separate section at p 420; as will be discussed, argument remains about the extent to which positive action can excuse unlawful discrimination. 2 Case 222/84 [1986] ECR 1651. 3 See further Arnull, ‘EC Law and the Dismissal of Pregnant Servicewomen’ (1995) 24 ILJ 215. 4 Now Arts 36, 45, 52, 346, and 347. 5 But note that, as discussed at p 402, the Framework Directive contains a general defence for measures necessary for public security, public order, protection of health, and the protection of the rights and freedoms of other; it also contains a specific exception in relation to the armed forces as regards discrimination on the grounds of disability and age.

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It follows that the application of the principle of equal treatment for men and women is not subject to any general reservation as regards measures taken on grounds of the protection of public safety, apart from the possible application of Article 224 of the EEC Treaty which concerns a wholly exceptional situation ...[and which the Court later found to be inapplicable on the facts of this case.]6 The facts which induced the competent authority to invoke the need to protect public safety must therefore if necessary be taken into consideration, in the first place, in the context of the application of the specific provisions of the Directive. The answer to the first question must therefore be that acts of sex discrimination done for reasons related to the protection of public safety must be examined in the light of the exceptions to the principle of equal treatment for men and women laid down in Council Directive 76/207/EEC.7

Secondly, the Court will usually accord a strict construction to any exception to a general principle, where that general principle exists for the protection of individuals.8 A strict interpretation can therefore be predicted for all the exceptions listed in the directives.

The exceptions (i) Genuine and determining occupational requirement Such a requirement constitutes a defence for the purpose of the Recast Directive and of the Race and Framework Directives. Thus, for example, the Race Directive provides: Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to racial or ethnic origin shall not constitute discrimination9 where, by reason of the nature of the particular occupational activities concerned or the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.10 6 Art 224 is now Art 347; for further discussion of its potential, see Koutrakos, ‘Is Article 297 EC a “reserve of sovereignty”?’ (2000) 37 CMLRev 1339. 7 [1986] ECR 1651, at 1684. See also Case C-273/97 Sirdar v Army Board and Secretary of State for Defence [1999] ECR I-7403, Case C-285/98 Kreil v Germany [2000] ECR I-69, and Case C-186/01 Dory v Germany [2003] ECR I-2479, in all of which the Court replaced the word ‘safety’ with ‘security’. The view that the exceptions to the directives are listed exhaustively in the instruments concerned was also expressed by Mme Odile Quintin on behalf of the Commission in evidence to the House of Lords Select Committee on the EU: see ‘EU Proposals to Combat Discrimination’, Session 1999–2000, 9th Report, HL Paper 68, at 29. 8 See, eg, Case 41/74 Van Duyn v Home Office [1974] ECR 1337; Case 222/84 Johnston [1986] ECR 1651; and Case C-328/91 Secretary of State for Social Security v Thomas [1993] ECR I-1267. 9 This is an undesirable formulation: the situation envisaged by the Article does in reality constitute discrimination, but it is of a sort which is excusable. 10 Art 4 of the Race Directive. Art 4 of the Framework Directive is in substantially identical terms as regards discrimination on all the grounds it covers.The CJEU pointed out in Case C-229/08 Wolf v Stadt Frankfurt am Main [2010] ECR I-1 that it follows from the wording of these provisions that it is not the

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The Preambles to both the Race Directive and the Framework Directive explain that this defence is intended to operate only in ‘very limited circumstances’.11 It is indeed difficult to imagine many situations in which it would come into play as regards discrimination on the ground of sexual orientation. However, it is arguable that the defence would operate to protect the choice of a homosexual where a job involves the provision of gay and lesbian counselling services; it might also apply to protect an employer’s insistence on appointing a heterosexual where an employee is contractually required to work abroad in a country which criminalizes homosexuality. Oliver has also pointed out that, whilst individuals are protected from discrimination based on perceptions of their sexual orientation, the genuine occupational requirement exception appears to permit employers to use these very perceptions in deciding whether or not a person falls within the exception.12 It should also be noted that this exception excuses essentially positive, rather than negative, discrimination;13 in other words, it provides an excuse for providing more (not less) favourable treatment for members of a protected class than for other people on the ground of their membership of that class; the classic examples are the choice of a black actor to play the part of Othello and of a woman to model women’s clothes. For this reason, the exception is not of importance in relation to discrimination on the ground of disability; since, as discussed in chapter 4, it is only unlawful to discriminate on the ground of disability, it is not in principle unlawful to discriminate in favour of the disabled. Article 14(2) of the Recast Directive (but not the other two instruments) confines the ambit of the defence to ‘access to employment including the training leading thereto’.14 It therefore only applies to discrimination contrary to Article 14(1)(a) and (b) of the instrument. Thus, for example, it might be arguable that, where women had been traditionally under-represented within a trade union, it would be lawful to offer them free membership, even though men were charged a subscription. The original text of the Equal Treatment Directive referred to the exclusion by Member States of occupational activities generally; the amended wording, like that used in the Race and Framework Directives, refers to ‘particular’ occupational activities. This makes it clear that the exclusion does not apply today to whole

ground on which the difference of treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement (at para 35). 11 Recital 18 of the Preamble to the Race Directive; recital 23 of the Preamble to the Framework Directive. 12 Oliver, ‘Sexual Orientation Discrimination: Perceptions, Definitions and Genuine Occupational Requirements’ (2004) 33 ILJ 1.This view was accepted by Richards J in R (on the application of Amicus— MSF section) v Secretary of State for Trade and Industry [2004] IRLR 430. 13 Although, of course, positive discrimination in favour of one person usually amounts to negative discrimination against someone else. 14 See also recital 19 of the Preamble to the Recast Directive.

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classes of jobs but that instead each case must be examined individually.15 That Member States were formerly unabashed in attempting to exclude whole sectors of the employment market from the provisions of the Equal Treatment Directive appeared from the early cases on the exception, in particular Commission v UK.16The Commission alleged there that three of the exceptions then contained in the British Sex Discrimination Act 1975 conflicted with Article 2(2) of the old Equal Treatment Directive. The first two were the exceptions conferred by s 6(3) of the statute, excusing all employment for the purposes of a private household and also employment where the number of persons employed did not exceed five. The Commission reported that there were no equivalent exceptions provided for by the legislation of any of the other Member States, but the UK Government argued that these exceptions were permitted since they involved ‘close personal relationships between employee and employer, so that it would not be legally possible to prevent the latter from employing persons of a particular sex’. In the case of employment in private households, it contended that the employee often lives in the household, as in the case of resident companions and personal maids, and it also contended (contrary to the Commission’s view) that the concept of a ‘private household’ was perfectly clear: ‘Thus, if a chauffeur is not actually employed in his employer’s household but for the purposes of his business, the exception will not apply. On the contrary, a family cook or gardener will normally come within that exception.’17 As to the small business exception, the UK Government took as an example female owners and managers of small shops, particularly the elderly, who wish to employ assistants of their own sex. These arguments all had an extraordinarily old-fashioned ring to them and suggested a lack of touch with the modern world of employment. They found no favour with either the Advocate General or with the Court, except that the Advocate General considered that the term ‘private household’ was susceptible of satisfactory definition through case law. Nevertheless, her general view was that: [T]he UK has not furnished proof that in all the cases covered by the exception at issue the conditions in which the work in question is performed make it necessary to allow employers to practise discrimination. It is not true that all occupational and professional activities capable of being covered by the exception contained in that provision involve the close personal relationships which constitute the justification for it. As the Commission rightly points out, the defendant itself admits this in the words it uses: employment for the purposes of a private household frequently (and therefore not always) involves very close personal relationships; close personal relationships often (here too, not always) exist in small undertakings.

15 Recital 11 of the Preamble to the amending Directive 2002/73 (OJ [2002] L269/15) stated: ‘The occupational activities that Member States may exclude from the scope of Directive 76/207/EEC should be restricted to those which necessitate the employment of a person of one sex by reason of the nature of the particular occupational activities concerned, provided that the objective sought is legitimate, and subject to the principle of proportionality as laid down by the case-law of the Court of justice.’ 16 Case 165/82 [1983] ECR 3431. 17 These are the words of Rozès AG, Case 165/82 [1983] ECR 3431, at 3456.

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I also consider that the terms of section 6, subsection 3, do not satisfy the condition laid down in Article 2(2) by virtue of which the exclusion must relate to ‘occupational activities’. There is no doubt that it is not necessary, as the UK rightly points out, for the exclusion of occupational activities pursuant to Article 2(2) to be effected by listing them activity by activity; it seems to me to be perfectly permissible for a Member State to implement the Directive by enacting laws which prohibit discrimination, reiterating the actual wording of that Article and, for the rest, leaving the national courts to determine case by case, subject to review by this Court under Article [267] of the Treaty, what occupational activities are excluded from the general prohibition. But it cannot be considered, without stretching the meaning of the words, that the concepts of employment for the purposes of a private household (and not for example the concept of resident domestic staff) and employment in undertakings with five or fewer employees correspond to occupational activities.18

The Court itself held: It must be recognized that the provision of the 1975 Act in question is intended, in so far as it refers to employment in a private household, to reconcile the principle of equality of treatment with the principle of respect for private life, which is also fundamental. Reconciliation of that kind is one of the factors which must be taken into consideration in determining the scope of the exception provided for in Article 2(2) of the Directive. Whilst it is undeniable that, for certain kinds of employment in private households, that consideration may be decisive, that is not the case for all the kinds of employment in question. As regards small undertakings with not more than five employees, the UK has not put forward any argument to show that in any undertaking of that size the sex of the worker would be a determining factor by reason of the nature of his activities or the context in which they are carried out. Consequently, by reason of its generality, the exclusion provided for in the contested provision of the 1975 Act goes beyond the objective which may be lawfully pursued within the framework of Article 2(2) of the Directive.19

Unfortunately, the subsequent decision in Kirsammer-Hack v Sidal20 suggested that the Court later modified the rigour of its approach in relation to small businesses. The impugned German law on unfair dismissal did not apply to small businesses, that is to say, those employing five or fewer persons. Part-timers had the right to claim unfair dismissal but, in calculating the total number of employees in an enterprise, those working fewer than ten hours per week were excluded. Ms Kirsammer-Hack, who worked part-time but for more than ten hours per week, alleged unfair dismissal but was met by the small business exception. The Labour Court referred to the CJEU the question of whether the domestic legislation constituted indirect discrimination in breach of the old Equal Treatment Directive. The CJEU held that the national law did not impact specifically on part-timers, but rather on everybody employed by small businesses; since there was no evidence 18

Case 165/82 [1983] ECR 3431, at 3456–7. Case 165/82 [1983] ECR 3431, at 3448.The Sex Discrimination Act 1986 subsequently narrowed down the private household exception and removed the small business exception altogether. 20 Case C-189/91 [1993] ECR I-6185, noted by Horspool in (1994) 31 CMLRev 1115, and by Hervey in ‘Small Business Exclusion in German Dismissal Law’ (1994) 23 ILJ 267. 19

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to suggest that small businesses employ a considerably larger number of women than men, there was therefore no indirect discrimination. Significantly, however, the Court went on to hold that, even if the legislation were prima facie indirectly discriminatory, it would be justifi able as intended to relieve the constraints weighing on small businesses: [The legislation in question] forms part of a series of measures intended to alleviate the constraints burdening small businesses which play an essential role in economic development and the creation of employment in the Community. In that respect, it should be noted that, by providing that directives adopted in the fields of health and safety of workers are to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings,...the EEC Treaty ...indicates that such undertakings may be the subject of special economic measures.21

The decision in Kirsammer-Hack was not directly comparable with that in Commission v UK. The latter involved an exclusion from the scope of UK anti-discrimination legislation, which was automatically a breach of the Equal Treatment Directive unless excused by one of the exceptions contained in that directive. Kirsammer-Hack involved an allegation that the German legislation on unfair dismissal operated in an indirectly discriminatory fashion and thus it had to be determined whether or not it was justifiable; only had it been found not to be justifiable would the issue of the applicability of the defence have arisen. Nevertheless, the CJEU’s readiness to accept that the commercial viability of small businesses outweighed the right to equal treatment contrasted sharply with the attitude of the House of Lords in R v Secretary of State for Employment, ex parte EOC.22 There, the House refused to accept the UK Government’s assertion that the hours of work thresholds contained in UK employment protection legislation, which deprived many part-timers of the right to rely on this legislation, were justified on the ground that they encouraged part-time employment; although increasing the availability of part-time work was thought by the House to be a proper aim of social policy, the threshold provisions had not been shown to be either suitable or requisite to achieve that aim. The third exception challenged by the Commission in Commission v UK was the exclusion of midwives (at that date) from the general operation of the then operative Sex Discrimination Act 1975. Section 20 of the Act provided that midwives were excluded from the employment and training provisions of the Act. However, men were permitted to train as midwives at two centres in the UK, and to work as midwives in four designated hospitals. At the time of the action, these provisions, which had been intended to be transitional only, were about to be amended so as to remove the restrictions on men working as midwives and so to extend the 21

[1993] ECR I-6185, at 6223. [1994] 2 WLR 409. See also Deakin, ‘Part Time Employment, Qualifying Thresholds and Economic Justification’ (1994) 23 ILJ 151, and Villiers and White, ‘Agitating for Part-Time Workers’ Rights’ (1995) 58 MLR 560. 22

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protection of the Sex Discrimination Act to them.23 Rozès AG considered that nevertheless this had no bearing on the issue before the Court, which concerned only the state of the legislation at the time the proceedings were begun. However, Article 9(2) of the directive required Member States to assess periodically ‘the occupational activities referred to in Article 2(2) in order to decide, in the light of social developments, whether there is justification for maintaining the exclusions concerned.They shall notify the Commission of the results of this assessment.’24 The UK Government gave evidence that the exception for midwives had been kept under review as a result of this provision, and indeed that it was as a consequence of this review that the restrictions on male midwives were about to be lifted. It argued that midwives are often alone with their patients, especially after the mother has returned home after giving birth, and that members of certain ethnic minorities living in the UK in particular might object to the presence of a male midwife, to the ultimate endangerment of both mother and baby. All this was insufficient to persuade Rozès AG of the legality of the exception, and she said: I do not consider that the alleged specific nature of the conditions in which the occupation of midwife is practised in the UK is such as to justify, under Article 2(2) of the Directive, the discriminatory rules against men. I think that the guarantee of a free choice for patients, which is maintained in the proposed British rules, is a condition which is necessary and sufficient to allay the fears expressed by the UK Government.25

However, the Court itself held: It is undeniable that in the area in question, as the UK acknowledges, the Member States are under an obligation to implement the principle of equality of treatment. It must however be recognized that at the present time personal sensitivities may play an important role in relations between midwife and patient. In those circumstances, it may be stated that by failing fully to apply the principle laid down in the Directive, the UK has not exceeded the limits of the power granted to the Member States by Articles 9(2) and 2(2) of the Directive. The Commission’s complaint in that regard cannot therefore be upheld.26

It is likely that the principles governing the applicability of the ‘genuine and determining occupational requirement’ exception established by the CJEU in relation to the Equal Treatment Directive will also shape its application for the purposes of the Race and Framework Directives. This may be surmised from the fact that the new wording consolidates the existing case law on sex discrimination, in particular in relation to the requirement of proportionality which the Court set out in Johnston v

23 See the Sex Discrimination Act 1975 (Amendment of section 20) Order 1983, SI 1983 No 1202, Art 2. Patients can still however choose to be cared for by a female midwife if they prefer and, if a male midwife is provided, he must be subject to appropriate supervision. 24 Now Art 31(3) of the Recast Directive. It is noteworthy that this provision was not repealed when the Equal Treatment Directive was amended so as to cover only ‘particular occupational activities’ rather 25 than occupational activities generally. [1983] ECR 3431, at 3460. 26 [1983] ECR 3431, at 3449.

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RUC.27 The CJEU held there that the Chief Constable could not justify his refusal to provide women police reservists with firearms training (which had subsequently led to the non-renewal of their contracts of employment) by relying on the part of the directive which referred to the exclusion of those occupational activities whose ‘nature’ required male workers, because the Sex Discrimination (Northern Ireland) Order 1976 expressly applied to employment in the police. However, that still left the part of the Article referring to the ‘context’ in which a job was performed. The Chief Constable argued that if women police officers were armed they might become a more frequent target for assassination and their firearms might fall into the hands of their assailants, that the public would not welcome the carrying of firearms by women, and that armed policewomen would be less effective in police work of a social nature. The Court held: [T]he reasons which the Chief Constable thus gave for his policy were related to the special conditions in which the police must work in the situation existing in Northern Ireland, having regard to the requirements of the protection of public safety in a context of serious internal disturbances. As regards the question whether such reasons may be covered by Article 2(2) of the Directive, it should first be observed that that provision, being a derogation from an individual right laid down in the Directive, must be interpreted strictly. However, it must be recognized that the context in which the occupational activity of members of an armed police force are carried out is determined by the environment in which that activity is carried out. In this regard, the possibility cannot be excluded that in a situation characterized by serious internal disturbances the carrying of firearms by policewomen might create additional risks of their being assassinated and might therefore be contrary to the requirements of public safety. In such circumstances, the context of certain policing activities may be such that the sex of police officers constitutes a determining factor for carrying them out.28

This was unsatisfactory because the Court made no attempt to explain why policewomen in this situation were more liable to be assassinated than policemen. When it referred to ‘additional risks’ to policewomen, it appeared confused: instead of comparing the risk to a policewoman carrying out general police duties with the risk to a policeman performing those same duties, it seemed to compare the risk to a policewoman between general police duties and those special few on which women were currently being employed.29 The Court did, however, somewhat redeem itself by also pointing out that proportionality had a part to play in relation to this defence, and indeed with respect to all derogations from the equal treatment principle: [I]n determining the scope of any derogation from an individual right such as the equal treatment of men and women provided for by the Directive, the principle of proportionality, one of the general principles of law underlying the Community legal order, must be observed. That principle requires that derogations remain within the limits of what is appropriate and necessary for achieving the aim in view and requires the principle of equal treatment to 27 29

28 Case 222/84 [1986] ECR 1651. Case 222/84 [1986] ECR 1651, at 1686–7. See Ellis, ‘Can Public Safety Provide an Excuse for Sex Discrimination?’ (1986) 102 LQR 496.

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be reconciled as far as possible with the requirements of public safety which constitute the decisive factor as regards the context of the activity in question. By reason of the division of jurisdiction provided for in Article [267] of the ...Treaty, it is for the national court to say whether the reasons on which the Chief Constable based his decision are in fact well founded and justify the specific measure taken in Mrs Johnston’s case. It is also for the national court to ensure that the principle of proportionality is observed and to determine whether the refusal to renew Mrs Johnston’s contract could not be avoided by allocating to women duties which, without jeopardizing the aims pursued, can be performed without firearms.30

A later case on somewhat similar facts to Johnston was Re Sex Discrimination in the Civil Service, Commission v France,31 in which the Commission prosecuted France for, inter alia, maintaining a quota based on sex for recruitment into various ranks of the police service. The French Government argued that sex was a determining factor because members of the national police force must at any time be able to use force in order to deter potential troublemakers, and that this prevented the inclusion of a large proportion of women in the police generally. Slynn AG seemed more than willing to accept such an explanation,32 but the Court did not have to address the issue directly since the parties had agreed that certain of the police duties involved had to be performed by men only, others by women only, and the remainder by either sex.33 In these circumstances, the question became how the exception would apply, and the Court made an important statement about the practical enforcement of the anti-discrimination legislation. It held: [T]he Directive leaves the Member States the power to exclude certain ‘occupational activities’ from its field of application34 and ...Article 9(2) of the Directive requires them periodically to assess the activities in question in order to decide, in the light of social developments, 30 [1986] ECR 1651, at 1687. See also the CJEU’s remarks to similar effect in Case 318/86 Re Sex Discrimination in the Civil Service, Commission v France [1988] ECR 3559, especially at 3582. 31 Case 318/86 [1988] ECR 3559. 32 He commented: ‘The argument is . . . that police officers have to be interchangeable and that all may be liable to perform police duties which involve the display of force. The latter, it is said, are unsuitable to be carried out by women. There is force in this argument, but it seems to me that it seeks to extend [the defence] too far. It may well be that for some police activities (where the use of force or a display of the capacity to use force are required) sex could be a determining factor not simply because on average men are bigger and stronger than women (which in itself would not necessarily be sufficient) but because potential delinquents regard men as more ready to use force, and perhaps because men are more willing to use force. These however, are matters which it seems to me are not necessary or, on the evidence available, not possible to decide, especially if regard is had to the role which women now appear to play in warfare and in police forces in some parts of the world. There may be a difference between handling violent crowds and situations where one or two individuals are threatening violence. As to the former, the Commission appears to accept that the exception . . . would apply to . . . bodies . . . whose activities regularly involve the use of force where substantial numbers of people may be involved. As to the latter, there may be an argument that in some situations with which the police have to deal the presence of women could be a deterrent to violence’ (Case 318/86 [1988] ECR 3559, at 3571). 33 It is unsatisfactory that the Commission conceded this important point, and it is to be hoped that the Court will have a future opportunity to examine the logic of the argument relied on. 34 Cf under the amended provision discussed at pp 382–3.

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whether there is justification for maintaining the exclusions concerned. Article 9(2) further provides that the Member States are to notify the Commission of the results of that assessment. It follows from those provisions that the exceptions ...may relate only to specific activities, that they must be sufficiently transparent so as to permit effective supervision by the Commission and that in principle they must be capable of being adapted to social developments. The last requirement gives rise to no difficulties in this case; however, French law is not in accordance with the other two requirements. As regards the requirement of transparency, it must be concluded that it is not fulfilled. Under the system of separate recruitment, the percentage of posts to be allotted to men and women respectively are fixed in the decision ordering the holding of a competition; the fixing of those percentages is not governed by any objective criterion defined in a legislative provision. This lack of transparency also has consequences for compliance with the second requirement laid down by the Directive, which relates to the activities involved. The contested system of recruitment makes it impossible to exercise any form of supervision, not only by the Commission and the courts but also by persons adversely affected by the discriminatory measures, in order to verify whether the percentages fixed for the recruitment of each sex actually correspond to specific activities for which the sex of the persons to be employed constitutes a determining factor within the meaning of ...the Directive.35

It was seen in chapter 4 that the CJEU has emphasized the significance of the principle of transparency in relation to the computation of pay, and the effect of its remarks in both that field and the equal treatment field is to create a far-reaching principle: namely, that individuals involved are entitled to know the basis upon which employment decisions affecting them are reached, at least where the facts demonstrate a prima facie case of discrimination. The applicability of the determining factor defence has arisen in a number of important sex discrimination cases concerning the military;36 in these cases, the CJEU has shown marked deference to political sensibilities surrounding the armed forces and their deployment by the Member States. Its first decision was Sirdar v Army Board and Secretary of State for Defence,37 in which a woman was denied access to the British Royal Marines on the ground that the unit needed to be all-male in order to ensure its combat effectiveness; reliance was placed by the Ministry of Defence on s 85(4) of the Sex Discrimination Act 1975, which excluded acts done for the purpose of ensuring the combat effectiveness of the armed forces. The Royal Marines constitute a small proportion of the British army, designed in the words of La Pergola AG to act as the ‘point of the arrow head’ and to intervene first in combat situations. The Ministry’s argument was that the Marines depended on the principle of ‘inter-operability’, in other words, the ability of all its members to act both in specific capacities and also as fighting members of the infantry; the principle of inter-operability precluded the presence of women, it was alleged, 35

[1988] ECR 3559, at 3581–2, emphasis added. See also discussion at p 405 about the special exemption for the armed services in relation to dis37 ability and age. Case C–273/97 [1999] ECR I-7403. 36

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because male soldiers might be tempted to try to protect their female colleagues and because women might prove physically unsuited for offensive hand-to-hand combat. The CJEU rejected the UK Government’s argument that decisions concerning the organization of the armed forces, especially those taken in relation to combat effectiveness, remain within the sovereign competence of the Member States and therefore fall outside the scope of the Treaty. The question therefore became whether or not the exclusion of women from the Royal Marines could be excused by what is today Article 14(2) of the Recast Directive. Again, the UK Government argued for especially benevolent treatment of the armed services, claiming that judicial review in this area was limited to whether the national authorities could reasonably have formed the view that the policy was necessary and appropriate. The Court appeared to be swayed by this argument: In determining the scope of any derogation from an individual right such as the equal treatment of men and women, the principle of proportionality, one of the general principles of Community law, must ...be observed ...That principle requires that derogations remain within the limits of what is appropriate and necessary in order to achieve the aim in view and requires the principle of equal treatment to be reconciled as far as possible with the requirements of public security which determine the context in which the activities in question are to be performed. However, depending on the circumstances, national authorities have a certain degree of discretion when adopting measures which they consider to be necessary in order to guarantee public security in a Member State ...38

The Court went on to hold that the British authorities were entitled, in the exercise of this discretion, to conclude that the specific conditions for deployment of the Royal Marines, in particular the principle of inter-operability, fell within the scope of the defence both as regards the nature of the activities concerned and the context in which they are carried out. What is surprising about this conclusion is the degree of gender-stereotyping adopted by the Court: it simply accepted the arguments of the British Government without questioning whether they were properly grounded on evidence, or merely on prejudice.39 Kreil v Germany40 next raised the legality of a much more extensive German law (itself a reflection of a national constitutional provision) confining women volunteers to the medical and musical services of the military, and excluding them completely from any kind of armed service. The Court repeated its statements of 38

Case C–273/97 [1999] ECR I-7403, at 7442, emphasis added. Cf the considerable attention paid by La Pergola AG to this matter. See also Ellis, ‘The Recent Jurisprudence of the Court of Justice in the Field of Sex Equality’ (2000) 37 CMLRev 1403. Hervey has suggested that a preferable analysis of Sirdar is that the context of the work of the Royal Marines, in particular its being a small force operating in difficult and unsanitary conditions, justified the exception from the point of view not of public safety but of personal privacy: see ‘EC Law on Justifications for Sex Discrimination in Working Life’, in Blanpain (ed), Collective Bargaining, Discrimination, Social Security and European Integration (Kluwer, Deventer, 2003). 40 Case C-285/98 [2000] ECR I-69. For discussion of both this case and Sirdar, see Koutrakos, ‘Community Law and Equal Treatment in the Armed Forces’ (2000) 25 ELRev 433. 39

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principle made in Sirdar, but held that the present exclusion fell outside the legitimate sphere of action open to the Member States; this was because, since the exclusion applied to almost all posts in the German army, it could not be explained either by the specific nature of the jobs concerned, or by their particular context.41 If the confinement of women volunteers to particular posts within the armed forces constitutes discrimination against them, does it follow that Germany’s policy of requiring compulsory military service only from men amounts to unlawful discrimination against men? This was the question asked in Dory v Germany.42 Since this practice indubitably involves the unequal treatment of men and women, the only real issue was whether such conscription fell within the scope of EU law, in particular within the scope of the then Equal Treatment Directive. One obvious answer might have been to hold that compulsory military service does not constitute employment.43 However, Mr Dory constructed his argument cleverly, alleging that compulsory military service had the effect of prohibiting the exercise by him of an occupation during the period of that service, and also of delaying his access to employment; it thus interfered with his right to equality under the terms of the Equal Treatment Directive. The CJEU nevertheless rejected this argument, but without distinguishing Kreil and on a basis the logic of which is elusive: Certainly, decisions of the Member States concerning the organisation of their armed forces cannot be completely excluded from the application of Community law, particularly where observance of the principle of equal treatment of men and women in connection with employment, including access to military posts, is concerned. But it does not follow that Community law governs the Member States’ choices of military organisation for the defence of their territory or of their essential interests. It is for the Member States, which have to adopt appropriate measures to ensure their internal and external security, to take decisions on the organisation of their armed forces ...44

The German Government had submitted that compulsory military service was very important to it, making a contribution to the ‘democratic transparency of the military, national integration, the link between the armed forces and the population,

41 For discussion of the reaction within Germany to this decision, see Langer’s note on Sirdar and Kreil in (2000) 37 CMLRev 1433. 42 Case C-186/01 [2003] ECR I-2479. The German legislation confining compulsory military service to men formed part of the context in Case C-79/99 Schnorbus v Land Hessen [2000] ECR I-10997, but the Court was not asked there to rule on its compatibility with the Equal Treatment Directive. For comment critical of the decision in Dory, see Trybus in (2003) 40 CMLRev 1269. 43 Stix-Hackl AG inclined to this view, saying (at 2497): ‘Since compulsory military service is a unilateral civic duty imposed by authority with no entitlement to pay, [it] ...could indeed be doubtful’ whether it constituted ‘employment’ for the purposes of the Equal Treatment Directive. 44 [2003] ECR I-2479, at 2522–3. Stix-Hackl AG adopted a different analysis and submitted: ‘Since ...national compulsory military service for men only has a subject-matter other than access to employment, ...—namely the guaranteeing of the external security of Germany by means of a specific form of organisation of the armed forces—this national measure is in principle outside the material scope of Directive 76/207’ (at 2506, emphasis added).

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and the mobilisation of the manpower needed by the armed forces in the event of a conflict’.45 The Court concluded: Such a choice, enshrined in the Grundgesetz, consists in imposing an obligation to serve the interests of territorial security, albeit in many cases to the detriment of access of young people to the labour market. It thus takes precedence over the objectives of policies aimed at the work prospects of young people. The decision of the Federal Republic of Germany to ensure its defence in part by compulsory military service is the expression of such a choice of military organisation to which Community law is consequently not applicable.46

There is, in truth, a very fine line dividing these decisions, and one cannot help but wonder whether the Court was not unconsciously influenced by traditional gender-stereotyping; could it have reached the same decision in Dory if, for example, conscription had been confined to black or to Christian members of the population? However, Koutrakos has observed that, although the Court in Dory failed to articulate a criterion to define the outer reach of EU law in relation to the armed forces, the relevant measure in Dory was qualitatively different from that in Sirdar and Kreil: [T]he German measure in Dory entailed a primary choice as to how national defence should be organised, whereas the British measure in Sirdar and the German one in Kreil entailed a secondary choice as to the regulation of access to the protection of national defence once its fundamental character had been decided.47

In its first foray into the application of the genuine and determining occupational requirement defence in the context of the Framework Directive, a Grand Chamber of the CJEU held that youth can constitute such a requirement. Wolf v Stadt Frankfurt am Main48 concerned German legislation which restricted entry into the fire service to those aged under 30. The German Government asserted that the aim of this rule was to ensure the operational capacity and proper functioning of the fire service; it argued that the service made exceptionally high physical demands in respect of certain operations and that these could only be satisfied by younger persons, specifically those below the ages of 45 or 50. The maximum recruitment age was therefore intended to ensure that fire fighters could perform the physically demanding tasks for a comparatively long period of their careers. The Court declined to answer whether this apparent age discrimination could be justified under Article 6(1) of the directive, discussed at p 408 et seq., and chose instead to assess the applicability of Article 4(1);49 it therefore analysed its task as being to ascertain whether physical fitness is a characteristic related to age and whether it constituted a genuine and determining occupational requirement for fire-fighters, followed by an examination of 45

46 [2003] ECR I-2479, at 2523. [2003] ECR I-2479, at 2523. Koutrakos,‘How Far is Far Enough? EC Law and the Organisation of the Armed Forces after Dory’ 48 (2003) 66 MLR 759, at 765. Case C-229/08 [2010] ECR I-1. 49 Bot AG considered that the national legislation was justifiable both under Art 6(1) and Art 4(1). 47

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the proportionality of the rule adopted. It began by pointing out that the fire service forms part of the emergency services; recital 18 of the Preamble to the Framework Directive states that the instrument does not require such services to recruit persons who do not have the capacity to carry out the range of functions that they may be called on to perform. It concluded that a concern to ensure the operational capacity and proper functioning of the fire service constituted a legitimate objective within the meaning of Article 4(1) of the directive. It also accepted that exceptionally high physical capacity was a genuine and determining requirement for fire fighters. The more difficult question was whether such physical capacity could be linked directly to age. The German Government had made this assertion and had not been contradicted by the other parties to the proceedings; in particular, they had produced scientific data deriving from studies in the field of industrial and sports medicine showing that respiratory capacity, musculature, and endurance diminish with age, so that very few individuals over 45 have sufficient capacity to perform the fire-fighting part of their job and those over 50 are no longer able to rescue people. Fire fighters over these ages worked in other branches of the fire service until their retirement. The Court held that it followed that the need to possess full physical capacity to work as a fire fighter was related to the age of the persons in that career. It went on to find that the age requirement was proportionate; in particular, it was appropriate in order to ensure that fire fighters spent a relatively long part of their careers able to perform the physically demanding aspects of the role and it did not go beyond what was necessary to achieve such a proper functioning of the fire service.This is a curiously laissez-faire decision of the Court. It appears to give a broad interpretation to the exception, rather than the strict one demanded by the jurisprudence; and it uncritically accepts age-stereotyping, rather than applying the usual individual-merit principle.50 However, in Prigge et al v Deutsche Lufthansa AG,51 the Court reverted to a more critical stance. A Grand Chamber rejected the application of Article 4(1) in the case of commercial pilots who were dismissed pursuant to a collective agreement once they had reached 60 years of age. The Court held that, as a derogation from the principle of non-discrimination, Article 4(1) must be interpreted strictly and it noted that recital 23 of the Framework Directive states that it is in ‘very limited’ circumstances that a difference of treatment may be justified where a characteristic related inter alia to age constitutes a genuine and determining occupational requirement. The ban on pilots over 60 had been introduced in the interests of air safety. The Court conceded that it is essential that airline pilots possess certain physical capabilities; in other words, possessing particular physical capabilities may be considered as a genuine and determining occupational requirement. Furthermore, it accepted that such capabilities decline with age. However, although the aspiration 50 Rubenstein has described the decision as ‘shocking’and showing a disregard for fundamental principles of discrimination law by the CJEU: see ‘Highlights of key cases’ (2010) 198 EOR 25, at 27. 51 Case C-447/09 [2011] ECR I-000.

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to air safety was a legitimate objective within the meaning of Article 4(1), the means adopted to achieve it were held to be disproportionate in the circumstances, since both national and international legislation permitted pilots to fly until they reached the age of 65, albeit subject to some restrictions. Since the scope of the Goods and Services Directive is different from the other three directives, so its parallel exception is expressed in different language. Article 4(5) provides: This Directive shall not preclude differences in treatment, if the provision of the goods and services exclusively or primarily to members of one sex is justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.52

(ii) The special occupational exception for religious bodies During the gestation of the Framework Directive, the provision which caused the most public controversy was that protecting the right of religious bodies to maintain their beliefs where those beliefs would otherwise run counter to the instrument. There is a genuine clash here between freedom of religion and freedom from discrimination, in particular discrimination grounded on sexual orientation, because a number of religious sects condemn homosexuality.53 However, there are also many other possible areas of conflict, for example between a blind person asserting the right to be accompanied by a guide dog and a Muslim organization which deems dogs to be unclean. The Article which emerged, Article 4(2), is possibly one of the most opaque to be found on any statute book: Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall 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 constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.

52 For examples of the application of this exception, see recital 16 of the Preamble to the directive. As discussed in ch 4, Art 4(5) has the unfortunate effect of permitting the justification of direct, as well as indirect, discrimination. For further discussion of this exception, see ch 8. 53 See, eg, the UK case of Islington v Ladele [2010] 1 WLR 955, where a ‘Christian’ registrar complained (unsuccessfully) of religious discrimination when she was disciplined by her employer for refusing to perform civil partnership registrations.

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Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.54

At least at first sight, it is far from clear that this wording (which was considerably altered during the final Council negotiations at the instigation of the Irish Government)55 adds anything of significance to that contained in Article 4(1), the exception for genuine and determining occupational requirements. Its basic intention is clearly to preserve the right of religious organizations, such as churches, schools, and hospices, to appoint staff of their own religious persuasion to key positions. However, this right has already been catered for by Article 4(1). The meaning of ‘public or private organisations the ethos of which is based on religion or belief ’ will also have to be worked out by the CJEU in future litigation. The use of the word ‘ethos’ clearly extends beyond personal belief and suggests some outward demonstration of adherence to a particular religion. Undoubtedly, many practical questions will arise, such as, for example, whether and to what extent Catholic practices of doctors, Jewish care homes, Muslim schools, or evangelical Christian partnerships of solicitors will be able to avail themselves of the exception. Tessa Jowell, on behalf of the UK Government, set out to the House of Lords Select Committee on the EU the intended relationship between the two paragraphs of Article 4(2). She explained that the first paragraph permits religious organizations to treat employees or applicants differently on the ground of their religion where membership of the relevant religion is a genuine occupational requirement. However, the closing words of the paragraph indicate that, in so doing, they may not discriminate on any other ground, such as homosexuality (a matter categorized by the Minister as one of ‘identity’). The second paragraph, however, then goes on to deal with the person’s ‘conduct’ and would permit an employee’s dismissal where his or her conduct undermined the organization’s ethos. The House of Lords Select Committee remained unconvinced that this distinction was workable: It is not easy to draw clear lines between identity and conduct or to determine the constraints that may be imposed on the enjoyment of private life. One could imagine a situation in which the headmaster of a religious school was homosexual, but kept this part of his life wholly private and separate from his work in the school. He might then be exposed by a 54 See also recital 24 of the Preamble to the Framework Directive.There is no equivalent provision in either the Recast Directive, or the Race Directive. It is especially significant that it was thought sufficient for the purposes of the Recast Directive to rely simply on the existence of the exception for genuine and determining occupational requirements, notwithstanding the fact that many religions hold strong views on the role to be played by men and women respectively. 55 The Article as originally drafted appeared to limit the ability of religious organizations to rely on the genuine and determining occupational requirement defence.

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newspaper. In such circumstances it is not clear what rights either he or his employer would be able to claim under Article 4(2) of the Directive.56

The relationship between Article 4(1) and Article 4(2) is also worthy of scrutiny. Article 4(1) demands a more stringent test for the connection between the work and the characteristic; the characteristic must be a genuine and determining occupational requirement, the objective legitimate, and the requirement proportionate. For Article 4(2), it is sufficient that the relevant religion or belief constitutes a genuine, legitimate, and justified requirement; the word ‘determining’ is omitted. On the other hand, Article 4(1) does not conclude with a prohibition of discrimination on other grounds. Thus it would appear, for example, that a fundamentalist sect which disapproved of homosexuality could rely upon Article 4(1), but not Article 4(2), to excuse the non-appointment of a gay person, where the job to be performed is that of a minister or someone else close to the core of the organization’s values. Where the job is not so vitally connected to the organization concerned, Article 4(2) might excuse the rejection of an applicant on the ground that that person did not share the same religion, but it would not excuse further discrimination on another ground, such as sex or sexual orientation, unless the person concerned then went on to act in a way which conflicted with the ethos of the organization. The drafting of Article 4(2) contains a number of mysterious features, notably in the opening words of its second paragraph. It is unclear what is meant by ‘Provided that its provisions are otherwise complied with’, although presumably the intention is to permit the employer to discipline or dismiss an employee who acts in contravention of the organization’s ethos but not to permit discrimination against that person on any other ground. The word ‘thus’ in the second paragraph is also difficult to explain, since the second paragraph does not follow as a matter of logic from the first.

(iii) Provisions protecting women The Recast Treatment Directive contains several provisions on the protection of women in relation to pregnancy, maternity, and related matters; these are discussed in chapter 7. In more general terms, Article 28(1) states: This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.57 56 House of Lords Select Committee on the EU, ‘The EU Framework Directive on Discrimination’, Session 2000–01, 4th Report, HL Paper 13, para 48. 57 This provision only excuses treatment favourable to the woman employee; thus, in Case C-66/96 Handels-OG Kontorfunktionaerernes Forbund I Danmark v Faellesforeningen for Danmarks Brugsforeninger [1998] ECR I-7327, the Court held that it did not excuse a national rule permitting an employer to send home a healthy pregnant employee when he could not find work for her: such a rule was ‘aimed not so much at protecting the pregnant woman’s biological condition as at preserving the interests of her employer’ (at 7375). See also Case C-136/95 CNAVTS v Thibault [1998] ECR I-2011, and Case

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The predecessor to this provision was in issue before the CJEU on a number of occasions. Commission v Italy58 concerned, inter alia, Italian legislation which extended certain maternity rights to women, but not to men, when they adopted children under six years of age. It allowed them to claim three months’ leave from employment, together with a financial allowance. Rozès AG considered that this constituted a breach of the equal treatment principle as regards working conditions, and that it could not be justified by reference to the exception for maternity: I believe that leave after giving birth to a child in order to allow the mother to rest may rightly be regarded as a provision to protect women in relation to maternity. On the other hand, I consider that leave after adoption benefits the child above all in so far as it is intended to foster the emotional ties necessary to settle the child in the family adopting it ...I therefore consider that the leave referred to ...is part of the working conditions within the meaning of....the Directive. That is why I consider that adoptive fathers must be entitled to it on the same basis as their working wives.59

The full Court, however, unfortunately did not adopt such an analytical approach and held simply: [The distinction in relation to maternity leave] is justified ...by the legitimate concern to assimilate as far as possible the conditions of entry of the child into the adoptive family to those of the arrival of a newborn child in the family during the very delicate initial period. As regards leave from work after the initial period of three months the adoptive father has the same rights as the adoptive mother.60

This ruling suggested that the Court was prepared to give an extensive interpretation to the word ‘maternity’. This view was confirmed by Hofmann v Barmer Ersatzkasse,61 in which a father alleged that it was unlawfully discriminatory for Federal German law to grant mothers, but not fathers, an optional period of paid leave from employment between the ending of the statutory period of maternity leave eight weeks after childbirth and the child reaching the age of six months.The father argued that, since this additional period of leave was essentially provided for the benefit of the baby, it should be open to fathers too. The Advocate General and the Court both rejected this argument, the latter explaining: [B]y reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with ‘pregnancy and maternity’, the Directive recognizes the legitimacy, in terms of the principle of equal treatment, of protecting a woman’s needs in two respects. First, it is legitimate to ensure the protection of a woman’s biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth; and secondly, it is legitimate to C-207/98 Mahlburg v Land Mecklenburg-Vorpommern [2000] ECR I-549. In Case C-506/06 Mayr v Flöckner OHG [2008] ECR I-1017 the CJEU held that to allow an employer to dismiss a female worker for sickness because she was undergoing in vitro fertilization would be contrary to the objective of what is today Art 28(1) of the Recast Directive. 58 60

59 Case 163/82 [1983] ECR 3273. Case 163/82 [1983] ECR 3273, at 3297–8. 61 Case 163/82 [1983] ECR 3273, at 3288. Case 184/83 [1984] ECR 3047.

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protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment. In principle, therefore, a measure such as maternity leave granted to a woman on expiry of the statutory protective period falls within the scope of Article 2(3) of Directive 76/207,62 inasmuch as it seeks to protect a woman in connection with the effects of pregnancy and motherhood. That being so, such leave may legitimately be reserved to the mother to the exclusion of any other person, in view of the fact that it is only the mother who may find herself subject to undesirable pressures to return to work prematurely.63

It is significant that the language used by the CJEU evolved here from ‘maternity’ (the word used in the directive) to ‘motherhood’. The Court was apparently saying that different provision is permissible in connection with ‘motherhood’, which, in ordinary language, is a state of very much longer duration than ‘maternity’. The unfortunate innuendo here, of course, was that it signalled that the exception might be interpreted in future by the CJEU to legitimize other forms of preferential treatment for mothers which were based on outdated notions of parental role-playing within families. On the other hand, the Hofmann case was only in fact concerned with leave periods up to six months from the child’s birth, and it did not necessarily follow that the Court would have accepted the same argument had it been faced with a returner scheme allowing a mother only a period of, say, one or two years of leave after the birth. It would appear logically that, if the exception is to be construed strictly, in accordance with the usual principle, such a scheme could not be excused as attributable to ‘maternity’. Some of the more recent cases suggest that the Court may be moving in this direction.64 Commission v France65 was a prosecution of France for enacting legislation providing that, although contractual employment equality was to be the norm as between men and women, there could remain in operation terms of contracts and collective agreements in force on the date at which the legislation was enacted ‘granting particular rights to women’. The French Government argued that this was justifiable by means of what is now Article 28(1) of the Recast Directive. The particular rights in question related to extended maternity leave, reduction in working hours for women aged 59, the bringing forward of retirement age, time off for sick children, extra days’ holiday each year per child, a day off on the first day of the school term, some hours off on Mothers’ Day, daily breaks for women working on computer equipment, or as typists or switchboard operators, pension bonuses after the birth of a second child, and allowances for nurseries and childminders. The Commission agreed that some of these matters might fall within the exception, but argued that the general effect the French legislation was to enable inequalities in treatment between men and women contrary to the directive to 62

63 Now Art 28(1) of the Recast Directive. Case 184/83 [1984] ECR 3047, at 3075. Cf Case C-218/98 Abdoulaye v Renault SA [1999] ECR I-5723, as to which see the comments of McGlynn in ‘Pregnancy, Parenthood and the Court of Justice in Abdoulaye’ (2000) 25 ELRev 654. 65 Case 312/86 [1988] ECR 6315. 64

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continue indefinitely. The Court agreed with the Commission, pointing out that some of the examples given of the particular rights for women which were being protected ‘relate to the protection of women in their capacity as older workers or parents—categories to which both men and women may equally belong’.66 In other words, the Court would not countenance any extension of the exception beyond cases connected in some fairly close but unspecified way with the process of childbearing. Unfortunately, the Court said nothing about how it saw the limits to the exception and, in particular, at what point maternity matures into parenthood. Slynn AG was somewhat more forthcoming in this respect, saying that the Hofmann case had established that the exception was confined to ‘the period which follows pregnancy and childbirth, and not any later period’.67 In Roca Álvarez v Sesa Start España ETT SA,68 the CJEU held that what is today Article 28(1) of the Recast Directive did not excuse a Spanish provision granting time off work to mothers to feed their babies under the age of nine months, but gave a corresponding right to fathers only if their partners were employed. It held that the leave was in reality granted to workers in their capacity as parents and it could not therefore be regarded as ensuring the protection of the biological condition of the woman following pregnancy or the protection of the special relationship between a mother and her child.69 Part of the doubt which surrounds the extent of this exception is due to its drafting. The inclusion of the word ‘particularly’ (‘particularly as regards pregnancy and maternity’) is unfortunate: it suggests, although it does not articulate, that there are other grounds on which women may lawfully be protected.This reasoning could of course be used to justify differential treatment of women on the basis of some spurious supposed vulnerability or weakness. In its decision in Johnston v Chief Constable of the RUC,70 the Court left tantalizingly open the question of whether there were any other grounds, besides pregnancy and maternity, on which women could lawfully be protected. After asserting that the Article must, like the exception for genuine and determining occupational requirements, be construed strictly, it said: [I]t is clear from the express reference to pregnancy and maternity that the Directive is intended to protect a woman’s biological condition and the special relationship that exists between a woman and her child. That provision of the Directive does not therefore allow women to be excluded from a certain type of employment on the ground that public opinion demands that women be given greater protection than men against risks that affect women and men in the same way and which are distinct from women’s special needs of protection, such as those expressly mentioned. It does not appear that the risks and dangers to which 66

Case 312/86 [1988] ECR 6315, at 6336. See also Case C-366/99 Griesmar [2001] ECR I-9383. 68 Case 312/86 [1988] ECR 6315, at 6328. Case C-104/09 [2010] ECR I-8661. 69 Whilst the CJEU itself appeared in Roca Álvarez to uphold its decision in Hofmann, Kokott AG’s remarks (especially at para 42 of her Opinion) suggest that she regarded Hofmann as outdated. Nevertheless, she was prepared to concede that the exception would cover a provision which granted breastfeeding workers specific benefits since women alone are able to breastfeed and breastfeeding is directly concerned with maternity (see para 35 of the Opinion). 70 Case 222/84 [1986] ECR 1651, also discussed at p 387 et seq. 67

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Exceptions to the non-discrimination principle

women are exposed when performing their duties in the police force in a situation such as exists in Northern Ireland are different from those to which any man is also exposed when performing the same duties.71

In the later decision in Commission v France72 Slynn AG commented, with almost equal opacity: ‘Although the word “particularly”...indicates that situations other than pregnancy and maternity may fall within its scope, those words colour the scope of the exemptions’.73 At present, therefore, all that can be concluded about the scope of Article 28(1) is that it can certainly be used to justify special treatment for women in employment in relation to pregnancy74 and up to perhaps six months from the date of their giving birth; beyond this, it can seemingly be used to justify the ‘protection’ of women against biological risks which are specific to their sex, but quite what these risks are, and how ‘biological’ is to be defined, has yet to be worked out in the case law of the CJEU. The equivalent exception in the Goods and Services Directive is more tightly confined. Thus, Article 4(2) states: This Directive shall be without prejudice to more favourable provisions concerning the protection of women as regards pregnancy and maternity.

Article 5(3) of the instrument adds that the costs related to pregnancy and maternity may not result in differences in individuals’ premiums and benefits.

(iv) Differences of treatment based on nationality Article 3(2) of the Race Directive provides: This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment 71 Case 222/84 [1986] ECR 1651, at 1688–9, emphasis added. See also Case C-285/98 Kreil [2000] ECR I-69. In Case C-345/89 Stoeckel [1991] ECR I-4047, the CJEU held that a ban on night work by women was not permitted; it stated that ‘[a]s far as the aims of protecting female workers are concerned, they are valid only if ...there is a justified need for a difference of treatment as between men and women. However, whatever the disadvantages of night work may be, it does not seem that, except in the case of pregnancy or maternity, the risks to which women are exposed when working at night are, in general, inherently different from those to which men are exposed’ (at 4066). See also Case C-13/93 Office 72 National de l’Emploi v Minne [1994] ECR I-371. Case 312/86 [1988] ECR 6315. 73 Case 312/86 [1988] ECR 6315, at 6328. 74 Where special treatment is actually extended to pregnant women, it appears to be assumed that that treatment is logically related to their pregnancy; thus, eg, in Case C-421/92 Habermann-Beltermann v Arbeiterwohlfahrt [1994] ECR I-1657, Tesauro AG submitted: ‘ ...with respect to [Article 28(1)] of the Directive, the legality of ...German legislation prohibiting night-time work for pregnant women is beyond dispute. That legislation accords special protection to female workers in such circumstances and is clearly covered by the derogations provided for in the Directive’ (at 1663). The Court agreed that ‘the prohibition on night-time work by pregnant women [was] ...unquestionably compatible with [Art 28(1)] ...‘(at 1675). However, there was no inquiry here into why night-time (as distinct from day-time) work was perceived as especially hazardous to pregnant women.

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which arises from the legal status of the third-country nationals and stateless persons concerned.

The apparent rationale for this exception is to prevent third-country nationals from circumventing the limitation of Article 18 of the TFEU; this is interpreted to restrict unlawful discrimination on the ground of nationality to cases where the nationality involved is that of one of the Member States. Article 3(2) of the directive appears to deny the possibility of alleging race discrimination in a situation where the real underlying cause of the discrimination experienced by a third-country national is nationality. However, the provision may well open the door to what are actually examples of racial discrimination being excused on the basis of nationality. Lord Lester has commented that this exception is incompatible with the effective protection of human rights,75 and Brown has perceptively observed that ‘by maintaining a distinction in the field of racial discrimination between EU nationals and third-country nationals, the Directive risks feeding xenophobia rather than diminishing it’.76 Nevertheless, one positive message which can be drawn from this provision is that, in situations other than those specified, the Race Directive (and its partner Framework Directive) is intended to apply to all persons within the EU, irrespective of their nationality.77 The provision was inserted into the directive in order to make it clear that the ever-sensitive matter of immigration was not within its terms.78 In addition, the UK Government wished to make it clear that such matters as social protection and social security for third-country nationals and stateless persons was excluded from the scope of the Race Directive. However, the breadth of the wording used is significant and regrettable;79 in particular, the final phrase of the provision permits ‘any’ adverse treatment of third-country nationals and stateless persons which is based on their status.80 Thus, for example, it would appear to legalize discrimination 75

Lester, ‘New European equality measures’ [2000] PL 562. Brown, ‘The Race Directive: Towards Equality for All the Peoples of Europe?’ (2002) 21 YEL 195, at 212. See also Brennan, ‘The Race Directive: Recycling Racial Inequality’ (2002–03) 5 CYELS 311. 77 This intention is confirmed by recital 13 of the Preamble to the Directive and by recital 12 of the Preamble to the Framework Directive. 78 The UK Government, having secured an opt-out from measures taken under the then Title IV of the TEC and the Schengen Agreement, was instrumental in the exclusion of immigration from the Race Directive. It cited the example of the exceptional leave to remain in the UK granted to the Kosovan Albanians; such leave was not granted to the Kosovan Serbs and, without the exception now contained in Art 3(2), similar action in the future would amount to unlawful discrimination on the ground of ethnic origin. In a letter to Lord Lester (quoted in Lester, ‘New European equality measures’ [2000] PL 562), Baroness Blackstone, the responsible Government Minister, stated that the exception was necessary for the effective operation of the UK’s immigration and asylum policies, and to safeguard the provisions of domestic law which ‘allow the government to impose restrictions on, for example, the access to employment enjoyed by third-country nationals resident in the UK in a temporary capacity, including those awaiting the outcome of their asylum applications and appeals’ (at 565). 79 For further criticism of this exception and its potential impact on third-country nationals, see Hepple, ‘Race and Law in Fortress Europe’ (2004) 67 MLR 1. 80 Cf recital 13 of the Preamble to the Race Directive, which merely says: ‘This prohibition of discrimination ...is without prejudice to ...access to employment and to occupation’. 76

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Exceptions to the non-discrimination principle

by anybody in relation to housing or the provision of education, provided that the action could be said to be grounded on the victim’s third-country nationality or statelessness, even though it also constituted discrimination on racial grounds. Puzzlingly, though perhaps it was simply the consequence of a misplaced striving for consistency, the Framework Directive was amended during its gestation so that it contains a provision in virtually identical terms to Article 3(2) of the Race Directive.81 It is difficult to imagine how the Framework Directive would impinge on immigration.82 Tessa Jowell, on behalf of the UK Government, offered the view that ‘it is unlikely that a situation would in fact arise where this would impact in practice and we do not consider that this Directive ...touches on immigration at all’; nevertheless, it was helpful to make it ‘crystal clear’ that entry conditions relating to access to particular types of employment, and setting different standards for different ages, were not caught by the directive.83

(v) Measures necessary for public security, public order, the prevention of criminal offences, the protection of health, and the protection of the rights and freedoms of others Article 2(5) of the Framework Directive84 provides: This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.

This wording is based loosely on that contained in the ECHR, in particular Article 8 on the right to respect for private and family life, Article 9 on freedom of thought, conscience, and religion, Article 10 on freedom of expression, and Article 11 on freedom of assembly and association; the CJEU may therefore well look to the interpretation of these Articles by the European Court of Human Rights for guidance as to how to construe Article 2(5). The provision is one which was inserted into the directive during the final hours of negotiation on it85 and no version of it was contained in the original 81 Art 3(2) of the Framework Directive. The Recast Directive (mercifully) contains no equivalent provision. 82 Note, however, that, as originally proposed, the Framework Directive would also have covered racial discrimination. This nevertheless does not explain why the immigration exception was inserted into the Framework instrument after the provisions on racial discrimination had been removed from it and enacted in a separate directive. 83 House of Lords Select Committee on the EU, ‘The EU Framework Directive on Discrimination’, Session 2000–01, 4th Report, HL Paper 13. 84 There is no equivalent provision in either the Recast Directive or the Race Directive. 85 Apparently at the insistence of the UK Government: see the House of Lords Select Committee on the EU, ‘The EU Framework Directive on Discrimination’, Session 2000–01, 4th Report, HL Paper 13, para 37.

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draft of the instrument. It was thought necessary to prevent members of harmful cults, paedophiles,86 and people with dangerous physical and mental illnesses from gaining protection from the directive. It is, however, an extremely broadly drafted provision, especially given that the Framework Directive covers only workplace discrimination. The CJEU will have to patrol its boundaries carefully. Its first decision on Article 2(5) came with Petersen v Berufungsausschuss.87 German law contained a provision which set at 68 the maximum age at which a panel dentist could work for the statutory health insurance scheme. A Grand Chamber of the Court stated that Article 2(5) must, as an exception to the prohibition of discrimination, be interpreted strictly. It examined two of the rationales for the legislation advanced by the German Government from the point of view of Article 2(5), asking in particular whether the age discrimination was necessary to protect health. It had been argued that one objective of the measure was to protect the health of patients, on the assumption that competence declines with age; a second objective relied upon was the preservation of the financial balance of the healthcare system in an environment in which there was an over-supply of dentists.The Court explained clearly that, in order to assess whether a measure is necessary in relation to the objective pursued, it has to be ascertained whether the national legislation is logically consistent:88 It must be remembered that legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner.89

The age limit of 68 was subject to four exceptions. The second and third covered a lack of panel dentists because of a shortage of them in certain regions or because of their illness, absence on leave or participation in training courses. In those cases, patients insured under the statutory scheme could be treated by dentists over 68. The Court held that these exceptions did not interfere with the objective of the protection of health; on the contrary, they were intended to ensure that patients could be treated. Neither did they interfere with the objective of preserving the financial balance of the system since they were designed to cater for cases in which there was an under-supply of dentists. The first exception concerned dentists who, by the age of 68, had not completed 20 years in the panel system; this affected a precisely defined group (particularly dentists from the former GDR) and was temporary. The Court found that it did not affect the consistency of the national legislation. However, the fourth exception related to dentists working outside the panel system, to whom no maximum age limit applied. The Court held that a measure to which there is so broad an exception cannot be regarded as essential 86 It is of course highly questionable whether paedophilia would be considered by the CJEU to be 87 a sexual orientation. Case C-341/08 [2010] ECR I-47. 88 See also its remarks to the same effect in relation to Art 6(1) (discussed at p 408 et seq.) in Joined Cases C-159 & 160/10 Fuchs and Köhler v Land Hessen [2011] ECR I-000. 89 [2010] ECR I-47, at para 53.

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Exceptions to the non-discrimination principle

for the protection of public health, if the objective justifying the rule is the protection of patients on the ground of the competence of dentists.90 On the other hand, if the aim of the rule was to preserve the financial balance of the system, the fourth exception did not interfere with the objective pursued; the state has financial responsibility only for the public healthcare system. Insofar, therefore, as the age limit was intended to prevent a risk of serious harm to the financial balance of the social security system in order to achieve a high level of health protection, the measure was compatible with Article 2(5). However, it was for the referring court to ascertain the true objective of the national legislation. Prigge et al v Deutsche Lufthansa AG91 concerned the automatic termination of the employment contracts of commercial pilots at the age of 60. The stated objective of this rule, which was contained in a collective agreement, was to ensure air safety. A Grand Chamber of the CJEU repeated that Article 2(5) must, as an exception to the prohibition of discrimination, be interpreted strictly and it stated that measures aiming to avoid air accidents by monitoring pilots’ aptitude and physical capabilities certainly fall within its scope. However, in the circumstances of the case, the rule adopted was held to be unnecessary, and therefore outwith the terms of Article 2(5), because both national and international legislation permitted pilots to fly when they were over 60 (albeit subject to restrictions). Had the age discrimination involved been legitimate, the Court added that it could have been contained in a collective agreement: Member States may authorise, through rules to that effect, the social partners to adopt measures within the meaning of Article 2(5) in the areas referred to in that provision that fall within collective agreements on condition that those rules of authorisation are sufficiently precise so as to ensure that those measures fulfil the requirements set out in Article 2(5).92

(vi) Payments made by state schemes Article 3(3) excepts from the scope of the Framework Directive ‘payments of any kind made by state schemes or similar, including state social security or social protection schemes’.93 Recital 13 of the Preamble to this directive explains that it is intended to align the meaning of ‘pay’ for the purposes of the Framework Directive with that adopted in relation to Article 157; however, it adds that the directive does not apply to ‘any kind of payment by the State aimed at providing access to employment or maintaining employment’.94

90 The Court thus avoided examining the legitimacy of the assumption that professional competence 91 declines with age. Case C-447/09 [2011] ECR I-000. 92 Case C-447/09 [2011] ECR I-000, at para 64 and in the Ruling. 93 There is no equivalent exception in the Race Directive.The principle of sex equality in relation to 94 social security is discussed in ch 10. See discussion in ch 6.

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(vii) The armed forces Article 3(4) of the Framework Directive was introduced at the end of the negotiations on the instrument.95 It provides that the directive, ‘in so far as it relates to discrimination on the grounds of disability and age, shall not apply to the armed forces’.96 This provision must be viewed against the background of the Preamble to the instrument, which states: (17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities. (18) This Directive does not require, in particular, the armed forces and the police, prison or emergency services to recruit or maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services. (19) Moreover, in order that the Member States may continue to safeguard the combat effectiveness of their armed forces, they may choose not to apply the provisions of this Directive concerning disability and age to all or part of their armed forces. The Member States which make that choice must define the scope of that derogation.

Article 3(4) represents a serious erosion of the protection offered by the directive, especially as far as disabled people are concerned. It is unnecessary to exclude all jobs (even, for example, clerical jobs) within the armed forces, rather than simply those relevant to combat effectiveness. However, the UK Government justified its support for this provision with the argument that decisions on combat effectiveness should not be challengeable before the courts.

(viii) Reasonable accommodation for the disabled Article 5 of the Framework Directive articulates the very important principle of reasonable accommodation for disabled people: In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer.This burden 95 When it became apparent that the genuine and determining occupational requirement exception would not deal with the situation. 96 There is no equivalent express exception in the Recast Directive or the Race Directive. See discussion at p 389 et seq. about the cases in which the determining factor exception from the Recast Directive has been invoked in relation to the armed forces.

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Exceptions to the non-discrimination principle

shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.97

Thus, a concept of equilibrium underlies the law on non-discrimination on the ground of disability. Unlike most of the other prohibited grounds of discrimination, disability describes a spectrum of conditions. This makes it difficult to lay down absolutes and, for the law to operate properly in practical terms, it must focus on individual cases as well as generalities. The solution opted for in the Framework Directive is to require employers to take ‘appropriate measures’ to accommodate disabled employees, in the ‘particular’ case as well as more generally, but to limit this principle to measures which are ‘proportionate’. There is clearly an important role for the CJEU in explaining what is meant by ‘appropriate measures’ and according to what parameters proportion is to be judged. Some guidance is provided by the Preamble to the Framework Directive, which indicates that the appropriateness of the employer’s measures is to be measured by their effectiveness; recital 20 states that ‘appropriate measures’ are ‘effective and practical measures to adapt the workplace to the disability, for example by adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources’. In determining whether the burden is disproportionate, the Preamble states that ‘account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or other assistance’.98 It has been argued that there is a risk that the defence provided by Article 2(5)99 may undermine the principle of reasonable accommodation and thus the extent to which the Framework Directive really protects disabled people.100 In particular, the protection of public health and the protection of the rights and freedoms of others ‘may prove a fertile area for defending claims of failure to make reasonable

97 Note that this principle applies only to discrimination on the ground of disability and not, eg, to religious discrimination. Note also, that the obligation to provide reasonable accommodation originated in relation to religious discrimination in North America, and it applies in Canada to all the grounds covered by the Charter of Fundamental Freedoms and the Federal Human Rights Act. It would have greatly aided the effectiveness of the proscription of discrimination on the ground of religion or belief if the requirement of reasonable accommodation had applied to it; despite growing cultural diversity throughout Europe, the world of work reflects a predominantly Christian model; see, eg, the tenor of the remarks of the Court of Appeal in Ahmad v ILEA [1978] QB 36. However, it would have presented huge practical difficulties for employers, in view of the probable breadth of meaning of ‘religion or belief ’, to have required them to provide reasonable accommodation for all the religious needs of their 98 workforces. Recital 21. 99 Discussed at p 402. 100 In Case C-13/05 Chacón Navas v Eurest Colectividades SA [2006] ECR I-6467, the CJEU did not expatiate on the meaning of reasonable accommodation but stated that the prohibition of discrimination on the ground of disability ‘precludes dismissal on grounds of disability which, in the light of the obligation to provide reasonable accommodation for people with disabilities, is not justified by the fact that the person concerned is not competent, capable and available to perform the essential functions of his post’ (at para 51).

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accommodation’, and it is therefore vital that the CJEU interprets the Article 2(5) derogations particularly strictly in the context of disability.101 The notion of reasonable accommodation is especially relevant in the context of indirect discrimination, although, since Article 5 creates an independent and freestanding obligation, this must not be taken to imply that the requirement to provide reasonable accommodation does not apply with equal force in cases where direct discrimination is alleged. Indirect discrimination against disabled people may be justified in the usual way.102 However, in addition, Article 2(2)(b)(ii) of the Framework Directive provides that what is prima facie indirect discrimination can also be negatived provided: As regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.

This arrangement is comprehensible, if at all, only in the light of its history. The UK’s existing disability legislation did not distinguish between direct and indirect discrimination, but applied a concept akin to reasonable accommodation to both.103 When the draft Framework Directive appeared, and proposed applying the concept of indirect discrimination in the field of disability, there was much discussion in the UK of the relationship between it and reasonable accommodation.104 A practical example illustrates the problem: suppose that an employer requires an office-worker to deliver packages to a number of different offices within a building. Somebody confined to a wheel-chair would find this task difficult and time-consuming; the requirement therefore constitutes prima facie indirect discrimination on the ground of disability. If the concept of justification were held to legalize this situation, the employer would have to prove that there was a genuine need for the packages to be delivered, that this was an appropriate way for delivery to be achieved, and that there was no alternative way. If, on the other hand, the concept of reasonable accommodation were to apply, the employer would have to examine whether there were measures which could be taken which, short of imposing a disproportionate burden, would make it possible for the wheel-chair user to deliver the packages (for example, the installation of ramps or appropriate doors). The two tests are simply different. Furthermore, although reasonable accommodation is helpful from the victim’s viewpoint, because it enables him or her to engage in the occupation concerned, it does not require the employer to remove the obstacle for other potential disabled candidates; it does not, in other words, yield a group benefit. If a practice

101 See Wells, ‘The Impact of the Framework Employment Directive on UK Disability Discrimina102 tion Law’ (2003) 32 ILJ 253, at 265–6. See the general discussion of justification in ch 4. 103 Disability Discrimination Act 1995, especially s 6; but see now the Equality Act 2010, Part 2, ch 2. 104 See the House of Lords Select Committee on the EU, ‘EU Proposals to Combat Discrimination’, Session 1999–2000, 9th Report, HL Paper 68, paras 94–5.

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Exceptions to the non-discrimination principle

has to be justified, on the other hand, an employer who fails to justify it will have to discontinue the practice, with consequential benefits to other disabled applicants. The House of Lords Select Committee on the EU considered one intellectually attractive solution in its investigation of the draft directive. Professor Sir Bob Hepple has suggested that the two concepts could be combined in a single provision, thus: A provision, criterion or practice shall not be regarded as appropriate and necessary in the case of indirect discrimination which disadvantages disabled persons ...unless the needs of that group cannot be reasonably accommodated without causing undue hardship on the person responsible for accommodating those needs, having regard to factors such as cost and health and safety requirements.105

As has been seen, this is not the solution adopted in the directive. Instead, the directive appears to allow the Member States to choose whether (‘under national legislation’) they apply justification or reasonable accommodation in cases of alleged indirect discrimination on the ground of disability.106 However, this still leaves a conundrum; since Article 5 creates a free-standing obligation, it requires employers to provide reasonable accommodation even in Member States which opt to apply the concept of justification to alleged indirect discrimination. What appears to be an option is therefore not an option in reality.

(ix) Justification on grounds of age Article 6 of the Framework Directive creates an exception applicable only to discrimination on the ground of age.107 Its heading itself is sinister:‘Justification of differences of treatment on grounds of age’. As discussed in chapter 4, justification is a concept which serves to negative causation in the context of indirect discrimination. It is not logically applicable to direct discrimination, and an attempt to apply it to direct discrimination also risks seriously eroding the utility of that concept. It is therefore disturbing that Article 6 of the Framework Directive does not limit the application of justification to indirect discrimination but instead creates a general defence: 1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination,108 if, within the context of national 105 See the House of Lords Select Committee on the EU, ‘EU Proposals to Combat Discrimination’, Session 1999–2000, 9th Report, HL Paper 68, at para 94.This approach is based on the Ontario Human Rights Code. 106 This is certainly the view that the UK Government took of the directive; see the House of Lords Select Committee on the EU, ‘The EU Framework Directive on Discrimination’, Session 2000–01, 4th Report, HL Paper 13, para 39. 107 No equivalent exception is contained in the Recast Directive or in the Race Directive. 108 The same point applies here as in relation to the wording of the genuine and determining occupational qualification defence, namely, that this is in fact discrimination but that it is rendered lawful by a specific defence.

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law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. Such differences may include, among others: (a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection; (b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment; (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.109

The breadth of this provision is to be noted. It explicitly sacrifices the principle of non-discrimination to commercial and other interests. A crucial discretion is therefore entrusted to the CJEU when it is called on to determine the meaning of ‘objectively and reasonably justified by a legitimate aim’; if it does not take a firm line, age discrimination is effectively legalized by this provision, a serious matter in the present demographic climate.110 Unsurprisingly, Article 6 has generated the largest number of claims to date under the 2000 directives. In its first decision on the subject, Mangold v Helm,111 the Court showed resolve. It was confronted with German legislation which permitted the unrestricted successive renewal of fixed-term employment contracts for workers above a stipulated age. The purpose of this legislation, the German Government asserted, was to promote the vocational integration of unemployed older workers who otherwise encountered considerable difficulties in finding work. This, the Court held to be an entirely legitimate objective. However, Germany had overstepped the limits of what the Court described as its ‘broad’ discretion because the legislation applied to all workers over the stipulated age, irrespective of whether or not they were unemployed before; such workers were all therefore denied the protection of the Directive on Fixed-Term Employees.112 The Court concluded that this could not be justified under Article 6(1) of the Framework Directive: In so far as such legislation takes the age of the worker concerned as the only criterion for the application of a fixed-term contract of employment, when it has not been shown that fixing an age threshold, as such, regardless of any other consideration linked to the structure of the labour market in question or the personal situation of the person concerned, is

109 Recital 14 of the Preamble to the directive states that the instrument is without prejudice to national provisions laying down retirement ages. 110 It is estimated that, in the EU, the number of elderly people will have doubled between 2000 and 2050: see Finance and Development, June 2004. 111 Case C-144/04 [2005] ECR I-9981, commented on by Muir in ‘Enhancing the effects of Community law on national employment policies: the Mangold case’ (2006) 31 ELRev 879. 112 Directive 1999/70, discussed in ch 6.

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objectively necessary to the attainment of the objective which is the vocational integration of unemployed older workers, it must be considered to go beyond what is appropriate and necessary in order to attain the objective pursued. Observance of the principle of proportionality requires every derogation from an individual right to reconcile, so far as possible, the requirements of the principle of equal treatment with those of the aim pursued.113

However, as regards the provisions to be found in many Member States requiring the termination of employment contracts when the worker reaches state retirement age, the Court has shown more leniency towards the Member States.114 This is notwithstanding its avowed commitment to the protection of older workers expressed in Fuchs and Köhler v Land Hessen:115 The Member States may not frustrate the prohibition of discrimination on grounds of age set out in Directive 2000/78. That prohibition must be read in the light of the right to engage in work recognised in Article 15(1) of the Charter of Fundamental Rights of the European Union. It follows that particular attention must be paid to the participation of older workers in the labour force and thus in economic, cultural and social life. Keeping older workers in the labour force promotes diversity in the workforce, which is an aim recognised in recital 25 in Directive 2000/78; moreover, it contributes to the realising of their potential and to the quality of life of the workers concerned, in accordance with the concerns of the European Union legislatures set out in recitals 8, 9 and 11 in that directive.116

Palacios de la Villa v Cortefiel Servicios SA117 concerned the dismissal of a worker pursuant to a collective agreement118 which provided for automatic retirement at the age of 65 unless the worker concerned had not by then completed the qualifying period required for a pension, in which case the worker was permitted to continue in employment until the completion of that period. Mr Palacios de la Villa, who qualified for a pension, complained that his dismissal at 65 breached his right not be discriminated against on the ground of age. A Grand Chamber of the Court agreed that the matter was caught by the Framework Directive but held that it was justifiable under Article 6(1).The collective agreement in question did not expressly refer to its objective but the Court took note that it was adopted at the instigation of the social partners and was part of a national policy seeking to promote better access to employment, by means of better distribution of work between the generations. In an important paragraph, it held:

113 [2005] ECR I-9981, at para 65. Cf Joined Cases C-250 & 268/09 Georgiev v Tehnicheski universitet [2010] ECR I-11869. 114 See discussion in Schiek, ‘Age Discrimination before the CJEU—Conceptual and Theoretical Issues’ (2011) 48 CMLRev 777; and in Kilpatrick, ‘The Court of Justice and Labour Law in 2010: A New EU Discrimination Law Architecture’ (2011) 40 ILJ 280. 115 Joined Cases C-159 & 160/10 [2011] ECR I-000. 116 Joined Cases C-159 & 160/10 [2011] ECR I-000, at paras 62 and 63. 117 Case C-411/05 [2007] ECR I-8531, commented on by Waddington in (2008) 45 CMLRev 895. 118 Art 18 of the Framework Directive provides for its implementation either by laws, regulations or administrative provisions or by collective agreements.

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It cannot be inferred from Article 6(1) of Directive 2000/78 that the lack of precision in the national legislation at issue as regards the aim pursued automatically excludes the possibility that it may be justified under that provision.119

It went on to say that justification could be derived from the context of the measure concerned120 and that it was clear on the facts that this revealed that automatic retirement at 65 was aimed at regulating the national labour market, in particular, checking unemployment. The legitimacy of such an aim of public interest could not ‘reasonably be called into question’121 because employment policy and labour market trends are among the objectives expressly laid down in Article 6(1) of the directive. Nevertheless, it still remained to ask whether the means used to achieve this legitimate aim were appropriate and necessary. Here the Member States were held to have a broad discretion122 with the use of which the Court was noticeably reluctant to intervene: It does not appear unreasonable for the authorities of a Member State to take the view that a measure such as that at issue in the main proceedings may be appropriate and necessary in order to achieve a legitimate aim in the context of national employment policy, consisting in the promotion of full employment by facilitating access to the labour market. Furthermore, the measure cannot be regarded as unduly prejudicing the legitimate claims of workers subject to compulsory retirement because they have reached the age-limit provided for; the relevant legislation is not based only on a specific age, but also takes account of the fact that the persons concerned are entitled to financial compensation by way of a retirement pension at the end of their working life, such as that provided for by the national legislation at issue in the main proceedings, the level of which cannot be regarded as unreasonable.123

The Court thus ultimately legitimated the automatic dismissals involved in Palacios de la Villa, a conclusion which obviated the need for it to discuss the problem surrounding the horizontal direct effect of the directive on this occasion.124 It reached a similar conclusion in Age Concern,125 where the then UK legislation permitting the dismissal of workers aged 65 and over was challenged by a body lobbying for equality irrespective of age.126 Age Concern argued that, since Article 6(1) of the 119

[2007] ECR I-8531, at para 56. The Court reiterated this point in relation to the Art 2(5) defence discussed in Case C-341/08 Petersen v Berufungsausschuss [2010] ECR I-47. In Joined Cases C-159 & 160/10 Fuchs and Köhler v Land Hessen [2011] ECR I-000, the Court held that a change in the context of a law leading to an alteration of its aim does not, by itself, preclude that law from pursuing a legitimate aim; it added that a law may 121 also legitimately pursue several aims. [2007] ECR I-8531, at para 64. 122 In Case C-45/09 Rosenbladt v Oellerking [2010] ECR I-9391, the CJEU stated: ‘[T]he Member States and, where appropriate, the social partners at national level enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it’ (at para 41). 123 Case C-45/09 Rosenbladt v Oellerking [2010] ECR I-9391, paras 72 and 73. Emphasis supplied. See also Joined Cases C-250 & 268/09 Georgiev v Tehnicheski universitet [2010] ECR I-11869. 124 For discussion of the inability of directives per se to take horizontal direct effect, see ch 2. 125 Case C-388/07 R v Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulation Reform [2009] ECR I-1569. 126 The UK has subsequently repealed its default retirement age. 120

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Directive contains a list of objective and reasonable justifications, the Community legislature intended to impose on Member States the obligation to set out in their instruments of transposition a specific list of the differences of treatment which may be justified in this context.The Court disagreed, although it stressed that other elements taken from the general context of the relevant legislation must enable its underlying aim to be identified for the purposes of judicial review. It explained that: It is apparent from Article 6(1) ...that the aims which may be considered ‘legitimate’...are social policy objectives, such as those related to employment policy, the labour market or vocational training.127 By their public interest nature128 those legitimate aims are distinguishable from purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness, although it cannot be ruled out that a national rule may recognize, in the pursuit of those legitimate aims, a certain degree of flexibility for employers.129

Again acknowledging the broad discretion entrusted in this sphere to the Member States, the Court concluded that it was for the national courts to ascertain whether the legislation was consonant with such a legitimate aim ‘and whether the national legislative or regulatory authority could legitimately consider, taking account of the Member States’ discretion in matters of social policy, that the means chosen were appropriate and necessary to achieve that aim’.130 Nonetheless, and arguably somewhat anomalously, it conceded that the Member States must meet a high standard of proof in establishing justification.131 127 As Bot AG explained, the protection of public health is not a social policy objective and this was why the CJEU considered this rationale from the point of view of Art 2(5) (discussed at p 402) rather than Art 6(1) in Case C-341/08 Petersen v Berufungsausschuss [2010] ECR I-47 (at para 55 of his Opinion). Similarly, in Case C-447/09 Prigge et al v Deutsche Lufthansa AG [2011] ECR I-000, a Grand Chamber of the CJEU held that the automatic termination of a commercial pilot’s employment contract at the age of 60 with the objective of ensuring air safety was outwith Art 6(1). 128 The fact that a provision is adopted at regional level does not prevent it from pursuing a legitimate aim: see Joined Cases C-159 & 160/10 Fuchs and Köhler v Land Hessen [2011] ECR I-000 (at para 55). 129 [2009] ECR I-1569, at para 46. In C-45/09 Rosenbladt v Oellerking [2010] ECR I-9391, the CJEU said that the list in Art 6(1) is ‘merely a guide’ (at para 40). In Joined Cases C-159 & 160/10 Fuchs and Köhler v Land Hessen [2011] ECR I-000 the Court stated that the Member States are not precluded from taking account of budgetary considerations at the same time as political, social or demographic considerations, provided that in doing so they observe the general principle of the prohibition of age discrimination (at para 73). For a clear example of the predicament faced by the individual employer, see Seldon v Clarkson Wright, Jakes (A Partnership) [2012] UKSC 16. See also Barnard, ‘Retiring Gracefully’ (2011) 70 CLJ 304. 130 [2009] ECR I-1569, at para 52 (emphasis supplied). 131 [2009] ECR I-1569, at paras 65 and 67. In Joined Cases C-159 & 160/10 Fuchs and Köhler v Land Hessen [2011] ECR I-000, in response to a question about the precision with which a Member State must demonstrate the appropriateness and necessity of its measures, the Court said: ‘In order to assess the degree of accuracy of the evidence required, it must be borne in mind that the Member States enjoy broad discretion in the choice of measure they consider appropriate. That choice may, therefore, be based on economic, social, demographic and/or budgetary considerations, which include existing and verifiable data but also forecasts which, by their nature, may prove to be inaccurate and are thus to some extent inherently uncertain. The measure in question may, moreover, be based on political considerations, which will often involve a compromise between a number of possible solutions and, again,

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Age Concern also posed the intriguing question of whether there is any difference between the justification of age discrimination under Article 6(1) and the justification of indirect discrimination, pursuant to Article 2(2) of the Framework Directive;132 in particular, it pointed out that Article 6(1) uses the expression ‘objectively and reasonably justified’, whereas Article 2(2) speaks simply of objective justification. The Court stated that it was ‘inconceivable’ that a difference in treatment could be justified by a legitimate aim, achieved by appropriate and necessary means, but that the justification would not be reasonable. Accordingly, no particular significance should be attached to the difference in wording. However, it added that the scope of the two Articles is different because Article 6(1) can be used to justify direct discrimination, albeit only under the strict conditions it lays down. It declined to answer the question of whether Article 6(1) imposes a stricter test than Article 2(2).133 The CJEU reiterated its earlier remarks on the relationship between retirement age and dismissal in Rosenbladt v Oellerking.134 As regards a collective agreement which provided for automatic dismissal when the employee reached retirement age, the Court observed: [T]he automatic termination of the employment contracts of employees who meet the conditions as regards age and contributions paid for the liquidation of their pension rights has, for a long time, been a feature of employment law in many Member States and is widely used in economic relationships.135 It is a mechanism which is based on the balance to be struck between political, economic, social, demographic and/or budgetary considerations and the choice to be made between prolonging people’s working lives or, conversely, providing for early retirement.136 cannot with certainty lead to the expected result. It is for the national court to assess, according to the rules of national law, the probative value of the evidence adduced, which may, inter alia, include statistical evidence’ (at paras 80–3). 132 As to which, see ch 4. See also discussion by Kilpatrick of the difference between the CJEU’s treatment of justification in the context of age discrimination and its approach in indirect gender discrimination cases: ‘The Court of Justice and labour law in 2010: a new EU discrimination law architecture’ (2011) 40 ILJ 280. 133 In Case C-499/08 Andersen [2010] ECR I-9343, Kokott AG commented: ‘The possible justifications for an indirect difference in treatment based on age are framed in very general terms in Article 2(2)(b)(i) of Directive 2000/78 (“objectively justified by a legitimate aim”), whereas a direct difference in treatment based on age is justifiable only by social policy considerations for the purposes of Article 6(1) of the Directive, by specific occupational requirements within the meaning of Article 4(1) of the Directive or by public policy requirements for the purposes of Article 2(5) of the Directive. It follows from this that the possible objectives which may be relied on in order to justify a direct difference in treatment based on age are fewer than those capable of justifying an indirect difference in treatment, even though the proportionality test requirements are essentially the same’ (at para 31). 134 Case C-45/09 [2010] ECR I-9391. 135 It might, however, be countered that the purpose of introducing anti-discrimination legislation is to change traditional practices which disadvantage sectors of the population which the legislature has decided to protect. 136 Case C-45/09 [2010] ECR I-9391, at para 44. This approach is in sharp contrast to the generally strict view which the Court has taken of sex discrimination in collective agreements, as to which see discussion in ch 5.

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It went on to uphold as legitimate the German Government’s aims of job-sharing between the generations and avoiding the humiliation of employers having to dismiss workers on an individual basis because of incapacity for work. It followed its decision in Palacios de la Villa by taking note of the fact that the dismissed workers had their pensions and concluded that it did not ‘appear unreasonable’ for the authorities to take the view that the rule adopted was appropriate and necessary for the achievement of its aims. However, it added that this did not mean that such clauses in a collective agreement were exempt from any effective review by the courts; on the contrary: [i]t must be ensured, in respect of each agreement providing for a mechanism for automatic termination of an employment relationship, that the conditions laid down in the first subparagraph of Article 6(1) ...inter alia are fulfilled. Moreover, Article 16(b) [of the Framework Directive]137 expressly requires the Member States to take the measures necessary to ensure that ‘any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements ...are, or may be, declared null and void or are amended’.138

The CJEU was also asked in Rosenbladt about the legality of a legislative provision providing for the automatic termination of the contract of a cleaner on reaching retirement age which was set at 65. Again, the Court upheld the legitimacy of the aims of the legislation, which included the sharing of employment opportunities between the generations and good personnel management.139 It also found the legislation to be appropriate and necessary, noting in particular that German law did not prevent retired people from seeking further employment and that it protected them from discrimination on the ground of their age.140 In Fuchs and Köhler,141 the CJEU discussed the coherence of national legislation which required prosecutors to retire at 65 but, in exceptional circumstances, permitted them to remain at work until 68. The Court acknowledged that a lack of coherence would mean that the national legislation could not be regarded as appropriate. However, it appeared that the exception was intended to cover cases where a prosecutor reached the age of 65 but had been allocated a criminal case in which proceedings had not yet been concluded; in order to avoid possible complications arising from the prosecutor’s replacement, the law provided, by way of exception, that he or she should be able to continue to work. The Court held that such an exception was unlikely to undermine the aim pursued by the legislation, namely that of guaranteeing a balanced age structure for the purposes of ensuring a high-quality prosecution service. 137

138 Discussed in ch 6. Case C-45/09 [2010] ECR I-9391, at para 52. Similarly, in Joined Cases C-159 & 160/10 Fuchs and Kὅhler v Land Hessen [2011] ECR I-000, the CJEU held that the encouragement of recruitment, a mixing of the generations for the sharing of work experience, and the prevention of disputes about an individual’s continued fitness to work can all constitute legitimate aims within Art 6(1). 140 It is arguable that the Court here took an unrealistic view both of the financial situation of lowpaid workers such as cleaners and of the likelihood of their finding a new job after reaching the age of 141 65. Joined Cases C-159 & 160/10 [2011] ECR I-000. 139

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In Petersen v Berufungsausschuss,142 a Grand Chamber of the Court examined the argument that a statutory maximum age at which dentists could practise was justified by a desire to share out work opportunities between the generations. It held that the encouragement of recruitment certainly constitutes a legitimate social or employment policy, as does a measure to promote the access of young people to a profession. The question, as usual, was whether the means used were appropriate and necessary. It concluded that the age limit could be regarded as objectively and reasonably justified, and the means regarded as appropriate and necessary, provided that there was an excessive number of dentists in the system or a latent risk of such an over-supply. The relationship between retirement and Article 6(1) is nevertheless undoubtedly a complex one. In Andersen,143 a Grand Chamber of the Court was confronted with Danish legislation which deprived workers of a severance allowance when they left employment at or over the age of 60 and were entitled to draw an oldage pension from their employer. The Danish rule appeared to be justifiable on the basis of a wish to avoid paying double compensation to long-serving employees on dismissal; the severance allowance payable in other cases was designed to help dismissed employees to find replacement employment. However, although these objectives were considered to be legitimate, the Court found that the Danish provision went beyond what was necessary and it was therefore not justifiable under Article 6(1). This was because it deprived workers who had been dismissed but who wished to remain in the labour market of their entitlement to the severance allowance merely because they could, inter alia because of their age, draw a pension. The measure made it more difficult for workers who were eligible for a pension subsequently to exercise their right to work because, unlike other workers with the same years of service, they were not entitled to the severance allowance when in the process of seeking new employment. In addition, the Court held that the measure prohibited an entire category of workers defined on the basis of their age from temporarily waiving their right to an old-age pension from their employer in exchange for payment of the severance allowance; it might thus force workers to accept an old-age pension which was lower than the pension they would be entitled to if they were to remain in employment for longer, leading to a significant reduction in their income in the long term. In Bartsch v Bosch,144 Sharpston AG examined the question of whether age discrimination is permitted to be justified by an employer’s interest in placing an overall limitation on the costs borne by a voluntary pension scheme. The scheme involved completely excluded surviving spouses from receiving benefits where they were more than 15 years younger than the deceased employee. The Advocate General accepted that some kind of an age-gap clause might be permissible pursuant to 142

143 Case C-341/08 [2010] ECR I-47. Case C-499/08 [2010] ECR I-9343. Case C-427/06 [2008] ECR I-7245. The issue was hypothetical on the facts since the time-limit for implementation of the Framework Directive had not expired. 144

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Article 6 but rejected as disproportionate a scheme excluding such survivors from all benefits. She commented: [I]t is not difficult to imagine ways of limiting the costs borne by voluntary pension schemes that are less extreme than total exclusion of survivors. For example, a reduced benefit could be payable for younger survivors, perhaps determined on a sliding scale, or payments could start only when the survivors reached a certain age.145

In Kücükdeveci v Swedex GmbH,146 a Grand Chamber of the Court confronted national legislation which ignored service below the age of 25 in calculating notice periods. This age-discriminatory system was sought to be justified by the assertion that young workers generally react more easily and more rapidly to the loss of their jobs and greater flexibility can therefore be demanded of them; furthermore, it was argued that a shorter notice period for younger workers facilitated their recruitment by increasing the flexibility of personnel management.The CJEU agreed that such objectives ‘clearly belong to employment and labour market policy within the meaning of Article 6(1)’.147 However, and perhaps signalling an especially strict scrutiny in relation to discrimination against the young, it held that the legislation was not appropriate for achieving these aims because it applied to all employees who joined the undertaking before the age of 25, whatever their age at the time of dismissal. A similar conclusion was reached in Hütter v Technische Universität Graz.148 Service below the age of 18 was excluded for the purposes of grading university employees in Austria. This had negative consequences in terms inter alia of the pay of persons affected. The issue before the CJEU was whether the situation could be excused by the Austrian Government’s argument that the rule was intended not to disadvantage young people who pursued a secondary education rather than a vocational one; in addition, it was an attempt to avoid making apprenticeship more costly for the public sector and thereby promote the integration into the labour market of young people who had pursued that type of training. The Court held that such objectives fell within the Member State’s broad social policy discretion, specifically as a result of Article 6(1)(a) and (b). However, the national rule was not ‘appropriate’ for this purpose: [T]he aims mentioned by the national court may, at first sight, appear contradictory. One of those aims is to encourage pupils to pursue a general secondary education rather than vocational education. Another aim is to promote the recruitment of persons who have had a vocational education rather than of persons with a general education ...Therefore, in the first case, it is a matter of not placing persons with a general secondary education at a disadvantage as compared with those who have had vocational training and, in the second case, the reverse. It is therefore difficult, at first sight, to accept that national legislation such as that 145

Case C-427/06 [2008] ECR I-7245, at para 121 of the AG’s Opinion Case C-555/07 [2010] ECR I-365. See also Peers, ‘Supremacy, equality and human rights: com147 ment on Kucukdeveci’ (2010) 35 ELRev 849. Case C-555/07 [2010] ECR I-365, at para 36. 148 Case C-88/08 [2009] ECR I-5325. 146

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at issue in the main proceedings can, simultaneously, be of advantage to each of those two groups at the expense of the other.149

Overall, the Court held that the national rule was not apt to achieve its stated objectives: it did not work effectively to reward experience; and nor did it favour those with a general education since it also excluded those with a vocational education. The issue of a direct relationship between pay and age was raised in Hennigs and Mai.150 Two public employees had been placed by a collective agreement in specific salary groups, within each of which pay was determined according to age. The Court accepted that this situation fell within the prohibition on age discrimination, which it described as being ‘proclaimed’ in Article 21 of the Charter of Fundamental Rights and ‘given specific expression’ by the Framework Directive,151 so it proceeded to examine the issue of justifiability. The referring court was concerned to know whether the existence of the collective agreement had any bearing on this question, especially in the light of the fundamental right to collective bargaining recognized by Article 28 of the Charter. The Court repeated its remarks in earlier cases,152 to the effect that the social partners are bound by the prohibition on age discrimination in the same way as the national legislatures. It was surprisingly proactive in its analysis of the arguments put forward in support of the discrimination on the facts and it accepted as legitimate only the aim of rewarding professional experience; in particular, it had been argued that older workers have a greater financial burden than younger ones and this contention the Court dismissed, saying: [I]t has not been shown that there is a direct correlation between the age of employees and their financial needs. Thus a young employee may have substantial family burdens to bear while an older employee may be unmarried without dependant children.153

As to whether the system adopted was appropriate and necessary, the Court was once again exacting. It accepted that length of service generally goes hand in hand with professional experience154 but it pointed out that the system in question did not work in quite this way because, if an employee with no professional experience was appointed at the age (say) of 30, he or she would receive the same basic pay as someone in the same group who had been appointed at the age of 21 and thus had nine years’ experience. It concluded: It follows that the determination according to age of the basic pay step on appointment of a public sector contractual employee goes beyond what is necessary and appropriate for achieving the legitimate aim ...of taking account of the professional experience acquired by 149

Case C-88/08 [2009] ECR I-5325, at para 46. Joined Cases C-297 & 298/10 [2011] ECR I-000. 151 Joined Cases C-297 & 298/10 [2011] ECR I-000, at para 78 and in the Ruling. 152 Case C-411/05 Palacios [2007] ECR I-8531 and Case C-45/09 Rosenbladt [2010] ECR I-9391, 153 discussed at p 413 et seq. [2011] ECR I-000, at para 70. 154 Case 109/88 Danfoss [1989] ECR 3199; Case C-17/05 Cadman [2006] ECR I-9583; Case C-88/08 Hütter [2009] ECR I-5325. 150

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the employee before he is appointed. It should be observed that a criterion also based on length of service or professional experience but without resorting to age would, from the point of view of Directive 2000/78, appear better adapted to achieving the legitimate aim mentioned above.155

It added that this conclusion did not interfere with the right to negotiate and conclude collective agreements recognized by Article 28 of the Charter. However, the Court was prepared to accept as justified a transitional arrangement, also set up by collective agreement, which preserved the existing discriminatory arrangements, in part in order to preserve the pay rates of affected individuals, for a temporary period during which the position was remedied.156 It took particular note in this regard of the fact that the changeover was the result of an agreement between the social partners—a method which it described as offering ‘considerable flexibility’157— who could therefore have rejected the proposed solution if they had wanted to.158 As discussed in chapter 5, Article 6(2) removes occupational pensions from the reach of the directive’s provisions on age discrimination. It is noteworthy that, although paragraph (2) of Article 6159 prohibits practices which result in sex discrimination, paragraph (1) makes no such reference. The imposition of age limits, for example in relation to access to the employment market, frequently constitutes indirect discrimination on the ground of sex, since women spend more time out of the labour market than men as a result of bearing children. It is therefore to be hoped that the Court will imply this limitation into the whole Article; the spirit of the Article implies such a limitation since it envisages especially favourable treatment for certain groups, including those with ‘caring responsibilities’.

(x) The exceptions for Northern Ireland Two exceptions applicable only to Northern Ireland appeared mysteriously during the final negotiations on the Framework Directive, apparently in deference to the unique circumstances of that Province. Article 15 of that instrument provides: 1. In order to tackle the under-representation of one of the major religious communities in the police service of Northern Ireland, differences in treatment regarding recruitment into

155

[2011] ECR I-000, at para 77. It contrasted the position with the attempt at a permanent derogation involved in Case C-236/09 157 Test-Achats [2011] ECR I-000, discussed in chs 3, 5, and 8. [2011] ECR I-000, at para 92. 158 As Craig and de Búrca perceptively observe in EU Law:Text, Cases, and Materials, 5th edn (Oxford University Press, Oxford, 2011), at 906: ‘it seems that the high standard of scrutiny announced by the CJEU in Age Concern England for the justification of measures which directly discriminate on grounds of age under Article 6(1) of Directive 2000/78 has thus far been applied to the determination of proportionality rather than to the identification of legitimate domestic policy aims’. 159 As to which see ch 5. 156

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that service, including its support staff, shall not constitute discrimination insofar as those differences in treatment are expressly authorised by national legislation. 2. In order to maintain a balance of opportunity in employment for teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities there, the provisions on religion or belief in this Directive shall not apply to the recruitment of teachers in schools in Northern Ireland insofar as this is expressly authorised by national legislation.

The intention of this Article appears to be to except from the Framework Directive two particularly sensitive issues in Northern Ireland,160 namely, the Patten reforms to the police service,161 demanding an equal number of Catholic and Protestant recruits to the service, and the long-standing religious segregation of the teaching profession.162 Ironically, perhaps as a consequence of the haste with which Article 15 was constructed, it might not prove sufficient to preserve the legality of the present arrangements. There is no equivalent provision in either the Recast Directive or the Race Directive; it may very well be that discrimination of the types envisaged in Article 15 of the Framework Directive constitutes discrimination prohibited by the Race Directive, since membership of either the Catholic or the Protestant community in Northern Ireland might be held to be a matter of ‘ethnic origin’.

(xi) Additional exceptions contained in the Goods and Services Directive The scope of the Goods and Services Directive and the limitations on its content are discussed in chapter 8. The instrument contains several exceptions. That conferred by Article 4(5), in relation to the provision of goods and services exclusively or primarily to one sex, is mentioned at p 394. In addition, Article 3(2) of the instrument provides that it does not apply to the ‘content of media and advertising nor to education’. Article 3(4) adds that it does not apply to matters of employment and occupation, nor to matters of selfemployment ‘insofar as these matters are covered by other Community legislative acts’. Article 5 is entitled ‘actuarial factors’. Paragraph 2 of the Article appears to condone some limited continuation of the use of gender-based actuarial factors in calculating premiums and benefits. However, as seen in chapter 5, the CJEU in Association Belge des Consommateurs Test-Achats ASBL v Conseil des Ministres163 struck down this exception. 160 Recital 34 of the Preamble to the Framework Directive explains that the rationale for Art 15 is the ‘need to promote peace and reconciliation between the major communities in Northern Ireland’. 161 Contained in the Police (Northern Ireland) Act 2000; see also ch 1. 162 Schoolteachers in Northern Ireland are exempted from the fair employment legislation. 163 Case C-236/09 [2011] ECR I-000.

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Positive action The term ‘positive action’ has not as yet been comprehensively defined by the CJEU.164 It appeared expressly for the first time in EU legislation in the Race and Framework Directives.165 In colloquial use, it describes a range of measures intended to promote substantive equality, from the mere encouragement of underrepresented groups to reverse discrimination and quotas in favour of those underrepresented groups.166 It was seen in chapter 1 that schemes for positive action are all essentially in tension with the liberal, individual notion of equality. Divergent views are consequently held within the Member States as to what the permissible scope of positive action should properly be: some strongly advocate the legalization of what would otherwise constitute discrimination, provided that it is carried out in the cause of equality; others, with equal vehemence, assert that this undermines the very principle of equality itself.167 The first EU provision to address the matter, albeit not expressly under the label of positive action, was Article 2(4) of the old Equal Treatment Directive. This has now been amended,168 but since it received some judicial attention in its original form, it is necessary to examine its original wording. This stated: This Directive shall be without prejudice to measures to promote equal opportunities for men and women, in particular by removing existing inequalities which affect women’s opportunities in the areas referred to in Article 1(1).

In Hofmann v Barmer Ersatzkasse,169 although the Court itself said nothing of substance about the scope of Article 2(4), Darmon AG commented: The exception set out in Article 2(4) is in a category of its own. The provision opens the way for national measures ‘to promote equal opportunity for men and women, in particular by removing existing inequalities’. It merely appears to make an exception to the principle: in aiming to compensate for existing discrimination it seeks to re-establish equality and not to prejudice it. In other words, since it presupposes that there is an inequality which must be removed, the exception must be broadly construed.170

He went on to say that the grant of an additional period of paid leave from employment after childbirth to mothers but not fathers: affords a means of mitigating the de facto inequalities suffered by women as a result of the deterioration of their health following childbirth and thus preserves their opportunities on 164 See discussion of the technical relationship between positive action and other key concepts in EU anti-discrimination law by Waddington and Bell in ‘Exploring the Boundaries of Positive Action under 165 EU law: a Search for Conceptual Clarity’ (2011) 48 CMLRev 1503. See further at p 436. 166 See Fredman, ‘Reversing Discrimination’ (1997) 113 LQR 575. 167 See Havelkova, ‘Burden of proof and positive action in the Czech and Slovak Constitutional courts—milestones or millstones in implementing EC equality law?’ (2007) 32 ELRev 686. 168 By Directive 2002/73, OJ [2002] L269/15.The provision is now contained in Art 3 of the Recast 169 Directive, discussed at p 434. Case 184/83 [1984] ECR 3047. 170 Case 184/83 [1984] ECR 3047, at 3082.

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the resumption of work. In that sense, the leave is included amongst the measures referred to by Article 2(4) of the Directive. Thus, the question necessarily arises as to whether the exception in Article 2(3)171 is not an illustration, selected by the Community legislature, of the general derogation contained in Article 2(4). I incline towards that view and see it as confirming the rejection of the restrictive interpretation placed on the exception in Article 2(3).172

This led the French Government to put forward the radical argument in Commission v France173 that, since women experience de facto inequality as regards employment because they continue to shoulder more domestic responsibilities than men, therefore the exception in Article 2(4) justified special compensatory treatment in favour of women. The Court seemed to have been prepared to accept this argument, had France been able to prove it. It held: The exception provided for in Article 2(4) is specifically and exclusively designed to allow measures which, although discriminatory in appearance, are in fact intended174 to eliminate or reduce actual instances of inequalities which may exist in the reality of social life. Nothing in the papers of this case, however, makes it possible to conclude that a generalised preservation of special rights for women in collective agreements may correspond to the situation envisaged by that provision.175

It seemed to follow from what the Court said that special measures—perhaps even positively discriminatory ones—benefiting women would be excused by Article 2(4) to the extent that they compensated for specific instances of pre-existing inequality. However, the Court was clearly not prepared to construe the provision so as to justify positive discrimination in favour of women in employment generally, on the basis that women have, as a sex, suffered negative discrimination in the past which has resulted in their current inequitable distribution throughout the world of work. No doubt encouraged by this ruling, the Commission subsequently instructed Professor Eliane Vogel-Polsky of the Brussels National Centre for the Sociology of Labour Law to conduct a study of positive action schemes within the Community. Professor Vogel-Polsky reported176 that a directive would be the best way of ensuring that all Member States took action in this field and would operate in a non-discriminatory way as between the Member States. Such a directive would have made positive action programmes obligatory in the Community’s own institutions and in national public bodies, and it would have worked in a similar fashion to the federal contract compliance scheme in the USA. However, only a few months after this 171

172 Now Art 28(1) of the Recast Directive, discussed at p 396. [1984] ECR 3047, at 3086. Case 312/86 [1988] ECR 6315. 174 It is noteworthy that the test articulated by the Court here is a subjective, not an objective, one: query whether the Court would insist that the national measures concerned must be reasonably apt to achieve their purpose. 175 [1988] ECR 6315, at 6336–7. In Case C-450/93 Kalanke v Freie Hansestadt Bremen [1995] ECR I-3051, discussed at p 423, Tesauro AG characterized the Court’s decision in Commission v France as one 176 of ‘excessive severity’ (at 3063). See CREW Reports (1983), vol 3, no 3, p 4. 173

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report was presented, the EC’s own Advisory Committee on Equal Opportunities for Women and Men rejected the idea of a directive, preferring a mere non-binding recommendation, which it believed was far more likely to command the support of the Member States. The Commission therefore opted for a recommendation only on positive action, despite the contrary views of the European trade unions and the European Parliament. A Recommendation on the Promotion of Positive Action for Women was adopted by the Council in December 1984.177 Certain of the Commission’s more radical proposals had been removed by the Council, in particular the fixing of recruitment targets to ensure greater female representation in industry. Being only a recommendation, the instrument also, of course, contains no sanctions for noncompliance. However, it does adopt quite sensitively forthright language, for example in Article 1, urging the Member States: to adopt a positive action policy designed to eliminate existing inequalities affecting women in working life and to promote a better balance between the sexes in employment, comprising appropriate general and specific measures, within the framework of national policies and practices, while fully respecting the spheres of competence of the two sides of industry, in order: (a) to eliminate or counteract the prejudicial effects on women in employment or seeking employment which arise from existing attitudes, behaviour and structures based on the idea of a traditional division of roles in society between men and women; (b) to encourage the participation of women in various occupations in those sectors of working life where they are at present under-represented, particularly in the sectors of the future, and at higher levels of responsibility in order to achieve better use of all human resources.178

In Article 8, it stresses the need to make particular efforts to promote equal opportunities in the public sector, especially in those fields where new information technologies are used or being developed, because they could serve as models for the private sector to emulate.The Commission was obliged by the instrument to report to the Council within three years on the progress achieved in the implementation of the recommendation: its consequent report in 1988 concluded that in general the Member States had begun to introduce positive action programmes although their methodology varied widely.179 The Commission also pledged itself 180 to present to the Council, the Member States, the two sides of industry, and potential promoters of positive action plans, a Code of Practice to assist and inform them on the implementation of such schemes. 177

Recommendation 84/635, OJ [1984] L331/34. This provision has been referred to by the CJEU in its interpretation of the hard law on positive action: see in particular Case C-409/95 Marschall v Land Nordrhein-Westfalen [1997] ECR I-6363; Case C-158/97 Badeck v Landesanwalt Beim Staatsgerichtshof des Landes Hessen [1999] ECR I-1875; and Case C-476/99 Lommers v Minister van Landbouw [2002] ECR I-2891. 179 COM (88) 370 final. 180 In its ‘Medium Term Community Programme 1986–90’, Bull Supp EC 3/86. 178

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It fulfilled this promise in 1988 in Positive Action—Equal Opportunities for Women in Employment—A Guide.181 In answer to the elusive question ‘What exactly is positive action?’, the Guide replied: Positive action aims to complement legislation on equal treatment and includes any measure contributing to the elimination of inequalities in practice. The setting up of a positive action programme allows an organisation to identify and eliminate any discrimination in its employment policies and practices, and to put right the effects of past discrimination. Thus a positive action programme is a type of management approach which an employer can adopt with a view to achieving a more balanced representation of men and women throughout the organisation’s workforce and thus a better use of available skills and talents.182

The Guide explained that a full positive action programme is likely to include: — a commitment stage, where the organisation announces its commitment to positive action; — an analysis stage, in which relevant data on the organisation’s workforce and employment practices are collected and analysed so as to: — get an insight into the relative position of women to men and of married to single people within the organisation; and to — identify any barrier to women’s or married persons’ progress within the organization; — an action stage, in which measures are worked out in detail for implementation; — a monitoring and evaluation stage, in which the way the programme progresses is assessed and—if required—measures for adapting aspects of the programme are devised.183

This was the background against which the Court was asked in Kalanke v Freie und Hansestadt Bremen:184 Is national legislation under which women are given priority in recruitment and/or in obtaining promotion provided that they have the same qualifications as the male applicants and that women are under-represented—in so far as they do not constitute one half of the personnel—in the individual remuneration brackets in the relevant personnel group, compatible with the principle of equal treatment for men and women laid down by the relevant Community legislation? In other words, does a system of quotas in favour of women, even if it is dependent on the conditions ...just described, embody sex discrimination contrary to 181

Office for Official Publications of the European Communities, Luxembourg. Emphasis added. 183 The Community’s Third Medium-Term Action Programme on Equal Opportunities (1991–5), OJ [1991] C142/1, also underlined the need for positive action and, in the Fourth Action Programme (1996–2000), OJ [1995] L335/37, sex desegregation of the labour market was expressed as one of the objectives which was to be pursued inter alia by positive action. However, the language had subtly shifted to a more general desire to promote gender equality by the date of the 2001–05 Programme relating to the Community framework strategy on gender equality, OJ [2001] L17/22. 184 Case C-450/93 [1995] ECR I-3051. See Szyszczak, ‘Positive Action After Kalanke’ (1996) 59 MLR 876; Moore, ‘Nothing Positive From the Court of Justice’ (1996) 21 ELRev 156; Schiek, ‘Positive Action in Community Law’ (1996) 25 ILJ 239; and Fenwick, ‘Perpetuating Inequality in the Name of Equal Treatment’ (1996) 18 JSWFL 263. 182

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Community law or does it constitute permitted positive action inasmuch as it is designed to promote effective equal opportunities in the world of work?185

The Kalanke case arose in Bremen, where a law of 1990 expressly gave women priority in relation to appointment or promotion to official posts, provided that they had ‘qualifications equal to those of their male co-applicants’186 and that women were under-represented in the relevant sector in the sense that they constituted less than half its personnel.187 The City of Bremen had advertised the post of section manager in its Parks Department. Mr Kalanke was the section manager’s deputy. Ms Glissman had the same formal qualifications in horticulture and landscape gardening as Mr Kalanke. Women were under-represented in the sector involved, and a dispute resulted as to the applicability of the 1990 law. This dispute was submitted to a Conciliation Board, which ruled that the 1990 law did indeed apply so as to give preference to Ms Glissman. Mr Kalanke complained of this ruling to the local labour court, which dismissed his claim. On appeal to the Bundesarbeitsgericht, that court agreed that the case fell within the scope of the 1990 law but referred to the CJEU the compatibility of that 1990 law with EU law, in particular, with the then applicable Equal Treatment Directive. The conceptual springboard for Tesauro AG was the distinction between individual and group rights. He explained that the concept of formal equality essentially focuses on the right to equal treatment as between individuals belonging to different groups, whereas substantive equality tries to achieve equal treatment as between groups.188 Since positive action is generally understood to refer to the elimination of the obstacles faced by groups, it marks what the Advocate General described as ‘a transition from the individual vision to the collective vision of equality’.189 He also pointed out that, as has already been mentioned at p 420, the expression ‘positive action’ embraces a variety of different types of provision. The first measures of positive action described by the Advocate General are those designed to remove the disadvantages and reduced opportunities encountered by women in employment; they consist of measures, for example, to attract and train women 185

In the words of Tesauro AG, Case C-450/93 [1995] ECR I-3051, at 3053. Although easy to formulate in theory, such a condition is only easy to operate in practice in a system (such as it is understood is often to be found in Germany) where a precise mathematical formula is used to determine a person’s qualifications for a job. It is very much more difficult to apply where suitability for a job is determined according to more subjective criteria, including, eg, such matters as personality. Indeed, this is an aspect of a wider difficulty, namely, the application in practice of the socalled ‘merit’ principle: everything depends on how ‘merit’ is defined and what qualities are considered to be relevant. 187 The national court had indicated in its order for reference that the Bremen law had to be interpreted in accordance with the Grundgesetz, which meant that, even if priority was in principle to be given to women, exceptions could be made in individual cases; although the Court noted this point, it seemingly proceeded on the basis that the priority for women was absolute; see also Moore, ‘Nothing Positive From the Court of Justice’ (1996) 21 ELRev 156. For general discussion of the use of quotas in Germany, see Shaw, ‘Positive Action for Women in Germany: The Use of Legally Binding Quota Systems’, in Hepple and Szyszczak (eds), Discrimination: the Limits of Law (Mansell, London, 1992). 188 189 See also the discussion in ch 1. [1995] ECR I-3051, at 3058. 186

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employees. Such provisions are often described in the UK as ‘out-reach’ measures.190 A second type of positive action seeks to redistribute family and career opportunities as between the two sexes, and it therefore deals with such matters as working hours, childcare arrangements, and social security or tax policies which take account of family duties. The third and strongest model identified by the Advocate General seeks to remedy ‘the persistent effects of historical discrimination of legal significance’ and has a ‘compensatory nature, with the result that preferential treatment in favour of disadvantaged categories is legitimised, in particular through systems of quotas and goals’.191 It is unfortunate that the Advocate General chose this formulation for his third model.To begin with, it is by no means clear that this type of positive action is to be differentiated from all other types in its attempt to remedy historical discrimination; this is surely also the motive for some actions falling into the first two categories, for example, the provision of training for jobs for which women were formerly not trained. Secondly, it seems to be the Advocate General’s intention to indicate that the third model involves reverse discrimination and, by implication, that the other two models do not; this is of such critical legal importance that it is regrettable that it was not articulated more clearly. Moreover, the underlying logic is complex and requires some unravelling: any action taken to favour one group inevitably has a negative effect on the rest of society, since resources (and therefore opportunities) are finite. A distinction can, however, be drawn between those forms of positive action which favour one group but do not breach the anti-discrimination laws (such as the advertising of a vacancy in a women’s magazine in addition to other more traditional places), and those which do breach the anti-discrimination laws (such as the choice of a woman on the ground of her sex). Furthermore, it is unfortunate that the Advocate General did not attempt to make a legal distinction between quotas and goals; they are of course essentially different from one another, in that the former are mandatory whereas the latter confer a discretion; both have frequently been examined by the courts in the USA, which have generally frowned on quotas but accepted goals provided that they are used for a transitional period only in order to remedy the effects of past discrimination, or they are used to achieve diversity.192 The articulation of goals and timetables in an effort to secure fair participation in the workforce irrespective of religion or political belief is also a feature of the Fair Employment and Treatment (Northern Ireland) Order 1998;193 190

See McCrudden, ‘Rethinking Positive Action’ (1986) 15 ILJ 219. [1995] ECR I-3051, at 3058. See n 10 in the submissions of Tesauro AG, and also Douglas-Scott, ‘Ruling out Affirmative Action’ (1995) 145 NLJ 1586. See further Adarand Constructors v Pena 515 US 200; Regents of the University of California v Bakke 98 S Ct 2733; Grutter v Bollinger 123 S Ct 2325; and Gratz v Bollinger 123 S Ct 2411. 193 SI 1998 No 3162 (NI 21). See in particular Art 55. Art 4 of the Order defines ‘affirmative action’ as ‘action designed to secure fair participation in employment by members of the Protestant, or members of the Roman Catholic, community in Northern Ireland by means including—(a) the adoption of practices encouraging such participation, and (b) the modification or abandonment of practices that have or may have the effect of restricting or discouraging such participation’. 191 192

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its chief purpose in that context is to raise awareness levels and to cause employers to question their own previous practices. Quotas are clearly most at odds with the notion of equality of opportunity as between individuals, and they overtly sacrifice the principle of individual merit to that of the greater good. It is arguable that they constitute an effective tool for putting into place and accustoming the public to non-traditional role models and for ensuring that representatives of a disadvantaged group achieve strategically important positions.194 Conversely however, quotas are objectionable on a number of grounds, most importantly that they constitute too crude a form of compensation to be just, since it is by no means necessarily the victims of discrimination who derive any direct benefit from them; in addition, they can be viewed as patronizing and they tend to result in the undervaluing of the qualities of those who do benefit directly, since observers conclude that they have achieved their position on the basis of belonging to the group in question rather than on the basis of their individual qualities. Furthermore, the attempt sometimes made to distinguish quotas in jurisprudential terms from other types of discrimination by focusing on the intention underlying them,195 involves a misunderstanding of the nature of anti-discrimination law: discrimination is a statutory tort for which intention or motive are not essential ingredients.196 Kalanke itself involved a quota system, albeit one of a kind which is often described as ‘soft’. In other words, the German law did not demand that a precise percentage of official posts be allocated invariably to women, irrespective of the individual qualifications possessed by those women. Instead, it sprang into operation only where the contenders for a particular post were equally qualified, a system often described as a ‘tie-break’. It was argued that no male careers were thwarted by such a system, since a better qualified male would be appointed in preference to a female candidate. The question was whether such a scheme, whilst clearly discriminatory against men in its immediate impact, was permitted by Article 2(4) of the directive in the light of its more far-reaching social and equitable goals. Since the discrimination involved was of a weak type, the case provided an ideal basis on which to test the issue of whether the original Article 2(4) permitted reverse discrimination in any circumstances, or whether alternatively it was limited to forms of action which benefit women but do not discriminate against men; unfortunately, as will be seen, the Court failed to grasp this nettle. 194 For a powerful articulation of the arguments in favour of such types of positive action, see Bhikhu Parekh, ‘A Case for Positive Discrimination’, in Hepple and Szyszczak (eds), Discrimination: the Limits of Law (Mansell, London, 1992). 195 See, eg, the dissenting judgment of Justice Stevens in the US Supreme Court in Adarand Constructors Inc v Federico Pena, Secretary of Transportation et al (1995) 132 L Ed 2d 158, where he asserted that to confuse positive and negative discrimination was like disregarding ‘the difference between a “No Trespassing” sign and a welcome mat’. 196 See Case 177/88 Dekker [1990] ECR I-3941, discussed in this respect in ch 4, and James v Eastleigh Borough Council [1990] 2 AC 751.

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In the view of Tesauro AG, since the expressed aim of Article 2(4) was the promotion of equality of opportunity, it was essential to define that term and to keep it uppermost in mind when determining the limits of Article 2(4). In particular, did it refer to equality ‘with respect to starting points or with respect to points of arrival’? The Advocate General preferred the former view: [G]iving equal opportunities can only mean putting people in a position to attain equal results and hence restore conditions of equality as between members of the two sexes as regards starting points ... It seems to me to be all too obvious that the national legislation at issue in this case is not designed to guarantee equality as regards starting points. The very fact that two candidates of different sex have equivalent qualifications implies in fact by definition that the two candidates have had and continue to have equal opportunities: they are therefore on an equal footing at the starting block. By giving priority to women, the national legislation at issue therefore aims to achieve equality as regards the result or, better, fair job distribution simply in numerical terms between men and women.That does not seem to me to fall within either the scope or the rationale of Article 2(4) ...197

However, the Advocate General went on to reason that the ultimate objective of equal opportunities legislation is to attain substantive equality; since equality as regards starting points alone will not guarantee equal results because of the generally disadvantaged position of women in society, it still remained to consider whether Article 2(4) also permitted actions entailing the ‘predetermination of “results”’.198 The principle of substantive equality, the Advocate General submitted (non-controversially), requires the elimination or neutralization of existing inequalities which hold back a particular group; to that extent, it is not gender-neutral because it involves facing up to the fact that the group is indeed disfavoured. However, any action taken must be limited to that necessary to eradicate the existing disadvantage ‘so as to raise the starting threshold of the disadvantaged category’.199 Thus, the Advocate General concluded: Article 2(4) ...only enables existing inequalities affecting women to be eliminated, but certainly not through pure and simple reverse discrimination, that is to say, through measures not in fact designed to remove the obstacles preventing women from pursuing the same results on equal terms, but to confer the results on them directly or, in any event, to grant them priority in attaining those results simply because they are women. In the final analysis, measures based on sex and not intended to eliminate an obstacle—to remove a situation of disadvantage—are, in their discriminatory aspect, as unlawful today for the purposes of promotion as they were in the past.200

The Advocate General thus opted for an interpretation of the original Article 2(4) which preserved the legality of most examples of his first two categories of positive action, that is to say, out-reach measures and those designed to reorganize family 197 199

[1995] ECR I-3051, at 3060. [1995] ECR I-3051, at 3063.

198 200

[1995] ECR I-3051, at 3061. [1995] ECR I-3051, at 3065.

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and career patterns, but which outlawed reverse discrimination by way of quotas. Unfortunately, his argument concealed his view of what many would consider to be one of the most productive and the least morally objectionable forms of positive action, namely, goals or targets. The Court, in an extremely brief judgment, apparently endorsed the views of its Advocate General. It began by reiterating two points concerning Article 2(4) which it had made in earlier judgments, namely, that it permitted measures ‘intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life’201 and that, as a derogation from an individual right, it must be construed strictly.202 In concluding that a system such as that in operation in Bremen contravened the directive, it held: National rules which guarantee women absolute and unconditional priority for appointment or promotion go beyond promoting equal opportunities and overstep the limits of the exception in Article 2(4) ... Furthermore, in so far as it seeks to achieve equal representation of men and women in all grades and levels within a department, such a system substitutes for equality of opportunity as envisaged in Article 2(4) the result which is only to be arrived at by providing such equality of opportunity.203

Although formally answering the question posed it by the referring court, this judgment did little to shed light on the detail of the law in this difficult and sensitive area. In particular, it left open an important issue in relation to the scope of Article 2(4). Although quotas of the type at issue in Kalanke were clearly outwith Article 2(4), it was not so clear from the Kalanke judgment whether a less peremptory system would also have been forbidden. The Court merely disapproved measures guaranteeing women ‘absolute and unconditional’ job priority; this formulation might simply have been intended to limit the decision to the facts of the case as it perceived them, or, alternatively, it might have been meant to imply that some conditional sort of priority is permissible. That the latter interpretation was what the Court had in mind204 was revealed by its subsequent decisions in Marschall v Land Nordrhein- Westfalen205 and Badeck v Landesanwalt Beim Staatsgerichtshof des Landes Hessen.206 In the former case, a male German school teacher had been denied promotion because of a law providing for preference to be given to an equally 201

See Case 312/86 Commission v France [1988] ECR 6315, also discussed at pp 398–9. See Case 222/84 Johnston [1986] ECR 1651, discussed at pp 381 and 387. 203 [1995] ECR I-3051, at 3078. See also Jepson and Dyas-Elliott v Labour Party [1996] IRLR 116, where an industrial tribunal held that Art 2(4) did not excuse all-women shortlists for the selection of UK Parliamentary candidates which had been part of an effort to boost female representation in Parliament; the tribunal considered its conclusion to be ‘fully endorsed by the decision of the European Court in the Kalanke case’ (at 119). Sadly for Mr Kalanke, he won no damages when the action returned to the German courts because his case was regarded as insufficiently serious: see Prechal’s case note in (1996) 33 CMLRev 1245. 204 Alternatively perhaps the critical outcry provoked by Kalanke caused the Court to change its mind: see More’s comment in (1999) 36 CMLRev 443. 205 206 Case C-409/95 [1997] ECR I-6363. Case C-158/97 [1999] ECR I-1875. 202

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qualified female candidate where there were fewer women than men in the grade in question; the relevant legislation, however, contained a saving clause and laid down the rule preferring women only where ‘reasons specific to another candidate’ did not predominate.207 Jacobs AG submitted with compelling logic that this national law, like that in Kalanke, involved discrimination prohibited by the directive and that it was not saved by Article 2(4): It is axiomatic that there is no equal opportunity for men and women in an individual case if, where all else is equal, one is appointed or promoted in preference to the other solely by virtue of his or her sex ... In my view the proviso to the national rule at issue in the present case does not affect the conclusion that that rule is unlawful for the following reasons. First,...if the proviso operates it merely displaces the rule giving priority to women in a particular case: it does not alter the discriminatory nature of the rule in general. Furthermore,...the scope of the proviso at issue in the present case is (and was apparently intended to be) unclear. It is settled law that the principles of legal certainty and the protection of individuals require, in areas covered by Community law, that the Member States’ legal rules should be worded unequivocally so as to give the persons concerned a clear and precise understanding of their rights and obligations and enable national courts to ensure that those rights and obligations are observed.208

However, the Full Court disagreed and distinguished Kalanke on the basis that there had been no saving clause there. It went on to state: [I]t appears that even where male and female candidates are equally qualified, male candidates tend to be promoted in preference to female candidates particularly because of prejudices and stereotypes concerning the role and capacities of women in working life and the fear, for example, that women will interrupt their careers more frequently, that owing to household and family duties they will be less flexible in their working hours, or that they will be absent from work more frequently because of pregnancy, childbirth and breastfeeding. For these reasons, the mere fact that a male candidate and a female candidate are equally qualified does not mean that they have the same chances. It follows that a national rule in terms of which, subject to the application of the saving clause, female candidates for promotion who are equally as qualified as the male candidates are to be treated preferentially in sectors where they are under-represented may fall within the scope of Article 2(4) if such a rule may counteract the prejudicial effects on female candidates of the attitudes and behaviour described above and thus reduce actual instances of inequality which may exist in the real world.209

It concluded that: A national rule which, in a case where there are fewer women than men at the level of the relevant post in a sector of the public service and both female and male candidates for the post are equally qualified in terms of their suitability, competence and professional 207 The Spanish, Austrian, Finnish, Swedish, and Norwegian Governments, in addition to the Land of Nordrhein-Westfalen and the Commission, all argued that the legislation fell within the protection 208 conferred by Art 2(4). [1997] ECR I-6363, at 6374–5. 209 [1997] ECR I-6363, at 6392.

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performance, requires that priority be given to the promotion of female candidates unless reasons specific to an individual male candidate tilt the balance in his favour is not precluded by Article 2(1) and (4) ..., provided that: — in each individual case the rule provides for male candidates who are equally as qualified as the female candidates a guarantee that the candidatures will be the subject of an objective assessment which will take account of all criteria specific to the candidates and will override the priority accorded to female candidates where one or more of the criteria tilts the balance in favour of the male candidate, and — such criteria are not such as to discriminate against the female candidates.210

In Badeck,211 the CJEU took the same view in relation to a number of provisions contained in the positive action law of Hessen. These required the adoption of ‘advancement plans’ for women in the public service, with the ultimate aim of securing equality of access for both sexes. Although some of the specific schemes envisaged appeared to operate a strict quota scheme, guaranteeing a fixed number of places to women, the CJEU nevertheless found all to be flexible in reality and therefore legitimate. In terms of general principle, it re-stated the position it had adopted in Marschall: [A] measure which is intended to give priority in promotion to women in sectors of the public service where they are under-represented must be regarded as compatible with Community law if it does not automatically and unconditionally give priority to women where women and men are equally qualified, and the candidatures are the subject of an objective assessment which takes account of the specific personal situations of all candidates.212

It therefore appeared after Marschall and Badeck that the old Article 2(4) excused discrimination in favour of women in tie-break cases, conduct which would otherwise amount to unlawful discrimination.213 Putting this another way, it had become clear by this time that—however the Court might attempt to dress this up verbally—some decisions grounded upon sex were permitted by Article 2(4). This position was confirmed in Lommers v Minister van Landbouw.214 The Dutch Minister of Agriculture made a number of nursery places open to the children of his female employees; such places were provided for the children of male employees only in emergencies. The stated purpose of the arrangement was to address the underrepresentation of women within the Ministry, especially at higher levels.The CJEU held that the provision of nursery places was a ‘working condition’ within the meaning of the then applicable Equal Treatment Directive and, furthermore, that there was discrimination on the ground of sex in respect of it. The only question

210 [1997] ECR I-6363, at 6393. In reality, this principle must be of extraordinarily limited practical applicability since it will be surely be very rare to find two candidates who are equally qualified for a 211 post. Case C-158/97 [1999] ECR I-1875. 212 Case C-158/97 [1999] ECR I-1875, at 1919. 213 In Case C-79/99 Schnorbus [2000] ECR I-10997, Jacobs AG expressly stated that Art 2(4) provided a defence to be examined once the existence of discrimination has been established (at 11008). 214 Case C-476/99 [2002] ECR I-2891.

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was whether that discrimination was permitted by Article 2(4), and the Court held that in principle it was. It stated: [A] measure such as that at issue in the main proceedings, which forms part of the restricted concept of equality of opportunity in so far as it is not places of employment which are reserved for women but enjoyment of certain working conditions designed to facilitate their pursuit of, and progression in, their career, falls in principle into the category of measures designed to eliminate the causes of women’s reduced opportunities for access to employment and careers and are intended to improve their ability to compete on the labour market and to pursue a career on an equal footing with men.215

Nevertheless, and very importantly, the CJEU held that the Article must be applied with due respect for the principle of proportionality. Particularly relevant to this principle was the contention that the arrangement might actually help to perpetuate inequality by reinforcing the traditional division of roles between men and women; if its aim could still be achieved if male employees were also included, then it was arguably disproportionate. The Court addressed this concern by pointing out that the number of nursery places available under the scheme was limited, and indeed that there was a waiting list for them even amongst women employees. In addition, the scheme did not wholly exclude male employees; but if it did so in the case of male employees who took care of their children by themselves, it would indeed breach the limits of Article 2(4). The Court took up a similar theme in Roca Álvarez v Sesa Start España ETT SA.216 Confronted with national legislation granting time off work for feeding infants to employed mothers, but only to employed fathers where their partners were also in employment, the Court perceived the danger of perpetuating the ‘traditional roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties’.217 Furthermore, the rule could have the effect that a woman, such as Mr Roca Álvarez’s partner, who was self-employed, would have to limit her self-employed activity ‘and bear the burden resulting from the birth of her child alone, without the child’s father being able to ease that burden’.218 Consequently, the national legislation could not be considered to be a measure eliminating or reducing existing inequalities in society within the meaning of Article 2(4) of the directive, nor as a measure seeking to achieve substantive equality within the intention of Article 157(4) of the TFEU (which is discussed at p 433). However, support for the conclusion that Article 2(4) did indeed provide a potential defence to what would otherwise be unlawful discrimination could also be derived from its wording and position in the old version of the directive.219 215

216 Case C-476/99 [2002] ECR I-2891, at 2936. Case C-104/09 [2010] ECR I-8661. Case C-104/09 [2010] ECR I-8661, at para 36. 218 Case C-104/09 [2010] ECR I-8661, at para 37. 219 For further discussion of whether positive action should be seen as an exception to the normal principle of formal equality, see Fenwick, ‘From Formal to Substantive Equality: the Place of Affirmative Action in European Union Sex Equality Law’ (1998) 4 EPL 507. 217

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Article 2(1) explained that pursuit of the principle of equality of opportunity entailed the elimination of sex discrimination; the following two paragraphs of the Article then went on to articulate circumstances in which discrimination on the ground of sex was, exceptionally, apparently permitted. It made sense, at least in terms of symmetry, if Article 2(4) was interpreted as dealing with another set of circumstances in which, in order to further the goal of equality of opportunity, certain acts of discrimination were permitted.220 The Court’s own judgments confirmed this view, since in Kalanke, Marschall, and Lommers it referred to Article 2(4) as a ‘derogation’ from an individual right.221 Furthermore, there would appear to be little point in using the words ‘without prejudice to’ if the measures involved would not anyway be prohibited. Nevertheless, in the view of the present writers, the approach taken by EU law in this area is to be regretted; it would be far better if the EU concentrated its energies on achieving deep-seated structural changes through mainstreaming,222 contract and grant compliance, requirements for Member States to articulate and aim for equality targets in all their social policies, legislation demanding that employers monitor their workforces and thereby raise their consciousness levels in respect of inequalities, and other measures designed to attack social and economic disadvantage at grass-roots level.223 There is something deeply unattractive about trying to remedy the shortcomings in the non-discrimination principle by further acts of discrimination: two wrongs simply do not make a right, notwithstanding seductive statements about the achievement of substantive equality; and, as discussed above, this defect manifests itself in a particularly acute form when one group is advantaged and another disadvantaged through the use of quotas.224 There is also a real risk of patronizing judgments being arrived at on the basis of stereotyping and over-broad generalizations. In addition, it remains difficult to predict the limits to 220 See further Barnard, ‘The Principle of Equality in the Community Context: P, Grant, Kalanke and Marschall: Four Uneasy Bedfellows?’ (1998) 57 CLJ 352. 221 It is also noteworthy that Tesauro AG, in his remarks quoted at p 427, confined his outlawing of reverse discrimination to that which was ‘pure and simple’. From the context, it would seem that he intended by this to prohibit only that type of reverse discrimination which does not seek to remove an 222 existing obstacle to women’s employment. As to which, see ch 4. 223 See also Barrett, ‘Re-examining the Concept and Principle of Equality in EC Law’ (2003) 22 YEL 117. 224 Cf the view of Saggio AG in Case C-158/97 Badeck [1999] ECR I-1875, at 1888: ‘Moreover, while ...it is true that the legality of such measures [of positive action] depends on whether the positive action can be reconciled with the general principle of non-discrimination, it is equally true ...that the principle of non-discrimination, designed ...to ensure equal treatment for employees, and the principle of equal opportunity—on which positive action is based—designed to ensure equality in the actual conditions of employees, or in other words the principles of formal and substantive equality, are not completely at odds: if substantive equality can be achieved by measures that are, by their very nature, discriminatory, then such measures are in fact pursuing the same objective as the first principle, but with the additional twist that the legislature finds itself obliged to remedy a situation where some sections of the population face a real difficulty which cannot be addressed by applying the general principle of nondiscrimination. If we follow this line of reasoning, we may come to doubt whether substantive equality is the exception to the rule of formal equality or, in other words, whether the provisions on which positive action is based ...are in the nature of exceptions and must therefore be interpreted strictly.’

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the kinds of positive action which the CJEU will permit, to the ultimate detriment of legal certainty and the financial cost of individual litigants. Whilst argument about the ambit of the original Article 2(4) of the directive was rumbling on, the Member States decided to create primary legislation on the subject of positive action.225 The amended formulation had first appeared in the Agreement on Social Policy (from which the UK was excluded) annexed at Maastricht to the TEC;226 it was, however, modified and generalized by the Amsterdam Treaty. It breaks important new ground in extending the notion of positive action to the field of equal pay, in addition to that of equal treatment.227 In addition, at least on their face, the words chosen to express the principle appear to be calculated to go further than the old Article 2(4) of the directive.228 Article 157(4) of the TFEU today provides: With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.229

Recital 15 of the Preamble to the Directive on Equal Treatment of the SelfEmployed230 adds, with respect to Article 157(4), that: ‘In principle, measures such as positive action aimed at achieving gender equality in practice should not be

225 Jacobs AG commented in Case C-409/95 Marschall [1997] ECR I-6363, that the directive had been drafted two decades before and that ‘social developments since then may mean that a provision whose intention and scope were apposite when adopted is now in need of review’ (at 6379). 226 In ‘Whither the Social Security Directives? Developments in Community Law relating to sex equality’, in McCrudden (ed), Equality of Treatment between Women and Men in Social Security (Butterworths, London, 1994), Banks makes the amusing suggestion that this provision might have enabled the maintenance of different pensionable ages for men and women in occupational schemes and that, if this were so, it would only have been the UK which would have been excluded from this possibility. 227 In Case C-366/99 Griesmar [2001] ECR I-9383, the CJEU refused to countenance its application to a pension scheme in which an extra year of service was credited to the record of female (but not male) employees for each of their children. This was because the scheme did nothing to offset the disadvantages to which the careers of women were exposed and did not help them in their professional lives. 228 That the new wording is broader than the old Art 2(4) of the directive was expressly accepted by the CJEU in Case C-158/97 Badeck [1999] ECR I-1875, and in Case C-407/98 Abrahamsson [2000] ECR I-5539. 229 See also Art 6 of the Goods and Services Directive: ‘With a view to ensuring full equality in practice between men and women, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to sex’. Declaration No 28 on Art 141(4) (now Art 157(4)), annexed to the Treaty of Amsterdam, states: ‘When adopting measures referred to in Article 141(4) ...Member States should, in the first instance, aim at improving the situation of women in working life’; this is endorsed in recital 22 of the Preamble to the Recast Directive. Cf in Case C-79/99 Schnorbus [2000] ECR I-10997, Jacobs AG pointed out that the old Art 2(4) of the Equal Treatment Directive was not to be confined as a matter of law to measures favouring women. Hepple and Barnard have commented that the new Treaty Article cannot be described as a ‘derogation’ from the principle of equal treatment in a formal sense; it expressly aims to achieve ‘full equality in practice’, that is substantive equality: see ‘Substantive Equality’ (2000) 59 CLJ 230 562, at 576–7. Directive 2010/41, OJ [2010] L180/1, discussed in ch 6.

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seen as being in breach of the legal principle of equal treatment between men and women.’231 Article 23 of the Charter also states that ‘The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.’ The Recast Directive today adopts a similar, though not identical, formulation. Article 3 provides: ‘Member States may maintain or adopt measures within the meaning of Article [157 (4)] of the Treaty with a view to ensuring full equality in practice between men and women.’ The Preamble to the instrument emphasizes its intention to align its meaning with the Treaty; thus, recital 22 states: In accordance with [Article 157(4)] of the Treaty, with a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment does not prevent Member States from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers ...

The Preamble also gives examples of measures which it considers permissible under Article 157(4), in particular ‘membership or the continuation of the activity of organizations or unions whose main objective is the promotion, in practice, of the principle of equal treatment between men and women’232 and ‘organisations of persons of one sex where their main object is the promotion of the special needs of those persons and the promotion of equality between men and women.’233 It is clear, however, that even the expanded new wording contains limits which must not be exceeded. Although the expression ‘specific advantages’ used in Article 157(4) at first sight connotes quite distinctly preferential treatment, it is to be observed that the Court used very similar language in Kalanke, Marschall, and Lommers to describe the ambit of Article 2(4) of the old Equal Treatment Directive: It ...permits national measures relating to access to employment, including promotion, which give a specific advantage to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men.234

As already noted, the Court nevertheless concluded that the Article did not permit the giving of ‘absolute and unconditional priority’. In Abrahamsson,235 the CJEU was asked about the legality of a scheme pursuant to which some posts in Swedish universities were reserved for women, provided that the women concerned had sufficient qualifications for the post and that the difference in qualifications 231 Art 5 of the Directive on Equal Treatment of the Self-Employed provides: ‘Member States may maintain or adopt measures within the meaning of Article 157(4) of the Treaty on the Functioning of the European Union with a view to ensuring full equality in practice between men and women in working life, for instance aimed at promoting entrepreneurship initiatives among women’ 232 233 Recital 20. Recital 21. 234 Kalanke [1995] ECR I-3051, at 3077, emphasis added. See also the Court’s judgments in Case C-409/95 Marschall [1997] ECR I-6363, at 6391, and Case C-476/99 Lommers [2002] ECR I-2891, 235 at 2934. Case C-407/98 [2000] ECR I-5539.

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between the candidates chosen and the candidates who would otherwise have been successful was not so great as to be ‘contrary to the requirement of objectivity in the making of appointments’. The CJEU expressly treated this as an example of ‘positive discrimination’236 and pointed out that the national legislation in issue here was different from that concerned in Kalanke, Marschall, and Badeck in enabling preference to be given to a candidate who had inferior qualifications to her comparator. The Court referred to its judgment in Badeck and went on to explain: [I]t is legitimate ...for certain positive and negative criteria to be taken into account which, although formulated in terms which are neutral as regards sex and thus capable of benefiting men too, in general favour women. Thus, it may be decided that seniority, age and the date of last promotion are to be taken into account only in so far as they are of importance for the suitability, qualifications and professional capability of candidates. Similarly, it may be prescribed that the family status or income of the partner is immaterial and that part-time work, leave and delays in completing training as a result of looking after children and dependants in need of care must not have a negative effect. The clear aim of such criteria is to achieve substantive, rather than formal, equality by reducing de facto inequalities which may arise in society and thus, in accordance with Article 141(4), to prevent or compensate for disadvantages in the professional career of persons belonging to the under-represented sex.237

Saggio AG usefully summarized the position: Community law does not preclude an administrative practice whereby a candidate belonging to the under-represented sex may be given priority over a candidate of the opposite sex as long as they are equal or nearly equal in terms of qualifications, provided that the national legislation requires the authorities, in assessing candidates who are not the subject of positive action, to give due consideration to particular personal circumstances which may indicate social situations that are just as significant as those normally faced by women.238

The application of these criteria must also be transparent and reviewable in order to prevent arbitrary selection. Applying these principles to the Swedish legislation at issue in Abrahamsson, it did not appear to the CJEU that the assessment of candidates was based on clear and unambiguous criteria intended to prevent or compensate for the career disadvantages of women; on the contrary, the legislation automatically granted preference to women provided that its criteria were fulfilled. The process was therefore not permitted by Article 2(4) of the old Equal Treatment Directive. The CJEU then went on to ask whether it was permitted by the more extensive provisions of what is now Article 157(4); unfortunately, it was very brief in its analysis of the difference in scope between the two provisions and merely said that it could not be inferred that Article 157(4) ‘allows a selection method of the 236 237 238

Case C-407/98 [2000] ECR I-5539, at 5579. Case C-407/98 [2000] ECR I-5539, at 5581–2. Case C-407/98 [2000] ECR I-5539, at 5558.

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kind at issue in the main proceedings which appears, on any view, to be disproportionate to the aim pursued’.239 It therefore appears that Article 157(4) does not permit what the CJEU calls ‘positive discrimination’, in other words, an automatic preference based on sex. However, where two candidates of different sex possess equivalent qualifications, it remains permissible to prefer the female candidate, by some means proportionate to the objective sought, provided that there is an objective assessment which takes account of the specific personal situations of all the candidates.240 The language of the two newer instruments in the field of non-discrimination, the Race Directive and the Framework Directive, appears to be more permissive than that of the old Article 2(4) of the Equal Treatment Directive but, on the other hand, to be weaker than that of Article 157(4) and Article 3 of the Recast Directive. Thus, Article 5 of the Race Directive provides: With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.241

Article 7(1) of the Framework Directive is in substantially identical terms.242 According to the UK Government, the reason for the difference in wording between the new directives and Article 157(4) is not significant: the provision in the Framework Directive was simply read across from the Race Directive. The latter could not replicate exactly the language of Article 157(4) because it is not restricted to the workplace.243 It can perhaps be deduced that the CJEU will take a similar view of these provisions to that which it takes of Article 157(4), namely, that they permit measures of positive action (as that expression is understood by the Court) but fall short of permitting positive discrimination. Article 7(2) of the Framework Directive provides: 239

Case C-407/98 [2000] ECR I-5539, at 5583. In the view of the present writers, this is also a form of positive or reverse discrimination, since the decisions concerned are in reality still made on the ground of sex. 241 Note, in particular, that the Article does not refer to specific advantages. Recital 17 of the Preamble to the Race Directive adds that ‘such measures may permit organisations of persons of a particular racial or ethnic origin where their main object is the promotion of the special needs of those persons’. Recital 26 of the Preamble to the Framework Directive is in similar terms. 242 The UK Government did not consider this Article to be wide enough to permit the exceptions for teachers or the police in Northern Ireland, discussed at pp 418–9. It therefore pressed for separate provisions to be inserted into the directive to deal with these matters. It also expressed the view that the newer provisions were unlikely to be interpreted differently from the CJEU’s existing case law ‘in which it has attempted to draw a line between positive action (which is permitted) and positive discrimination (which is not permitted)’: see the DfEE’s evidence to the House of Lords Select Committee on the EU, ‘The EU Framework Directive on Discrimination’, Session 2000–01, 4th Report, HL Paper 13, at 13. 243 See the DfEE’s evidence to the House of Lords Select Committee on the EU, ‘The EU Framework Directive on Discrimination’, Session 2000–01, 4th Report, HL Paper 13, at 13. This does not really explain the change of wording from specific advantages, which could presumably have been used in the Race Directive. 240

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With regard to disabled persons, the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment.244

This paragraph is oddly phrased, given that its express purpose245 is to promote positive action; the tenor of its first half could be taken to suggest that health and safety concerns could actually preclude the employment of disabled people.246 However, one way in which it appears to extend the scope of positive action in relation to the disabled is that such measures are not restricted to those designed to compensate for previous disadvantages.247 Positive action in the sphere of disability is also different from the other areas of anti-discrimination law as a result of the asymmetrical approach to disability adopted by the Framework Directive. As seen in chapter 4, it is only unlawful to discriminate on the ground of disability; it is not unlawful to treat an able-bodied person less favourably than a disabled person on the ground of being able-bodied. Thus, to treat a disabled person more favourably than a comparable able-bodied person is not (without more) prohibited by the directive.

244

See also recital 27 of the Preamble to the Framework Directive. Art 7 is headed ‘Positive action’. 246 See also Whittle, ‘The Framework Directive for Equal Treatment in Employment and Occupation: An Analysis from a Disability Rights Perspective’ (2002) 27 ELRev 303. 247 Art 26 of the Charter also provides: ‘The Union recognises and respects the rights of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community’. 245

10 Equality in social security

The provision of welfare in modern times rests on three pillars: state social security schemes, occupational social security schemes, and private insurance. This chapter is concerned with the first of these pillars: state social security schemes. Occupational social security schemes—deemed to be pay—are discussed in chapter 5. The elimination of gender discrimination in private insurance contracts is discussed in chapter 8. The provision of just and adequate social security is vital to the achievement of the goals of non-discrimination and equality. Not only is it the flip-side to employment, aiming to protect the income and living standards of those—often the poorest members of the community—involuntarily out of the workforce, but it sets a very public standard by which people’s roles within society are defined and measured. It was seen in chapters 5 and 6 that the relevance of social security to the achievement of sex equality was accepted in 1976 when the Equal Treatment Directive was enacted, but that the matter was regarded as meriting separate legislative treatment; the major instrument subsequently passed to address sex discrimination in social security is Council Directive of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, the so-called Social Security Directive;1 it forms the subjectmatter of the present chapter. It was also seen in chapter 8 that the Race Directive expressly states in Article 3(1)(e) that it is to apply to ‘social protection, including social security and healthcare’; however, no attempt is made by that instrument to define the consequent detailed rules. It is unclear what the impact of this provision will be. Article 3(1) defines its scope as being ‘within the limits of the powers conferred upon the Community’. Given that the EU has few powers in the areas of social protection, social security, and healthcare, it is unclear to what extent the Race Directive confers a right to equality of treatment in these fields; this issue is discussed further in chapter 8. Any comprehensive attempt to combat discrimination on the grounds of racial or ethnic origin would seem to require, as a first step, the adoption of legislation similar to the Social Security Directive. Whilst it is (it is hoped) unlikely that direct discrimination on the ground of racial or ethnic origin will be encountered within the social security systems of the Member States, there is a real risk of indirect discrimination; such a directive could deal systematically with the problems 1

Directive 79/7, OJ [1979] L6/24.

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surrounding indirect discrimination. In the meantime, it is to be assumed that the rules developed by the CJEU in relation to sex discrimination in social security will largely come to be applied mutatis mutandis in relation to discrimination by social security schemes on the ground of racial or ethnic origin; the rest of the present chapter should be read with this possibility in mind. The Framework Directive, however, excludes all payments made by state schemes.2 It is obvious that considerable, and perhaps intractable, difficulties were to be anticipated in relation to age, and therefore it is reasonably understandable that the Directive excludes discrimination on the ground of age from its scope. A further consideration might well have been the potential conflict between that directive and the Social Security Directive which permits the differential treatment of men and women on the grounds of age. However, it is equally clear that there is considerable potential mileage in claims that social security legislation discriminates against the other protected categories covered by the Framework Directive, in particular against the disabled and against homosexuals (for example, in relation to survivors’ benefits). There is therefore a serious lacuna in the Framework Directive in this regard.This would be partially rectified if the Commission’s proposal for a directive prohibiting discrimination on the grounds covered by the Framework Directive were to be extended to non-employment matters. This proposal is discussed in chapter 8.

The objectives of the Social Security Directive Article 1 articulates the aim of the instrument: The purpose of this Directive is the progressive implementation, in the field of social security and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as ‘the principle of equal treatment’.

Mayras AG, in Worsdorfer v Raad van Arbeid,3 described the Social Security Directive as extending to the sphere of social security ‘the principle of equal treatment for men and women set out in Article [157 of the TFEU] as regards equal pay for equal work’.The instrument itself, even in its Preamble, is somewhat more guarded, explaining that: [T]he principle of equal treatment in matters of social security should be implemented in the first place in the statutory schemes which provide protection against the risks of sickness, invalidity, old age, accidents at work, occupational diseases and unemployment, and in social assistance in so far as it is intended to supplement or replace the above-mentioned schemes.4 2 See Art 3(3); cf recital 13 of the Preamble to the instrument, which is expressed in more limited 3 terms. Case 9/79 [1979] ECR 2717, at 2728. 4 Recital 2.

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It adds that: [T]he implementation of the principle of equal treatment in matters of social security does not prejudice the provisions relating to the protection of women on the ground of maternity; whereas in this respect, Member States may adopt specific provisions for women to remove existing instances of unequal treatment.5

The potential scope of the directive may not have been quite clear to all those involved in its drafting and negotiation.6 At the very least, its rationale could be assumed to be to extend the principle of equal treatment of the sexes from the employment situation to those situations in which the State makes payments to compensate persons who are either unable to enter the labour market or unable to remain there, for example, because of physical disability: it is a logical counterpart to the equal pay principle in such cases.The directive, as will be seen below, outlaws both direct and indirect sex discrimination in social security, and this has had wideranging and important implications. Many of the national social security systems of the Member States of the EU were based upon the model of the family unit consisting of one breadwinner (traditionally, of course, male), together with one adult dependant (traditionally female) and dependent children. Such a model is highly prone to discrimination against the female sex, of a direct kind where the legislation is expressed in gender-specific terms, and of an indirect kind where the ‘nonbreadwinning’ partner receives lesser social security benefits than the ‘breadwinner’ and it can be shown that this former group is composed primarily of women. It may also discriminate against some groups on the ground of race and ethnicity, where it can be shown that the cultural traditions of the group concerned do not favour this type of domestic organization. Whether or not the inclusion of indirect discrimination within its terms enables the Social Security Directive to require radical recasting of the social security systems of the Member States is examined later in the present chapter. As against this possibly dramatic effect of the directive should be weighed the fact that the competence of the Union legislature in the sphere of social security is somewhat limited. Social security systems are traditionally viewed as being within the exclusive competence of the particular State under whose laws and practices they are organized.7 It is that State which determines the nature and content of its social security system: the range of benefits, the rate at which they are paid, the methods of financing those benefits and the conditions of eligibility.8 Social security is the subject of two provisions of the TFEU: Article 48 in Title IV ‘Free Movement of Persons, Services and Capital’ and Article 153 in Title X ‘Social Policy’. 5

Recital 3. See also the discussion at p 482. See Hoskyns and Luckhaus, ‘The European Community Directive on Equal Treatment in Social Security’ (1989) Policy and Politics,Vol 17, No 4, 321. 7 De Swaan, ‘Perspectives for Transnational Social Policy’ (1992) 27(1) Government and Opposition 33. 8 Case C-238/82 Duphar [1984] ECR 523; Case C-70/95 Sodemare v Reggio Lombardia [1997] ECR I-3395. 6

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Article 48 of the TFEU provides for the adoption by the European Parliament and the Council of: such measures in the field of social security as are necessary to provide for the freedom of movement for workers; to this end, they shall make arrangements to secure for employed and self-employed migrant workers and their dependants: (a) aggregation for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit; (b) payment of benefits to persons resident in the territories of the Member States.

The substance of this provision remained largely unchanged for half a century following adoption of the original EEC Treaty. The Treaty of Lisbon however inserted a further provision, which is commonly referred to as an ‘emergency brake’, eroding somewhat the discretion of the EU legislature.This provision reinforces the control of the Member States over their social security systems: essentially, proposed Union legislation can be vetoed where either ‘important aspects’ of a national social security system or its financial equilibrium are threatened. It provides: Where a member of the Council declares that a draft legislative act . . . would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case the ordinary legislative procedure shall be suspended. After discussion, the European Council shall, within four months of the suspension, either: (a) refer the draft back to the Council which shall terminate the suspension of the ordinary legislative procedure; or (b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.

Article 153 of the TFEU commits the Union to support and complement the activities of the Member States in fields which include the following: (c) social security and social protection of workers;... (k) the modernization of social protection systems without prejudice to point (c).

Article 153(2) provides that directives may be adopted by Council by unanimous vote after consulting the European Parliament to implement the objectives set out in Article 153(1)(c) but that these must have regard to ‘the conditions and technical rules obtaining in each of the Member States’. Article 153(4) further states that any provisions adopted ‘shall not affect the right of the Member States to define the fundamental principles of their social security systems and must not affect the financial equilibrium thereof ...’. In the case of Article 153(1)(k), the modernization of social security systems,‘measures’ without any further definition, may be adopted to encourage cooperation between Member States but any harmonization of the laws and regulations of the Member States is specifically prohibited. The adoption of directives to modernize social security systems is excluded by virtue of Article 153(2)(b).

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The essentially limited nature of the Social Security Directive was pointed out by Darmon AG in De Weerd, née Koks,9 where he observed that the directive ‘is in no way intended to regulate the operation of Member States’ social security schemes, nor to determine a lower or upper limit on the amount of the benefits given to victims of one of the risks listed in the Directive’.10 Given the constraints on the competence of the Union institutions in the sphere of social security, it is arguably not possible for Member States to be required to organize their systems so as to achieve true equality between men and women in social security; their role is limited to ensuring that there is no gender based discrimination. As long as men and women are treated equally under national social security systems, nothing more can be required of the Member States even if in reality true equality could only result from further measures. For example, the individualization of benefits—in other words, the treatment of each adult person as a separate unit— can often be the path to true equality; however the directive does not go this far and indeed it cannot, given the limitations on competence set out in the TFEU. Couples can therefore still be aggregated for the purpose of determining benefits, so long as the system operates in a gender-neutral fashion.11 This remains one of the most serious shortcomings of the legislation in the view of its more radical critics (because of its basis in an outmoded stereotype) who favour the individualization of entitlement to benefits as being the best way to ensure equality of treatment for women. Sjerps has pointed out12 that the principle of equality as regards social security benefits finds readier and more general acceptance in relation to wage-related benefits (usually granted for a limited period in cases of unemployment, disability, and sickness) and on the basis of contributions paid by an employed or self-employed person, than in relation to general means-tested benefits (guaranteeing a minimum income in cases where the recipient has no other income) financed wholly by the State out of taxation. She has noted that people find it increasingly logical that, when a man and woman do the same job and pay the same contributions, they should also receive the same wage-related benefits. The complexity and diversity of the social security systems to be found in the Member States led the Council to adopt a phased approach to equality legislation 9

Case C-343/92 [1994] ECR I-571. Case C-343/92 [1994] ECR I-571, at 580. In the Action Programme published by the Commission as an accompaniment to the Social Charter, (COM (89) 568), the Commission commented: ‘The social security systems vary greatly in nature from one Member State of the Community to another.They reflect the history, traditions and social and cultural practices proper to each Member State, which cannot be called into question.There can therefore be no question of harmonizing the systems existing in these fields’. 11 Cf the comment of Laurent, Principal Administrator in the European Commission, in ‘European Community Law and Equal Treatment for Men and Women in Social Security’ (1982) 121 International Labour Review 373, at 385: ‘[T]he whole orientation of European Community law in matters of equal treatment for men and women ...aims at setting in motion an irreversible evolutionary process in which each of the spouses will be granted independent social rights, as in matters of civil and political rights, where such equality is already broadly achieved.’ 12 Sjerps, ‘Indirect Discrimination in Social Security in the Netherlands: Demands of the Dutch Women’s Movement’, in Buckley and Anderson (eds), Women, Equality and Europe (Macmillan, London, 1988). 10

Scope of application: persons covered

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on an EU level. The original plans for the Social Security Directive covered occupational social security schemes, but these were eventually omitted from the 1979 instrument on the understanding, articulated in Article 3(3) of that directive, that they would be covered by subsequent legislation. That legislation took the form of the Occupational Social Security Directive,13 discussed in chapter 5 because of its close connection in practice with Article 157 of the TFEU. A third social security directive was proposed by the Commission in 1987.14 This aimed to take the process of equalizing treatment in social security systems yet further, in particular by removing from the Social Security Directive and the Occupational Social Security Directive the exceptions for pensionable age and survivors’ and family benefits.15 It was to some extent overtaken by events, notably the CJEU’s decision in Barber v Guardian Royal Exchange Assurance Group,16 and was subsequently withdrawn. The Social Security Directive is based upon what is now Article 352 of the TFEU,17 as was the Equal Treatment Directive, no doubt because, like the latter instrument, its aims are not the harmonization or ‘approximation’ envisaged by Article 114 of the TFEU. The possible direct effect of its provisions, not of course precluded by its legal basis in Article 352,18 is less problematic than in the case of the Equal Pay, Equal Treatment and Recast Directives; the inability of directives of themselves to produce horizontal direct effects leads to anomalies where the provision in question is relevant to the legal position vis-à-vis two individuals (in this context, employer and employee). The Social Security Directive, however, seeks to regulate relations between the State and individuals, such schemes being set out in legislative provisions and administered by State organs, and therefore its applicability is of the ‘vertical’ kind19 and thus capable of being directly effective, enabling individuals to rely on it as a source of rights which must be safeguarded by the courts.20

Scope of application: the persons covered Article 2, in defining the persons to whom the directive applies, points to a logical link with financially remunerated work. It provides: This Directive shall apply to the working population—including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or 13

14 Directive 86/378, OJ [1986] L225/40. COM (87) 494 final; OJ [1987] C309/10. As to which, see p 481 et seq. 16 Case C-262/88 [1990] ECR I-1889, discussed in ch 5.The Barber case required the amendment of the Occupational Social Security Directive. This was done by Directive 96/97, [1997] OJ L146/20. 17 Usher questioned the vires of the Social Security Directive, on the ground that, in permitting differential state pensionable ages for men and women (discussed at p 482 et seq.), it infringes the fundamental principle of the equality of the sexes under EU law (discussed in ch 3); see Usher, ‘European Community Equality Law: Legal Instruments and Judicial Remedies’, in McCrudden (ed), Women, 18 Employment and European Equality Law (Eclipse Publications, London, 1987). See ch 2. 19 See generally the discussion in ch 2. 20 Case 71/85 Netherlands v Federatie Nederlands Vakbeweging [1986] ECR 3855. 15

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involuntary unemployment and persons seeking employment—and to retired or invalided workers and self-employed persons.

The instrument thus appears to extend to those not currently in work because of their inability to work, unemployment, or old age.21 In particular, the use of the word ‘interrupted’ suggests that those who have never been in work (for example, because of disability) are excluded; similarly, its reference to those seeking ‘employment’ unfortunately seems to rule out those persons (mainly women) who are engaged in non-paid domestic work caring for children, spouses, and infirm relatives, unless they can demonstrate that they belong within some other category of persons covered by the Directive. The application of the Directive mainly to the economically active prejudices the rights of many carers and home-makers whose responsibilities may not be compatible with paid employment. This constitutes one of the major shortcomings of the instrument, although, as will be seen from discussion of the case law of the CJEU below, the broad approach of the CJEU to the scope ratione personae of the Directive has brought some home-makers and those performing family caring functions, who have interrupted their employment to do so, or whose working hours are relatively short, within the scope of the Directive. Although the CJEU has generally given a broad interpretation to the group of persons to whom the Directive is applicable there are limits beyond which it cannot pass given the wording and structure of the Directive; this has had the effect of excluding significant sections of the population, a large proportion of whom are probably women.22 The CJEU’s first decision on the scope of Article 2 came in Drake v Chief Adjudication Officer.23 Ms Drake gave up her paid employment in 1984 in order to look after her severely disabled mother. The mother received an attendance allowance under the relevant UK social security legislation, but, as a result of s 37 of the Social Security Act 1975, Ms Drake was refused an invalid care allowance because she was a married woman living with her husband. She claimed that this refusal contravened the Social Security Directive and the case was referred to the CJEU for a preliminary ruling. One of the issues which arose before the CJEU was whether Ms Drake was a person covered by Article 2 of the directive (despite the fact that the adjudication officer had conceded this point). The difficulty was that she was not herself currently seeking employment, and though her previous employment had been interrupted by disability, it was not her own disability but her mother’s. The CJEU nevertheless took a generous view of the scope of the directive ratione personae and held: [Article 2 of the Directive] is based on the idea that a person whose work has been interrupted by one of the risks referred to in Article 3 belongs to the working population. That 21 The CJEU in Case C-280/94 Posthuma-Van Damme v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1996] ECR I-179 therefore rejected the contrary argument of the Commission and held that a person who, in the year preceding commencement of an incapacity to work, did not receive a certain income from or in connection with work, did not necessarily fall outside the scope ratione personae of the directive. 22 See Cousins,‘Equal Treatment and Social Security’ (1994) 19 ELRev 123, and Sohrab,‘Women and Social Security: the Limits of EEC Equality Law’ [1994] JSWFL 5. 23 Case 150/85 [1986] ECR 1995.

Scope of application: persons covered

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is the case of Mrs Drake, who has given up work solely because of one of the risks listed in Article 3, namely the invalidity of her mother. She must therefore be regarded as a member of the working population for the purposes of the Directive.24

Such reasoning, of course, would not apply to women giving up work to look after their healthy spouses or children, since the fact of having a family is not one of the ‘risks’ specified by Article 3. This was confirmed by the Court’s later ruling in Acterberg-te Riele v Sociale Verzekeringsbank.25 Under The Netherlands’ old-age pension system, which was in operation until legislative amendment in 1985, a married woman resident in The Netherlands did not qualify for a pension if her husband, though also a resident of The Netherlands, had worked and was insured abroad. The system was discriminatory because the reverse was not also the case, so that a husband retained his right to a Netherlands pension even if his wife was insured abroad. The Social Insurance Bank refused to grant a full old-age pension on this basis to three women whose husbands had worked abroad; two of the women had themselves had jobs until they voluntarily ceased work, and the third had never had a job.The CJEU held that it could be inferred from Article 2 of the directive, when read together with Article 3, that it only covered persons who were working at the time when they were entitled to claim an old-age pension, and persons whose economic activity had previously been interrupted by one of the other risks set out in Article 3(l)(a).26 This meant that the directive was not applicable to persons who had never been available on the labour market, or who had ceased to be so where the reason for their giving up work was not the materialization of one of the risks referred to in the directive. Furthermore, the Court added, in a disappointingly narrow spirit, that this interpretation was consistent with the purpose of EU law and with the wording of the other provisions forming the background to the Social Security Directive. The purpose of Article 157 of the TFEU and the Equal Pay and Equal Treatment Directives was to bring about equal treatment for men and women not in a general way, but solely in their capacity as workers. This approach was again followed by the Court’s decision in Züchner v Handelskrankenkasse Bremen.27 This involved a claim to a welfare benefit in respect of the caring services provided by a wife who looked after her severely disabled husband. It was argued that, although Ms Züchner had not given up an occupation in order to care for her husband, neither could she thereafter have taken up an occupation because of the extent and intensity of the care she provided; no distinction, it was maintained, could sensibly be drawn between giving up work to look after a disabled person (the Drake situation) and being prevented from taking up work for that reason. Moreover, she had had to undergo training in order to be able to care for her husband; and were she not to provide it, care would have had to be 24

Case 150/85 [1986] ECR 1995, at 2009. The risks referred to in Art 3 are examined at p 450 et seq. Cases 48/88, 106/88, & 107/88 [1989] ECR 1963. 26 See also the remarks of Darmon AG in Case C-31/90 Johnson v Chief Adjudication Officer [1991] 27 ECR I-3723, at 3739–40. Case C-77/95 [1996] ECR I-5689. 25

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provided by someone else who would require payment. Ruiz-Jarabo Colomer AG submitted: It is well known that the Court has always construed ‘working population’ widely in that it considers that the Directive applies also to persons whose work or search for work has been interrupted because one of the specified risks has materialised in relation to another person. Nevertheless I would point out that, when deciding whether the person concerned belongs to the working population, the Court has on no occasion overlooked the requirement that he must be employed or self-employed or seeking work, that is to say a person who is available for employment or is seriously trying to find employment.28

The Court’s reluctance to recognize the true financial value of work undertaken in the home was more or less explicit in its judgment: [T]he term ‘activity’ referred to in relation to the expression ‘working population’ in Article 2 of the Directive can be construed only as referring at the very least to an economic activity, that is to say an activity undertaken in return for remuneration in the broad sense ...[A]n interpretation purporting to include within the concept of working population a member of a family who, without payment, undertakes an activity for the benefit of another member of the family on the ground that such activity calls for a degree of competence, is of a particular nature or scope or would have to be provided by an outsider in return for remuneration if the member of the family in question did not provide it would have the effect of infinitely extending the scope of the Directive, whereas the purpose of Article 2 of the Directive is precisely to delimit that scope ... Article 2 of the Directive must be interpreted as not covering a person who undertakes, as an unremunerated activity, the care of his or her handicapped spouse, regardless of the extent of that activity and the competence required to carry it out, where the person in question did not, in order to do so, abandon an occupational activity or interrupt efforts to find employment.29

This conclusion can be criticized as unduly harsh on two counts. First, it failed to recognize the very real economic value of Ms Züchner’s services, without which the State would have had to pay for equivalent skilled care; the nature of the care which she provided went far beyond the expectations of normal married life, and the Court could without much difficulty therefore have held that Ms Züchner in fact constituted a member of the working population. Secondly, through its concentration on limiting the scope of Article 2, the Court was led into the error of ignoring what is surely the more important policy objective underlying the directive, that of outlawing discrimination; it is highly probable that the majority of persons who are excluded from the traditional paid labour market on account of having to care for severely disabled relatives are women, and thus to interpret the directive so as to exclude them from its protection is to sacrifice the true aim of the instrument to a patriarchal, outdated, and unjust view of family life.

28 29

Case C-77/95 [1996] ECR I-5689, at 5707–8. Case C-77/95 [1996] ECR I-5689, at 5726–7.

Scope of application: persons covered

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The Court has, however, sometimes taken a broad view of Article 2: as long as a person has been economically active and intends at some point to take up economic activity, that person is to be regarded as being within the scope of application of the directive. In Johnson v Chief Adjudication Officer,30 it held that Article 2 extends to a person who has interrupted paid employment in order to bring up children and who thereafter seeks to return to the labour market, where that return to work is prevented by the materialization of one of the risks listed in Article 3: In order to be a member of the working population within the meaning of Article 2 of the Directive, it is sufficient for the person concerned to be a person seeking employment; no distinction according to the reason for which the person concerned left previous employment or even according to whether or not that person previously carried on an occupational activity is necessary. However, the person concerned must prove that he or she was a person seeking employment when one of the risks specified in Article 3(1)(a) of the Directive materialised. In this regard, it is for the national court to determine whether the person concerned was actually seeking employment at the time when he or she was affected by one of the risks specified in the Directive by looking to see in particular whether that person was registered with an employment organisation responsible for dealing with offers of employment or assisting persons seeking employment, whether the person had sent job applications to employers and whether certificates were available from firms stating that the person concerned had attended interviews. It follows that the protection guaranteed by Directive 79/7 to persons who have given up their occupational activity in order to attend to the upbringing of their children is afforded only to those persons in that category who suffered incapacity for work during a period in which they were seeking employment.31

In response to the argument that its interpretation of the scope of Article 2 has the effect of disproportionately disadvantaging women, the Court stated: [A]ccording to the first recital of the preamble to Directive 79/7 and Article 1 thereof, the Directive has in view only the progressive implementation of the principle of equal treatment for men and women in matters of social security. As far as the social protection of mothers remaining at home is concerned, it follows from Article 7(1)(b)32 ...that the acquisition of entitlement to benefits following periods of interruption of employment due to the upbringing of children is still a matter for the Member States to regulate. ...[I]t is for the Community legislature to take such measures as it considers appropriate to remove the discrimination which still exists in this regard in some bodies of national legislation.33

The difference between the Johnson and Züchner cases lay in the fact that Ms Johnson had been in employment which she gave up to look after her daughter and her re-integration into the labour market after caring for her for ten years was prevented because she herself was subject to one of the risks specified in Article 30 31 33

Case C-31/90 [1991] ECR I-3744, noted by Laske in (1992) 29 CMLRev 1011. 32 Case C-31/90 [1991] ECR I-3744, at 3752. As to which see p 482. [1991] ECR I-3744, at paras 25–6.

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3(1) of the directive. Ms Züchner was not in this position; she had not given up employment to care for her husband and this lack of a continuous link with the labour market excluded her from the scope of the directive. The CJEU has been generous with regard to the length of time a person can be absent from the labour market and still remain within the scope of the directive. Ms Johnson did not work for ten years but because of her intention to re-assume employment she remained a member of the ‘working population’. Despite the refusal of the CJEU to regard persons working within the home as within the scope of the directive (or perhaps in consequence of its unease at thus excluding so many women from the reach of the directive), it has been willing to extend the coverage of the instrument to those engaged in a very small way in paid employment. Nolte v Landesversicherungsanstalt Hannover34 raised the issue of whether the directive extended to persons engaged in what German legislation defined as ‘minor’ employment, which meant working for fewer than 15 hours a week for a wage of not more than one-seventh of the average of that earned by persons insured under the statutory old-age insurance scheme. Megner and Scheffel v Innungskrankenkasse Vorderplatz35 concerned (additionally) those in ‘short-term’ employment, defined by the relevant national legislation as being for no more than 18 hours a week. In both cases, the Court held that the definition of the working population intended by Article 2 is ‘very broad’, and that it covered persons in ‘minor’ and ‘short-term’ employment: The fact that a worker’s earnings do not cover all his needs cannot prevent him from being a member of the working population. It appears from the Court’s case-law that the fact that his employment yields an income lower than the minimum required for subsistence (see Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035, paragraphs 15 and 16) or normally does not exceed 18 hours a week (see Case C-102/88 Ruzius-Wilbrink [1989] ECR 4311, paragraphs 7 and 17) or 12 hours a week (see Case 139/85 Kempf v Staatssecretaris van Justitie [1986] ECR 1741, paragraphs 2 and 16) or even 10 hours a week (see Case 171/88 RinnerKühn [1989] ECR 2743, paragraph 16) does not prevent the person in such employment from being regarded as a worker within the meaning of Article 4836 (the Levin and Kempf cases) or Article 119 of the EEC Treaty (the Rinner-Kühn case) or for the purposes of Directive 79/7 (the Ruzius-Wilbrink case). The German Government ...argues that a different view ought to be taken in this case, since what is at issue is not the concept of a worker within the meaning of Article 48 of the Treaty ...but the concept of a worker within the meaning of social security law. The definition of the concept of a worker in the latter sphere falls within the competence of the Member States. It should be observed in that connection that as long ago as the judgment in Case 75/63 Hoekstra (née Unger) [1964] ECR 177 (paragraph 1 of the operative part) the Court ruled that the concept of ‘wage-earner or assimilated worker’ referred to in Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers ...had, 34 36

Case C-317/93 [1995] ECR I-4625. Now TFEU, Art 45.

35

Case C-444/93 [1995] ECR I-4741.

Scope of application: persons covered

449

like the term ‘worker’ in Articles 48 to 51, a Community meaning. Consequently, the fact that the Levin, Kempf and Rinner-Kühn cases do not relate to social security law and are not concerned with the interpretation of Article 2 of Directive 79/7 cannot call in question the finding made [above], since those judgments define the concept of a worker in the light of the principle of equal treatment.37

It is thus clear that, in order to be able to invoke the protection of the directive, a claimant must personally fall within the technical scope of Article 2.38 One limited exception to this principle emerged from Verholen v Sociale Verzekeringsbank,39 which involved the same Dutch old-age pension legislation which was in issue in Acterberg-te Riele v Sociale Verzekeringsbank.40 Mr Heiderijk, one of the plaintiffs in this joined action, had reached the age of 65 and was drawing an old-age pension. This pension contained an extra element which recognized that he had a dependent spouse who had not yet reached the age of 65. Under the legislation, married women became entitled to a personal pension only at 65, and that pension was normally payable to the husband. In this instance, the extra component was reduced, to reflect periods during which Mr Heiderijk was not insured under the Dutch system because he had been working in Germany. One of the questions referred to the Court was whether an individual may rely before a national court on Directive 79/7 when he bears the effects of a discriminatory national provision regarding his spouse, who is not a party to the proceedings. The Court held: It should be pointed out straight away that the right to rely on the provisions of Directive 79/7 is not confined to individuals coming within the scope ratione personae of the Directive, in so far as the possibility cannot be ruled out that other persons may have a direct interest in ensuring that the principle of non-discrimination is respected as regards persons who are protected. While it is, in principle, for national law to determine an individual’s standing and legal interest in bringing proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection (see the judgments in Case 222/84 Johnston v Chief Constable of the RUC [1986] ECR 1651 and in Case 222/86 Unectef v Heylens [1987] ECR 4097) and the application of national legislation cannot render virtually impossible the exercise of the rights conferred by Community law (judgment in Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595). In so far as this case is concerned, however, it should be stated that an individual who bears the effects of a discriminatory national provision may be allowed to rely on Directive 79/7

37 [1995] ECR I-4625, at 4656–7, and [1995] ECR I-4741, at 4752–3. See also Case C-280/94 Posthuma-Van Damme [1996] ECR I-179 where the CJEU held that Art 2 does not necessarily exclude a person who, in the year preceding his or her incapacity for work, did not receive an income from 38 employment. See also Case C-343/92 De Weerd, née Roks [1994] ECR I-571. 39 Joined Cases C-87, 88, & 89/90 [1991] ECR I-3757. 40 Joined Cases C-48, 106, & 107/88 [1989] ECR 1963 discussed at p 445. For comment on Verholen and Acterberg, together with Case C-31/90 Johnson v Chief Adjudication Officer, see Cousins, ‘The Personal and Temporal Scope of Directive 79/7/EEC’ (1992) 17 ELRev 55.

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only if his wife, who is the victim of the discrimination, herself comes within the scope of that Directive.41

Thus, for example, a man whose rights are prejudiced because of the way in which his wife was treated under a national social security scheme cannot rely on the directive if his wife has never been a member of the working population. In the case of a person seeking employment, the reasons for leaving a previous employment or abandoning a self-employed activity or even not having previously carried on an occupation are irrelevant. The mere fact of seeking employment or attempting to set up an economic activity in a self-employed capacity will suffice to bring a person within the scope of the directive. It is not enough that a claimant is entitled to one of the benefits covered by the directive. He or she must also fulfil the personal criteria set out in Article 2.42

Scope of application: benefits Article 3(1) of the directive provides that the instrument applies to: (a) statutory schemes which provide protection against the following risks: sickness, invalidity, old age, accidents at work and occupational diseases, unemployment;43 (b) social assistance, in so far as it is intended to supplement or replace the schemes referred to in (a).44

41 [1991] ECR I-3757, at 3790–1. See Waddington, ‘The Court of Justice Fails to Show its Caring Face’ (1997) 22 ELRev 587, in which the author argues that the Züchner case (discussed at p 445 et seq.) should have been decided on the same basis as Verholen: Ms Züchner suffered the effects of the discriminatory treatment directed against her husband, in that care allowances were not paid to her, and her husband, who had worked before becoming disabled, fell within Art 2. 42 Joined Cases C-48,106 & 107/88 Verholen [1989] ECR 1963. 43 In Case C-187/00 Kutz-Bauer v Freie und Hansestadt Hamburg [2003] ECR I-2741, the CJEU concluded that a legislative scheme providing an opportunity for part-time work for older employees, intended to make easier their subsequent transition to retirement and intended also to provide recruitment opportunities for young workers, was not within the scope of the Social Security Directive. The scheme affected the exercise of the occupation of the workers concerned by adjusting their working time, and therefore related to working conditions, thereby bringing it within the scope of the Equal Treatment Directive (as to which see ch 6). 44 Joined Cases C-245 & 312/94 Hoever v Land Nordrhein-Westfalen [1996] ECR I-4895 concerned alleged indirect discrimination over access to a child-raising allowance available to employed people. In deciding that this allowance was not covered by the directive, the Court pointed out that Art 3(2) (discussed further at p 481) excludes from the scope of the instrument ‘provisions concerning ...family benefits, except in the case of family benefits granted by way of increases of benefits due in respect of the risks referred to in paragraph (1)(a)’. It held that a family benefit, such as a child-raising allowance, does not provide direct and effective protection against one of the Art 3(l)(a) risks but is intended rather to secure the maintenance of the family whilst the children are young.

Scope of application: benefits

451

The CJEU in the Drake case45 ruled that this provision must be given a purposive interpretation, a decision of considerable potential significance given the diversity of social security provision available in the various Member States. One of the questions referred in that case had asked whether a benefit (in this instance, invalid care allowance) which was payable to a person in the claimant’s position, not herself directly suffering from any invalidity but in respect of someone else’s invalidity, constituted a statutory scheme providing protection against invalidity within the meaning of Article 3(1)(a) of the directive. Could the ‘risk’ be a risk to someone other than the claimant? The Court gave a positive answer to this question, holding: [I]t is possible for the Member States to provide protection against the consequences of the risk of invalidity in various ways. For example, a Member State may, as the UK has done, provide for two separate allowances, one payable to the disabled person himself and the other payable to a person who provides care, while another Member State may arrive at the same result by paying an allowance to the disabled person at a rate equivalent to the sum of those two benefits. In order, therefore, to ensure that the progressive implementation of the principle of equal treatment referred to in Article 1 of Council Directive 79/7/EEC and defined in Article 4 is carried out in a harmonious manner throughout the Community, Article 3(1) must be interpreted as including any benefit which in a broad sense forms part of one of the statutory schemes referred to or a social assistance provision intended to supplement or replace such a scheme. Moreover, the payment of the benefit to a person who provides care still depends on the existence of a situation of invalidity inasmuch as such a situation is a condition sine qua non for its payment ...It must also be emphasized that there is a clear link between the benefit and the disabled person, since the disabled person derives an advantage from the fact that an allowance is paid to the person caring for him.46

In reaching this conclusion, the Court effectively ignored the arguments put forward by the Adjudication Officer who had heard the case at first instance. He had maintained that invalid care allowance was not a work-related benefit, since it was paid to persons who sacrificed work opportunities and relieved the social services of the burden of caring for the invalid. Furthermore, it was payable to persons not working, and who might never have worked.47 The Court focused on the right of Member States to organize their social security systems as they wished. Some might pay benefits directly to the person who has suffered the risk to which those benefits are addressed; others might choose to pay the benefit to a third party who is essentially managing the risk; whilst still others might choose to pay a mix of benefits both to the direct victim and to the person 45

Case 150/85[1986] ECR 1995. Case 150/85[1986] ECR 1995, at 2009–10. In the face of a well-orchestrated political campaign in favour of Ms Drake’s claim, the UK Government announced its intention (subsequently carried out) to extend invalid care allowance to all men and women on equal terms. 47 The fact that Ms Drake had worked brought her within the scope of the directive—had she never been in employment the outcome of the case might have been quite different. 46

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caring for that victim. The organization of a social security system should not in itself be a barrier to the application of the directive or render it ineffective, The CJEU has interpreted Article 3 strictly as applicable to benefits, be they of a social security or a social assistance nature, which are directly related to one of the risks set out in Article 3.This, in effect, precludes the application of the principle of equal treatment to benefits which are only remotely linked to one of the risks set out in Article 3 or which are of a more general nature such as minimum income benefits granted to all who fulfil the criteria for entitlement. R v Secretary of State for Social Security, ex parte Smithson48 concerned differential entitlement as between men and women to a ‘higher pensioner premium’. Housing benefit was payable, under UK law, to people whose income fell below a notional sum known as the ‘applicable amount’. One of the elements to be taken into account in determining the ‘applicable amount’ was the ‘higher pensioner premium’ which was payable to those aged between 60 and 80, who lived alone, and who were in receipt of one or more other social security benefits, which used to include an invalidity pension. Invalidity pension49 was payable up to pensionable age (60 for women and 65 for men), but also for a further five years thereafter for persons who remained in work. Anyone (otherwise qualified) who had retired but not yet reached the age of 65 (for women) or 70 (for men) might elect to withdraw from the pension scheme and opt instead for an invalidity pension. Ms Smithson, who was 67, was unable to claim the ‘higher pensioner premium’ because she did not receive an invalidity pension and, as a woman of this age, was now unable to opt to claim one.The first question asked by the High Court was whether this patent sex discrimination over access to ‘higher pensioner premium’ contravened the directive. Tesauro AG considered that it did: It is essential to interpret Article 3 broadly....Any other approach would enable Member States to escape their obligations under the Directive with ease: they would only need in that case to include in a scheme of general scope, or at least one not specifically intended to provide protection against one of the risks set out in Article 3 of the Directive, a benefit which was, on the contrary, taken in isolation, designed precisely to provide protection against those risks. ...I cannot endorse the United Kingdom’s view that the premium may be regarded in isolation from the benefit of which it forms part because it is merely one of the elements which go to make up the applicable amount for the purposes of calculating housing benefit and not an amount paid out in its own right. I consider it quite irrelevant, in fact, that the premium is not technically a financial benefit paid as such to the beneficiary. On the contrary, what is relevant in my view is the fact that the premium constitutes de facto and in every case, an economic advantage for those who benefit from it, who become entitled when such a component is applied to higher housing benefit. 48

Case C-243/90 [1992] ECR I-467. Invalidity pensions were subsequently replaced by incapacity benefit, as to which see Wikeley, ‘The Social Security (Incapacity for Work) Act 1994’ (1995) 58 MLR 523. 49

Scope of application: benefits

453

In view of the fact that according to the contested United Kingdom legislation the purpose of that increase is to provide additional support for pensioners who have a recognised form of invalidity ...I do not think there can be any doubt that the premium is covered by Directive 79/7. It is in essence a ‘benefit’ which, although encompassed in the more general housing benefit scheme, may be separated from it in as much as it has a well-defined purpose and scope: to aid pensioners who are suffering particular hardship. Consequently, in view of the categories of persons for whom it is intended and its effects, the premium rightly belongs to the scope ratione materiae of Directive 79/7. More especially, in as much as it is intended to provide additional support for disabled pensioners to enable them to meet the cost of housing, it should be regarded as a form of social assistance intended to supplement the statutory schemes providing protection against the risks of old age and invalidity.50

The Court, however, subtly but significantly re-worded the High Court’s question so as to ask about the applicability of Article 3 to housing benefit in general, as distinct from its applicability specifically to the ‘higher pensioner premium’. This led it to disagree with its Advocate General: [A]lthough the mode of payment is not decisive as regards the identification of a benefit as one which falls within the scope of Directive 79/7, in order to be so identified the benefit must be directly and effectively linked to the protection provided against one of the risks specified in Article 3(1) of the Directive. However, Article 3(1)(a) of Directive 79/7 does not refer to statutory schemes which are intended to guarantee any person whose real income is lower than a notional income calculated on the basis of certain criteria a special allowance enabling that person to meet housing costs. The age and invalidity of the beneficiary are only two of the criteria applied in order to determine the extent of the beneficiary’s financial need for such an allowance. The fact that those criteria are decisive as regards eligibility for the higher pensioner premium is not sufficient to bring that benefit within the scope of Directive 79/7. The premium is in fact an inseparable part of the whole benefit which is intended to compensate for the fact that the beneficiary’s income is insufficient to meet housing costs, and cannot be characterised as an autonomous scheme intended to provide protection against one of the risks listed in Article 3(1) ...51

A determination on the part of the Court to separate general schemes for supplementing low incomes from schemes covered by the directive was also evident in Jackson and Cresswell v Chief Adjudication Officer,52 where discrimination was alleged in respect of the award of income support and its predecessor, supplementary benefit, under UK law. The Court of Appeal asked the CJEU whether Article 3 of the directive applies to a benefit which may be granted in a variety of situations to persons whose means are insufficient to meet their needs as defined by statute, and

50

[1992] ECR I-467, at 479–80. [1992] ECR I-467, at 489–90. See Hervey’s criticisms of this conclusion in [1992] JSWFL 461. 52 Joined Cases C-63 & 64/91 [1992] ECR I-4737, also discussed in ch 6, and noted by Durston in ‘Jackson and Cresswell v Chief Adjudication Officer: No Help for Women in the Poverty Trap’ (1994) 57 MLR 641. 51

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whether the answer to that question depends on whether the claimant is suffering from one of the Article 3 risks. Significantly, the Advocate General (Van Gerven on this occasion) again inclined to the view that such schemes could fall within the scope of Article 3 of the directive. The net result of the Drake and Smithson cases, he concluded, was that, to fall within Article 3, a benefit must be granted pursuant to an autonomous statutory scheme or a form of social assistance which is directly and effectively linked to one of the Article 3 risks. He distinguished the Smithson decision from the circumstances under consideration on the basis that the relationship in that case between the Article 3 risk and housing benefit was only indirect: invalidity was only a criterion for receipt of an invalidity pension, the grant of which was a precondition for the higher pensioner premium, which itself was only one of the factors contributing to the calculation of notional income for the purpose of housing benefit. He examined the issue of whether the directive applies only to those schemes intended by the legislature to afford protection against the Article 3 risks (the UK Government’s view), or whether it extends simply to those which in fact afford such protection. Stressing that it was important to take a teleological view so as to ensure the effectiveness of the directive, he opted for the second alternative; in doing so, he pointed out that the English version of the directive is the only one to use the word ‘intended’ in Article 3(1)(b), the others all referring to schemes which ‘supplement’ or ‘replace’ Article 3(1)(a) schemes. It was, therefore, in his view, a matter for the national court to decide whether income support in the UK in reality provided protection against one or more of the risks specified in Article 3. However, in deciding this matter, he drew the national court’s attention to the fact that, since in many cases unemployment benefit ceased and gave way to income support after a stated time under UK law, income support was in fact an important part of the protection provided in the event of unemployment; furthermore, unemployed persons claiming income support had at the relevant date generally to be available for work,53 thus underlining the role of the scheme in providing protection against unemployment. His conclusion of this part of his argument was that the link between income support and protection against unemployment was a much closer link than that in Smithson. Once again, however, the Court rejected this approach in favour of a stricter construction of Article 3. Building on its pre-existing case law, it held: Article 3(1)(a) ...does not refer to a statutory scheme which, on certain conditions, provides persons with a means below a legally defined limit with a special benefit designed to enable them to meet their needs. That finding is not affected by the circumstance that the recipient of the benefit is in fact in one of the situations covered by Article 3(1) ... Indeed, in the judgment in Smithson ...the Court held with regard to a housing benefit that the fact that some of the risks listed in Article 3(1) ...were taken into account in order 53 This rule changed with the introduction in October 1996 of jobseekers’ allowance pursuant to the Jobseekers Act 1995.

Scope of application: benefits

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to grant a higher benefit was not sufficient to bring that benefit as such within the scope of the Directive. Consequently, exclusion from the scope of Directive 79/7 is justified a fortiori where, as in the cases at issue in the main proceedings, the law sets the amount of the theoretical needs of the persons concerned, used to determine the benefit in question, independently of any consideration relating to the existence of any of the risks listed in Article 3(1) ... Moreover, in certain situations, in particular those of the appellants in the main proceedings, the national schemes at issue exempt claimants from the obligation to be available for work. That shows that the benefits in question cannot be regarded as being directly and effectively linked to protection against the risk of unemployment.54

The Court has also been asked whether the directive governs schemes for the benefit of elderly persons, where eligibility is tied to pensionable age. In particular, a number of statutory schemes in the UK have in the past exempted persons of pensionable age from paying charges for certain services, and the issue has been raised as to the legality of such schemes in the light of the traditional different pensionable ages of men and women. R v Secretary of State for Health, ex parte Richardson55 concerned the applicability of Directive 79/7 to UK legislation exempting women from medical prescription charges from the age of 60, but exempting men only from the age of 65. The CJEU held that the exemption scheme fell within Article 3: First, being provided for by statute and implemented by regulation it forms part of a statutory scheme. Secondly, it affords direct and effective protection against the risk of sickness referred to in Article 3(1) ...in so far as grant of the benefit to any of the categories of people referred to is always conditional on materialisation of the risk in question. Lastly, in view of the fundamental importance of the principle of equal treatment and the aim of Directive 79/7, which is the progressive implementation of that principle in matters of social security, a system of benefits cannot be excluded from the scope of the Directive simply because it does not strictly form part of national social security rules. The fact, relied on by the United Kingdom that the exemption from prescription charges is provided for in the National Health Service Act 1977 does not therefore affect the foregoing conclusion.56 54 [1992] ECR I-4737, at 4779–80. Cousins, in ‘Equal Treatment and Social Security’ [1994] 19 ELRev 123, comments that the effect of the CJEU’s decisions in Smithson and Jackson and Cresswell is to exclude many claimants from recourse to the directive; furthermore, a high proportion of excluded claimants are likely to be women, who have to rely on means-tested payments because they do not satisfy the work-related contribution conditions for insurance payments. See also Van Gerven et al, ‘Current Issues of Community Law Concerning Equality of Treatment Between Women and Men in Social Security’, in McCrudden (ed), Equality of Treatment Between Women and Men in Social Security (Butterworths, London, 1994); the authors argue that Smithson and Jackson and Cresswell lead to uneven application of the directive across the Member States. Thus, in countries such as the UK, where classic social security benefits, applicable to a range of specifically defined risks, have been supplanted by universal schemes, entitlement to which is based on need regardless of the exact cause of that need, there is a risk that many benefits now fall outwith the directive: ‘This is exactly what the Court wanted to avoid in Drake, namely that a Member State, by making formal changes to existing benefits covered by the Directive, could remove them from its scope’ (at 11–12). 55 Case C-137/94 [1995] ECR I-3407. 56 Case C-137/94 [1995] ECR I-3407, at 3428–9. Cousins points out, in ‘Free Movement of Workers and Social Security: Two Steps Forward, One Step Back’ (1996) 21 ELRev 233, that the ironic result of

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R v Secretary of State for Social Security, exparte Taylor57 concerned eligibility to a £20 payment by the State towards winter fuel, and the Court reached a similar conclusion. UK legislation entitled two groups of people to winter fuel payments. One was men over 65 and women over 60 who were also entitled to certain other benefits, some means-tested and others not, and including old-age pensions. Mr Taylor was 62 and alleged that the non-payment of a winter fuel allowance to him contravened the directive.The CJEU concluded that the benefit was payable to elderly persons, whether or not they had financial or material difficulties. Contrary to the argument of the UK Government, it was therefore not aimed at lack of financial means. On the other hand, the age limits prescribed indicated clearly that the benefit was intended to protect people against the risk of old age, within the meaning of Article 3(1) of the directive.Thus, the payment ‘must be deemed to protect directly and effectively against that risk’.58 On the other hand, in Atkins v Wrekin District Council,59 the Court60 held that a UK statutory scheme operated by a local authority which granted concessionary fares on public transport to those of pensionable age did not fall within Article 3. The relevant statute gave discretion to local authorities to grant concessions to various groups of persons, including those of pensionable age, and thus the scheme could not be said to ‘afford direct and effective protection against one of the risks listed in Article 3(1) ...Old age and invalidity, which are among the risks listed in Article 3(1) ..., are only two of the criteria which may be applied to define the classes of beneficiaries of such a scheme’.61 Furthermore, the fact that the local authority involved here had actually chosen to single out those of pensionable age for eligibility for the concession was irrelevant: The fact that the recipient of a benefit is, as a matter of fact, in one of the situations envisaged by Article 3(1) ...does not suffice to bring that benefit as such within the scope of the Directive (see Joined Cases C-63 & 64/91 Jackson and Cresswell [1992] ECR I-4737, paragraphs 18 and 19). The fact that ...the local scheme set up by Wrekin District Council ...benefits only classes of persons who are in fact in such situations, cannot affect that conclusion. Were importance attached to that, some local schemes would come within the scope of Directive 79/7 and others would not—despite all having been set up under the same statutory authorization— depending on whether or not the persons eligible under such schemes consisted exclusively of classes of persons in one of the situations listed in Article 3(1) ...62

this case is that the CJEU has held that a measure which would not be seen as social security at all in the UK is within the scope of the directive, whilst core elements of the UK social security system (in particular, income support) are outside the directive’s scope. 57

58 Case C-382/98 [1999] ECR I-8955. Case C-382/98 [1999] ECR I-8955, at 8981. 60 Case C-228/94 [1996] ECR I-3633. Rejecting the submissions of Elmer AG. 61 Case C-228/94 Atkins [1996] ECR I-3633, at 3664. Cf the benefit involved in Case C-139/95 Balestra v INPS [1997] ECR I-549 (discussed further at p 490 et seq.), which was payable to employees within a specified age group taking early retirement from an undertaking facing ‘critical difficulties’. As Elmer AG explained, the fundamental condition for the payment was age; thus, the benefit was directly and effectively linked to the risk of old age, and therefore fell within the scope of Directive 79/7. 62 Case C-228/94 Atkins [1996] ECR I-3633, at 3664–5. 59

Scope of application: benefits

457

The Court also rejected the Commission’s argument that the scope of Directive 79/7 was wider than the scope of social security and social assistance, and that it extended to ‘social protection as a whole’, which had led it to contend that the directive applied to measures of ‘social protection’ such as concessionary fares on public transport granted to persons affected by an Article 3 risk. One interesting potential extension of the scope of the directive emerged in Integrity v Rouvroy.63 The case concerned a straightforward incident of discrimination, in that Belgian legislation exempted married women, widows, and students, but not married men or widowers, from the obligation to make social security contributions in certain circumstances. Some of the benefits obtainable as a consequence of paying the contributions in question were not within the ambit of Article 3. Jacobs AG, whose remarks in this respect were specifically endorsed by the Court, pointed out that: The question therefore arises ...whether the Directive applies only in so far as the contributions are related to benefits covered by the Directive ...I would take the view that the Directive applied globally to the contributions payable ...if they could not be linked to any particular benefit. If the Directive were not to apply in such circumstances, then its application would be frustrated, as regards the obligation to contribute, whenever Member States included within the ambit of discriminatory national provisions benefits which were not covered by the Directive alongside benefits which were so covered.64

He went on to say, however, that it appeared to have been the Belgian Government’s intention that, although single contributions would be made, the amounts paid would be apportioned among the risks covered. The Advocate General submitted that if the contributions could be so apportioned, the equality principle would apply only to those contributions attributable to the risks listed in the directive. He concluded that the ‘fact that Belgium chose to incorporate in the same legislation provisions concerning benefits which fall within the scope of the Directive together with provisions concerning benefits which fall outside its scope cannot ...render the Directive applicable to the latter provisions’.65 Brachner v Pensionsversicherungsanstalt66 concerned indirect discrimination in the method of calculating an increase in the Austrian old age pension system. The first issue was whether the annual adjustment scheme was within the scope of the directive. The CJEU found that it was: It is settled case law that in order to come within the scope of Directive 79/7, a benefit must constitute the whole or part of a statutory scheme providing protection against one of the risks listed in Article 3(1) of the directive, or a form of social assistance having the same objective, and be directly and effectively linked to protection against one of those risks .... ...it must be pointed out that a pension paid pursuant to the ASVG, such as that received by Mrs Brachner, constitutes a benefit which, clearly, is directly and effectively linked to one of those risks, that is to say, the risk relating to old age ... 63 65

64 Case C-373/89 [1990] ECR I-4243. Case C-373/89 [1990] ECR I-4243, at 4255. 66 Case C-373/89 [1990] ECR I-4243, at 4255. Case C-123/10 [2011] ECR I-000.

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That also applies with regard to the annual adjustment scheme for a pension such as that at issue in the main proceedings. Like the pension itself, its subsequent adjustment is designed to protect persons who have obtained the statutory retirement age against the risk of old age ...67

The principle of equal treatment Article 4 is the kernel of the instrument because it defines the principle to be applied to all situations falling within the ambit of the directive: 1. The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly or indirectly by reference in particular to marital or family status, in particular as concerns: — the scope of the schemes and the conditions of access thereto, the obligation to contribute and the calculation of contributions, — the calculations of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.

This phraseology is familiar from the original Equal Treatment Directive.The mention of discrimination by reference to marital or family status in Article 4(1) of the Social Security Directive is especially important in relation to social security since—as, for example, the Drake case demonstrates—social security systems are apt to include distinctions on these bases.68 However, despite the strength with which the principle of equal treatment is articulated in Article 4, it must be remembered that all that the directive mandates is formal equality. It merely requires that male and female be treated equally (not even identically), not that the less favourably treated be brought up to the standard of the more favourably treated, so-called ‘levelling-up’ of provision.69 The principle of equality extends also to those who have undergone gender re-assignment: what matters is the sex of the person claiming equality at the time that claim is made. Richards v Secretary of State for Work and Pensions70 concerned a claim to a retirement pension by a male-to-female transsexual who had undergone a gender re-assignment operation. Ms Richards was born in 1942. She underwent gender re-assignment surgery in 2001. In February 2002 she applied for a retirement pension to be paid as from 28 February 2002, the date on which she turned 60 and at which, under the then UK law, as a woman she was entitled to receive 67

Case C-123/10 [2011] ECR I-000, at paras 40–4. For example, in Case C-187/98 Commission v Greece [1999] ECR I-7713, the CJEU held that Greece had breached Art 4 by its failure to abolish retroactively from 1984 (the date on which the Social Security Directive came into operation) regulations which discriminated against female employees in relation to the payment of family and marriage allowances; such allowances were taken into account in calculating a person’s income for the purpose of determining pension rights. 69 70 See discussion in ch 5. Case C-423/04 [2006] ECR I-3585. 68

The principle of equal treatment

459

such a pension. Her claim was refused on the ground that ‘the claim was made more than 4 months before the claimant reaches age 65’ which was the UK retirement age for men. She appealed against this decision, arguing that the refusal to pay her a pension from the age of 60 violated Article 4 of the Social Security Directive. The CJEU, in response to a request for a preliminary ruling from the UK Social Security Commissioner, held: ...in accordance with settled case-law, the right not to be discriminated against on grounds of sex is one of the fundamental human rights the observance of which the Court has a duty to ensure ... The scope of Directive 79/7 cannot be confined ...simply to discrimination based on the fact that a person is of one or the other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of that directive is also such as to apply to discrimination arising from the gender re-assignment of the person concerned.71

The claimant in KB v National Health Service Pensions Agency72 had a more nuanced problem than Ms Richards; the scheme in issue being an occupational pension scheme, the claim was based on Article 157 of the TFEU and the Equal Pay Directive. The alleged discriminatory conduct in KB concerned the national rule that eligibility to a survivor’s pension was restricted to surviving spouses. This excluded the claimant, who lived with a transsexual partner. National law at the relevant time did not permit marriage between persons of opposite sex, where one partner had undergone gender re-assignment. The CJEU found this situation to be discriminatory. In so doing, it relied on the judgment in Goodwin v United Kingdom73 in which the European Court of Human Rights had found that the then UK legislation, in not recognizing transsexuals’ new identity, was a breach of their right to marry under Article 12 of the ECHR. It is noteworthy that the Court did not find that the inability of KB to satisfy the conditions for entitlement to a survivor’s pension was in itself discriminatory. Instead it relied upon the incompatibility of the barrier to fulfilment of the conditions for entitlement with the ECHR. The conclusion to be drawn from this judgment may therefore be that any obstacle to equal treatment which constitutes a violation of the ECHR is unlawful, no further inquiry into the discriminatory nature of the measure in question being necessary. Article 4(1) prohibits both direct and indirect discrimination. No definition is given of these concepts in the directive.74 The Burden of Proof Directive,75 which defined indirect discrimination, did not extend to the Social Security Directive; neither does the Recast Directive, which repealed and replaced the Burden of Proof Directive. The vital question of the meaning of indirect discrimination in the context of social security was first raised before the CJEU in Teuling v Bedrijfsvereniging voor 71 72 73 74 75

Case C-423/04 [2006] ECR I-3585, at paras 23–4. Case C-117/01 [2004] ECR I-541, also discussed in ch 1. Goodwin v UK (2002) EHRR 447. But see ch 4 for discussion of how they are generally understood in anti-discrimination law. Directive 97/80, OJ [1998] L14/6.

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de Chemische Industrie.76 Ms Teuling had been incapable of work since 1972. From 1975 onwards, she received invalidity benefit under The Netherlands social security legislation equal to the statutory minimum wage. However, from the beginning of 1984 her benefit was reduced in accordance with new legislation to 70 per cent of the statutory minimum wage. Supplements were payable to certain persons, but she was not one because the relevant legislation took into account the income of a spouse and/or the presence of dependent children. Ms Teuling, at the material time, was married and her husband’s income was over the maximum prescribed limit. She argued that the system for the payment of supplements discriminated indirectly against women and therefore should be disapplied, because it breached the directly effective Article 4 of the Social Security Directive. Both Mancini AG and the Court agreed that the rules disproportionately disadvantaged women. The Dutch Government had provided statistics which showed that a significantly greater number of married men than married women received a supplement on the basis of having a dependent family; that was because in The Netherlands at the relevant date there were considerably more married men than married women who carried on occupational activities, and therefore considerably fewer women with a dependent spouse. The Court held that it was clear: from the very words of Article 4(1) that increases are prohibited if they are directly or indirectly based on the sex of the beneficiary. In that regard, it should be pointed out that a system of benefits in which, as in this case, supplements are provided for which are not directly based on the sex of the beneficiaries but take account of their marital status or family situation and in respect of which it emerges that a considerably smaller proportion of women than of men are entitled to such supplements is contrary to Article 4(1) of the Directive if that system of benefits cannot be justified by reasons which exclude discrimination on grounds of sex.77

The CJEU amplified this definition in Brachner:78 According to the Court’s settled case law, indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men ...79

Ms Brachner was in receipt of an old-age pension under the Austrian General Law on Social Security (ASVG). The ASVG provided for an annual adjustment factor the amount of which was determined by a reference value corresponding to the increase in consumer prices. With effect from 1 January each year all pensions were multiplied by the adjustment factor. The ASVG was amended in 2007 to allow for an exceptional increase in pensions for 2008. In the case of pensions in excess of 76

Case 30/85 [1987] ECR 2497. Case 30/85 [1987] ECR 2497, at 2520–1.To the same effect, see Case C-317/93 Nolte [1995] ECR I-4625 at 4659; Case C-444/93 Megner and Scheffel [1995] ECR I-4741 at 4754; and Case C-280/94 Postuma-Van Damme [1996] ECR I-179. See also the submissions of Ruiz-Jarabo Colomer AG in Case 78 C-77/95 Ziichner [1996] ECR I-5689, at 5713. Case C-123/10 [2011] ECR I-000. 79 Case C-123/10 [2011] ECR I-000, at para 56. 77

The principle of equal treatment

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746.99 EUR per month, this exceptional increase (known as the compensatory amount) replaced the usual increase determined by the application of the adjustment factor. Persons residing on Austrian territory were entitled to the compensatory amount insofar as their income did not exceed the standard rate laid down for the grant of that supplement. A pensioner’s level of income, for the purposes of establishing title to the compensatory amount, was required to be calculated on the basis of his or her total net income and that of his or her spouse living in a common household. If the total of the amount of the gross pension and the further net income fell below the specified standard rate, a compensatory supplement equivalent to the difference between his or her total income and the standard rate was payable. Ms Brachner was in receipt of a gross monthly pension of 368.16 EUR. Her husband was in receipt of a monthly pension of 1340.33 EUR net which, when added to her own income, came to an amount exceeding the standard rate. Moreover, even if her total income had been below the standard rate she would still not have been entitled to the compensatory amount, payment of which started only where the gross pension amount was at least 746.99 EUR. Her claim for the compensatory amount was refused. She challenged this decision alleging inter alia indirect discrimination against women contrary to Article 4(1).The Austrian Court referred the matter to the CJEU, asking whether Article 4(1) must be interpreted as precluding a national provision which leads to the exclusion from the compensatory amount of a specific group of holders of minimum pensions which disadvantaged many more women than men: in December 2007, 57 per cent of women were in receipt of a pension equal to or lower than 750 EUR a month, whereas the corresponding figure for men was 25 per cent. Thus more than twice the number of women than men were in receipt of the minimum pension. The Court found that the provisions in the ASVG governing the compensatory amount were indeed capable of being incompatible with Article 4(1), but whether this was actually so was a matter for the referring court to decide in the light of the evidence before it. The CJEU however, for the first time in proceedings involving indirect discrimination under the Social Security Directive, gave a detailed indication of what matters would be indicative of indirect discrimination. Following its approach in Seymour Smith80 it held: A first indication that that disadvantage affects many more women than men, to which significant weight should be attached and which also constitutes an indispensable part of the analysis ...relates to the disparity between the number of women in receipt of a minimum pension, expressed as a percentage of the total number of women in receipt of a pension pursuant to the ASVG, and the equivalent percentage of male pensioners. Again according to the statistical data accepted by the referring court, those percentages are 57 per cent for female pensioners and 25 per cent for male pensioners respectively. In other words with regard to persons coming under the ASVG, 75 per cent of male pensioners were liable to

80

Case C-167/97 [1999] ECR I-623, also discussed in ch 4.

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benefit from the exceptional increase in pensions whereas that was the case for only 43 per cent of female pensioners Such a disparity is large enough to constitute a significant indication capable of justifying the conclusion—which can, however, be drawn only by the referring court—that the exclusion of minimum pensions from the exceptional increase ...in fact places at a disadvantage a significantly higher percentage of female pensioners than male pensioners.81

Amedee,82 a reference for a preliminary ruling from the Administrative Court of Saint Denis in Réunion, again raised the issue of discrimination in the conditions of access to benefits. The alleged discrimination consisted of the crediting of a notional year’s contributions to a pension scheme for women who had taken maternity leave but which was denied to men who could not (obviously) fulfil the conditions of eligibility for maternity leave. Men were thus the victims of indirect discrimination because maternity leave and the benefits flowing from it in terms of pension level were not available to them. The Advocate General found the pension scheme in question to be occupational in nature, thus rendering the Social Security Directive inapplicable, but the case did not proceed to judgment.83 An important rider to add where the discrimination is indirect is that the Court’s usual technique for producing equality may prove inappropriate, as was demonstrated in Jackson and Cresswell v Chief Adjudication Officer.84 Van Gerven AG proceeded on the assumption (actually rejected by the Court, as seen at p 454) that income support fell within the scope of Directive 79/9; the question then arose as to how to apply the equal treatment principle in the particular circumstances of the case. Child-minding expenses were not permitted to be deducted from income when determining eligibility to the benefit, which was alleged to produce indirect discrimination against women. The Advocate General observed that the Court’s usual approach is to require the application of the same rules to the disadvantaged group as are applied to the advantaged group. However, he pointed out that [t]hat approach affords no comfort to the appellants in the main proceedings: even in the case of lone fathers, childminding expenses are not deductible from income ... Consequently, as Community law stands at present, the most realistic solution seems to me for the national court to decide, where appropriate, at the request of the appellants in the main proceedings that, having regard to the criteria developed in this connection, the British authorities have not complied with their obligations under Directive ...79/7, and to declare them liable to pay compensation to Ms Jackson and Ms Cresswell on the basis of the rules specified in the Court’s case-law, in particular ...in Francovich and Bonifaci (Joined Cases C-6 & 9/90 [1991] ECR I-5357).85 81 Case C-123/10 [2011] ECR I-000, at paras 60–3. The Court further found that the data before it showed that 92% of women in receipt of a minimum pension did not receive the compensatory amount mainly by reason of the rule on aggregation of income, whereas that was the case for only 58% of men 82 in receipt of such a minimum pension. Case C-572/10, OJ [2011] C72/4. 83 The case was removed from the Court’s register by order of 28 March 2012. 84 Joined Cases 63 & 64/91 [1992] ECR I-4737. 85 Joined Cases 63 & 64/91 [1992] ECR I-4737, at 4771. See ch 2 for discussion of the Francovich principle.

Objective justification

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Objective justification Since indirect discrimination is not unlawful where it can be justified,86 the strength of the non-discrimination principle in cases of indirect discrimination is directly proportional to the robustness with which the CJEU is prepared to treat the concept of justification.87 The first indication of the Court’s attitude to justification in the field of social security came in the Teuling case,88 where both the Court and the Advocate General agreed that the de facto indirect discrimination which had been demonstrated could be excused. Examining the purpose intended to be served by the supplementary payments for which Ms Teuling did not qualify, they found that The Netherlands legislation did not aim to link invalidity benefit to previous salary earned but just to provide a minimum subsistence income for persons with no earnings. The Court held: [S]uch a guarantee granted by Member States to persons who would otherwise be destitute is an integral part of the social policy of the Member States. Consequently, if supplements to a minimum social security benefit are intended, where beneficiaries have no income from work, to prevent the benefit from falling below the minimum subsistence level for persons who, by virtue of the fact that they have a dependent spouse or children, bear heavier burdens than single persons, such supplements may be justified under the Directive. If a national court, which has sole jurisdiction to assess the facts and interpret the national legislation, finds that supplements such as those in this case correspond to the greater burdens which beneficiaries having a dependent spouse or children must bear in comparison with persons living alone, serve to ensure an adequate minimum subsistence income for those beneficiaries and are necessary for that purpose, the fact that the supplements are paid to a significantly higher number of married men than married women is not sufficient to support the conclusion that the grant of such supplements is contrary to the Directive.89

This ruling offered some, albeit limited, scope for argument to litigants; if it could be demonstrated that the payment of higher benefit levels to claimants with dependants was not an effective means of making provision for those dependants, because the payments were not passed on to them, then the de facto discrimination against women would not, seemingly, be justified. It is to be noted that, apart from the fact that it did not use the expression ‘objectively justified factors’, the Court’s formulation here was substantially identical to that relied on by it in relation to the Treaty Article on equal pay in Bilka-Kaufhaus GmbH v Weber Von Hartz.90 The Court’s decision in Ruzius-Wilbrink v Bestuur van de Bedrijfsvereniging voor Overheidsdiensten91 underscored the fact that the burden falls on the State to prove objective justification and that, if it does not discharge that burden, it will be guilty 86

See discussion in particular in ch 4. See Cousins, ‘Equal Treatment and Social Security’ (1994) 19 ELRev 123. 89 Case 30/85 [1987] ECR 2497. Case 30/85 [1987] ECR 2497, at 2521–2. 90 Case 170/84 [1986] ECR 1607, discussed in chs 4 and 5. See also Case 171/88 Rinner-Kühn v FWW Spezial-Gebaudereinigung GmbH [1989] ECR 2743, discussed in ch 5. 91 Case C-102/88 [1989] ECR 4311. 87 88

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of indirect discrimination. Dutch invalidity payments which differentiated between full-time and part-time workers were there found to be discriminatory by the CJEU. The Court held that the scheme discriminated indirectly against women who made up the majority of those working part-time in The Netherlands. Ms Ruzius-Wilbrink had been refused the full benefit because she had only worked an average of 18 hours a week in the year preceding her incapacity. Under the scheme, everyone with an incapacity had a right to a minimum subsistence income benefit irrespective of previous salary, the only exception being for part-timers, for whom the scheme linked the level of benefit to the person’s previous salary. The Government explained the rule by arguing that it was designed to prevent part-timers from receiving a benefit which was more than their previous income. The Court held that this could not amount to an objective justification of the difference in treatment because the level of the benefit granted in many other cases also was greater than the income previously received. It went on to rule that, just as in cases of direct discrimination, the members of the group disadvantaged in these circumstances were entitled to have applied to them the same scheme as that applied to other recipients of the benefit, in other words, to receive the full benefit. This decision provided grounds for optimism that the Court would scrutinize critically the arguments put forward by the Member States as alleged justification for indirect discrimination. However, subsequent cases, at least not until recently in the Brachner92 case discussed as to this aspect at p 460 et seq., have not fulfilled this promise. They have, in general, illustrated the enormous difficulties faced by those who seek to challenge measures of social security policy. A good example is provided by Commission v Belgium,93 where the national law on unemployment and sickness benefits assigned claimants to three groups: (1) workers cohabiting with one or more persons, the latter having no income; (2) workers living alone; and (3) workers cohabiting with a person receiving an income. For both unemployment benefit and sickness benefit, entitlement under the system was calculated on the basis of previous earned income, but tiered to allow a different rate for each group, the highest being enjoyed by group (1), the next highest by group (2), and the lowest by group (3). In addition, an adaptation supplement of 20 per cent of previous income was payable to all claimants, but stopped after the first year of unemployment for groups (2) and (3). The alleged indirect discrimination arose from the fact that a clear majority of group (1) were men, whereas the majority of group (3) were women. The Belgian Government argued first that the difference in the ratio of men to women between the three groups was the product of a social phenomenon arising from the fact that fewer women than men were employed. The Court held that this could not be regarded as forming the basis of objective criteria unrelated to any discrimination on the ground of sex. However, the Belgian Government went on to contend that its legislation sought to assure a minimum replacement income 92 93

Case C-123/10 [2011] ECR I-000. Case C-229/89 [1991] ECR I-2205, noted by Banks in (1991) 20 ILJ 220.

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to each individual claimant, in the light of the family situation of that person, and this the Court accepted as objective justification. It stated: The aim of the Belgian legislation is to take into consideration the existence of different needs. On the one hand, it recognises the greater burdens resulting from unemployment for households with only one income and, on the other hand, it takes into account the financial aid which the spouse’s income represents for the unemployed person. Moreover, it seeks to encourage the persons concerned to adapt themselves to their new financial situation by avoiding too sudden a drop in their income during the first year, whilst enabling the unemployed person with dependants to bear the expenses of a household beyond a period of 18 months. Those principles and objectives form part of a social policy which in the current state of Community law is a matter for the Member States which enjoy a reasonable margin of discretion as regards both the nature of the protective measures and the detailed arrangements for their implementation ... With regard to a guaranteed minimum subsistence level, the Court has already held that Community law does not preclude a Member State, in controlling its social expenditure, from taking into account the relatively greater needs of beneficiaries who have a dependent spouse or a dependent child or receive only a very small income, in relation to the needs of single persons ... [T]he Belgian Government has shown that its system of unemployment and invalidity benefits corresponds to a legitimate objective of social policy, involving increases suitable and requisite for attaining that aim; it is therefore justified by reasons unrelated to discrimination on grounds of sex.94

The real degree of latitude thus entrusted to the Member States emerged from Molenbroek v Bestuur van de Sociale Verzekeringsbank.95 The Court was asked whether Article 4 of the directive precluded national legislation on old-age pensions from making the grant and amount of a supplement payable to a pensioner whose spouse had not yet reached retirement age depend on that spouse’s earned income, excluding any other income of the pensioner, given that far more men than women qualified for the supplement and that the supplement was payable even where it was not essential to guarantee the couple a minimum income. In holding that this de facto discrimination was justified, the Court stated: [T]he allowance granted ...is in the nature of a basic allowance, in that it is intended to guarantee those concerned an income equal to the social minimum, irrespective of any income which they receive from other sources. Furthermore, the Court has already held that the allocation of an income equal to the social minimum formed an integral part of the social policy of the Member States ...Finally, in leaving out of account any other income received

94 Case C-229/89 [1991] ECR I-2205, at 2229–30, emphasis added. It is noteworthy that following this judgment infringement proceedings under TFEU, Art 258 were unsuccessful. This is an extremely rare occurrence: according to Weatherill and Beaumont EU Law, 3rd edn (Penguin, London, 1999), of the cases of this type which have got as far as the CJEU, only about one-tenth have been decided in favour of the Member State. With the benefit of hindsight, the case discussed in the main text may be seen as evidence of the beginning of the Court’s resolve to allow the Member States a wide measure of discretion in relation to the organization of their social security systems, a trend which continued until 95 the recent Brachner case. Case C-226/91 [1992] ECR I-5943.

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by an old-age pensioner when determining the supplement payable to him in respect of a younger dependent spouse, the national legislation ...ultimately allocates to the couple an aggregate income equal to that to which both spouses will be entitled when they are both in receipt of a pension and the supplement has consequently been discontinued. The supplements scheme is therefore essential in order to preserve the nature of the allowance ...as a basic allowance and in order to guarantee the couple, where one of the spouses has not yet reached pensionable age, an income equal to the social minimum which they will receive when they are both pensioners. In those circumstances, the fact that at times the supplement is granted to persons who, having regard to the income which they receive from other sources, do not need it in order to guarantee a minimum level of subsistence cannot affect the fact that the means chosen are necessary having regard to the aim pursued.96

In this somewhat obscure passage, the Court failed to investigate whether the legitimate aim pursued, namely the guaranteeing of a minimum income, could have been achieved by a means which did not involve overpayment in some cases. In the absence of such scrutiny, it is hard to feel convinced that the means chosen in these circumstances were ‘necessary’ for the achievement of the legitimate aim. A glimmer of hope was offered to claimants by the ruling in De Weerd, née Roks,97 where the Court held that ‘although budgetary considerations may influence a state’s choice of social policy and affect the nature or scope of the social protection measures it wishes to adopt, they cannot themselves constitute the aim pursued by that policy and cannot, therefore, justify discrimination against one of the sexes’.98 This was in part because ‘to concede that budgetary considerations may justify ...indirect discrimination ...would be to accept that the application and scope of as fundamental a rule of Community law as that of equal treatment between men and women might vary in time and place according to the state of the public finances of the member States’.99 However, in the Nolte and Megner and Scheffel cases,100 which concerned indirect discrimination against women resulting from the exclusion of those in ‘minor’ or ‘short-term’ employment from compulsory old-age insurance, the Court reverted to an approach which was much more indulgent to the Member States. It reiterated its earlier principles but added a significant tailpiece: [S]ocial policy is a matter for the Member States ...Consequently, it is for the Member States to choose the measures capable of achieving the aim of their social and employment policy. In exercising that competence, the Member States have a broad margin of discretion.101 96

Case C-226/91 [1992] ECR I-5943, at 5968–9, emphasis added. Case C-343/92 [1994] ECR I-571. 98 Case C-343/92 [1994] ECR I-571, at 600. See also Case C-104/98 Buchner v Sozialversicherungsanstalt der Bauern [2000] ECR I-3625. 99 Case C-343/92 [1994] ECR I-571. Cf the submissions of Darmon AG. 100 Case C-317/93 Nolte [1995] ECR I-4625 and Case C-444/93 Megner and Scheffel [1995] ECR I-4741. 101 Case C-317/93 Nolte [1995] ECR I-4625, at 4660 and Case C-444/93 Megner and Scheffel [1995] ECR I-4741, at 4755, emphasis added. See also Case C-8/94 Laperre v Bestuurscommissie [1996] ECR 97

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The German Government argued that the exclusion of the affected groups from compulsory insurance was basic to the structure of the national social security scheme, in which equivalence had to be maintained between the contributions paid in and the benefits paid out. It also maintained that the system favoured the creation of minor and short-term employment, for which there was a social demand,102 and that in the absence of the existing system this demand would be satisfied by unlawful employment practices. The Court decided that: [T]he social and employment policy aim relied on by the German Government is objectively unrelated to any discrimination on grounds of sex and ..., in exercising its competence, the national legislature was reasonably entitled to consider that the legislation in question was necessary in order to achieve that aim.103

This ruling led the editors of the Equal Opportunities Review to comment that it reduced ‘significantly the standard of proof required of a Member State in order to justify indirectly discriminatory legislation’. They went on to point out that, ‘instead of having to show empirical evidence that the measure actually was necessary to achieve the objective pursued, it now appears sufficient under EC law if the Member State government could reasonably be entitled to take that view’.104 Furthermore, in Posthuma-van Damme v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen,105 the Court made it clear that, although it had held in De Weerd, née Roks that budgetary considerations could not justify indirect discrimination resulting from a change in the Dutch social security rules which required claimants for incapacity benefit to have received ‘some income’ in the year preceding the onset of their incapacity, nevertheless other considerations of social policy might provide such justification.The decision of the Dutch legislature I-273. The effect of these decisions is to make it very unlikely that an allegation of indirect discrimination would be successful in relation to the exclusion of those in the UK who earn less than the lower earnings limit from liability to pay national insurance contributions. Many of those so excluded are likely to be women. 102 Léger AG pointed out that the Court had ‘lent a sympathetic ear to this type of argument in the judgment in Case C-189/91 Kirsammer-Hack [1993] ECR I-6185 [discussed in ch 9], where it held that there was objective justification for “ ...legislation which ...forms part of a series of measures intended to alleviate the constraints burdening small businesses which play an essential role in economic development and the creation of employment in the Community”’ ([1995] ECR I-4625, at 4645). But contrast the view of the House of Lords in R v Secretary of State for Employment, ex parte EOC [1994] 2 WLR 409, also discussed in ch 9. 103 [1995] ECR I-4625 and [1995] ECR I-4741, at 4660 and 4755 respectively. See also Case C-226/98 Jorgensen v Foreningen af Speciallaeger [2000] ECR I-2447, where the CJEU said that ‘social policy is a matter for the Member States, which enjoy a reasonable margin of discretion as regards the nature of social protection measures ...[B]udgetary considerations cannot in themselves justify discrimination on grounds of sex. However, measures intended to ensure sound management of public expenditure on specialised medical care and to guarantee people’s access to such care may be justified if they meet a legitimate objective of social policy, are appropriate to attain that objective and are necessary to that end’ (at 2482). 104 (1996) 67 EOR 43, at 44. See also Hepple, ‘The Principle of Equal Treatment in Article 119 EC and the Possibilities for Reform’, in Dashwood and O’Leary (eds), The Principle of Equal Treatment in EC 105 Law (Sweet & Maxwell, London, 1997). Case C-280/94 [1996] ECR I-179.

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amounted in effect to a decision to switch from a system of pure national insurance to one which protected against loss of income, and the Court concluded that: guaranteeing the benefit of a minimum income to persons who were in receipt of income from or in connection with work which they had to abandon owing to incapacity for work satisfies a legitimate aim of social policy and ...to make the benefit of that minimum income subject to the requirement that the person concerned must have been in receipt of such an income in the year prior to the commencement of incapacity for work constitutes a measure appropriate to achieve that aim which the national legislature, in the exercise of its competence, was reasonably entitled to consider necessary in order to do so. The fact that that scheme replaced a scheme of pure national insurance and that the number of persons eligible to benefit from it was further reduced to those who had actually lost income from or in connection with work at the time when the risk materialised cannot affect that finding.106

Laperre v Bestuurscommissie107 involved two Dutch unemployment schemes, the RWW, which granted subsistence benefits but was means-tested, and the IOAW, which was not means-tested but was subject to specific conditions relating to the employment record, age, and incapacity of the claimant. Indirect discrimination was said to arise from the fact that more men than women qualified under the second, more generous scheme. The Dutch Government argued that the purpose underlying the two schemes was different. That underlying the RWW was to encourage claimants to provide for their own needs and to go back into employment. The IOAW, on the other hand, was intended for unemployed workers who had worked for a relatively long period, had received earnings-related unemployment benefits for the maximum permitted period, and thereafter had little chance of finding new employment before they reached retirement age. The IOAW scheme was not means-tested because the legislature wished to protect its beneficiaries from having to break into their lifetime savings from earnings, especially in view of the very small likelihood of their being able to rebuild those savings from earned income. The Court accepted that this reasoning constituted justification; it represented a legitimate aim of social policy and was objectively unrelated to any discrimination on the ground of sex; in exercising its competence, the Dutch legislature was reasonably entitled to consider that its scheme was necessary in order to achieve its aim. It is submitted that these cases demonstrate clearly some of the limitations inherent in the concept of indirect discrimination as a tool for the radical alteration of social security systems, in other words, as a means to achieve true substantive equality between the sexes in this field. As already pointed out, in particular in chapter 4, the concept is essentially a non-dynamic one, which takes the workforce as it finds it, and does not attempt social engineering in any dramatic sense. In addition, even where a measure has been shown to be potentially indirectly discriminatory because it has an adverse impact for one sex, it is still permissible provided that it 106

Case C-280/94 [1996] ECR I-179, at 204–5.

107

Case C-8/94 [1996] ECR I-273.

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serves a legitimate policy which is not itself discriminatory. Thus, a court which is called upon to assess whether a measure is justified is required to engage in a balancing process, weighing the social utility of the measure against its discriminatory effect.This would not necessarily be detrimental to the effectiveness of the concept of indirect discrimination were the CJEU to demand a very strict standard for justification.108 As seen, unfortunately the majority of cases have displayed an extreme reluctance on the part of the CJEU to interfere with the subjective legislative decisions of the Member States in the area of social policy. However, in Brachner,109 it did adopt a more robust approach, akin to that in Seymour-Smith,110 in its analysis of the grounds of justification advanced by the Austrian Government in support of the alleged indirect discrimination in the calculation of annual increases in their oldage pension scheme. Whilst, the CJEU emphasized, it is ultimately for the national court to determine whether and to what extent a legislative provision is justified, the CJEU may provide guidance in a preliminary ruling: ....while it is ultimately for the national court ...to determine whether and to what extent the legislative provision in question is justified by such an objective reason ...the Court of Justice, which is called upon to provide answers of use to the national court in the context of a reference for a preliminary ruling, may provide guidance based on the documents in the file of the case in the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment ...111

Proceeding then to acknowledge the broad margin of discretion of the Member States in achieving the aims of their social and employment policy, it reiterated the three fundamental principles by which the legality of indirect discrimination is to be assessed: (i) the measures in question must reflect a legitimate aim of its social policy; (ii) that aim must be unrelated to any discrimination based on sex; and (iii) the measures chosen must be suitable for attaining that aim. Analysing in detail the three grounds advanced by the Austrian Government for the alleged discriminatory methods used in calculating the pension increase, it found none of the three to be valid. With regard to the ground of justification based on the fact that female workers become entitled to a pension at an earlier age, with the result that the level of their contributions is generally lower than that of male workers, such a fact, which relates to the balance which must exist in a contributory system of social insurance between the contributions paid and the benefits provided, is one of the factors explaining the on-average lower level of pension received by female workers. That ground cannot, however, under any circumstances, justify the exclusion of women in receipt of a minimum pension from entitlement to the exceptional pension increase provided for under the adjustment scheme which is at issue in the main proceedings ...

108 See the generally stricter approach that it takes in regard to equal pay, discussed in ch 5, and its remarks in Case C-50/96 Deutsche Telekom v Schröder [2000] ECR I-743, and Joined Cases C-270 & 271/97 Deutsche Post v Sievers and Shrage [2000] ECR I-929. 109 110 Case C-123/10 [2011] ECR I-000. Case C-167/97 [1999] ECR I-623. 111 Case C-123/10 [2011] ECR I-000, at para 72.

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Next, it is necessary to examine the ground based on the fact that women who have worked receive their pensions for a longer period by reason of the on-average longer life expectancy of women ...There is however no link between that ground and the exclusion of holders of minimum pensions from enjoyment of the exceptional increase provided for by the adjustment scheme at issue in the main proceedings ...[T]he adjustment scheme is designed to ensure that the purchasing power of the pension is maintained in the light of consumer price developments ... Finally, it is necessary to examine the third ground, which seeks to justify the exclusion of minimum pensions from enjoyment of the exceptional increase provided for with regard to 2008 by the adjustment scheme at issue in the main proceedings ...The argument that it is not necessary to grant an exceptional increase in cases where pension holders and their spouses enjoy sufficient aggregate resources so as not to fall below the social minimum cannot be relied upon as objective justification for the difference in treatment of persons in receipt of a minimum pension and of those who receive higher-level pensions, in so far as the latter have, in principle, by reason of the amount of their pensions alone, sufficient resources.112

The CJEU concluded that the principle of equal treatment in Article 4(1) would have been violated if the referring court ultimately found that a significantly higher proportion of female pensioners than male pensioners had suffered a disadvantage because of the method of calculation used in calculating the increase in issue: Article 4(1) of Directive 79/7 must be interpreted as meaning that if, in the examination which the referring court must carry out in order to reply to the second question, it should conclude that a significantly higher percentage of female pensioners than male pensioners may in fact have suffered a disadvantage because of the exclusion of minimum pensions from the exceptional increase provided by the adjustment scheme at issue ...that disadvantage cannot be justified by the fact that women who have worked become entitled to a pension at an earlier age or because they receive their pension over a longer period, or because the compensatory supplement standard rate was also subject to an exceptional increase in respect of the same year 2008.113

Direct effect A vital prerequisite for Article 4, if it is to have real teeth, is that it must be directly effective in the hands of individual litigants.114 This was demonstrated at an early stage of its existence. It was implicit in the Court’s ruling in Drake v Chief Adjudication Officer,115 but was not discussed explicitly there because it was not contested by the adjudication officer. 112

Case C-123/10 [2011] ECR I-000, at paras 76–97. Case C-123/10 [2011] ECR I-000, at para 104. 114 Although it should be appreciated that the device of vindicating individual rights through litigation is somewhat inappropriate in the area of social security where, ex hypothesi, the claimant is likely to be in straitened financial circumstances and in practice is unlikely to be able to sustain an action without the help of some other funding body, eg, a pressure group. 115 Case 150/85 [1986] ECR 1995. 113

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It was first directly ruled on by the CJEU in Netherlands v Federatie Nederlandse Vakbeweging.116 Under Dutch law, which remained in force after the Social Security Directive came into operation, married women (other than those permanently separated from their husbands) were ineligible for unemployment benefit unless they were ‘head of the household’ within the meaning of the relevant ministerial regulations.The Federatie (the Netherlands Trades Union Federation) summoned the State before the President of the District Court in The Hague, in proceedings in which it requested that the State be ordered to repeal the requirement about the status of head of the household, or at least refrain from applying it, on the ground that it contravened Article 4 of the Social Security Directive.The President ordered the State to amend its legislation and, in the subsequent appeal, a preliminary ruling was sought from the CJEU, asking whether Article 4 of the directive is directly effective. Both Mancini AG and the Court held, in the clearest terms, that it is.The Advocate General submitted: [I]t must be established whether, intrinsically, Article 4(1) satisfies the requirements of being unconditional and sufficiently precise ...If, as the Commission observes, this prohibition is read in the light of the obligation, laid down by Articles 1 and 8(1) of [the] Directive, as to the result to be obtained it is impossible not to consider it clear, complete and precise. If then, the Federatie Nederlandse Vakbeweging points out in addition, it is read in conjunction with Article 5, under which the Member States have a duty to ‘abolish’ provisions contrary to the principle of equal treatment, it becomes equally clear that the provision is unconditional and hence that there is no discretion on the part of the Member States as regards bringing about the result sought by the Directive.117

The Court held: It must be pointed out that, standing by itself, in the light of the objective and contents of Directive 79/7, Article 4(1) precludes, generally and unequivocally, all discrimination on ground of sex. The provision is therefore sufficiently precise to be relied upon in legal proceedings by an individual and applied by the courts. However, it remains to be considered whether the prohibition of discrimination which it contains may be regarded as unconditional having regard to the exceptions provided for in Article 7 and to the fact that according to the wording of Article 5 Member States are to take certain measures in order to ensure that the principle of equal treatment is applied in national legislation. As regards, in the first place, Article 7, it must be observed that that provision merely reserves to Member States the right to exclude from the scope of the Directive certain clearly defined areas but lays down no condition with regard to the application of the principle of equal treatment as regards Article 4 of the Directive. It follows that Article 7 is not relevant in this case. As for Article 5, which obliges Member States to take ‘the measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished’, it cannot be inferred from the wording of that Article that it lays down conditions to which the prohibition of discrimination is subject. Whilst Article 5 leaves the Member States discretion with regard to methods, it prescribes the result which 116 117

Case 71/85 [1986] ECR 3855, noted by Arnull (1987) 12 ELRev 276. Case 71/85 [1986] ECR 3855, at 3867 (emphasis added).

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those methods must achieve, that is to say, the abolition of any provisions contrary to the principle of equal treatment. Consequently, Article 4(1) of the Directive does not confer on Member States the power to make conditional or to limit the application of the principle of equal treatment within its field of application and it is sufficiently precise and unconditional to allow individuals, in the absence of implementing measures adopted within the prescribed period, to rely upon it before the national courts as from 23 December 1984 in order to preclude the application of any national provision inconsistent with that Article.118

The Dutch Government had attempted to preclude direct effect by arguing that the Article was insufficiently precise as to how exactly equality between the sexes is to be achieved, and it contended that the provision contested in this case could be amended in at least four different ways, all of which would result in equality. Mancini AG explained that this: confuses the issue of direct effect with that of the discretion available to Member States in transposing the Directive into national law ...[T]he clear and unconditional provisions set out in the Directive are capable of being superimposed on conflicting national laws and precluding their applicability or limiting it. That does not mean, however, that that solution is obligatory. A state which considers such a solution to be too onerous may alter its own law by prescribing other procedures, provided that they are compatible with the result sought by the Community legislation. By legislating in that manner the state will inevitably implement in good time the obligation imposed on it.119

Despite the point made earlier in the present chapter that the Social Security Directive does not generally require a levelling-up of social security provisions of the disadvantaged group to those of the advantaged group, that was its effect in the circumstances of this case, where the only standard for the treatment that women could expect was that already provided for men, there being no other point of reference. In the words of the Court: It follows that until such time as the national government adopts the necessary implementing measures women are entitled to be treated in the same manner, and to have the same rules applied to them, as men who are in the same situation since, where the Directive has not been implemented, those rules remain the only valid point of reference.120

It should be noted that, as in relation to Article 157 of the TFEU, the CJEU implicitly accepted in this case that gender-plus discrimination constitutes direct discrimination121 forbidden by the Social Security Directive; the discrimination here was not against women in general, but only against those who were married and not heads of household.122 118

119 Case 71/85 [1986] ECR 3855, at 3875–6. Case 71/85 [1986] ECR 3855, at 3867–8. Case 71/85 [1986] ECR 3855, at 3876. This principle applies irrespective of which group is disadvantaged on the ground of sex; it was therefore able to be relied on so as to improve the treatment afforded to men in Case C-154/92 Van Cant v Rijksdienst voor Pensioenen [1993] ECR 121 I-3811. See discussion in ch 4. 122 See also Case C-337/91 Van Gemert-Derks v Bestuur van de Nieuwe Industriele Bedrijfsvereniging [1993] ECR I-5435. 120

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McDermott and Cotter v Minister for Social Welfare and the Attorney General123 involved similar facts occurring within the Irish social security system. The claimants were both married women who complained of breach of Article 4 of the directive, in that the relevant national legislation provided for a lesser amount of unemployment benefit, over a shorter period of time, for them than for men or for single women. Both the Advocate General and the Court reiterated their earlier remarks and rejected the Irish Government’s argument that the Article was discretionary because there were a number of ways in which the State could comply with it. Once again, the direct effect of the equality principle contained in the directive required the levelling-up of the provision made for married women so that it matched that available to men (and to single women). The principle involved in Clark v Chief Adjudication Officer124 was the same as in the preceding cases, but the factual situation to which it applied was somewhat different, and the potency of the principle was again demonstrated. Ms Clark suffered from a medical condition from 1983 onwards which rendered her incapable of work. She applied under the then applicable UK legislation for a non-contributory invalidity pension (NCIP), but was refused the pension because she was unable to satisfy the statutory test, demanded only in the case of married women such as herself, of incapacity to perform ‘normal household duties’. The NCIP was abolished in late 1984, in anticipation of the coming into operation in December of that year of the Social Security Directive, and it was replaced by a new benefit, known as severe disablement allowance. The conditions for entitlement to severe disablement allowance were, in general, stricter than those for NCIP had been, and Ms Clark, again, did not meet them. However, transitional arrangements were also made, because it was feared that some people who had been entitled to the old NCIP would cease to be eligible for severe disablement allowance and it was felt to be politically unacceptable for benefit in effect then to be withdrawn from them.125 The transitional legislation therefore provided that everybody entitled to the old benefit on certain dates in 1984 was automatically to acquire entitlement to the new benefit. Ms Clark, of course, was unable to take advantage of this rule, and argued that it perpetuated discrimination against married women contrary to the Social Security Directive and after that instrument had become operative (a subtle form of direct discrimination). With this contention both the Advocate General and the Court agreed. The direct effect of Article 4 could be relied on to prohibit the perpetuation of discrimination which had been lawful before the directive 123 Case 286/85 [1987] ECR 1453. For the background to this case and its successor, Case C-377/89 Cotter and McDermott v Minister for Social Welfare (No 2) [1991] ECR I-1155, see Whyte and O’Dell, ‘Welfare.Women and Unjust Enrichment’ (1991) 20 ILJ 304. 124 Case 384/85 [1987] ECR 2865. Similarly Case 80/87 Dik v College van Burgemeester en Wethouders, Arnhem [1988] ECR 1601. See also Luckhaus, ‘Equal Treatment for Men and Women in Social Security?’ (1987) 137 NLJ 1006. 125 Hoskyns and Luckhaus argued that the provisions relating to severe disablement allowance also discriminated (this time indirectly) against women: see Hoskyns and Luckhaus, ‘The European Community Directive on Equal Treatment in Social Security’ (1989) Policy and Politics, Vol 17, No 4, 321.

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came into force. Da Cruz Vilaca AG commented that the directive makes no exception ‘for the continuing discriminatory effects of national provisions previously in force, since to maintain those effects is as much contrary to the provisions of the Directive as it would be to maintain those national provisions themselves’.126 The Court itself was quite unmoved by the UK Government’s protestations about the legitimate expectations of those receiving NCIP before the Social Security Directive came into effect, and once again its solution was to require the levelling-up of the provision made. It held: [I]t must be emphasized that the Directive does not provide for any derogation from the principle of equal treatment laid down in Article 4(1) in order to authorize the extension of the discriminatory effects of earlier provisions of national law. It follows that a Member State may not maintain beyond 22 December 1984 any inequalities of treatment which have their origin in the fact that the conditions for entitlement to benefit are those which applied before that date. That is so notwithstanding the fact that those inequalities are the result of transitional provisions adopted at the time of the introduction of a new benefit. Consequently, Article 4(1) of the Directive in no way confers on Member States the power to make conditional or to limit the application of the principle of equal treatment within its field of application and it is sufficiently precise and unconditional to allow individuals, in the absence of appropriate implementing measures, to rely upon it before the national courts as from 22 December 1984 in order to preclude the application of any provision of national law inconsistent with that Article. As is also apparent from the judgments in FNV and McDermott and Cotter, it follows from Article 4(1) of the Directive that, as from 22 December 1984, women are entitled to be treated in the same manner, and to have the same rules applied to them, as men who are in the same situation since, where the Directive has not been implemented correctly, those rules remain the only valid point of reference. In this case that means that if, as from 22 December 1984, a man in the same position as a woman was automatically entitled to the new severe disablement allowance under the aforesaid transitional provisions without having to re-establish his rights, a woman was also entitled to that allowance without having to satisfy an additional condition applicable before that date exclusively to married women.127

The Court’s reluctance to allow transitional provisions to perpetuate former sex discrimination was also evident in Van Cant v Rijksdienst voor Pensioenen,128 where Darmon AG explained that: although the principle of the progressive nature of the implementation of equal treatment appears in the actual title of the Directive, the Court [has] clearly ruled against the maintenance of any transitional provision contrary to Article 4 ...[The Court is determined] not to allow earlier or transitional schemes which delay genuine equality of treatment to linger on ...The uniform application of Community law in each Member State requires that the interpretation of the Directive be detached from the national context and, consequently, 126

[1987] ECR 2865, at 2875. [1987] ECR 2865, at 2880–81.The direct effect of Art 4 was reiterated in Case C-31/90 Johnson v Chief Adjudication Officer [1991] ECR I-3723 and by Van Gerven AG in Joined Cases C-63 & 64/91 Jackson and Cresswell v Chief Adjudication Officer [1992] ECR I-4737, at 4770, both also discussed at p 447 et seq. and 454 et seq. 128 Case C-154/92 [1993] ECR I-3811, discussed further at p 484. 127

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from the merits of a scheme compared with those of the previous scheme. Justification by progressiveness has its limits.129

Where direct discrimination continued after 23 November 1984 the Court was reluctant to place a temporal limitation on the effects of a preliminary ruling, but would in principle, consider doing so in the face of ‘the existence of significant objective uncertainty regarding the scope of Article 4(1) of Directive 79/7’.130 However, serious financial consequences were not enough in themselves enough to justify limiting the temporal effects of a ruling. In Rijsdienst voor Pensioenen v Brouwer,131 the discrimination consisted in the perpetuation, after 23 December 1984, of a system of calculating retirement pensions which was based on higher notional or flat-rate daily wages for male frontier workers than for female frontier workers for equal work or work of equal value. The CJEU held: [T]he Belgian national authorities cannot rely on the existence of significant objective uncertainty with regard to the scope of the obligation to ensure equality of treatment which follows clearly from Article 4(1) of Directive 79/7 .... . If it is established that it was indeed notional and/or flat-rate wages for equal work or work of equal value which were taken into account as a basis for the calculation of retirement pensions, which it is a matter for the national court to verify, the Belgian authorities were not entitled to take the view that the fact that the wages of female workers were lower than those of male workers resulted from the existence of objective factors and not from simple wage discrimination.132

As to the direct effect of Article 4(1) in the context of indirect effect, the Court did not deal with this matter explicitly in Teuling;133 nevertheless, it seemed implicit in its words that the Article is directly effective in the context of indirect discrimination as well as in the more obvious cases of direct discrimination.134 It later made this clear, holding, for example, in De Weerd, née Roks135 that ‘Article 4(1) of Directive 79/7 precludes the application of a national measure which, although formulated in neutral terms, works to the disadvantage of far more women than men, unless that measure is based on objectively justified factors unrelated to any discrimination on grounds of sex’.136

129

Case C-154/92 [1993] ECR I-3811, at 3827. Case C-423/04 Richards v Secretary of State for Work and Pensions [2006] ECR I-3585. 131 Case C-577/08 [2010] ECR I-7489. 132 Case C-577/08 [2010] ECR I-7489, at paras 37–8. Kokott AG raised the issue of temporal effect in Joined Cases C-231/06–C-233/06 National Pensions Office v Jonkman [2007] ECR I-5149 but found that there was no reason in that case to restrict the temporal effect of the judgment given the fact that neither the Belgian Government nor the Pensions Office had provided evidence that there was any fear of serious economic repercussions, such as the risk of significant danger to the financial stability of the 133 state pension scheme. Case 30/85 [1987] ECR 2497. 134 It will be recalled from the discussion in ch 5 that this issue caused problems in relation to equal pay but that the Court eventually accepted the direct effect of the Treaty Article even in cases of indirect 135 discrimination. Case C-343/92 [1994] ECR I-571. 136 Case C-343/92 [1994] ECR I-571, at 600. See also Case C-229/89 Commission v Belgium [1991] ECR I-2205. 130

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Implementation Article 5 of the directive provides that the Member States must take the measures necessary to ensure that any laws, regulations, and administrative provisions contrary to the principle of equal treatment are abolished. However, provided that equality as between the sexes is maintained, the effect of legislative reform pursuant to the directive can lawfully be to withdraw benefits. The Court made this clear in De Weerd, née Roks,137 where it stressed that Directive 79/7 leaves intact the powers of the Member States to legislate on social policy and that the control of public expenditure may provide the rationale for such an even-handed withdrawal.138 Article 6 mirrors the original, unamended Article 6 of the Equal Treatment Directive, providing: Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply the principle of equal treatment to pursue their claims by judicial process, possibly after recourse to other competent authorities.

It was seen in chapter 2 that the CJEU originally took the view that, where a Member State had not properly implemented a directive, it might not rely on a domestic limitation period in order to defeat an individual’s claim based on the direct effect of the instrument;139 that principle was subsequently reversed in Fantask A/S v Industrimininsteriet.140 Nevertheless, even whilst the original view held good, the Court ruled in Steenhorst-Neerings141 that it did not preclude the Member State concerned from limiting back payment of a social security benefit entitlement to which arose by virtue of the direct effect of Directive 79/7.142 Dutch law used to grant incapacity benefits only to men and unmarried women; on introduction of the principle of sex equality, entitlement was extended to married women, with the exception of those whose incapacity had arisen before 1975.This last condition was ruled invalid on the ground of discrimination by the Dutch Higher Social Security Court in 1988, which enabled the plaintiff, whose incapacity had originated in 1963, to claim the benefit. However, she was then met with a national procedural rule which limited back payments of such benefits to not more than one year. The

137 Case C-343/92 [1994] ECR I-571. See also Case C-226/91 Molenbroek v Bestuur van de Sociale Verzekeringsbank [1992] ECR I-5943; Case C-137/94 ex parte Richardson [1995] ECR I-3407; and Case C-280/94 Posthuma-Van Damme, [1996] ECR I-179. 138 Similarly, in Case C-33/99 Fahmi [2001] ECR I-2415, the Court held that a Member State was entitled to abolish an allowance for dependent children aged between 18 and 27 years who were pursuing higher education studies provided its abolition did not involve discrimination based on nationality. 139 Case C-208/90 Emmott v Minister for Social Welfare [1991] ECR I-4269. 140 Case C-188/95 [1997] ECR I-6783. 141 Case C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR I-5475, noted by Sohrab in (1994) 31 CMLRev 875. 142 Cf the submission of Darmon AG.

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Court distinguished this situation from the imposition of a limitation period, saying: [A] time-bar resulting from the expiry of the time-limit for bringing proceedings serves to ensure that the legality of administrative decisions cannot be challenged indefinitely. The judgment in Emmott indicates that that requirement cannot prevail over the need to protect the rights conferred on individuals by the direct effect of provisions in a directive so long as the defaulting Member State responsible for those decisions has not properly transposed the provisions into national law. On the other hand, the aim of the rule restricting the retroactive effect of claims for benefits for incapacity for work is quite different from that of a rule imposing mandatory time-limits for bringing proceedings ...[T]he first type of rule ...serves to ensure sound administration, most importantly so that it may be ascertained whether the claimant satisfied the conditions for eligibility and so that the degree of incapacity, which may well vary over time, may be fixed. It also reflects the need to preserve financial balance in a scheme in which claims submitted by insured persons in the course of a year must in principle be covered by the contributions collected during that same year.143

This decision was followed in Johnson v Chief Adjudication Officer,144 which concerned a claim to severe disablement allowance in the UK, which was also subject to a one-year limitation on back payments. This was notwithstanding the claimant’s argument that her situation was distinguishable from that in Steenhorst-Neerings on the basis that there was no problem in determining whether she satisfied the conditions for the grant of the benefit and that the benefit involved was noncontributory. In R v Secretary of State for Social Security, ex parte Sutton,145 the UK High Court asked the CJEU whether an individual was entitled to interest on arrears of a social security benefit, where the delay in payment of the benefit concerned resulted from discrimination prohibited by Directive 79/7. The claimant’s case for the payment of interest rested on the similarity between Article 6 of Directive 79/7 and the unamended Article 6 of the Equal Treatment Directive; as seen in chapter 6, the CJEU had held in Marshall v Southampton and South-West Hants Area Health Authority (No 2)146 that the latter Article required the payment of interest on compensation for unlawful discrimination. The Court rejected this comparison: [Social security] benefits are paid to the person concerned by the competent bodies, which must, in particular, examine whether the conditions laid down in the relevant legislation are fulfilled. Consequently, the amounts paid in no way constitute reparation for loss or damage sustained and the reasoning of the Court in its judgment in Marshall II cannot be applied to a situation of that kind.147

Furthermore, the Court rejected the Commission’s argument, which was based on Jackson and Cresswell v Chief Adjudication Officer148 and Meyers v Chief Adjudication 143 145 147 148

144 [1993] ECR I-5475, at 5503–4. Case C-410/92 [1994] ECR I-5483. 146 Case C-66/95 [1997] ECR I-2163. Case C-271/91 [1993] ECR I-4367. [1997] ECR I-2163, at 2188. Joined Cases C-63 & 64/91 [1992] ECR I-4737, discussed as to this aspect in ch 6.

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Officer,149 to the effect that a social security benefit relating to employment may fall within the scope of the Equal Treatment Directive: According to the Commission, when such benefits are awarded belatedly on account of discrimination prohibited by Directive 76/207, interest is payable on the arrears of benefit in conformity with the principle laid down in Marshall II. There is nothing to suggest that in the case of a social security benefit falling under Directive 79/7, the principle of equal treatment is narrower in scope than that laid down by Directive 76/207, so that the conclusion drawn in the case of both Directives should be the same. That reasoning is based on a false premise. Although it follows from the judgments in Jackson and Cresswell and in Meyers that certain social security benefits do fall within the scope of Directive 76/207, that does not mean that Article 6 of that Directive, as interpreted in the judgment in Marshall II, requires interest to be paid on arrears of benefit when the delay in payment is due to discrimination on grounds of sex prohibited by the Directive. Whichever directive applies, amounts paid by way of social security benefit are not compensatory in nature, with the result that payment of interest cannot be required on the basis either of Article 6 of Directive 76/207 or of Article 6 of Directive 79/7.150

Article 8(1) of the instrument gave the Member States six years from its notification, that is to say, until 23 December 1984, within which to bring into force the legislation necessary to implement it.This unusually long implementation period,151 the result of a compromise at the drafting stage, was adopted in recognition of the complexity of the subject-matter and the legislation involved.152 It meant that the practical effects of the legislation took a long time to make themselves evident. In spite of the lengthy implementation period granted to the Member States, it is clear from the flow of preliminary references to the Court immediately after the expiry of the implementation period, seeking confirmation of the direct effect of the principle of equality set out in Article 4(1), that some Member States had not made sufficient efforts to render the provisions of the directive effective within their territory. In many respects it would not be wrong to say that equality in social security was achieved more by the efforts of the Court rather than that of the Member States. In Dik v College van Burgemeester en Wethouders, Arnhem,153 the CJEU held that where a Member State had wrongfully delayed implementation of the Social Security Directive, it could nevertheless belatedly pass such legislation and make it retroactive to the date when implementation was required. National Pensions Office v Jonkman154 considered the validity of certain measures adopted by the Belgian authorities to achieve equal treatment with respect to the pension rights of Belgian air hostesses and their male colleagues—the same pension 149

Case C-116/94 [1995] ECR I-2131, also discussed as to this aspect in ch 6. [1997] ECR I-2163, at 2189. For criticism of the paucity of this reasoning, see van Casteren’s comment on Sutton in (1998) 35 CMLRev 493. 151 The same as the maximum period permitted by Art 18 of the Framework Directive for its implementation in the fields of age and disability. 152 The Commission had originally proposed an implementation period of only two years. 153 154 Case 80/87 [1988] ECR 1601. Case C-231/06 [2007] ECR I-5149. 150

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scheme which was in issue before the Court in the first Defrenne155 case. From 1964 until 1980 the statutory pension scheme in Belgium included a special scheme for male cabin crews, which allowed them to obtain a higher pension than was otherwise available under the scheme which applied generally to employees. However male cabin crew had to pay higher pension contributions than other employees. The special scheme was made available to female cabin crew in 1981. For periods during which they made contributions before 1981, female cabin crew could obtain the benefit of the special scheme retroactively on condition that they made retroactive contributions. For this purpose an ‘adjustment procedure’ was created in 1997 which required female cabin crew wishing to join the special scheme retroactively to pay contributions, in the form of a single lump sum payment plus 10 per cent interest per annum from the end of the relevant contribution year. Ms Jonkman and two other former air hostesses who used to work for the Belgian airline Sabena brought proceedings in which they objected to the obligation to make retroactive contributions at a high financial cost for the period before 1 January 1981, arguing that such an obligation amounted to continuing discrimination against air hostesses by comparison with male air crew in respect of the method of calculating pension contributions for the years prior to 1981. In a reference for a preliminary ruling the Cour de travail of Brussels asked a number of questions concerning the validity of (i) the adjustment contributions and (ii) the interest for late payment. The Court, following the approach it had taken in cases involving occupational pensions,156 found that a Member State could require persons of a particular sex, originally discriminated against, who wished to become eligible for a pension scheme applicable to persons of the opposite sex to pay the difference between the contributions paid by them and the higher contributions of the other category of persons during the same period; however, the method of adjustment chosen should not make the payment of retroactive contributions impossible or excessively difficult in practice. Moreover, in order to prevent any reverse discrimination and to ensure that each category of persons was in the same financial situation, the adjustment contributions could be increased by an amount intended to compensate for inflation. In that way the contributions paid by both groups would be the same in real terms. However the Court went on to find that the requirement in the scheme in issue to pay the adjusted contributions in one lump sum and the annual interest rate of 10 per cent were excessively onerous: [T]he single payment of such a sum may be impossible, or else require a loan from a financial organization which will in turn demand the payment of interest ...In the light of the facts set out above, it must be held that the obligation imposed on the interested parties to make the adjustment payments in a single payment has made the adjustment of the air hostesses’ pension rights excessively difficult.157

155

Case 80/70 Defrenne v Belgium [1971] ECR 445. Case C-128/93 Fisscher [1994 ECR I-4583; Case C-435/93 Dietz [1996] ECR I-5223; Case C-78/98 Preston and Others [2000] ECR I-3201. See discussion in ch 5. 157 [2007] ECR I-5149, at paras 29–31. 156

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With respect to the annual interest rate of 10 per cent, the Court noted that both the Commission and the Italian Government in the course of the proceedings had stated that the rate was excessively high and the Belgian authorities had been unable to explain why the interest rate exceeded the rate of inflation. The Court held: In any event, it is common ground that the effect of setting an interest rate which exceeds that necessary to compensate for inflation is that the contributions paid by the new members are in real terms higher than those paid by the workers who have been members since the pension scheme was established. Therefore, far from putting the air hostesses in the same position as the stewards, the interest rate has allowed the unequal treatment of air hostesses to continue.158

The principle therefore is that any scheme which is designed to rectify past discriminatory practices and to achieve conformity with the directive must be effective in the sense that it must itself respect the principle of equal treatment and at the same time ensure that it is accessible to those who have been wronged in the past. Article 8(2) of the directive required the Member States to communicate to the Commission the text of laws, regulations, and administrative provisions adopted by them in the field covered by the directive. This procedure played a significant part in the Court’s refusal in R v Secretary of State for Health, ex parte Richardson159 to impose a temporal limitation on the effect of its ruling160 that the national system of exemption from prescription charges fell within the scope of the Directive: First ...the United Kingdom was not unaware that an exemption from prescription charges fell within the scope of Directive 79/7 as defined in Article 3(1). In a letter of 11 June 1985 it had in fact informed the Commission, pursuant to Article 8(2) ..., that it was relying on Article 7(1)(a)161 in order to maintain the difference in treatment between men and women in relation to prescription charges, the implication being that the exemption fell within the scope of the Directive. Secondly, the mere fact that the Commission did not respond to that information could not reasonably have caused the United Kingdom to believe that that difference of treatment was excluded from the scope of Directive 79/7 pursuant to Article 7(1)(a). The Directive contains no specific provision obliging the Commission to approve or disapprove measures communicated to it pursuant to Article 8(2). Moreover, in performing its general task of acting as the guardian of the Treaties, the Commission has discretion in assessing the expediency of initiating the procedure [for prosecuting Member States] laid down in Article 169162 of the Treaty.163

158

159 [2007] ECR I-5149, at para 33. Case C-137/94 [1995] ECR I-3407. 161 For discussion of prospective direct effect, see ch 5. Discussed at p 482 et seq. 162 Today TFEU, Art 258. 163 [1995] ECR I-3407, at 3434–5. See also Elmer AG in Case C-228/94 Atkins [1996] ECR I-3633; he submitted that ‘there may well be more scope for restricting the temporal effects of a judgment than there has hitherto appeared in the case law of the Court in cases where the judgment would otherwise involve considerable administrative consequences or an enormous strain on the national court system’ (at 3655). 160

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Article 9 required the Member States, within seven years of notification, to forward all information necessary to the Commission to enable it to draw up a report on the application of the directive for submission to the Council and to propose such further measures as might be required for the implementation of the principle of equal treatment.164

Exceptions to the Social Security Directive The Social Security Directive contains a number of important exceptions.As discussed at p 443, Article 3(3) excepts occupational schemes and foreshadows later legislation in this area, which has now taken the form of the Occupational Social Security Directive165 and indeed the judgment in Barber v Royal Guardian Exchange.166 Article 3(2) excepts survivors’ benefits: This Directive shall not apply to the provisions concerning survivors’ benefits nor to those concerning family benefits, except in the case of family benefits granted by way of increases of benefits due in respect of the risks referred to in [Article 3(1)(a)].167

As seen in chapter 5, the Occupational Social Security Directive used to contain a similar exception which, following the judgment in Barber, fell foul of Article 157 of the TFEU. However, there is little chance of such an exception being condemned in the context of the Social Security Directive because of the Defrenne judgment in which the CJEU drew a clear distinction between pay for the purposes of Article 157 of the TFEU and social security schemes.168 In Steenhorst-Neerings,169 one of the questions referred to the CJEU concerned the legality of a national rule which provided that women forfeited incapacity benefit on being awarded a widow’s pension, but did not make an equivalent provision in relation to men. The Court held that incapacity benefit fell within the scope of Directive 79/7. What was in issue was not equality of title to a survivors’ benefit—a matter which fell outside the scope of the directive—but the conditions of entitlement to incapacity benefit which were different for men and women. It was ‘irrelevant that the withdrawal [of incapacity benefit occurred] as the result of

164 In its subsequent report, the Commission in particular invited the Member States to ensure that their national legislation did not result in the exclusion of part-time workers from the right to social 165 security: (COM (88) 769 final). Directive 86/378, OJ [1986] L225/40, discussed in ch 5. 166 Case C-262/88 [1990] ECR I-1889. 167 The exclusion of these matters from the scope of the directive means that they remain subject to regulation by national and, where relevant, international law; thus, in Case C-337/91 Van Gemert-Derks v Bestuur van de Nieuwe Bedrijfsvereniging [1993] ECR I-5435, the CJEU held that EU law did not prevent a Dutch court from interpreting Art 26 of the International Covenant on Civil and Political Rights of 19 December 1966 (Treaty Series, Vol 999, p 171) as requiring equal treatment for men and women as regards survivors’ benefits. 168 Case 80/70 Defrenne v Belgium [1971] ECR 445. See also Case C-7/93 Bestuur van Het Algemeen 169 Burgerlijk Pensioenfonds v Beune [1994] ECR I-4471. Case C-338/91 [1993] ECR I-5475.

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the award of a benefit, in this case survivors’ benefits, falling outside the scope’ of the directive.170 Article 4(2) of the directive provides: ‘The principle of equal treatment shall be without prejudice to the provisions relating to the protection of women on the grounds of maternity.’ As commented in chapter 5 in relation to the parallel provision in the Occupational Social Security Directive, it is generally assumed that this permits only specially favourable treatment for women having babies, but the period of pregnancy is not specifically included and it is not clear just how far the exception extends. Article 7 is exclusively devoted to derogations to the Social Security Directive.171 The Member States are allowed to exclude certain matters from the principle of equal treatment.These derogations, in general, concern advantages given to women but denied to men in the same circumstances. The Preamble to the directive does not reveal the reasoning underlying the derogations set out in Article 7(1) but the CJEU has held that, from the nature of the exceptions specified therein, it can be inferred that the Union legislature intended to allow Member States to retain temporarily the advantages accorded to women in retirement and old age retirement schemes in order to enable the adaptation of their pension schemes to comply with the principle of equal treatment without disrupting the financial equilibrium of those schemes.172 Important also is the necessity to preserve coherence in retirement benefit schemes. Incoherence could arise, for example, through the unjust enrichment of beneficiaries of one sex; alternatively, the elimination of one form of discrimination might lead to other types of differential, and possibly worse, consequences. The first and most significant derogation that it lists is that in paragraph (l)(a): ‘the determination of pensionable age for the purposes of granting old age and retirement pensions and the possible consequences thereof for other benefits’. This derogation, another result of political compromise,173 was included in the directive in deference to the differential state pension ages then to be found in the Member 170 Case C-338/91 [1993] ECR I-5475, at 5505. See also Case C-337/91 Van Gemert-Derks [1993] ECR I-5435. 171 In Joined Cases C-245 & 312/94 Hoever v Land Nordrhein-Westfalen [1996] ECR I-4895, Jacobs AG asserted that Case 151/84 Roberts v Tate & Lyle Ltd [1986] ECR 703, Case 152/84 Marshall v Southampton and South-West Hants Area Health Authority [1986] ECR 723, and Case 262/84 Beets-Proper v Van Lanshot Bankiers [1986] ECR 773 provided authority that ‘Article 7 of Directive 79/7, being a derogation from a fundamental principle of Community law ..., calls for a strict construction’ (at 4915). See also the submissions of Van Gerven AG in Case C-9/91 R v Secretary of State for Social Security, ex parte EOC [1992] ECR I-4297 (but contrast the actual outcome in that case, discussed at p 483 et seq.);Van Gerven AG additionally commented that he was assuming the legality of Art 7 ‘even though it permits the Member States to maintain provisions which are contrary to the principle of equal treatment for men and women, which has been recognized by the Court as fundamental’. He added that ‘[n]either the national court nor the parties nor the Commission have raised the question of the validity of that provision. Moreover, the Court has already repeatedly ruled on it without questioning its validity’ (at 4324). 172 Case C-9/01 Ex parte Equal Opportunities Commission [1992] ECR I-4297, at para 15; Case C-423/04 Richards [2006] ECR I-3585, at para 35. 173 Its second limb was proposed by the UK.

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States. Its original rationale is, however, diminished today, since all but four174 of the Member States either now have the same pension age for the two sexes, or else have begun the process leading to such equalization. The UK introduced differential pension ages in 1940. Before that date, the age for both sexes had been 65. One of the reasons given in 1940 for making the change was to enable a married couple to retire at the same time (it being assumed that husbands were normally slightly older than their wives); husbands also at that time were not able to claim an increased pension for their dependent wives. In 1993 the UK Government announced that it intended to equalize the state pension age.This change was brought about by the Pensions Act 2011; women’s pension age rises to 65 by November 2018 and the state pension age for both men and women rises to 66 in October 2020. The first element of the exception for pensionable age—the determination of pensionable age for the purposes of granting old-age and retirement pensions— was in issue in Haackert v Pensionsversicherungsanstalt der Angestellten.175 The CJEU was confronted there with a scheme granting an early old-age pension which was dependent on the claimant having been unemployed for a prescribed period and in receipt of unemployment benefit. It held that such a benefit could not constitute an old-age pension within the meaning of Article 7(1)(a), since that Article is a derogation from the fundamental principle of equality and must therefore be interpreted strictly. The same provision was in issue in Marshall v Southampton and South-West Hants Area Health Authority.176 As discussed in more detail in chapter 6, the CJEU apparently experienced a change of heart in Marshall from its opinion in Burton v British Railways Board,177 and it held that the exception was confined to the age at which entitlement to pensions begins and must not be extended to other matters (notably dismissal) which are regulated by the Equal Treatment Directive. Roberts v Tate & Lyle Ltd,178 however, showed that this distinction was virtually impossible to operate in practice and in Barber v Guardian Royal Exchange Assurance Group179 the CJEU apparently abandoned it, holding that there must be no discrimination in relation to age in occupational pension schemes. In truth, the potential for intractable problems in this area will remain until such time as EU law and the national legal systems all simply prohibit outright differential state pension ages. The question has also arisen as to whether the exception extends to the arrangements surrounding the granting of old-age pensions. Under the old UK system currently being phased out, in order to qualify for a full state old-age pension men 174 The Commission’s White Paper, ‘An Agenda for Adequate, Safe and Sustainable Pensions’ COM (2012) 55 final, published on 16 February 2012, set out the position in 2009, (see para 3.1.4 and Annex 3). At that time 13 Member States had lower pensionable ages for women than men. By 2020, 18 Member States will have equalized pensionable ages. Five Member States have plans beyond 2020 to equalize pension ages and only four of the 27 Member States have no legislation in place to equalize 175 pension ages. Case C-303/02 [2004] ECR I-2195. 176 177 Case 152/84 [1986] ECR 723. Case 19/81 [1982] ECR 555. 178 179 Case 151/84 [1986] ECR 703. Case C-262/88 [1990] ECR I-1889.

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must have paid national insurance contributions for at least 44 years of their working life, whereas for women the requirement was only 39 years. In addition, after the age of 60, a woman could not make any further national insurance contributions, whereas a man working between the ages of 60 and 64 was required to pay national insurance contributions even if he had already made 44 years of contributions. The Equal Opportunities Commission, believing these arrangements to discriminate contrary to the Social Security Directive, and not to be saved by Article 7(1)(a), brought judicial review proceedings against the Government. Both Van Gerven AG and the Court analysed the problem as being whether the exception merely allows men and women to be treated unequally with respect to the moment at which they become entitled to a pension, or whether it also covers other consequences flowing from differential pensionable ages. Upholding the latter interpretation, the Court confirmed the legality of the UK system: The [Directive] does not . . . refer expressly to discrimination in respect of the extent of the obligation to contribute for the purposes of the pension or the amount thereof. Such forms of discrimination therefore fall within the scope of the derogation only if they are found to be necessary in order to achieve the objectives which the Directive is intended to pursue by allowing Member States to retain a different pensionable age for men and women . . . In a system such as the one concerned in the main proceedings, whose financial equilibrium is based on men contributing for a longer period than women, a different pensionable age for men and women cannot be maintained without altering the existing financial equilibrium, unless such inequality with respect to the length of contribution periods is maintained. Consequently, any interpretation of Article 7(1) ...whose effect would be to restrict the scope of the derogations provided for in subparagraph (a) to that of allowing Member States to provide that men and women do not become entitled to a pension at the same time and to exclude discrimination with respect to contribution periods would lead to the financial disequilibrium of the pension schemes.180

On the other hand, Van Cant v Rijksdienst voor Pensioenen181 demonstrated that, once pensionable ages have been equalized, there is no longer scope for differences between the sexes over the calculation of the amount of pension benefits. Belgian law had seemingly equalized pension age, but had retained the former system of calculating the amount of pension receivable which took as its annual basis one forty-fifth of salary for men but one fortieth for women. The CJEU condemned this situation, holding that: Articles 4(1) and 7(1) of Directive 79/7 preclude national legislation which authorises male and female workers to take retirement as from an identical age from retaining in the method 180 Case C-9/91 Ex parte EOC [1992] ECR I-4297, at 4337–8. Hervey has argued that this judgment represents an unjustifiably broad construction of the derogation permitted by Art 7(1)(a): see (1993) 30 CMLRev 653. 181 Case C-154/92 [1993] ECR I-3811, noted by De Vos in ‘Pensionable Age and Equal Treatment from Charybdis to Scylla’ (1994) 23 ILJ 175.

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of calculating the pension a difference according to sex which is itself linked to the difference in pensionable age which previously existed.182

The second limb of the exception—the possible consequences of differential pensionable age for other benefits—is also fraught with difficulties. How far does this limb extend? It was seen in chapters 5 and 6 that the CJEU in Barber v Guardian Royal Exchange Assurance Group183 held that occupational pensions may not discriminate between the sexes on the basis of age (despite the attempt to create such an exception in the Occupational Social Security Directive). The remarks of the CJEU in Marshall v Southampton and South-West Hants Area Health Authority184 and Roberts v Tate & Lyle Ltd185 also showed that the Court now regards the exception for pensionable age contained in the Social Security Directive as confined exclusively to the field of social security benefits and as no longer being able to excuse any type of private discriminatory financial provision.186 For example, in Marshall, it commented: ‘It must be emphasized that ...the exception contained in Article 7 of Council Directive 79/7/EEC concerns the consequences which pensionable age has for social security benefits’.187 However, even on this limited basis, the question remains of how ‘consequences’ should be defined and what sort of benefits the exception might still embrace. Does the exception, for example, permit the abatement of other social security benefits as pensionable age approaches, or is it confined to the age at which other benefits are actually payable? Several questions of this type were helpfully discussed by the UK Social Security Commissioner, Mr Monroe, in Re Severe Disablement Allowance.188 He had been referred to a decision of a Tribunal of Commissioners in which a male claimant had tried to establish that a statutory provision then in operation, under which a person who had attained the age of 60 was liable to have unemployment benefit restricted if he or she received an occupational pension, discriminated against men.There was no similar rule in relation to women over the age of 55, so that there was no issue as to direct discrimination. However, it was argued that the rule was indirectly discriminatory, because in fact it applied to many more men than women because of women’s pensionable age being 60. It was held that the situation was excepted from the directive because it was clearly a consequence of the difference in pensionable age, and with this conclusion Mr Monroe agreed, saying that the same conclusion was bound to be reached even on the narrowest interpretation of Article 7(1)(a). Similarly, he took the case of a woman who had attained pensionable age and was 182 Case C-154/92 [1993] ECR I-3811, at 3834. For an account of the background to this case, see Clotuche’s ‘Comment’, in McCrudden (ed), Equality of Treatment Between Women and Men in Social Security (Butterworths, London, 1994). The practical difficulties inherent in attempted transition to a uniform pensionable age for both sexes were also manifested in Case C-377/96 De Vriendt v Rijksdienst voor Pensioenen [1998] ECR I-2105 and in Case C-l 54/96 Wolfs v Office Nation des Pensions [1998] ECR I-6173; in both cases, the CJEU held that, if pensionable ages had not yet been equalized, discrimination 183 in the method of calculating pensions was permitted. Case C-262/88 [1990] ECR I-1889. 184 185 Case 152/84 [1986] ECR 723. Case 151/84 [1986] ECR 703. 186 Cf Case 19/81 Burton v British Railways Board [1982] ECR 555. 187 188 [1986] ECR 723, at 746, emphasis added. [1989] 3 CMLR 379.

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actually receiving her retirement pension, who was precluded by the Overlapping Benefit Regulations from also receiving a severe disablement allowance. A man below pensionable age would not be so precluded, but there was nevertheless, according to Mr Monroe, a sufficient link in these circumstances between the benefit rules and the differential pensionable ages for the exception to apply. But he went on to point out that: A more difficult question arises when there is a provision that the right to a benefit comes to an end at pensionable age as happened with mobility allowance when it was first introduced by section 22 of the Social Security Pensions Act 1975 . . . subsection (4)(a) being material on the present point. Again the rate of some benefits may change at pensionable age (as happens under section 14 subsection 2 of the 1975 Act in relation to sickness, invalidity and unemployment benefits) and can disappear altogether five years later. I should be disposed to think that these provisions fell to be associated with the fact that the beneficiary having reached pensionable age fell to be treated as sufficiently provided for by whatever provision he had made for pension and could not expect to look beyond that; and that accordingly these too were possible consequences for other benefits of the differential . . . pensionable ages.189

On the facts of Re Severe Disablement Allowance itself, the claimant had reached pensionable age (60) in 1983. She had continued to work after this date, but had ceased work on becoming disabled. She applied for a severe disablement allowance in 1986, but was refused it because she had already attained pensionable age and had not been entitled to the allowance immediately before she reached that age (as stipulated by s 36(4)(d) of the Social Security Act 1975). If she had been a man, she would not already have reached pensionable age and so could have claimed the allowance. Mr Monroe held that the intention behind the statutory provision was to permit those whose incapacity set in before ‘the infirmities of age’ begin to assume significance to continue to receive the allowance, whereas those whose incapacity does not set in until an age when the infirmities of age assume significance shall never be entitled to it. For this purpose, pensionable age was selected by the legislature as the critical time, but for a purpose unconnected with title to the pension itself. He therefore held that the differentiation between the sexes in relation to severe disablement allowance was not a consequence of the difference in pensionable age: ‘[i]t is rather the consequence of a differential view being taken of the setting in of infirmity in the two sexes’. The claimant was therefore entitled to be treated in the same way as if she were a man, in other words, to be able to claim the allowance provided only that her disablement set in before she reached the age of 65. As a matter of general principle, Mr Monroe commented: [I]t is not sufficient to escape the Directive simply to gear a different benefit to the differential pension ages if the resulting differentiation between sexes in that benefit cannot be

189 [1989] 3 CMLR 379, at 386. There appears to be an error in the last paragraph of this quotation, as printed in the Common Market Law Reports, which we have attempted to correct.

Exceptions to the Social Security Directive

487

shown to have some objective link with pensionable age. If it were it would make it all too easy to evade the provisions of the Directive.190

On appeal, the case was consolidated with several others on similar facts, and in particular with three involving invalid care allowances (awarded to those caring for a severely disabled person), which were also excluded by UK legislation where the carer had reached pensionable age, unless he or she was entitled to the allowance immediately before reaching pensionable age.191 The House of Lords referred a number of questions to the CJEU on the ambit of Article 7(1)(a).192 The Court took a strict view of the scope of the defence, saying: [F]orms of discrimination provided for in benefit schemes other than old-age and retirement pension schemes can be justified, as being the consequence of determining a different retirement age according to sex, only if such discrimination is objectively necessary in order to avoid disrupting the complex financial equilibrium of the social security system or to ensure consistency between retirement pension schemes and other benefit schemes.193

It justified an excursion into the facts of the case on the basis of its role being to furnish the national court with worthwhile answers, and added: As regards the requirement of preserving financial equilibrium as between the old-age pension scheme and the other benefit schemes, it should be noted that the grant of benefits under non-contributory schemes, such as severe disablement allowance and invalid care allowance, to persons in respect of whom certain risks have materialised, regardless of the entitlement of such persons to an old-age pension by virtue of contribution periods completed by them, has no direct influence on the financial equilibrium of contributory pension schemes.194 Furthermore ...discrimination between men and women under non-contributory schemes, such as that of the severe disablement allowance and the invalid care allowance, is unnecessary to preserve the financial equilibrium of the entire social security system, particularly since the national rules contain provisions to prevent overlapping between benefits such as severe disablement allowance or invalid care allowance and the old-age pension and, in fact, the grant of those benefits takes the place of benefits paid under other noncontributory schemes, such as benefits paid to people who have insufficient resources to support themselves.195

The CJEU also made short shrift of the UK Government’s reliance on statistics relating to male and female working and retirement patterns in its attempt to justify differential treatment of the two sexes. The Court referred to its holding in Marshall v Southampton and South-West Hants Area Health Authority,196 that women

190

[1989] 3 CMLR 379, at 384. Sub nom Thomas v Adjudication Officer and the Secretary of State for Social Security. 192 Case C-328/91 Secretary of State for Social Security v Thomas [1993] ECR I-1247. 193 Case C-328/91 [1993] ECR I-1247, at 1273, emphasis added. 194 See also Case C-382/98 R v Secretary of State for Social Security, ex parte Taylor [1999] ECR 195 I-8955. [1993] ECR I-1247, at 1273. 196 Case 152/84 [1986] ECR 723. 191

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Equality in social security

are entitled to go on working beyond the qualifying age for an old-age pension, and held: As to the United Kingdom’s argument that the vast majority of women receive an old-age pension once they have attained the age of 60, suffice it to say that the grant of benefits such as severe disablement allowance or invalid care allowance constitutes, for women who are not yet in receipt of old-age pension despite their having attained the normal retirement age, an individual right which cannot be denied them on the ground that, statistically, their situation is exceptional by comparison with that of most women.197

It is clear from Thomas that the Court regards as extremely important the coherence between a Member State’s retirement benefits scheme and its other social security benefits. This was further evidenced in Secretary of State for Social Security v Graham,198 which concerned discrimination in relation to entitlement to invalidity pensions in the UK. The invalidity pension was a benefit designed to be replaced by the old-age pension. To be more specific, women receiving invalidity pension after the female state pensionable age of 60 had the rate of their pension reduced to what they would have been entitled to by way of retirement pension, whereas for men this did not occur until they reached the male pensionable age of 65. The CJEU reiterated its holding in Thomas that Article 7(1)(a) justifies only discrimination which is necessarily and objectively linked to the difference in pensionable age between men and women. However, notwithstanding that invalidity benefits were contributory (unlike the benefits involved in Thomas), it went on to find that Article 7(1)(a) excused the discrimination on these facts: As regards the forms of discrimination at issue in the main proceedings, the Court finds that they are objectively linked to the setting of different pensionable ages for women and men, inasmuch as they arise directly from the fact that that age is fixed at 60 for women and 65 for men. As to the question whether the forms of discrimination are also necessarily linked to the difference in pensionable age for men and women, it should be noted, first, that since invalidity benefit is designed to replace income from occupational activity, there is nothing to prevent a Member State from providing for its cessation and replacement by a retirement pension at the time when the recipients would in any case stop working because they have reached pensionable age.199 Further, to prohibit a Member State which has set different pensionable ages from limiting, in the case of persons becoming incapacitated for work before reaching pensionable age, the rate of invalidity benefit payable to them from that age to the actual rate of the retirement pension to which they are entitled under the retirement pension scheme would mean restricting to that extent the very right which a Member State has under Article 7(1)(a) of Directive 79/7 to set different pensionable ages.200 197

198 [1993] ECR 1247, at 1274. Case C-92/94 [1995] ECR I-2521. Cf the Court’s insistence in Case 152/84 Marshall [1986] ECR 723 that retirement age and pensionable age are not necessarily to be equated with one another. 200 [1995] ECR I-2521, at 2553–4. As Cousins comments in ‘Free Movement of Workers and Social Security: Two Steps Forward, One Step Back’ (1996) 21 ELRev 233, ‘this statement simply begs the question as to whether or not such a restriction is allowed under Community law’. 199

Exceptions to the Social Security Directive

489

The Court went on to explain that: Such a prohibition would also undermine the coherence between the retirement pension scheme and the invalidity benefit scheme in at least two respects. First, the Member State in question would be prevented from granting to men who become incapacitated for work before reaching pensionable age invalidity benefits greater than the retirement pensions which would actually have been payable to them if they had continued to work until reaching pensionable age unless it granted to women over pensionable age retirement pensions greater than those actually payable to them. Second, if women did not have their invalidity pension reduced to the level of their retirement pension until they reached the age of 65, as in the case of men, women aged between 60 and 65, thus over pensionable age, would receive an invalidity pension at the rate of a full retirement pension if their incapacity for work commenced before they reached pensionable age and a retirement pension corresponding to the rate actually payable if it did not.201

Later cases have adhered to the principles that discrimination will be excused by Article 7(1)(a) only where it is objectively and necessarily linked to the difference in pensionable age, and that this link will be present only where the discrimination is necessary to preserve the financial equilibrium of the social security system or to preserve its coherence. For example, in Haackert v PensionsVersicherungsanstalt der Angestellten,202 an early old-age pension was provided under Austrian legislation three and a half years before normal pensionable age to both men and women on proof of a prescribed period of unemployment. The CJEU held that this differentiation between the sexes was not necessary to preserve the financial equilibrium of the social security system because the scheme in question accounted for only 1.2 per cent of old-age and early old-age pensions paid in Austria. However, it could be excused on the ground of coherence of the system: [T]he retirement age fixed for the benefit in issue ...and the normal retirement age are objectively linked, not only because the old-age pension is substituted for the early oldage pension on account of unemployment where the persons concerned attain the normal retirement age, but also because the age at which that benefit may be claimed is the same for men as for women ...203 In addition,...the system of early old-age pension on account of unemployment ...is designed to establish an early entitlement to old-age pension where, for reasons connected with age, illness or reduced working capacity, or for other reasons, it is no longer possible, save at the cost of certain difficulties, for the insured person to find a job during a certain period. That benefit is therefore designed to assure an income to a person who is no longer capable of being reintegrated into the employment market before attaining the age entitling him or her to an old-age pension.204

201

202 [1995] ECR I-2521, at 2554–5. Case C-303/02 [2004] ECR I-2195. Cf Case C-104/98 Büchner v Sozialversicherungsanstalt der Bauern [2000] ECR I-3625, which the Court distinguished on the basis that the benefit involved there was provided to women five years before normal retirement age and to men eight years before normal retirement age. 204 Case C-303/02 [2002] ECR I-2195, at paras 34–6. 203

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Equality in social security

By contrast, in R v Secretary of State for Health, ex parte Richardson,205 the UK’s dispensation from the requirement to pay prescription charges, which applied from the two different pensionable ages, was not permissible. Just as in Thomas, removal of the discrimination would not affect the financial equilibrium of either the pension scheme or of the social security system as a whole. Neither was it necessary to discriminate in order to ensure coherence of the system. The Court concluded that: Although the fact that the elderly will generally incur more prescription charges than younger people at a time when they will normally have less disposable income may provide some justification for exempting them from prescription charges above a certain age, that consideration does not require this benefit to be granted at statutory pensionable age and therefore at different ages for men and women.206

Similarly, in Atkins v Wrekin District Council,207 Elmer AG considered that Article 7(1)(a) did not excuse the provision of concessionary fares on public transport at different pensionable ages. He pointed out that: An interpretation according to which a benefit such as that operated by Wrekin District Council was regarded as covered by Article 7(1)(a) would, in my view, lead to every benefit protecting against old age being covered by that derogating provision. The Member State would merely have to make the benefit conditional on the recipient’s having reached pensionable age. Such a legal position would, however, be hard to reconcile with the fact that the risk of old age is expressly covered by the Directive and must accordingly be intended to have a real content. It should, therefore, be an exception and not the rule that benefits for the elderly which are not in the nature of an old-age pension should be regarded as covered by Article 7(1)(a).208

However, the discrimination encountered in Balestra v INPS209 was held to fall within the derogation contained in Article 7(l)(a). It stemmed from Italian legislation which credited pension contributions to persons employed by undertakings facing ‘critical difficulties’ where those persons took early retirement five years or less from state pensionable age. State pensionable age in Italy at the relevant date was 60 for men and 55 for women, but women were permitted to continue working if they so chose until the age of 60. The plaintiff in this action was aged 54 years, seven months when her employer was declared to be in critical difficulty; she was accordingly credited with five months’ contributions, but claimed that she should have been credited with a full five years’ contributions. The discrimination 205

Case C-137/94 [1995] ECR I-3407. Case C-137/94 [1995] ECR I-3407, at 3432. Likewise, in Case C-382/98 Ex parte Taylor [1999] ECR I-3407, the CJEU ruled that if, as it had held, a State winter fuel payment was designed to protect against the risk of old age, it did not follow that the age triggering payment should necessarily coincide with the state pension age and therefore be different for men and women in the UK. 207 Case C-228/94 [1996] ECR I-3633, also discussed at p 456 et seq. 208 Case C-228/94 [1996] ECR I-3633, at 3653. The Court itself had no need to deal with this issue since (as discussed at p 456) it held that the benefit in question was not within the scope ratione materiae 209 of the directive. Case C-139/95 [1997] ECR I-549. 206

Exceptions to the Social Security Directive

491

alleged arose in that a woman retiring at 55 was not credited with any contributions, whereas a man of the same age and who had the same contribution record would be credited with a further five years’ worth of contributions; thus, a woman aged 55 would actually have to work for five years longer than her male colleague in order to achieve the same ultimate pension as he received.The CJEU found that this discrimination was indeed objectively linked to the difference in pensionable ages between the two sexes because it ensued directly from it. As to whether or not it was necessary, the Court held: If women taking early retirement at an age between 50 and 55 were credited with five years’ contributions, without account being taken of the ordinary retirement age, the closer their entry into early retirement was to the ordinary pensionable age, the clearer it would become that those women were receiving a definitive pension higher than that of women who had paid contributions until they reached the age of 55 and then retired, without being able to claim a credit of contributions. Second, such a scheme is also liable to give rise to discrimination against men. Whereas a man taking early retirement at an age between 55 and 60 is only entitled to a credit of contributions covering the period from the date on which he takes early retirement until he reaches the ordinary pensionable age, a woman who also takes early retirement during the five years prior to the date on which she qualifies for a retirement pension would, as a matter of course, be entitled to a credit of five years’ contributions. Consequently, even though women are entitled to work until they reach the age of 60, denying them a credit of contributions in respect of the period after the date on which they reach the age of 55, the age at which they are entitled to a retirement pension, is necessary in order to preserve the coherence between the retirement-pensions scheme and the earlyretirement scheme in question.210

Hepple v Adjudication Officer211 made the, at first sight surprising, point that the Article 7(1)(a) defence can in some circumstances be relied upon even where a Member State has introduced new discriminatory measures after the expiry of the period for implementation of the directive. The case concerned the payment of a reduced earnings allowance (REA) in the UK, a benefit payable to people suffering a reduction in earnings following an accident at work or occupational disease, and intended to compensate for consequential reduced earning capacity. From 1986 (two years after the Social Security Directive should have been implemented), a number of legislative amendments were made to REA, in particular limiting its payment to those of normal working age. In addition, a new retirement allowance (RA) was introduced to replace REA for those who had reached pensionable age and had ceased regular employment. Five recipients of the benefit claimed that the amount of allowance they received after reaching retirement age, whether REA or RA, was lower than that receivable by a member of the opposite sex in comparable circumstances. The CJEU held that the temporary maintenance of different retirement ages for men and women (as in the UK): 210

Case C-139/95 [1997] ECR I-549, at 581–2.

211

Case C-196/98 [2000] ECR I-3701.

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Equality in social security

may necessitate the subsequent adoption, after expiry of the period prescribed for transposition of the Directive, of measures indissociable from that derogation and also amendments to such measures. To prohibit a Member State which has set different retirement ages for men and women from adopting or subsequently amending, after expiry of the period prescribed for transposition of the Directive, measures linked to that age difference would be tantamount to depriving the derogation for which Article 7(1)(a) of the Directive provides of its practical effect.212

The CJEU concluded: As regards ...coherence between the retirement pension scheme and other benefit schemes, it must be considered whether it is objectively necessary for different age conditions based on sex to apply to the benefit at issue in this case. In that respect, the principal aim of the successive legislative amendments ...was to discontinue payment of REA ...to persons no longer of working age by imposing conditions based on the statutory retirement age. Thus, as a result of those legislative amendments, there is coherence between REA, which is designed to compensate for a decrease in earnings, and the old-age pension scheme. It follows that maintenance of the rules at issue ...is objectively necessary to preserve such coherence.213

It is worth contrasting Hepple v Adjudication Officer with the position in Test-Achats v Conseil des Ministres,214 discussed in further detail in chapters 5 and 8. In issue in that case, it will be recalled, was the validity of Article 5(2) of the Goods and Services Directive which provided that Member States could decide before 21 December 2007, the date on which the directive was required to be transposed into national law, to permit proportionate differences in individuals’ premiums and benefits where the use of sex was a determining factor in the assessment of risk. Such differential treatment had to be justified on the basis of relevant and accurate actuarial and statistical data. This provision would seem to exclude any possibility of such differences being allowed after 21 December 2007.215

212 Case C-196/98 [2000] ECR I-3701, at 3737. But note the more stringent test for the compatibility of the Member State’s measures with the principle of equality which was proposed by Saggio AG. 213 Case C-196/98 [2000] ECR I-3701, at 3739. Cf Case C-104/98 Buchner v Sozialversicherungsanstalt der Bauern [2000] ECR I-3625 in which the CJEU rejected as incompatible with Art 7(1)(a) a difference in eligibility to an incapacity benefit which was based on sex, notwithstanding different pensionable ages for men and women in the Member State concerned; the difference, which had been newly introduced after the period for transposition of the directive had expired, was not the consequence of the different pensionable ages for men and women, but rather of a desire to save costs. 214 Case C-236/09 [2011] ECR I-000. 215 In Case C-196/98 Hepple [2000] ECR I-3703 by contrast there was no temporal limit put on the right to invoke the derogation provided for in Art 7(1) of the Social Security Directive. Reading the two cases together it would seem that derogations from the principle of equal treatment may be invoked at any time even after the date of implementation of the directive into national law has passed, if the directive itself does not specify otherwise.

Exceptions to the Social Security Directive

493

The remainder of Article 7(1) permits Member States to exclude a number of other matters, in relation in particular to wives, from the scope of the directive. It itemizes: ... (b) advantages in respect of old-age pension schemes granted to persons who have brought up children: the acquisition of benefit entitlements following periods of interruption of employment due to the bringing up of children; (c) the granting of old age or invalidity benefit entitlements by virtue of the derived entitlements of a wife;216 (d) the granting of increases of long-term invalidity, old age, accidents at work and occupational disease benefits for a dependent wife; (e) the consequences of the exercise, before the adoption of this Directive, of a right of option not to acquire rights or incur obligations under a statutory scheme.

Bramhill v Chief Adjudication Officer217 demonstrated the considerable potential of, in particular, Article 7(1)(d) to preserve discrimination. UK legislation used formerly to provide for increases in long-term old-age benefits in respect of a dependent spouse to be granted only to men. However, legislation enacted in 1984 extended this right to women, but only on condition that immediately before payment of the retirement pension the claimant was entitled to an increase in unemployment benefit, sickness benefit, or invalidity pension in respect of an adult dependant. From 1984 onwards, therefore, the increases applied to all men with dependent spouses but only to certain women with dependent spouses. The claimant relied on the wording of two provisions contained in the directive: first, Article 4(1), which, as seen above, lays down the general principle that all discrimination on grounds of sex is prohibited as regards the calculation of benefits, including increases due in respect of a ‘spouse’ and for dependants; and, secondly, she observed that Article 7(1)(d) excludes discrimination only as regards benefits for a dependent ‘wife’. The CJEU nevertheless held that the discrimination involved here was excusable. After noting that the directive states its purpose to be the progressive implementation of the principle of equal treatment in social security, it held: To interpret the Directive in the way contended for by Mrs Bramhill, which would mean that in the case of benefits which a Member State has excluded from the scope of the Directive pursuant to Article 7(1)(d) it could no longer rely on the derogation provided for by that provision if it adopted a measure which, like that in question in the main proceedings, has the effect of reducing the effect of unequal treatment based on sex, would therefore be incompatible with the purpose of the Directive and would be likely to jeopardise the implementation of the aforesaid principle of equal treatment.218

216 For an application of this exception, see Case C-165/91 Van Munster v Rijksdienst voor Pensioenen 217 [1994] ECR I-4661. Case C-420/92 [1994] ECR I-3191. 218 Case C-420/92 [1994] ECR I-3191, at 3211, emphasis added.

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Equality in social security

The desire of the Court not to penalize a Member State which has gone some way towards providing equal treatment for men and women was particularly evident here.219 The relevant UK legislation patently contravened the general principle of sex equality and was not itself saved by Article 7(l)(d), because that permits discrimination only as regards long-term benefits for dependent wives; the 1984 legislation was outwith the terms of the exception because it discriminated as regards longterm benefits for some husbands. The Member States are required periodically to examine the matters excluded under Article 7(1) in order to ascertain, in the light of relevant social developments, whether there is justification for continuing to maintain the exclusions concerned.220 They must also communicate to the Commission the text of any measures they adopt pursuant to this obligation, and must inform the Commission of their reasons for maintaining exclusions under Article 7(1) and of the possibilities for reviewing them at a later date.221

219 The Court might alternatively have held that the enactment of the directive deprived the Member States henceforth of the power to enact further social security legislation which was sexually discriminatory and thus in breach of its terms, an argument considered by Saggio AG in Case C-196/98 Hepple [2000] ECR 3701. See also the submissions of Mancini AG in Case 30/85 Teuling v Bedrijfsvereniging voor de Chemische Industrie [1987] ECR 2497 and Case C-129/96 Inter-Environnement Wallonie ASBL v Region Wallonne [1997] ECR I-7411, both discussed in ch 2. 220 Art 7(2) of the directive. 221 Art 8(2) of the directive.

11 Conclusions

The utility of the present law (i) The achievements of the CJEU This work is concerned with discrimination between EU citizens in the social and employment spheres on a number of specific grounds articulated in the TFEU, its predecessors and the legislation implementing those Treaty provisions.The grounds in question are sex, racial or ethnic origins, religion, disability, age, and sexual orientation. Discrimination on the grounds of nationality has not been discussed for the reasons set out in chapter 1. The discriminatory treatment of part-time and fixed term workers is treated in chapters 4 and 6. We have explored the ways in which the EU has tried, since its inception more than half a century ago, to combat discrimination against persons who because of their specific attributes, characteristics, or position in life are treated disadvantageously. The Union’s equality law has developed in three phases, each of which reflects a growing commitment to the principle of equality. The original EEC Treaty contained few provisions dealing with equality. Discrimination on the basis of nationality was prohibited, as was discrimination between economic operators. Article 119 did not appear to contain an outright prohibition on discrimination between men and women in matters of pay and neither did it empower the adoption of legislation to achieve this objective. It simply required Member States to bring about a particular result by 31 December 1961, which they failed to do. In the face of this intransigence, the Social Action Programme of 19741 included amongst its priorities action for the purpose of achieving equality between men and women as regards working conditions including pay. The Equal Pay Directive2 was adopted in February 1975 and came into force some eight weeks before the judgment of the CJEU in Defrenne II 3 which marked the beginning of the Court’s central role in bringing about equality of treatment between men and women and in more recent years in combating discrimination on other grounds.The Equal Treatment and Social Security Directives followed in 19764 and 19785 respectively. The Occupational Social 1 3 5

2 OJ [1974] C13/1. Directive 75/117, [1975] OJ L45/19. 4 Case 43/75 [1976] ECR 455. Directive 76/207, [1976] OJ L39/40. Directive 79/7, [1979] OJ L6/24.

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Conclusions

Security Directive6 was adopted in 1986 in the mistaken belief that the concept of ‘pay’ in the Treaty Article did not extend to occupational social security schemes. Following the Barber case,7 in which the Court confirmed that such schemes were indeed to be classified as ‘pay’, the directive was extensively amended.8 The second phase in the evolution of equality law ran from 1987 to 1997. The EEC Treaty was amended for the first time and not just once but three times. The face of equality law changed both as a result of these amendments, which enhanced the competence of the Union institutions to adopt anti-discriminatory measures, and as a result of the continuing stream of case law emanating from the CJEU. The third phase in the development of equality law runs from the adoption of the Treaty of Amsterdam in 1997 to the present day. It is during this period that the Treaty provisions and legislation with which this second edition is primarily concerned came into being, as did the Charter of Fundamental Rights which was elevated to the status of primary law by the Lisbon Treaty.9 Two of the sex equality directives adopted during the 1970s (equal pay and equal treatment) and the Occupational Social Security Directive have now been repealed and replaced by the Recast Directive of 2004,10 whose provisions are discussed throughout this work but primarily in chapters 4–6 and 9. Likewise the Race Directive11 and the Framework Directive,12 adopted pursuant to Article 13 of the TEC, now Article 19 of the TFEU, are analysed throughout the work but receive particular attention in chapters 6 and 8. The Goods and Services Directive,13 prohibiting discrimination between men and women in the supply of goods and services, was adopted in 2004 and is analysed in chapters 5 and 8. Equality of treatment for the self-employed has proved to be somewhat elusive given the particular nature of the activities involved, which often include working in family businesses and where frequently levels of pay and consequently social security and pension rights are unclear. Another serious issue is maternity rights for selfemployed women. A directive adopted in 198614 proved ineffective in achieving equal treatment, in particular for self-employed women, and was accordingly repealed and replaced in 2010.15 Issues relating to the equal treatment of the self-employed are discussed in chapter 6. These directives all have common characteristics, for example the definitions of the concepts of direct and indirect discrimination and forms of discrimination. They lay down certain common principles and provide for enforcement and supervisory mechanisms. In other respects they differ and this gives rise to a fragmented approach to the principle of equal treatment. Some aspects of discriminatory conduct, for example the rights of pregnant women and women who have recently given birth (discussed in chapter 7) are dealt with under two or more instruments. 6 8 10 12 14

Directive 86/378, [1986] OJ L225/40. Directive 96/97, [1997] OJ L146/20. Directive 2006/54, [2006] L 204/23. Directive 2000/78, [2000] OJ l303/16. Directive 86/613, [1986] OJ L359/56.

7

Case C-262/88 [1990] ECR I-1889. TEU, Art 6(1). 11 Directive 2000/43, [2000] OJ L180/22. 13 Directive 2004/113, [2004] OJ L373/37. 15 Directive 2010/41, [2010] OJ L180/1. 9

Utility of the present law

497

There is no instrument dealing specifically with multi-dimensional or additive discrimination which is grounded in one or more classifications, for example being black and being a woman.16 Further, there appears to be a hierarchy of norms with gender and race discrimination given considerably more protection than discrimination on other grounds.This in itself leads to inequalities. Disability discrimination is treated by the Framework Directive alongside other grounds of discrimination although arguably it should be the subject of a dedicated directive, given its unique characteristics. The need for such a directive may be said to have been augmented with the recent accession of the Union to the UN Convention on the Rights of Persons with Disabilities whose provisions are substantively different in some respects from those in the Framework Directive. Some, but not all, of these issues could be resolved with the adoption of the Commission’s 2008 proposal,17 discussed in chapter 8, which would extend the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation. In the face of these shortcomings, there can be no question but that the influence of the CJEU on the development of the EU’s law and policy on equality has proved to be considerable, if not indeed pivotal. Its case law has arguably done far more to bring about equality of treatment than the Treaty provisions themselves or the legislation implementing them.There is abundant evidence of this in the sphere of gender discrimination. For example, the concept of indirect discrimination, an indispensable tool in the fight against discrimination, was developed by the Court in some of its earliest case law on sex equality and has now been written into all the equality directives. The principles developed by the Court to ensure effective enforcement of equality rights have likewise been codified in each of the directives discussed in this work. Article 157(4) of the TFEU, permitting positive action to combat sex discrimination in pay and employment, derives from the Kalanke case law, discussed in chapter 9, as do the provisions in the Race and Framework Directives, permitting positive action in their respective circumstances. Using the twin pillars of direct effect and supremacy18 the CJEU has brought about equality rights more quickly and more effectively than many people would have anticipated; in Defrenne II19 the right to equal pay for men and women was achieved with immediate effect from the date of judgment. And, in a series of cases in the mid 1980s, the Court held the principle of equality in the Social Security Directive (discussed in chapter 10) to have direct effect as from the date when the directive was required to be transposed into national law, with the result that women were entitled to the same rate and range of social security benefits as men as from that date.20 That directive was adopted in November 1978 after a lengthy legislative process; it had the unusually long implementation period of six years, at 16

17 18 See discussion in ch 4. COM (2008) 426 final. As to which see ch 2. Case 43/75 [1976] ECR 455. 20 Case 71/85 Netherlands v FNV [1986] ECR 3855; Case 286/85 Mc Dermott and Cotter v Minister for Social Welfare [1987] ECR 1453; Case C-377/89 Cotter and Mc Dermott v Minister for Social Welfare [1991] ECR I-1155. 19

498

Conclusions

the end of which little action had been taken by the Member States. In the absence of the women of Europe taking immediate action to enforce their rights and a Court willing to make those rights effective, equality of treatment would have taken many years to come about, if indeed it ever did. In interpreting and applying the equality instruments with which this work is concerned the Court has, in general, been consistent in its approach to common issues, transposing principles established in one domain of anti-discrimination law to another and using common interpretative techniques. The Court’s aim has been to ensure that the objectives of those instruments are fulfilled. It has thus adopted a functional approach in its handling of them. Key concepts have been interpreted and applied in a manner designed to give rights conferred the fullest possible effect. At the same time the Court has refused to extend the substantive content of those concepts beyond what it believes the legislature intended. For example a broad view has been taken of what constitutes ‘pay’ in Article 157, the Recast Directive, and the directives which it repeals and replaces. As seen in chapter 5, it has been defined as any consideration which a worker receives directly or indirectly in respect of his employment from his employer. This has been held to encompass occupational social welfare schemes21 which are agreed between the employer and the employee and financed by both, but not state social security benefits which reflect the social policy of a particular Member State and are funded whether wholly or partially out of the public purse with some contributory element from the employer and the employee.22 On the other hand, in an attempt to be faithful to the legislative intent, the Court has interpreted Article 157 and the Equal Treatment Directive as limited to differential treatment based on sex only, a concept not extending to sexual orientation. The Court has also limited the right of equal treatment in the Social Security Directive to those risks and benefits actually specified in the Social Security Directive, thereby excluding benefits of a general nature unrelated to the risks to which the directive is addressed. This case law is discussed in chapter 10. In interpreting the Framework Directive, which follows the usual legislative pattern of leaving key concepts undefined and hence the precise scope of its application unclear, the Court has drawn a distinction between ‘sickness’ and ‘disability’, ruling that only the latter is covered by the directive, an interpretation it found consistent with both the wording and general approach of the directive to disability discrimination.23 When dealing with what types of behaviour constitute discrimination and are thus prohibited, the Court has found that since equality of treatment is the fundamental objective of both Treaty provisions and legislation implementing them, a broad purposeful approach is required. It has thus found that principle in many cases to be directly effective, conferring enforceable rights on the individual. When assessing whether a particular type of behaviour is discriminatory the Court has 21 23

22 Case 80/70 Defrenne I [1971] ECR 445. Case C-262/88 Barber [1990] ECR I-1889. Case C-13/05 Chacón Navas [2006] ECR I-6467.

Utility of the present law

499

looked to the purpose of the behaviour rather than to whom it is addressed. Thus in, for example Drake,24 in determining whether certain benefits came within the scope of the Social Security Directive, the Court looked to the purpose of the benefit rather than its designated recipient. If the benefit covered one of the risks specified in the directive, it was irrelevant that the recipient of the benefit did not actually suffer from that risk himself or herself. Similarly, in Coleman,25 the Court found the mother of a disabled child to be the victim of discriminatory treatment at the hands of her employer. In focusing on the reasons for the discriminatory conduct, rather than its addressee, the legislative purpose of eliminating discrimination on certain specified grounds was attained. As to what acts constitute discrimination, the Court has encouraged a move away from a formal approach to one which actually addresses the real issue of inequality. This it did first by developing the concept of indirect discrimination in the early cases dealing with sex discrimination in employment; more recently, in Feryn,26 it found a public statement by an employer that he would not employ persons of a certain ethnic or racial origin to be discriminatory since it was likely to dissuade such persons from seeking employment. The fact that the discriminatory act was not addressed to a particular individual was not determinative.To limit the scope of the directive to cases where there is an identifiable victim would, the Court found, render difficult the ‘objective of fostering conditions for a socially inclusive labour market’.27 Although a broad but pragmatic attitude has been adopted by the CJEU in dealing with the scope of discrimination instruments, in dealing with exceptions and derogations the Court’s stance is to interpret them restrictively so as not to limit the right to equal treatment any more than absolutely necessary. This can be quite a finely balanced and sensitive exercise. Deviations from the principle of equal treatment are allowed by the Court only insofar as they are specifically articulated in relevant EU equality provisions. In Johnston v Chief Constable of the RUC,28 it refused to accept a general defence of ‘protection of public safety’ as exonerating the Chief Constable’s discriminatory treatment of Ms Johnston, ruling that any such defence had to be analysed in the light of the provisions of the Equal Treatment Directive and could not be added as an overarching justification for departing from the principle of equal treatment laid down in that directive.29 In a number of cases discussed in chapter 9, involving equal access to and equal treatment within employment in the armed forces, the Court has adopted a similarly rigorous approach. National authorities enjoy a discretion in adopting measures which they consider to be necessary in order to guarantee public security but have, at the same time, to respect the principle of equal treatment by ensuring that those measures derogate from that

24 26 28

25 Case 150/85 Drake [1986] ECR 1995. Case C-303/06 [2008] ECR I-5603. 27 Case C-54/07 [2008] ECR I-5187. Case C-54/07 [2008] ECR I-5187, at para 24. 29 Case 22/84 [1986] ECR 1651, as to which see ch 9. As to which see ch 9.

500

Conclusions

principle no more than necessary in the interests of public security. In Prigge30 the Court found that air traffic safety was not amongst the objectives for which Article 6(1) of the Framework Directive permitted a derogation from the principle of equal treatment. That derogation applies only to employment policy, labour market issues, and vocational training Both the Race Directive and the Framework Directives contain many exceptions and possibilities for derogations. Discriminatory conduct may be allowed, for example, on the ground of a ‘genuine and determining occupational requirement’. Both directives emphasize in their respective Preambles that this defence is to be availed of only in ‘very limited circumstances’. The Recast Directive allows this defence in respect of ‘access to employment including the training leading thereto’.31 Following their restrictive approach to a similar provision in the Equal Treatment Directive, notably in Commission v United Kingdom,32 discussed in chapter 9, the Court has interpreted ‘genuine and determining occupational requirement’ in the Race and Framework Directives in an equally rigorous manner. In Wolf v Stadt Frankfurt am Main33 the Court accepted that youth constituted a genuine and determining occupational requirement for certain functions in the German fire service which required a high level of physical stamina. By contrast, however, in Prigge v Deutsche Lufthansa AG34 the Court was not persuaded that the compulsory retirement of commercial air line pilots at the age of 60 was necessary in the interests of air safety. It pointed to both national and international legislation permitting pilots to fly aircraft until the age of 65. In both cases the Court looked at the proportionality of the age requirement and in Prigge it looked beyond the national rule to practice at an international and national level. In assessing the compatibility of exceptions and derogations, the Court will be influenced by their logic and coherence. In Petersen,35 it refused to accept that the compulsory retirement of dentists working in the public sector at 68 was justified in the interest of public health when dentists employed in the private sector were permitted to work past this age. By contrast, in Fuchs and Köhler,36 the Court found that differential retirement ages in the German civil service could be justified so as to allow a public prosecutor to remain in employment after normal retirement age if he or she had been entrusted with the conduct of proceedings which had not finished when he or she reached that age. By far the most numerous cases on discrimination in recent years are those concerning age discrimination and most of these have concerned Article 6(1) of the Framework Directive. It will be recalled from chapter 9 that this provision states that the directive does not apply to a difference in treatment on the ground of age provided there are objective reasons for the differential treatment and provided 30 32 34 36

31 Case C-447/09 [2011] ECR I-000. Art 14(2). 33 Case 165/82 [1983] ECR 3431. Case C-229/08 [2010] ECR I-1. 35 Case C-447/09 [2011] ECR I-000 Case C-341/08 [2010] ECR I-47. Joined Cases C-159–160/10 [2011] ECR I-000.

Utility of the present law

501

that it is reasonably justified, in the context of national law, by a legitimate aim relating to ‘employment policy, labour market and vocational training objectives, and if the means of attaining that aim are appropriate and necessary’. Given that these employment policy and labour market issues are largely within the exclusive competence of the Member States, the Court has conceded that it must respect their discretion in these matters; yet at the same time it has striven to ensure that the right to equal treatment is also respected. This tension has largely been resolved by requiring, on the part of the Member States, transparency as regards policy objectives, coherence and logic in the pursuit of such objectives, a discernible link between them and the discriminatory measures in issue, and proof that they are proportionate to the objective sought to be achieved. This ensures that such measures erode equality rights only as far as is necessary to achieve the particular labour market or employment policy. In such cases the Court will examine the measure in question, and decide itself whether it is appropriate and necessary to achieve its objective. However, it has not so far attempted to interfere with the discretion of the Member States to decide their own employment policy objectives or organize their labour markets, in spite of stating in Age Concern37 that Article 6(1) imposes a burden on the Member States to establish to a high standard the legitimacy of the aim relied on in justification of their discriminatory practices. In assessing the proportionality of measures of compulsory retirement the Court has, however, allowed itself to be influenced by matters which would appear to be extraneous to that exercise, such as pension entitlement.38 A person’s financial circumstances should not determine the extent of his or her equality rights. The Court has famously been accused of judicial activism, of acting more as a legislator than as a judicial entity.39 A recent example of such criticism is the furore which greeted the Mangold judgment,40 discussed in chapter 3. This criticism is arguably misdirected. The case law of the Court on equality issues overwhelmingly derives from requests for preliminary rulings from court and tribunals throughout the Union. The Court is obliged to respond to such requests; it cannot, when a national court or tribunal genuinely seeks help to resolve a dispute before it, refuse such help. If it is required to interpret provisions which are skeletal, and hence difficult to apply in any practical sense, it has no choice but to try and discern their meaning as best it can from the sources available to it. In many situations the Court has been placed in a position in which it has had to make difficult policy choices, a task more appropriately suited to the legislature. Many issues in equality law, as we have seen in this work, have been resolved through the judgments of the CJEU. 37 Case C-388/07 The Queen on the application of the Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulation Reform [2009] ECR 38 I-1569. Case C-45/09 Rosenbladt [2010] ECR I-9391. 39 See in particular Neill, ‘The European Court of Justice: a case study in judicial activism’, European Policy Forum, 1995; and Arnull, The European Union and its Court of Justice, 2nd edn (Oxford University Press, Oxford, 2006), especially ch 16. 40 Case C-144/04 Mangold v Helm [2005] ECR I-9981.

502

Conclusions

These issues go to the very heart of anti-discrimination policy and would arguably have been dealt with more democratically through the legislative process, during which there is a possibility of viewing issues from many angles and through the eyes of many interests, thereby allowing the consequences of rights created and obligations imposed to be gauged. Law-making by courts can of course be unsatisfactory; this is because a particular question arises in the context of the legal and factual circumstances of proceedings brought by an aggrieved individual but further case law is required to resolve all the more general surrounding issues.This situation leads to undesirable legal uncertainty for what may be a considerable period of time. However, if the Member States are genuinely concerned about judicial activism on the part of the CJEU, all they have to do is to articulate their intentions in the course of the legislative process in a clear and unambiguous manner. Inadequate drafting in equality instruments has spawned a vast body of case law which in itself is indicative of denial of the right to equality; aggrieved individuals have been obliged to resort to litigation to enforce rights the scope and content of which should in the first place have been more clearly articulated in legislation.

(ii) The positive significance of individual litigation In addition to the very considerable progress which, we suggest, has been made by the CJEU in driving forward the substantive content of anti-discrimination law, the very existence of an important corpus of case law is also of great significance. Individual litigation has not infrequently attracted much media coverage, as well as academic interest, and this has served to produce a huge, though admittedly nonmeasurable, raising of the public consciousness to the problem of discrimination. To take a specific example, in lifting the ceiling on damages in sex discrimination claims in the Marshall (No 2)41 case, the Court at a stroke focused the minds of employers on the consequences of their actions; if substantial damages were going to be awarded, it at last made sense for them to take seriously their obligation not to discriminate.

(iii) The limitations inherent in individual litigation as a proactive strategy Despite our assertion that the CJEU has been enormously influential in the promotion of the principles of non-discrimination and equality, it has to be reiterated that equality cannot be achieved through the application of the legal principles alone. This conclusion is borne out by the persistence of discrimination within the EU, the extent of which is discussed further below. Non-discrimination and 41

Case C-271/91 [1993] ECR I-4367.

What more should be done?

503

equality laws must be complemented by wider measures of social policy, designed to relieve the historical and other types of structural disadvantages which have resulted in ingrained inequalities such that those who have suffered discrimination cannot even begin to avail themselves of equality rights. In addition, the steady stream of references for preliminary rulings to the CJEU from courts and tribunals throughout the Union demonstrates a serious level of non-compliance with the letter and spirit of EU equality law. Such references are made in cases where national courts need guidance as to the meaning of equality instruments and are therefore only a representative sample of the total volume of litigation taking place within the Union. It is to be inferred from this that breaches of the principles of non-discrimination and equality persist on a grand scale and that much greater efforts are required to ensure compliance with the law.

What more should be done to protect against discrimination and to further equality of opportunity? We are writing at a time of extreme economic uncertainty and austerity. This climate must of necessity inform the practical approach to furthering the principles of non-discrimination and equality. It is simply unrealistic to expect the Member States to embark on wholesale legislative programmes which will add great costs for governments and employers, not to mention generating complaints of enhanced administrative constraints and yet more ‘red tape’. Likewise, it is not sensible to demand of the Commission that it sets in motion vast plans in this area. However, there are undoubtedly some things which can be done within the current constraints of the law which would make it a great deal more effective. Some of these we discuss below. Our remarks are to be read against a backdrop of continuing discrimination practised by employers and others, including governments, which are within the reach of the present law but are not currently being addressed or remedied. A Eurobarometer survey carried out in 2009, and published in March 2010, revealed that 62 per cent of those who responded believed that gender inequality was still a widespread phenomenon, although this perception was more pronounced in the older age group (+55 years) than in the young segment of the population (15–24 years).42 The employment rate of migrant women in particular remains low, especially within the first three years of arrival in the host country, thereby indicating multi-dimensional discrimination.43 As seen in chapter 5, there remains a worryingly high gender pay gap in all the Member States.Women remain under-represented at board level and in leading positions in the public sector and 42 43

‘Gender Equality in the EU in 2009’, Special Eurobarometer survey 326. ‘Strategy for equality between women and men 2010–2015’, European Commission, 2011.

504

Conclusions

at university professorial level.44 The Commission is committed to addressing these issues by monitoring the correct implementation of the Recast and Goods and Services Directives. It also intends to foster ongoing dialogue with business, social partners, equality bodies, and civil society representatives to ensure that the present legal framework for gender equality is apt for its purpose. In addition, it has committed itself to addressing the aggravated consequences of discrimination on two or more grounds, in the application of existing legislation. The Council is equally concerned at the persistence in gender inequality. In March 2011 it adopted a European Pact for Gender Equality, re-affirming the EU’s commitment to closing gender gaps in employment, education and social protection, ensuring equal pay for equal work, and promoting the equal participation of women in decision-making. In March 2012 the Commission published a report indicating that just one in seven (13.7 per cent) of board members in Europe’s top firms is a woman. Although a slight improvement on the position in 2010, where female board representation stood at 11.8 per cent, it concluded that it would take more than 40 years to reach a significant gender balance (at least 40 per cent of both sexes) at board level. Interestingly the Commission also noted that female board representation is geographically variable: women account for 27 per cent of board membership in the largest Finnish companies and 26 per cent in Latvia, whereas the corresponding figures for Malta and Cyprus were 3 per cent and 4 per cent respectively. The number of women chairing companies had actually fallen from 2010 to 2012. Given the lack of progress in increasing the involvement of women in top management the Commission has shifted its policy, announced in 2010, of asking publicly listed companies in Europe to increase voluntarily women’s presence within their boardrooms. On 5 March 2012, it launched a public consultation seeking views on possible action at EU level, including legislative measures, to increase the level of female board membership in top companies.The results of this consultation and the Commission’s view on what is the most appropriate means to achieve this objective will be announced in late 2012. Discrimination on racial or ethnic grounds continues to be prevalent. In a Eurobarometer survey of 2009,45 61 per cent of those participating in the survey believed that discrimination on ethnic grounds was the most widespread form of discrimination. Infringement proceeding are still pending against three Member States for non-compliance with the Race Directive, although proceedings against four other Member States have been closed following amendments to national legislation. Legislative progress on the Commission’s 2008 proposal for a directive to extend the principle of equality in employment, enshrined in the Framework Directive, to certain non-employment areas discussed in chapter 8 is slow but the proposal has by

44 45

‘Strategy for equality between women and men 2010–2015’, European Commission, 2011, at 20. ‘Discriminaiton in the EU in 2009’, Special Eurobarometer survey 317.

What more should be done?

505

no means been abandoned, mainly due to the continuing efforts of the European Parliament to secure its adoption. One in six people in the EU has a disability which ranges from mild to severe. There are therefore around 80 million people who do not participate fully in society or the economy because of environmental and attitudinal barriers. The disabled suffer a poverty rate higher than 70 per cent of the average. This is in part due to limited access to employment.46 The Commission in its strategy plan for 2010–20 has committed itself to a number of initiatives the obvious purpose of which is to eradicate discrimination on the grounds of disability by ensuring the full implementation of the Framework Directive, promoting diversity and carrying out awareness campaigns at EU and national level. The rate of non-participation of the young disabled (16–19 age group) in education is troubling and the Commission has pledged to promote access in particular for disabled children to the mainstream general educational system with tailored individual support for the child if necessary. The disabled also often have limited access to medical services unrelated to their disability, such as preventative healthcare and general healthcare including care for gender-based needs. Equality of access to healthcare and related services needs therefore to be improved.The Commission has proposed a number of initiatives to tackle these problems.47 Positive action is frequently suggested as a useful mechanism for producing greater equality in practice. As discussed in earlier chapters, the expression ‘positive action’ is capable of bearing a range of meanings, from simple acts of outreach, designed to encourage people to venture into areas they would not otherwise consider, to acts of reverse discrimination. A limited measure of positive discrimination was found by the CJEU to be acceptable in the context of gender discrimination in the mid 1990s. This case law is discussed in chapter 9. It was seen there that the relevant legal provisions simply set out the basic principle that some positive action is acceptable but do not explain the precise conditions under which it is lawful. Once again, this issue, which is essentially a matter of political policy, has been left in the hands of the Court to determine. However, positive action policies need to be treated with great caution since in themselves they can by their very definition prove to be inherently discriminatory. Although outreach measures are unobjectionable and may indeed prove highly effective, schemes which involve reverse discrimination breach the fundamental principle of equality; their usefulness as instruments for achieving justice are therefore generally outweighed by the inequalities they bring in their wake. It is therefore submitted that the legislation should be amended so as to stipulate precisely how far programmes of positive action are permitted to go. In addition to the existing criteria laid down by the CJEU, it would be sensible to require that 46 ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’, COM (2010) 636 final, at 1. 47 ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’, COM (2010) 636 final, at 7.

506

Conclusions

the policy objective of any particular measure of positive action be articulated, and that the measures themselves must be proportionate to the objective they seek to attain. These requirements are common to all exceptions and derogations from the principle of equal treatment laid down in legislation. At present no clear contours apply to positive action policies comparable to those prevailing in other areas where unequal treatment may be excused. We suggest in addition that efforts should be concentrated in the short term on strengthening the existing law on non-discrimination and equality. There are three main ways in which it can and should be reinforced.

(i) Mainstreaming Mainstreaming was discussed in chapter 4. It is a useful, if somewhat vague, device designed to remind legislators and other decision-makers of the need to take into account the wider implications of their plans. It is obviously difficult to measure its practical impact. However, there is no doubt that it could be sharpened as a tool for the advancement of equality by being defined in much clearer legal terms. For example, legislators and other decision-makers should be required by the enabling legislation under which they act to indicate precisely what research they undertook to discover the impact of a particular proposed action on vulnerable groups of people and exactly what the outcome of that research revealed; likewise, they should be required to assess the impact of a policy ex post facto and to take remedial action if it is found wanting in terms of providing equality.

(ii) Individual enforcement Equality would also undoubtedly be furthered through the use of more effective enforcement mechanisms. Although deeply imbedded in EU law, the principle of equality of treatment currently has a less than optimal enforcement structure. As already discussed, enforcement for the main part is concentrated on the individual who has to bring proceedings to enforce his or her rights. This is often a lengthy, public, and costly exercise which may deter many from trying to enforce their rights. Moreover, even when a successful claim has been brought, discriminatory behaviour has occurred, the prejudicial effect of which may be only partially alleviated. Nevertheless, as argued above, the powerful message sent out by a successful anti-discrimination claim should not be under estimated. It is vital, if this message is to be reinforced, that the remedies available are powerful enough to possess the deterrent quality demanded of them by the directives. The Court has certainly done its bit to ensure that remedies are meaningful but more remains to be done in this sphere. In particular, it is suggested that measures of specific enforcement

What more should be done?

507

should be mandated, such as an order to promote an individual previously discriminated against and an order for the reinstatement of a person who has been discriminatorily dismissed. Consideration should also be given to an express amendment to the law, to make it clear that exemplary damages should be awarded in appropriate cases. In addition, the Commission should undertake close study of the position in all the Member States to ensure that effective remedies are actually provided in the courts and tribunals.

(iii) Enforcement at a strategic level Achieving true equality is of course best served by preventative action to stop it occurring in the first place. As seen above, it is clear that a considerable amount of discrimination is currently going unremedied. The Commission has been active in ensuring compliance with the Race Directive48 and the EU Agency for Fundamental Rights is active in combating discrimination but it reports numerous complaints of discriminatory conduct on a number of grounds, including religion, race, and sexual orientation.49 The role of public authorities in the enforcement process therefore needs strengthening. The Recast and Race Directives require the Member States to set up bodies to promote the equal treatment principle in their respective fields, including enforcement action on behalf of individuals. However, many entities are under-resourced and therefore limited in their capability to engage in effective enforcement initiatives, notably legal proceedings. The Framework Directive has no comparable provision with the unsatisfactory result that, in the wide area it covers, enforcement on a Member State level rests entirely with the individual. Well-resourced and empowered enforcement agencies are potentially capable of being more effective in bringing about equality than either mainstreaming or individual enforcement initiatives because they are in a position to inform themselves of the overall position as regards discriminatory practices within their respective areas of responsibility and take action to eliminate discriminatory practices and policies and influence employment and social policies. The Framework Directive therefore urgently requires updating in this respect, to bring it into line with the law on sex and race discrimination. National equality bodies also have a hugely important part to play in bringing the content of non-discrimination and equality law to the public’s notice. People cannot assert their legal rights if they do not know they have them. Consideration should therefore be given to providing EU funding for the work of these agencies, to enable them to engage much more effectively in their work of education and enforcement. 48

COM (2012) 169 final, at 13. ‘2010 Report on the Application of the EU Charter of Fundamental Rights’, Publications Office of the European Union, Luxembourg, 2011, at 47; ‘2011 Report on the Application of the EU Charter of Fundamental Rights’, Publications Office of the European Union, Luxembourg, 2012, at 51–5. 49

508

Conclusions

A final word needs to be said about the role played by the CJEU in the enforcement of the law. It has been particularly vigilant of late to use all the tools available to it for protecting the fundamental right to equality. So, in particular in Test Achats,50 it found that the general principle of equality rendered invalid a provision in the Goods and Services Directive which purported to allow an indefinite derogation from the principle of gender equality in the calculation of insurance premiums and benefits. And, in Mangold,51 it found anti-discrimination on the ground of age to be a general principle of Union law, thus enabling the acts of both the Union and the Member States acting within the scope of Union law to be reviewed in the light of that principle. At the time of writing, the implications of the Charter of Fundamental Rights upon equality law are not certain. Can individuals rely directly on the provisions of the Charter as a source of rights? Or is the Charter to be viewed as the embodiment of general principles already articulated and thus confined to the same role as those general principles? These issues have been discussed in chapter 3. It remains to be seen how they will be resolved in the future. If the provisions of the Charter, drafted in broad general terms, were to be found to have horizontal effect and thus capable of being invoked in litigation between private parties, the consequences for equality law would be truly seismic.

50

Case C-236/09 [2011] ECR I-000.

51

Case C-144/04 [2005] ECR I-9981.

Index access to employment 277–8 substantive provisions 287 Action Plans/Programmes 24, 116, 177–8, 274, 495 additive discrimination 156–7, 497 adoption 352 leave 342, 397 adverse impact 148, 151, 153–5 burden of proof 157–9 causation 163, 166, 167–8 defences 170, 234, 240 direct discrimination 173 pay 234, 240, 286 age discrimination 3, 41–2, 68, 101, 122, 123–30, 500–1, 508 dentists 403–4 direct discrimination 145–6, 174 dismissal 288, 293–4 genuine and determining occupational requirement 392–3 justification on grounds of 408–18 multi-dimensional 157 non-workplace discrimination 375–6 pension benefits 186 scope of anti-discrimination provisions 276, 278 substantive provisions 281–2 see also compulsory retirement agnosticism 37 agriculture industry 325 airline pilots 393–4, 404, 500 Amsterdam Treaty 9, 11, 25, 132 annual leave entitlement 103, 342–3 ante-natal examinations and time off 339 ‘appropriate measures’ 405–6 armed forces 389–92, 405, 499 Article 157 and Recast Directive, relationship between 256–8 assumptive discrimination 374 atheism 36, 37, 38 automatic dismissal see compulsory retirement awards, basic 219 ‘Barber Protocol’ 196–8, 200–2 Barnard 25, 241 basic award 219 Bell 379 benefits see social security bisexuality 42 ‘blocking effect’ 65–6

Borchardt 78 breastfeeding, facilitation of 357 Brown 366, 401 Buddhism 36 burden of proof 157–63 Catholicism 37, 38, 419 causation 163–9, 173, 234, 300 charities 37–8 Charter of Fundamental Rights 11, 21, 117–23, 127, 508 child with disability or long-term illness 351–2, 359 children, rights of 119 Christianity 36 Christmas bonus 184 close personal relationships 383 collective agreements defences to an equal pay claim 237, 242, 245–6 equal pay 227–8, 254–5, 262–3, 268 fixed-term employment 320–1 part-time employment 316–18 remedies and enforcement 302–5 Committee of the Regions 17 Common Foreign and Security Policy 9 commonality 102 Community Social Charter 22, 103, 112–17 company cars 182 ‘comparable permanent worker’ 319 comparators defences to an equal pay claim 239 equal pay 225, 230–1, 252, 254, 260, 267 indirect discrimination 152–3 multi-dimensional discrimination 156 pregnancy and maternity 328, 333–8 procedural autonomy 91 work of equal value 233 compensatory payments 218–19, 306–12, 355–6 competition restriction or distortion 86 compulsory retirement 290, 292, 294, 410–15, 500 concessionary fares on public transport 456–7, 490 ‘conditions’ 263 conscientious objection 37, 118 consistent interpretation doctrine 76 Constitution 10 constitutional scope of EU law 98

510

Index

‘construction’ approach 49–50 contingent harm 151–2 ‘contract compliance’ 178 convergence 102 cooperation principle 89 Court of First Instance (CFI) 97, 200 Court of Justice of the European Union (CJEU) 12, 21 achievements 495–502 covert discrimination 145 criminal offences, prevention of 402–4 cults 38 cultural, religious and linguistic diversity 118 cumulative disadvantage 6 damages adequacy of 96 ceiling 502 claim to 302 see also compensatory payments decisions 20–1, 55–6 defences to a discrimination claim 169–71 defences to an equal pay claim 234–46 employment staff committee system 243–4 job-sharing 237–8 mobility 236 objective justification 234–7, 241, 242–3, 245 part-time employment 242–3, 244 seniority 237–9 severance pay 243 sick pay 239–40 social policy 244 social security 240–2 training courses 243 unfair dismissal 241 vocational training 236 dentists and compulsory retirement 403–4, 415, 500 derogations 499–500 deterrence 310 dignity of women and men at work 115, 299 direct discrimination 142, 143–8, 496 age 408, 413 Article 14 (ECHR) 107–8 burden of proof 160, 162 causation 165, 167–8 defences 169 disability 407 dismissal 294 equal pay 230–1, 258 harassment and instructions to discriminate 175 justification issues 171–4 pay 286–7 positive action 176 pregnancy and maternity 347 self-employment 326

sex 27, 134, 137 social security 472, 475 direct effect 88, 94, 275, 279, 497 age 127 equal pay principle 246–55 horizontal direct effect 250, 252 prospective direct effect 248–50 same work of equal value 252–3 horizontal 72–3, 128–30, 211, 284 non-horizontal 125, 302 remedies and enforcement 302 sex discrimination 25 social security equality 470–5 see also direct enforcement of law by individuals direct enforcement of law by individuals 52–98 implementation of directives, necessity for 87–9 national law and EU law, balancing claims of 94–8 origins of the principle 52–4 procedural autonomy principle 89–94 secondary legislation 54–61 ‘State’: definition 69–73 see also directives; secondary legislation direct sex discrimination 143–4, 145, 163–4 equal pay 250–1 part-time work 317 pregnancy and maternity 333, 336, 340, 346–7, 348 directives 19–20, 55–60 ‘exclusionary’ effect 68–9 horizontal effect 61–9 implementation period 65–8 necessity for implementation 87–9 non-horizontal direct effect 125, 302 supremacy 66 see also horizontal enforceability of directives ‘directly applicable’ regulations 53, 54–6, 59 disability discrimination 39–41, 276, 282, 497, 505 armed forces 405 causation 167–8 concept of 374–5 direct discrimination 146 equal treatment 113, 117, 119, 124 genuine and determining occupational requirement 382 non-workplace discrimination 376, 378–9 pension benefits 186 positive action 437 proportionality principle 131 see also United Nations Convention on the Rights of Persons with Disabilities disability, reasonable accommodation for 405–8 disability: severe disablement allowance 473–4, 477, 486–8

Index discretion 79 discrimination by association 146–7, 175, 282 disguised discrimination 144–5, 230, 250–1 dismissal protection against and pregnancy and maternity 346–50 substantive provisions 288–96 unfair 218–19, 241, 384–5 diversity 7 domestic law 124–5, 130 obligation to interpret 76–7 rule of 95 draft Constitution 10 Economic Community and Euratom 9 Economic and Social Committee 14, 16–17, 44 economic and social rights 112 education system/provision 364–5, 368, 373, 377–8 effective judicial control/protection principle 90, 98, 311 effectiveness principle 90–1, 312 effet utile principle 47 elderly persons 114, 117, 119 emergency remedies 94 Emmott principle 93–4 employment in private households 383–4 employment provision, statutory 242 employment staff committee system 243–4 Employment Strategy 177 enforcement at strategic level 507–8 individual 506–7 of non-discrimination legislation 301–15 collective agreements 302–4 damages and compensation 302, 306–12 racial or ethnic origin 312–14 sex discrimination 301–7, 310–11, 313 victimization 314–15 equal opportunities 4, 7, 98, 113–14, 115–16, 142, 276, 422, 432 Equal Opportunities Commission 484 equal participation 7 equal pay 180–272, 283, 497 burden of proof 158–9 claims and defences 234–46 direct discrimination 143–4 for equal work 88, 164, 223–31, 262–3 collective works agreements 227–8 comparators 225, 230–1 job content/evaluation approach 223–4 market value 224 objective criteria 229 value to the employer 223–4 indirect discrimination 149 positive action 433–4 pregnancy and maternity 341

511

procedural autonomy 91–2 scope of the obligation 180–2 sex discrimination 25–6 supremacy of EU law 49–50 see also defences to an equal pay claim; equal pay principle under direct effect; ‘pay’ for purposes of Article 157; Recast Directive equal treatment 115–17, 130, 142, 276, 279, 280 dismissal 291, 293 genuine and determining occupational requirement 387 Goods and Services Directive 367 non-workplace discrimination 374 positive action 433–4 pregnancy and maternity 328, 334–5, 348, 354 remedies and enforcement 311, 314 self-employment 325–7 social security 439–40, 458–62 temporary agency work 324 see also general principles of law and equal treatment Equal Treatment of the Self-employed Directive 325–7 equal work 143, 223–34 see also equal pay for equal work; work of equal value equality before the law 118 between women and men 118 formal 4–5, 137, 142, 337–8, 424 gender 508 genuine and determining occupational requirement 384 and non-discrimination 2–8 pregnancy and maternity 355 remedies and enforcement 313, 315 of results 4 social security 442 see also equality principle under pensions equivalence principle 90, 92, 312 EU Agency for Fundamental Rights 507 EU law 43–98 constitutional scope 98 dynamism inherent in 8–12 equality and non-discrimination 2–8 importance of 1–2 nature and effects of 43–4 supremacy of 45–52 see also direct enforcement of law by individuals; grounds of prohibition of discrimination; key concepts in EU anti-discrimination; sources of anti-discrimination law EU nationals and third-country nationals, discrimination between 401–2

512

Index

European Coal and Steel Community (ECSC) Treaty 8, 9, 99 European Communities Act (1972) 48–50 European Convention on Human Rights (ECHR) 11, 21, 100–1, 104–12, 120, 367, 402, 459 Article 14 (enjoyment of rights and freedoms) 104, 105–10 Protocol 12 104, 110–12 rights and freedoms 105 European Court of Human Rights 29, 37, 104–11, 374, 402, 459 European Economic Community 1, 8 European Pact for Gender Equality 178 European Social Charter 22, 112–17 exceptions 499–500 exceptions to non-discrimination principle 380–437 age, justification on grounds of 408–18 armed forces 405 criminal offences, prevention of 402–4 disability, reasonable accommodation for 405–8 genuine and determining occupational requirement 381–94 Goods and Services Directive 419 health protection 402–4 nationality, differences of treatment based on 400–2 Northern Ireland 418–19 positive action 420–37 pregnancy and maternity 396–400 public order 402–4 public safety 380–1 public security 402–4 religion or belief 394–6 rights and freedoms of others, protection of 402–4 state schemes (social security, social protection) 404 ‘exclusionary’ effect of a directive 68–9 expatriation allowance 134–6, 140, 183 expenses 135, 137, 183, 219, 306 family benefits 481 family credit 277, 288 family and professional life 119 family status 377 Feldman 2 financial services 369–70, 376 fire service 392–3, 500 Fixed-term Employees Directive 318–23 fixed-term employment/contracts 19, 123–5, 279, 409–10 pregnancy and maternity 348 successive 320 formal equality 4–5, 137, 142, 337–8, 424

Framework Directive scope 274–80 substantive provisions 280–301 access to employment 287 dismissal 288–96 harassment and sexual harassment 296–301 pay 282–7 working conditions 288 Framework Strategy on Non-Discrimination and Equal Opportunities for All 178 Francovich principle 268, 302 Fredman 6, 32 free movement of persons, services, goods and capital 81–3, 84, 117 freedom of assembly and association 402 freedom of establishment 117 freedom of expression 100–1, 402 freedom of thought, conscience and religion 36, 105, 109, 118, 402 freedom to provide services 100 fringe religions 37, 38 gays see homosexuality gender 26 discrimination see sex discrimination equality 508 inequality 503–4 pay gap 271–2, 503–4 reassignment/transsexuals 27–9, 105, 285, 458–9 gender-plus discrimination 163, 251, 472 General Court 21 general principles of law and equal treatment 99–141 age 123–30 Charter of Fundamental Rights 117–23 equal treatment 130 European Community Social Charter 116–17 European Convention on Human Rights (ECHR) 104–12 European Social Charter 112–16 proportionality principle 130–1 sex 131–41 sources 101–3 genuine and determining occupational requirement 381–94, 500 airline pilots 393–4 armed forces 389–92 disability 382 employment in private households 383–4 fire service 392–3 homosexuality 382 midwives 385–6 police service and public safety 387–9 racial or ethnic origin 381–2

Index sexual orientation 382 small business exception 383–5 geographical scope of obligations 278 Goods and Services Directive exceptions to non-discrimination principle 419 non-workplace discrimination 366–72 grounds of prohibition of discrimination 22–42 age 41–2 disability 39–41 nationality 22 part-time and temporary employment 31 racial or ethnic origin 31–5 religion or belief 35–8 sex 23–30 sexual orientation 42 harassment and sexual harassment 163, 174–6, 296–301, 326 harm 300 see also adverse impact harmonization legislation 16–17 health issues and sexual harassment 297–8 health protection 402–4 health and safety during pregnancy and maternity 338–40 healthcare provision 101, 364, 366, 373, 377, 378 Hepple, Sir. B. 241, 408 heterosexuals 42 Heukels 91 historical discrimination 425 homosexuality 29–30, 42, 106, 285, 382 special occupational exception for religious bodies 394–6 horizontal direct effect 72–3, 128–30, 211, 284 horizontal effect 121, 302 and directives 61–9 horizontal enforceability of directives, mitigating lack of 73–87 competition restriction or distortion 86 consistent interpretation doctrine 76 free movement of goods 84 free movement of workers 81–3 grant of rights to individuals 85–6 indirect effect doctrine 73–8 legal certainty principle 77 legality principle 77 ‘new legal order’ principle 87 non-retroactivity principle 77 right to reparation 84–5 ‘soft law’ 78 state liability in damages 78–87 housing benefit 452–4 housing provision 366 human rights 11, 21–2, 132–3

513

see also European Convention on Human Rights (ECHR) humanism 36, 38 hypothetical comparisons 231 illness 166 immigration 375, 400–2 implementation period of directives 65–8 importance of anti-discrimination law 1–2 ‘important reason’ 152–3 incapacity benefit 467–8, 476–7, 481–2 indirect discrimination 18, 142, 145, 148–55, 173, 496, 497, 499 age 408–9, 413, 418 Article 14 (ECHR) 107 burden of proof 160, 162 causation 165, 167–8 defences 169–71 defences to an equal pay claim 234, 237–8, 239, 241–2, 243–4 disability 407–8 equal pay 230, 250–1, 254–5, 258 genuine and determining occupational requirement 384–5 nationality 83 parental leave 352 part-time and temporary employment 31 pay 283, 285, 286 positive action 176 remedies and enforcement 304 self-employment 326 social security 457, 459–62, 463–4, 466, 468–9, 475, 485 unintentional 165–6 see also indirect sex discrimination indirect effect doctrine 73–8 indirect sex discrimination 134, 136–8, 141, 148–9, 151–2, 153, 172 dismissal 288 part-time work 317 redundancy payments 218 social security 440 individual enforcement 502–3, 506–7 see also direct enforcement of law by individuals individual and group rights, distinction between 424 inheritance rights of biological and adopted children 106 inquisitorial approach 158 institutional discrimination 3 instructions to discriminate 174–6 insurance and calculation of premiums 202–8, 368, 369–72, 376, 508 interim remedy/relief/protection/ injunction 94–8 international instruments 22, 125–6

514

Index

International Labour Organization (ILO) Convention No 100 182, 232 inter-operability principle 389–90 intersectional discrimination 156–7 invalid care allowance/invalidity pension 451–4, 456, 460, 464, 473–4, 487–9 Islam 36 job classification system 259–61, 264–5, 267 jobs outside Member States/EU 278–9 Jowell, T. 395, 402 Judaism 36 justification subjective 241 see also objective justification key concepts in EU anti-discrimination law 142–79 burden of proof 157–63 causation 163–9 defences to a discrimination claim 169–71 direct discrimination 143–8 direct discrimination justification 171–4 harassment and instructions to discriminate 174–6 indirect discrimination 148–55 mainstreaming 177–9 multi-dimensional discrimination 156–7 positive action 176–7 Koutrakos 392 Laeken Declaration 10 Lawrence, S. 3 learning disabilities 32 legal certainty principle 77, 88, 89, 91 legality principle 77 ‘levelling-up’ of provision 458 ‘like work’ 259 limitation periods 92–4 Lisbon Treaty 10, 11, 12, 25, 127 Macpherson Inquiry 3 McCrudden 6 mainstreaming 177–9, 506 marital status 377 and benefits 284–5 maternity see pregnancy and maternity means-tested benefits 442 merit principle 5 midwives, men working as 385–6 ‘minor’ employment 448, 466–7 mobility and incremental payments 236 motherhood, meaning of 398 multi-dimensional discrimination 33, 156–7, 163–4, 374, 497, 503

national law 73–6, 124 and EU law, balancing claims of 94–8 national sovereignty and legislative power, limitation of 45, 48, 65 nationalism 8 nationality 83, 109, 143 differences of treatment based on 400–2 direct discrimination 144 discrimination 22 indirect discrimination 148, 152 see also racial or ethnic origin nature and effects of legislation 43–4 ‘new legal order principle’ 87 non-discrimination 90–1, 98, 118, 276 and equality 2–8 see also enforcement non-horizontal direct effect of directives 125, 302 non-retroactivity 77 non-workplace discrimination 361–79 Goods and Services Directive 366–72 Proposal (2008) 372–9 Race Directive 362–6 Northern Ireland: exceptions to non-discrimination principle 418–19 objective justification burden of proof 160 defences 171 defences to an equal pay claim 234–7, 241, 242–3, 245 direct discrimination 173 fixed-term employment 319–21 part-time employment 317 social security equality 463–70 occupational pension schemes 187, 189–90, 192–3, 196, 203, 459 equal pay 254 pregnancy and maternity 342–3 Recast Directive, Race Directive and Framework Directive 284, 286–7, 293 occupational requirement 131 see also genuine and determining occupational requirement Occupational Social Security Directive 195, 209–15, 443, 481–2, 485, 496 occupational social security schemes 438, 498 ‘pay’ for purposes of Article 157 209–16 Oliver 382 overt discrimination 144, 145, 250–1 overtime pay 23, 150, 160, 183 pacifism 36 parental leave 18, 348, 350–8 child with disability or long-term illness 351–2, 359 fathers 356–7

Index part-time 355–6 social security 357–8 part-time employment 19, 31, 123–4 burden of proof 160–1 causation 165 defences to an equal pay claim 242–4 dismissal 288–9 genuine and determining occupational requirement 384–5 indirect discrimination 148–51, 154 positive action 176 pregnancy and maternity 344 social security 464 Part-time Work Directive 315–18 paternity leave 342, 356–7 Patten reforms 419 pay and pay discrimination 495, 498 and age 417–18 ‘aspect of ’ 263 burden of proof 160–1 causation 163 defences 169 definition 181 gender pay gap 271–2, 503–4 substantive provisions 282–7 see also equal pay; ‘pay’ for purposes of Article 157 ‘pay’ for purposes of Article 157 182–223 Christmas bonus 184 compensation for unfair dismissal 218–19 employment benefits 221–3 expatriation allowances 183 maternity benefit/pay 184, 221 occupational social security schemes 209–16 redundancy payments 216–18, 220, 223 sick pay 219–20 unemployment benefit 220 see also under pensions penalties 312, 360 pensionable age 290–1, 292–3, 295, 483–7, 490–1 pensions 182, 184–5, 368, 415, 478–80, 482–3 causation 165 contracted-out schemes 295 direct discrimination 171–2 equality principle as applied to 195–209 actuarial tables, gender-based 202–8 ‘Barber Protocol’ 196–8, 200–2 bridging pension 208–9 contributory schemes 203 occupational social security schemes 196 survivor’s pension 201–2 old-age 460–2, 465–6, 469–70, 483, 487–8, 490, 492 ‘pay’ for purposes of Article 157 186–94 contracted-out schemes 190–3

515

social benefits/social security payments 187–91, 193 statutory scheme 187 voluntary scheme 187 retirement 287, 458–9, 475, 483, 489, 493 see also old-age pension self-employment 325 social security 449, 458–9 survivors’/widows’ 133–4, 284–6, 481–2 voluntary 415–16 see also occupational pension schemes perks of job 182 philosophical belief 38 physical fitness requirement 264–7, 392–4, 404 see also job classification system piece-work 161 pilots 393–4, 404, 500 pluralism 7 Police and Judicial Cooperation in Criminal Matters 9 police service and public safety 387–9, 419, 499–500 positive action 176–7, 505–6 exceptions to non-discrimination principle 420–37 disabled persons 437 equal opportunities 422, 432 equal pay 433–4 equal treatment 433–4 formal equality 424 historical discrimination 425 individual and group rights, distinction between 424 proportionality principle 431 quotas and goals 425–8 reverse discrimination 425 substantive equality 424 training for jobs 425 positive discrimination 107–8, 505 pregnancy and maternity 26–7, 113, 328–60, 496 absence due to pregnancy-related illness 334–6 benefits 184, 348 self-employment 325, 326–7 causation 167 children born with disabilities 351–2, 359 comparators 328, 333–8 dismissal, protection against 346–50 exceptions to non-discrimination principle 396–400 Goods and Services Directive 368–9 health and safety obligations 330–2, 338–40 in vitro fertilization and hormone treatment 331–3

516

Index

pregnancy and maternity (Cont.) leave 33–4, 329–30, 335, 337, 354–5, 359, 397–9, 462 employment rights 340–6 positive action 420 self-employment 327 night work 339 obligation to inform employer 330 occupational social security schemes 215–16 parental leave 350–8 pay 221, 344–5 pay and allowances, distinction between 345–6 Pregnancy Directive 328–33 Pregnancy Directive: proposed amendments 358–60 ‘pregnant worker’ 328–30, 332 premature childbirth 359 sick leave 340 social protection 344 social security 482 time off for ante-natal examinations 339 twins/multiple births 353–4, 359 working conditions 345 prejudice 3 preliminary rulings procedure 21, 43 prescription charges dispensation 490 primacy principle 130 privacy and decency, respect for 368 private individuals and age discrimination 128–30 private insurance 438 procedural autonomy principle 89–94 PROGRESS 24, 178 prohibitory injunction 312 proper conduct of procedure 91 proportionality principle 21 age 410 defences 169–70, 234 equal pay claim 234 general principles of law and equal treatment 130–1 genuine and determining occupational requirement 386–8, 390 non-workplace discrimination 375, 378 positive action 431 pregnancy and maternity 355 Race Directive 363 pro rata temporis principle 317, 520 protection of individuals and their legal rights 88 Protestantism 37, 38, 419 public goods 6 public order 402–4 public policy 100 public safety 380–1

public security 100, 402–4, 499–500 quotas and goals 425–8 Race Directive non-workplace discrimination 362–6 scope 274–80 substantive provisions 280–301 access to employment 287 dismissal 288–96 harassment and sexual harassment 296–301 pay 282–7 working conditions 288 racial discrimination 109, 275, 278, 401, 497, 503 non-workplace 362 remedies and enforcement 312, 313 supremacy of EU law 51–2 racial or ethnic origin 5–6, 31–5, 276, 279, 504–5 burden of proof 162 causation 167 direct discrimination 145–6, 147 general principles of law and equal treatment 381–2 harassment and instructions to discriminate 175 indirect discrimination 151–2 proportionality 131 social security 440 see also Race Directive; racial discrimination ‘rated as equivalent’ 259 Recast Directive equal pay provisions 255–72 background information 255–6 content of provisions 258–72 equal value 258, 260–4 gender pay gap 271 job classification system 259–61, 264–7 ‘like work’ 259 ‘rated as equivalent’ 259 ‘same work’ 258 relationship between directive and Article 157 256–8 scope 274–80 substantive provisions 280–301 access to employment 287 dismissal 288–96 harassment and sexual harassment 296–301 pay 282–7 working conditions 288 reduced earnings allowance (REA) 491–2 redundancy 288, 295 indirect discrimination 151 mass 291–2

Index payments 216–18, 220, 223, 293 voluntary redundancy benefits 186, 289–90 regulations 19, 53, 54–6, 58–9 religion or belief 3, 33, 35–8, 109, 276 causation 168–9 exceptions to non-discrimination principle 394–6 non-workplace discrimination 377–8 religious organizations 377 religious segregation of teaching profession 419 remedies of non-discrimination legislation 301–15 reparation rights 84–5 reproductive rights 377 respect for private and family life, home and correspondence 105, 384, 402 retirement age 289–91, 293 see also pensionable age allowance (RA) 491 compulsory 290, 292, 294, 410–15, 500 see also pensions reverse discrimination 425, 505 right to marry and found a family 105 rights and freedoms of others, protection of 91, 402–4 rights of individuals, grant of 85–6 Roma people 32 Rubenstein Report 297–9, 301 same-sex partnerships/marriages 102, 286–7 ‘same work’ 258 sanctions 312 Schuman Declaration 8–9 scope of legislation 273–4 Sebba 242 Second World War 8 secondary legislation 14, 19–21, 54–61, 142 equal pay and Recast Directive 257 nationality 22 sex discrimination 26 supremacy 46 see also decisions; directives; regulations sects 36 self-employment 214–15, 450, 496 seniority 236, 237–9 severance pay 243, 415 severe disablement allowance 473–4, 477, 486–8 sex discrimination 23–30, 70, 113–14, 131–41, 143, 282, 497, 505 Article 14 (ECHR) 108 burden of proof 160–2 causation 163, 165–7 defences 169, 236 directives 315–27

517

Equal Treatment of the Self-employed Directive 325–7 Fixed-term Employees Directive 318–23 Part-time Work Directive 315–18 Temporary Agency Work Directive 323–5 equal pay 185, 236, 250–1, 268 genuine and determining occupational requirement 386, 389 multi-dimensional 157 occupational social security schemes 212 overt 250–1 pay 283–4 pensions 187 remedies and enforcement 301–2, 303–4, 305–7, 310–11, 313 social security 452 supremacy of EU law 49 see also direct sex discrimination; indirect sex discrimination sex-related violence, protection of victims of 368 sexual harassment see harassment and sexual harassment sexual orientation 3, 29–30, 42, 107, 109, 276 causation 168 general principles of law and equal treatment 382 pay 284–7 pension benefits 186 special occupational exception for religious bodies 394, 396 see also homosexuality short-term employment 448, 466–7 sickness benefit 219–20, 239–40, 464–5 sickness and disability, distinction between 498 Sikhs 34–5, 168 Single European Act (1986) 9 Sjerps 442 small business exception 383–5 Social Action Programmes 24, 116, 274, 495 social advantages 378 social assistance 450 see also social protection social policy 241, 244, 366 Social Policy Agreement 17–18, 351 Social Policy Protocol 17 social protection 114, 278, 373, 378, 404 pregnancy and maternity 344 Race Directive 363–4 self-employment 326 see also social security social security 277–8, 377, 404, 438, 496 benefits 287, 288, 293, 450–8, 497–8 calculation 508 interest on arrears 477–8 defences to an equal pay claim 240–1, 242

518 social security (Cont.) parental leave 357–8 self-employment 325 statutory 292–3, 450 see also occupational social security schemes; Social Security Directive Social Security Directive exceptions 481–94 concessionary public transport fares 490 family benefits 481 incapacity benefit 481–2 invalid care allowance 487–8 invalidity benefits 489 invalidity pension 488–9 old-age pension 483, 487–9, 490, 492 pension schemes 482–3 pensionable age 483–7, 490–1 pregnancy and maternity 482 prescription charges dispensation 490 reduced earnings allowance (REA) 491–2 retirement allowance (RA) 491 retirement pension 483, 489, 493 severe disablement allowance 486–8 survivors’ benefits/widows’ pensions 481–2 unemployment benefits 483 Social Security Directive objectives 439–43 social security equality 438–94 benefits 450–8 concessionary fares on public transport 456–7 housing benefit 452–4 invalid care allowance/invalidity pension 451–4, 456 social assistance 450 statutory schemes 450 winter fuel allowance 456 direct effect 470–5 equal treatment principle 458–62 implementation 476–81 objective justification 463–70 incapacity benefits 467–8 invalidity payments 464 minor or short-term employment 466–7 old-age pensions 465–6, 469–70 part-time workers 464 sickness benefits 464–5 unemployment benefits 464–5, 468 persons covered 443–50 see also Social Security Directive ‘soft’ law 22, 78, 299 sources of anti-discrimination law 12–22 Court of Justice of the European Union (CJEU) 21 General Court 21 human rights instruments 21–2

Index secondary legislation 19–21 ‘soft’ law 22 Treaty on the Functioning of the European Union (TFEU) 13–19 Starting Line Group 362 ‘state’: definition 69–73 state liability for damages 78–87 stateless persons 400–2 statements of principle or intent 13–14 statistical data/evidence 155 stereotyping 5 Strategy for Equality between Women and Men 178 Stuyck 64 subjective justification 241 subsidiarity principle 131, 363, 373 substantive equality 137, 142, 424 Super Powers 8 supply of goods and services, access to 365–6, 377–8 supremacy doctrine 45–52, 66, 98, 497 defences to an equal pay claim 240 equal pay and Recast Directive 267–8 sex discrimination 141 suspect classifications (severe or marked injustice and hardship) 5 Temporary Agency Work Directive 323–5 temporary employment 31 termination payment 152–3 see also redundancy third-country nationals 400–2 time-limits 89, 92–4, 312 training courses 243 training for jobs 236, 364–5, 425 transparency principle 389 transsexuals see gender reassignment and transsexuals travel concessions 30 traveller communities (gypsies) 32, 35 Treaty on European Union (TEU) 9, 10, 11, 12–13 Treaty on the Functioning of the European Union (TFEU) 10, 13–19 unemployment benefit 220, 464–5, 468, 471–3, 483 unfair dismissal 218–19, 241, 384–5 United Nations Convention on the Rights of Persons with Disabilities 22, 40, 361, 374–6, 497 United States Merit Systems Protection Board Study 297–8 variable contracts 279 vegetarianism 36 vertical effect 64

Index victimization 314–15 vocational training 236, 364–5 Vogel-Polsky 421 voluntary redundancy benefits 186, 289–90 wage-related benefits 442 Wellens 78 winter fuel allowance 456 women, protection of 114, 215, 238, 399 see also pregnancy and maternity

work of equal value 231–4, 258, 260–1, 263, 264 ‘worker’ definition 180–1, 316 working conditions 282, 495 dismissal 292, 294, 295 pregnancy and maternity 345 substantive provisions 288 Works Councils Directive 18 xenophobia 32

519